Police Interrogations: What Rights Do We Have?
When speaking with those who are not employed in criminal law and have never had any personal involvement with the justice system, I often hear misconceptions about how the criminal justice process works. The most common of these by far is how police interrogations function. Several people I’ve spoken with believed that if they were to be questioned by police, they would have the right to have a lawyer present, and that once they “lawyered up”, police would have to stop questioning them until their lawyer arrived. This misunderstanding isn’t surprising, since this exact scenario plays out in almost every episode of any given American crime drama. In reality, the procedural protections we have during police interrogations in Canada are vastly different.
In Canada, the rights and protections that an individual in custody has when being questioned by police are governed by what Justice Binnie called the “interrogation trilogy”; namely the Supreme Court’s decisions in Oickle, Singh and Sinclair. In these cases, the Court ruled on the scope of the common law rule of voluntariness, the right to silence, and the right to counsel, respectively. While these are three distinct doctrines, each heavily informs the other, and together they govern the scope of the procedural protections one has during police interrogations.
In R v Oickle, the majority of the Court stated that the confessions rule operates with the twin goals of protecting the rights of detainees during interrogations, while also not unduly limiting society’s need to effectively investigate crimes.[i] A statement will not be admissible if obtained under circumstances that raise a reasonable doubt as to its voluntariness, such as through improper inducements, threats, or oppressive conditions. The Court also held that police trickery may result in a statement being inadmissible, but was clear that this is a distinct inquiry and a very high threshold; the trickery must go so far as to “shock the community”.[ii]
In R v Singh, the Court addressed the section 7 right to silence. Prior to this decision, there was a line of case law that stated a voluntary statement could still be excluded for breaching an accused’s section 7 Charter rights where the police had subjected the individual to an unrelenting interrogation despite his or her wish to remain silent.[iii] In its 2007 decision, the Supreme Court rejected this line of jurisprudence and held that during police interrogations, the common law subsumes the right to silence. The majority reasoned that because the common law places the burden on the Crown to prove voluntariness beyond a reasonable doubt, the confessions rule provides greater protection to a detainee and there is no need for a separate section 7 inquiry.[iv] The majority held that police officers’ continued questioning of Singh, during which he asserted his right to silence eighteen times, did not amount to a Charter violation.[v] The dissent in Singh, authored by Justice Fish, was highly critical of the majority decision. The dissent opined that on the facts of the case itself, Mr. Singh’s right to silence was clearly frustrated by the persistent police questioning.[vi] The dissent further stated that the confessions rule and the section 7 right to silence should remain distinct doctrines because they serve different purposes. The concern of the dissent was that statements will be improperly admitted under the majority’s approach because although they were obtained by violating an individual’s right to silence, they do not bear any of the classic hallmarks of involuntariness, such as threats or oppressive conditions.
The final case in the trilogy is the 2010 decision of R v Sinclair, in which the Supreme Court clarified the scope of one’s right to re-consult counsel during police questioning. The majority held that section 10(b) of the Charter does not mandate the presence of counsel during police interrogations, and the right to re-consult with counsel will only arise in specific instances: the use of new procedures, a change in jeopardy, or reason to believe that the advice provided was insufficient (although the majority stated that these categories are not closed).[vii] Again, there was a strong dissent authored by Justices Lebel and Fish (with Justice Binnie authoring a separate dissent) that stressed that the right to counsel is not spent upon initial consultation.[viii] The dissent’s concern was that in the wake of Singh, the majority’s decision relies too heavily on the voluntariness analysis to determine which statements are admissible, and statements elicited in violation of an individual’s section 7 or 10(b) rights will nonetheless be admitted because they meet the voluntariness requirements.
Following these cases, it seems the current state of the law is that police may conduct lengthy interrogations and, as long as the Crown can prove that the elicited statements are voluntary, they will be admissible. This is concerning since voluntariness has not proven to be a difficult hurdle for the Crown. For example, in R v Spencer, the Supreme Court found Mr. Spencer’s statements to be voluntary despite the officer implying that the accused’s girlfriend would be charged if he did not confess, and that the officer would recommend a more lenient sentence for her if Mr. Spencer were to confess to a series of robberies.[ix] One way to temper this problem would be a more expansive right for detainees to re-consult counsel during questioning; however post-Sinclair this right is extremely limited. The result, as Justice Binnie described it, is that police interrogations have essentially become endurance contests between the detainee and the police.[x] While the police have unlimited resources and are trained to elicit confessions, an individual in custody must sit there without counsel (and without the opportunity to re-consult counsel) and attempt to wait out the questioning. Too often this proves to be impossible for people to do.
