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From watching decades of American television, everyone can intone the standard Miranda warning heard upon arrest: ?You have the right to remain silent. Anything you say can and will be used against you…. Blah, blah, blah.?
But those American cop shows have skewed our perspective on the interrogation process in Canada.
If you ever have the misfortune to be interrogated while in police custody, I would strongly advise you to start speaking in tongues or an obscure foreign language. The police will not listen when you tell them in plain English that you do not wish to speak to them.
And now the Supreme Court has effectively given the police the authority to simply ignore your wish to remain silent.
Two weeks ago (November 1), it upheld the murder conviction of Jagrup Singh, ruling that there was nothing wrong with police peppering him with questions after he clearly told the cops 18 times that he wished to remain silent. Singh provided a few incriminating admissions as a result.
The American Miranda rules prevent an interrogation from proceeding if the suspect has asked that a lawyer be present.
In Canada, once the police provide the right-to-counsel warning, they need only suspend the interrogation until the suspect has been given a “reasonable opportunity” to consult a lawyer. A conversation over the phone suffices.
But if the suspect cannot reach his or her lawyer after a number of attempts, the police will expect the suspect to make use of the 1-800 free duty counsel service.
Regardless of whether you speak to private counsel or a phone centre lawyer, the advice you receive will be simple and blunt: “Keep your mouth shut.” Unlike the Miranda rules, there is no constitutional obligation on the part of the police in Canada to advise you of your right to remain silent.
The right to counsel does have some teeth.
If the police fail to advise a suspect of the right to consult with a lawyer, or if the police initiate questioning before the suspect contacts a lawyer, the courts will routinely exclude any statement or confession given in those circumstances.
However, once a consultation with a lawyer has taken place, there is no problem with the police playing tricks or trying to get the suspect to ignore the lawyer’s advice.
Being told by a lawyer over the phone to keep your mouth shut will rarely keep someone from talking him- or herself into prison.
Most people think talking to the police will help, but it rarely does.
First, you should know that any protestation of innocence will not be admissible in court.
A confession is admissible, but a denial is inadmissible because it is considered self-serving.
Second, it is unlikely the police will release you even if you provide an innocent explanation (unless it’s an iron-clad alibi).
And, finally, although an overnight stay in police custody isn’t much fun, you will be taken to court within 24 hours and your exercise of silence will not be used against you in court.
While you wait to be taken to court, the police may pound the table and act in strange and menacing ways, but it is highly unlikely that you will be beaten or hurt for remaining tight-lipped.
The Miranda rules are far from perfect, but the Canadian rules are self-defeating.
We go to great lengths to ensure that a suspect can speak with a lawyer to be apprised of the right to refuse to answer questions.
The courts have acknowledged that the right to silence is a fundamental principle of justice, but it is limited to the right to hear a disembodied voice tell you over the phone that silence is golden while the police patiently wait for you to hang up to convince you in their own inimitable way why it is best to talk.
Alan Young is a professor of law at Osgoode Hall.news@nowtoronto.com
