You have the right to remain ... oh, never mind, this is Canada

OTTAWA — Imagine the following scenario. You are arrested and charged with a crime. You are brought to court and the charges are read out before a judge. You are asked how you plead: guilty or not guilty.

At this point, you are informed that — for the next portion of the proceedings — your lawyer is not permitted to be present.

Of course, you would be outraged. And you would be right. After all, the right to have the assistance of counsel is a bedrock principle of our criminal justice system.

Nonetheless, we routinely deny legal representation to people at the most critical stage of their interaction with the state – the police interrogation.

As the law currently stands, arrested and detained individuals do not have the right to have a lawyer present while they are being questioned by police. Nor do the police have an obligation to stop questioning a detainee, even if he repeatedly and emphatically asserts his right to silence.

It is often the case that the police interrogation will be far more determinative of the outcome of a criminal matter than any part of the trial. What is said in that small interview room can, more often than not, decide the course of any particular prosecution.

Canadians, of course, are well acquainted with the legal protections provided to our U.S. neighbours. A steady diet of Law & Order and NYPD Blue has accustomed us to the reading of the Miranda rights – and the accompanying scene of a defence lawyer, present during a police interrogation, continuously reminding the interviewing detective that his client has nothing to say.

So why don’t we have Miranda rights on this side of the border? Why are Canadian detainees denied the right to counsel during police interrogations?

At first glance, the Canadian Charter of Rights and Freedoms seems to recognize the centrality of the right to counsel – as early in the process as possible.

Everyone, the Constitution states, “has the right on arrest and detention to retain and instruct counsel without delay.”

Interestingly enough, the French version of the charter appears to go even further. Instead of merely retaining and instructing counsel, the French text guarantees a right to “l’assistance d’un avocat” — assistance of counsel.

Generally speaking, in matters of constitutional interpretation, where there is a conflict between the English and French texts, the broader reading takes precedence.

Some have argued that allowing lawyers to be present during interrogations would unjustly impede the ability of police to properly investigate criminal matters. Still others argue that not only would fewer people confess, it would be more difficult to ultimately obtain convictions.

However, 50 years of academic research in the United States has conclusively shown that neither of these fears is founded.

In a series of studies conducted in the wake of the U.S. Supreme Court’s decision in Miranda v. Arizona, one common thread emerged: There was virtually no effect on either the confession or the conviction rate.

Police were not unduly frustrated in their attempts to obtain legitimate confessions and the wheels of justice did not grind to a halt. Why would one expect anything else in Canada?

Other opponents of these rights have argued that it is impractical for lawyers to be present during police interrogations. Would counsel really show up? Could a lawyer unwittingly become a witness to events that transpired in the interview room?

These issues are less prevalent in the modern era of the videotaped police interview. With every remark and every gesture captured on video, the issue of lawyers as witnesses is rendered virtually moot.

In addition, Canadians should be reminded that the law already provides for the presence of counsel during interrogations in specific circumstances.

For instance, persons under 18 years of age are guaranteed the right to counsel at this early stage. Unless the youth waives this right, any statement obtained without counsel present will be deemed inadmissible.

Similarly, police officers who are either the subject of a criminal inquiry by the Special Investigations Unit, or a potential witness, are legally guaranteed the right to have counsel present during questioning.

Parenthetically, one wonders why those officers who exercise the right to have counsel present don’t raise the same concerns about the obstruction of police investigations and the frustration of criminal prosecutions.

In any event, these rights are not entirely foreign to Canadian law and seem to be administered without undue hassle or inconvenience.

The courts have told us time and again, and judicial inquiries have reiterated over and over, that false confessions are at the heart of many a wrongful conviction.

Remember that the detainee has likely never before been interrogated by police. The skilled police officer, on the other hand, has likely conducted hundreds, if not thousands of interrogations. Who do you think has the upper hand?

The right to counsel should level that playing field and ensure that the right to silence — a right premised on the presumption of innocence — is truly respected. Why have the right to silence if it cannot be meaningfully exercised?

If it’s good enough for young persons, and good enough for police officers, why isn’t the right to counsel during a police interrogation good enough for you and me?

Maybe it’s time Canadians start asking that question.

Solomon Friedman is a partner with Edelson Clifford D’Angelo Friedman LLP. He can be reached at solomon@edelsonlaw.ca or 613-237-2290. Follow Solomon on Twitter at twitter.com/firearmslaw or at his website, www.affordabledefence.com