Given the current state of the law, and the growing awareness of the role false confessions have played in wrongful convictions (for example, in cases like that of Romeo Phillion and Kyle Unger), some have called for the court to adopt an American approach to the right to counsel and the right to silence. In Miranda v Arizona, the United States Supreme Court held that detainees must be informed in clear terms about their right to silence, and that they have the right to have counsel present during interrogations. The court stated that the aim of this was to ensure that an individual’s right to choose between silence and speech remains unfettered throughout the interrogation process.[xi] Of course, case law since Miranda has gradually chipped away at the protection offered to individuals; for example, statements that do not comply with the Miranda warnings can still be used for impeachment purposes, and evidence obtained as a result of those statements is not automatically excluded.[xii] Canadian commentators have also expressed concern that adopting this approach would lead to the courts only focusing on the technicalities of interrogations, and the voluntariness analysis would be lost completely.[xiii]
The Supreme Court also rejected this approach in Sinclair, but their reasoning had more to do with concerns about impeding police investigations than protecting the rights of those in custody, with the majority emphasizing that the scope of 10(b) must take into account the public interest in effective law enforcement in Canada.[xiv] This is an arguably odd reason to reject the American approach, since Canada’s own experience in imparting bright line rules for police interrogations for young people has not proven to unduly hinder police investigations. Under section 146 of the Youth Criminal Justice Act, a young person (under the age of 18) is required not only to be given the opportunity to speak with counsel, but to have counsel present when they are questioned by police. A waiver of these rights must be audio and videotaped, as well as written and signed by the youth. This is not to suggest that adults and young people should be treated exactly the same way in the criminal justice system. In addition to their increased vulnerability, youths are inherently less morally culpable for their offences than adults are; this has been recognized as a principle of fundamental justice.[xv] The law must therefore appreciate the differences between them. But the fact that procedural protections operate effectively in this manner for young people seems to undermine the Court’s concern that increasing access to counsel during interrogations or strengthening the right to silence would unduly disrupt police investigations. Perhaps the real concern with importing a Miranda-like right for counsel to be present during interrogations was best articulated by Justice Binnie in Sinclair, wherein he noted that Legal Aid does not have the resources to fund counsel’s presence during police interrogations. This could effectively lead to a two-tier constitutional right, where those who have the means to pay for a lawyer will be able to have counsel present, virtually guaranteeing a more meaningful exercise of their section 10(b) and 7 Charter rights, while those who cannot afford counsel will not be so fortunate.
Whether the solution lies in expanding one’s right to re-consult counsel during interrogations, or in taking the drastic step towards having counsel present during questioning is a matter up for debate. What is clear is that following the Court’s decisions in the trilogy cases, the cards are stacked highly in the state’s favour in the context of police interrogations, and one’s right to silence and right to counsel have been rendered almost null. Given the increasing awareness of wrongful conviction cases in Canada and the role false confessions play in these cases, the lack of procedural protections for detainees is alarming and demands reform.
[i] R v Oikle, 2000 SCC 33, at para 33.
[ii] Ibid, at para 65-67.
[iii] Lisa Dufraimont, “The Interrogation Trilogy and the Protections for Interrogated Suspects in Canadian Law” (2011) 54 Sup Ct L Rev 309 at 321.
[iv] R v Singh, 2007 SCC 48, at para 25.
[v] Ibid, at para 15.
[vi] Ibid, at para 63.
[vii] R v Sinclair, 2010 SCC 35, at para 2.
[viii] Ibid, at para 147.
[ix] R v Spencer, 2007 SCC 11, at paras 42-47.
[x] Sinclair, supra note vii, at para 92.
[xi] Miranda v Arizona, (1966) 384 US 436.
[xii] Yua Ma. “A Comparative View of the Law of Interrogation” (2007) 17 Int’l Crim J Rev at 7.
[xiii] Dufraimont, supra note iii, at 326.
[xiv] Sinclair, supra note vii, at para 38.
[xv] R v DB, 2008 SCC 25, 2 SCR 3.