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(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
From R. v. Sinclair, 2010 SCC 35, paras. 1, 2, 38, 39:
[1] This appeal and its companion cases are about the nature and limits of the right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms. The issue is whether a detainee who has been properly accorded his or her s. 10(b) rights at the outset of the detention has the constitutional right to further consultations with counsel during the course of the interrogation.
[2] We conclude that s. 10(b) does not mandate the presence of defence counsel throughout a custodial interrogation. We further conclude that in most cases, an initial warning, coupled with a reasonable opportunity to consult counsel when the detainee invokes the right, satisfies s. 10(b). However, the police must give the detainee an additional opportunity to receive advice from counsel where developments in the course of the investigation make this necessary to serve the purpose underlying s. 10(b) of providing the detainee with legal advice relevant to his right to choose whether to cooperate with the police investigation or not. To date, this principle has led to the recognition of the right to a second consultation with a lawyer where changed circumstances result from: new procedures involving the detainee; a change in the jeopardy facing the detainee; or reason to believe that the first information provided was deficient. The categories are not closed.
....
[38] We are not persuaded that the Miranda rule should be transplanted in Canadian soil. The scope of s. 10(b) of the Charter must be defined by reference to its language; the right to silence; the common law confessions rule; and the public interest in effective law enforcement in the Canadian context. Adopting procedural protections from other jurisdictions in a piecemeal fashion risks upsetting the balance that has been struck by Canadian courts and legislatures.
[39] Significant differences exist between the Canadian and American regimes. Miranda came about in response to abusive police tactics then prevalent in the U.S., and applies in the context of a host of other rules that are less favourable to the accused than their equivalents in Canada. For example, Miranda applies only to persons “in custody”. Custody, for these purposes, means “‘formal arrest or restraint on freedom of movement’ [to] the degree associated with formal arrest”: California v. Beheler, 463 U.S. 1121 (1983), at p. 1125; Yarborough v. Alvarado, 541 U.S. 652 (2004). The Canadian understanding of psychological detention triggering s. 10(b) is more expansive: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 44. Moreover, breach of the Miranda rule does not prohibit use at trial of the detainee’s evidence for the purpose of impeaching the accused’s testimony at trial (Harris v. New York, 401 U.S. 222 (1971); Oregon v. Hass, 420 U.S. 714 (1975)), nor prohibit the introduction at trial of real derivative evidence (United States v. Patane, 524 U.S. 630 (2004)). By contrast, Canadian rules on the admissibility of evidence obtained in violation of s. 10(b) are much more favourable to the accused: see R. v. Calder, [1996] 1 S.C.R. 660; R. v. Noël, 2002 SCC 67, [2002] 3 S.C.R. 433, at para. 55; Grant, at paras. 116‑28.
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no sig because apparently quoting people in context is offensive to them.
Yeah, I saw that. So, now we are at the mercy of the RCMP and their choice of how long you can be interviewed? Is this country being run by crazy people?
..... O.K., back to midget wrestling.
So a person wins/loses a case, and the opposing side appeals to the next highest court, and so on up to the Supreme Court. Do they have to hear a case? Or do they only hear cases that clarify an area of the law that has been hitherto ill-defined?
JBI, care to chime in here?
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Say, what's that mountain goat doing up here in the mist?
Happiness is V1 at Thompson!
Ass, Licence, Job. In that order.
North Shore wrote:So a person wins/loses a case, and the opposing side appeals to the next highest court, and so on up to the Supreme Court. Do they have to hear a case? Or do they only hear cases that clarify an area of the law that has been hitherto ill-defined?
JBI, care to chime in here?
Depends. For criminal cases, if there was a dissenting opinion in at the provincial court of appeal, then the SCC has to hear it. For civil cases, or criminal cases which had unanimous decisions, the appellant must apply to the SCC for leave to appeal.
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no sig because apparently quoting people in context is offensive to them.
The next time anyone mounts the soapbox and begins preaching how great the Charter of Rights and Freedoms is, this decision oughta cut them off at the knees.
One of my shooting buddies, now regretably deceased, was a provincial court judge. In a sport filled with law abiding people who tended to have more sympathy with the police than perhaps average, his advice came as a bit of a surprise.
To paraphrase, his suggestion when dealing with any interaction with the police more involved than a simple speeding ticket or RIDE spot check, was absolute silence, and dispassionate non-cooperation.
By that he seemed to mean never speak with the police outside of identifying yourself. Never volunteer information or consent to a search. When asked for an explaination, he essentially said that the police have enough investigative tools without co-opting you as thier agent. If they have grounds to search, they can and will get a warrant. If they believe you have acted or contributed to a criminal act, they can prove it without your help. If they have grounds to arrest you, you are unlikely to talk your way out of it with them in an interregation room.
Canuck223 wrote: you are unlikely to talk your way out of it with them in an interregation room.
While I played "cop" from time to time in my Marine Corps career, this still applies to both side of the border.
People tend to think they can talk their way out of most situations, if you sitting in a room and someone has placed you there, chances are extremely good that your not leaving, unless a judge says so. I've had the pleasure of carrying through a few charges because people would continue to talk, even after they are informed of their rights.
The best advice, if you're suspected of something, is to shut the hell up.
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Qui desiderat pacem, praeparet bellum
Semper Fidelis
“De inimico non loquaris male, sed cogites"-
Do not wish death for your enemy, plan it.
To paraphrase, his suggestion when dealing with any interaction with the police more involved than a simple speeding ticket or RIDE spot check, was absolute silence, and dispassionate non-cooperation.
By that he seemed to mean never speak with the police outside of identifying yourself. Never volunteer information or consent to a search. When asked for an explaination, he essentially said that the police have enough investigative tools without co-opting you as thier agent. If they have grounds to search, they can and will get a warrant. If they believe you have acted or contributed to a criminal act, they can prove it without your help. If they have grounds to arrest you, you are unlikely to talk your way out of it with them in an interregation room.
Very true.
Never talk to the police. This fast talking lawyer is right:
Too many stupid Canadians spend way too much time watching American TV shows and incorrectly believe the law is the same on both sides of the border. You have a right to speak to a lawyer in Canada before being questioned, or at anytime there is a significant change of direction in the interview, but you don't have the right to have them present and coaching you. You have the right to remain silent, same as in the US, but unlike the US the police don't have to stop the interview simply because you say you want to remain silent. They can and will continue to work on you, and if it's a serious crime investigation, they will use a significant bag of inerviewing techniques to get you talking and eventually spilling your guts.
If you are willing to be held to account for your crime, cooperate and talk to the police. It will be viewed favourably by the courts come sentencing.
If you want to get away with what you did, take your lawyer's advice and say nothing. NOTHING!! Not a word, not even a comment on a hockey score. Make even a single comment to a skilled interviewer and they will use it to wedge their way into your psyche and within a few hours will have you confessing. The good interviewers are watching your body language and carefully analyizing your choice of words, and from these cues will employ tactics to slowly draw the truth out of you. They may start by pretending to by your friend but, make no mistake, they will be ruthless in the psychological pressures they will bring to bear in pursuit of obtaining the truth. I have seen hard core criminals reduced to crying in the corner of an interview room, curled up in the fetal position, as they finally break down and spill their guts about crimes they have committed.
