By Adam Snyder
Many Canadians are likely familiar with “Miranda rights” from watching American movies: a police officer detains a suspect, and then immediately says, “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to a lawyer….” Canadians might be surprised, however, to hear one of these rights—the right to have a lawyer present during a police interview—currently does not exist on this side of the border.
America isn’t the only country that grants this protection to detainees. The right to have a lawyer present during a police interview is recognized in most liberal democracies, including the United Kingdom, France, Australia, New Zealand, Belgium, South Africa—the list goes on. In each of these countries, police must immediately defer their questioning once a detainee requests to speak with a lawyer until the lawyer arrives. Detainees in Canada, though, are generally guaranteed only a single consultation with a lawyer, which often consists of a short phone call from a police station. Police are then entitled to endlessly question detainees while they’re being held incommunicado by the state.
Why does Canada fall so far behind other countries in this respect? The right to counsel in Canada is rooted in section 10(b) of the Canadian Charter of Rights and Freedoms (the “Charter”), which provides that “[e]veryone has the right on arrest or detention… to retain and instruct counsel without delay and to be informed of that right”. This section of the Charter was the focus of the 2010 case of R v Sinclair, in which a slim majority of the Supreme Court of Canada held that a single consultation with a lawyer upon arrest or detention is enough to satisfy a detainee’s right to counsel in most cases.
The practical effects of Sinclair are hard to ignore: Canadian case law is full of examples of detainees being forced to endure hours of persistent and extensive police questioning despite repeated attempts to assert the right to silence and request additional legal advice.
Prompt, ongoing access to a lawyer during the early stages of a criminal prosecution is one of the strongest safeguards against torture and other forms of ill-treatment.[1] Limiting access to a lawyer during police interviews also arguably increases the likelihood of false confessions, and as a result, wrongful convictions. Ongoing access to a lawyer is particularly important for detainees who are poor, under-educated, racialized, or otherwise marginalized, and might accordingly lack the knowledge or courage necessary to exercise the right to silence during a police interview in the absence of a lawyer.
The stakes are enormous: the evidence collected during a police interview can be the determining factor in both the Crown’s decision to approve charges against a detainee, and further, a finding of guilt at trial.
Canada’s failure to afford this important right to detainees may even amount to a violation of its international human rights obligations. The International Covenant on Civil and Political Rights (“ICCPR”) provides in Article 14(3) that “everyone shall be entitled. . . to defend himself in person or through legal assistance of his own choosing”. The Human Rights Committee has confirmed (see para. 15) that this requires state parties to give full effect to the rights “to have counsel present during interrogation”. Canada is a state party to the ICCPR, which also significantly influenced the content of the Charter.
Luckily, the Supreme Court of Canada will soon have the opportunity to revisit its holding in Sinclair. The justices will hear oral argument this Friday in two cases—R v Dussault and R v LaFrance—both of which concern the scope of section 10(b) of the Charter. The Court’s rulings in these cases could potentially reverse its earlier jurisprudence and recognize that section 10(b) of the Charter guarantees the right to have a lawyer present during a police interview.
If the Court fails to expand the scope of the right to counsel, however, it will be up to Parliament to take the legislative action necessary to grant this crucial protection to detainees.
For now, Canada’s failure to keep up with other liberal democracies and recognize the right to have a lawyer present during a police interview continues to undermine its self-professed status as a strong supporter of human rights.
About the author: Adam Snyder is a second-year student at the Peter A. Allard School of Law and is working with the IJHR Clinic as part of the All-Party Parliamentary Group to End Modern Slavery and Human Trafficking team.
[1] Moritz Birk et al, Pretrial Detention and Torture: Why Pretrial Detainees Face the Greatest Risk (New York, Open Societies Foundation, 2011).
