Right to counsel in Canada: Laywers and Prosecutors to me!

[Admiral Yi]

What's the logic behind having the shyster leave for the interrogation proper?

[Drakken]

But not stupid people are equally stupid.

Most people get their "law" knowledge from TV (American TV, what's more), and not Canadian criminal law school teachers. If even I didn't know that attorneys didn't have to be present at the interrogation (and I am far from stupid law-wise), imagine what the common layperson ignores.

Just imagine the shock for a common person who is arrested for a "common" crime (like assault) when he hears "this isn't TV. Lawyers are not present in the interrogation room". This is just assumed to be normal that laywers can be there.

That is why every person is informed of their rights upon their arrest by the police, and are given the opportunity to speak to counsel before giving a statement.  People may well not know what their rights are at first, but are given all the informatin they need before giving a statement.

What is the average "reasonable time" allowed for a suspect to contact his attorney, usually?

[Barrister]

What's the logic behind having the shyster leave for the interrogation proper?

Well first, most defense lawyers I know have little interest in running down to the police station at the drop of a hat.

And second, the reasoning is that they want to get the evidence from the accused, not the lawyer.

Not that a lawyer being present never happens - I can think of one file where it did happen.  But that was a file where after speaking with his lawyer the client wanted to give a full statement.  And after which the statement resulted in (almost) all of the charges being dropped.

[Barrister]

What is the average "reasonable time" allowed for a suspect to contact his attorney, usually?

Depends on the circumstances.  Can they get ahold of a lawyer at all, how urgent is it to take the statement, etc.  Basically the 'reasonable' requirement is to prevent people from dicking around, and not trying to prevent people from contacting a lawyer.

[Jacob]

I've been told (though in a US context) that until you're actually arrested you should continue to ask them "am I free to leave?"

Also, Drakken, I would imagine that rather than to just sit there sullenly with your arms crossed you're better off, psychologically speaking, to respond to each question with a "I don't want to tell you anything until I've spoken with a lawyer" or similar.

[Stonewall]

I've been told (though in a US context) that until you're actually arrested you should continue to ask them "am I free to leave?"

The reason I have always instructed everyone who has ever asked me about the issue to ask that question is that your rights and the police's rights change based on the nature of the encounter between citizen and law enforcement.  There are 3 levels of police citizen encounters, (1) a consensual encounter, (2) an investigatory stop/detention and (3) arrest.  Depending on the level of the encounter, your rights change. 

All too often people in consensual encounters believe, rightly or wrongly, that they have been detained and are obligated to cooperate with police.  They then spill their guts and consent to whatever the cop wants because they feel that they have no choice, when in fact, they do have a choice.  The purpose of asking the question is to force law enforcement to make the determination of what kind of encounter they are having.  Often times, police will testify that they didn't actually detain anyone, that the subject was free to leave whenever they wanted and that all the incriminating statements/consent to search were given freely and voluntarily.   The question is a bright line question that forces cops to tell someone that they can leave or that they are required to stay, thus triggering certain rights and protections for the citizen.

[Barrister]

I've been told (though in a US context) that until you're actually arrested you should continue to ask them "am I free to leave?"

Also, Drakken, I would imagine that rather than to just sit there sullenly with your arms crossed you're better off, psychologically speaking, to respond to each question with a "I don't want to tell you anything until I've spoken with a lawyer" or similar.

If you're uncertain it is not a bad idea at all to ask "am I free to leave"?  It will help the cop to clarify as well what they are doing, and whether you are arrested, detained, or free to go.

Except in Canada the police will immediately put you in the phone room, get you to talk to a lawyer, then bring you back to the interview room.

The better response would be "I don't want to give a statement" to every question.  The police have a couple of techniques to deal with that response as well, but police will eventually give up if you're persistent.

[Jacob]

Well as soon as I've spoken to a lawyer, I'm sure he'll tell me the same thing in which case yes "I don't want to give a statement" is a great option.  It was more the psychological angle of actually saying something back being less harrowing than simply trying to say nothing at all; at least so it would seem to me.

[Admiral Yi]

The better response would be "I don't want to give a statement" to every question.  The police have a couple of techniques to deal with that response as well, but police will eventually give up if you're persistent.

At what point (if any) does this turn into not cooperating with an investigation?

[Barrister]

The better response would be "I don't want to give a statement" to every question.  The police have a couple of techniques to deal with that response as well, but police will eventually give up if you're persistent.

At what point (if any) does this turn into not cooperating with an investigation?

Never.  Or pretty much never.  There are some specific situations where you are obliged to give a statement, most of which arise in motor vehicle situations, but there is no general duty to co-operate with an investigation.

[Barrister]

Well as soon as I've spoken to a lawyer, I'm sure he'll tell me the same thing in which case yes "I don't want to give a statement" is a great option.  It was more the psychological angle of actually saying something back being less harrowing than simply trying to say nothing at all; at least so it would seem to me.

I would disagree, but I'm not sure I want to go into the psyschology the police are using in that situation.

[Berkut]

Well as soon as I've spoken to a lawyer, I'm sure he'll tell me the same thing in which case yes "I don't want to give a statement" is a great option.  It was more the psychological angle of actually saying something back being less harrowing than simply trying to say nothing at all; at least so it would seem to me.

I would disagree, but I'm not sure I want to go into the psyschology the police are using in that situation.

Please do.

[saskganesh]

under the Charter you have a right to counsel. And under Habeas Corpus, you cannot be detained without. a charge against you.

Not true - there is now a concept of "investigative detention" where you can be detained while the police investigate a crime.  Imagine if you will police coming across a dead body on the street and a person running away from the scene.  They don't know if the person is involved or not, but they have the power to detain the person to find out.

now if you are going to the station for questioning, you are either a suspect or a witness. and based on your example, you should have a lawyer present.

There is no right (in Canada) to have a lawyer present during questioning.  You consult with a lawyer beforehand, then you get questioned.

interesting.

look what I found:

Addressing an issue it would not answer in R. v. Mann, Canada's highest court now holds that a person subjected to an investigative detention has the right to a lawyer, as guaranteed in s.10(b) of the Charter. http://blueline.ca/articles/investigative_detention_triggers_right_to_counsel/

[Ed Anger]

Well, this sounds like a job for Barrister!

*rips open his shirt to reveal his "B" logo*

gay

[Barrister]

under the Charter you have a right to counsel. And under Habeas Corpus, you cannot be detained without. a charge against you.

Not true - there is now a concept of "investigative detention" where you can be detained while the police investigate a crime.  Imagine if you will police coming across a dead body on the street and a person running away from the scene.  They don't know if the person is involved or not, but they have the power to detain the person to find out.

now if you are going to the station for questioning, you are either a suspect or a witness. and based on your example, you should have a lawyer present.

There is no right (in Canada) to have a lawyer present during questioning.  You consult with a lawyer beforehand, then you get questioned.

interesting.

look what I found:

Addressing an issue it would not answer in R. v. Mann, Canada's highest court now holds that a person subjected to an investigative detention has the right to a lawyer, as guaranteed in s.10(b) of the Charter. http://blueline.ca/articles/investigative_detention_triggers_right_to_counsel/

The Suberu case has indeed attracted some attention, and is why I've used phrases like "evolving".  Investigative detention has been a grey area for years, and while Suberu has helped things are still not crystal clear.