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

[Drakken]

First things first : No, I haven't done anything wrong criminally-wise... or at least I wasn't caught yet (I choose reliable witnesses when I duel). I am only speaking hypothetically. 

I have a basic fundamental question about the right to counsel and the right to silence in the Canadian legal system.

In the US, law enforcement must stop asking questions at once when a suspect affirms his or her right to have an attorney present, or when he or she says that he or desires a lawyer. However, in Canada do we have the same guaranteed protection?

If I understand R. vs Singh right, even if the suspect repeats ad nauseum that he wants an attorney or that he wishes to remain silent, the interrogator can basically badger the suspect with questions until the suspect forgets about it and cracks open. So what can a suspect do, except shutting up, to put an end to the interrogation, if affirming his or her right to an attorney or even to remain silent can be browbeated away by a zealous interrogator?

And can an individual who is brought to the station for questioning, but not under arrest, refuse to cooperate at all without being and just point leave the station without being automatically considered suspect or an accomplice?

Thanks!

[Barrister]

Well, this sounds like a job for Barrister!

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

[Grey Fox]

"Sir, sir, what is that?"

"Well son, that's Super Yukon Man! Barrister extraordinaire."

[Drakken]

Well, this sounds like a job for Barrister!

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

I don't know why, this question is tailored for you... even though you are on the side of the piggies.

[Barrister]

Well, I'm not quite sure what to say as you've identified the leading case, R v Singh [2007] 3 S.C.R. 405.

In short we do guarantee the right to counsel and the right to silence, but we do not recognize a right to be free of police questioning.  So even in Singh the accused was given his opportunity to speak to counsel before being subjected to police questioning.  And attempt to obtain a statement from an accused person without giving them the opportunity to speak to counsel would immediately be ruled inadmissible.

All that an accused person can do is exactly that - don't talk.  POlice can ask you questions, speak to you, but listen to the advice your lawyer gave you and don't say anything.

As an aside it's always amusing to read a transcript of an accused's statement where in the first few lines the suspect says "my lawyer said I shouldn't talk to you", then you realize the statement goes on for 25 pages.

That doesn't mean the police can question indefinitely though - there are still the common law rules on voluntariness.  If police questioning goes on for so long that the suspect no longer has free will and the statement isn't voluntary then it can be excluded.

As for your last line - this is somewhat of an evolving area, but in Canadian law you are either arrested, detained, or you are free to go.  If you are arrested you must be given your 10(b) rights (right to counsel), and the law seems to be involving that you should be given those same rights if you are detained pursuant to investigative detention.

But if you aren't arrested or detained then of course you can leave anytime.  WIll that make you a 'suspect'?  Perhaps, but there's no legal significance to being a suspect.  All it means is the police think you might have committed a crime.

[saskganesh]

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

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.

generally speaking, not cooperating with police is suspicious enough, within reason.

[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.

[Drakken]

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

Whoa, having never been arrested, I didn't know that one. I always assumed counsel could be present during interrogation.

Isn't that a bit weighted in favour of the police? Not all suspects are law-savvy, or even intelligent for that matter, and many do not fully grasp the extent of their rights (or even know that their real rights isn't like what we see in Hollywood movies or Law and Order, which regularly fail their law research for sake of good TV).

And you rarely get to learn all you need to know, in details, from your lawyer by merely consulting him or her over the phone. In fact, I am sure 99% of the lawyers, when consulted, just tell the suspect to shut up tight. No shit, sherlock.

[Barrister]

Isn't that a bit weighted in favour of the police? Not all suspects are law-savvy, or even intelligent for that matter, and many do not fully understand the extent of their rights. And you rarely get to ask all you need to know, in details, to your lawyer by merely consulting him or her over the phone.

Why should the law protect the stupid?

And it's not like you need to be all that "savvy" - the advice a defense lawyer is going to give is "don't say ANYTHING, and consult with me some more in the morning".

[DGuller]

Why should the law protect the stupid?

Because stupid people still have rights?

[Drakken]

Isn't that a bit weighted in favour of the police? Not all suspects are law-savvy, or even intelligent for that matter, and many do not fully understand the extent of their rights. And you rarely get to ask all you need to know, in details, to your lawyer by merely consulting him or her over the phone.

Why should the law protect the stupid?

And it's not like you need to be all that "savvy" - the advice a defense lawyer is going to give is "don't say ANYTHING, and consult with me some more in the morning".

I wasn't talking about "dude, I am not guilty, nobody saw me" stupid, but rather, "hey where's my lawyer and my Miranda rights, that's not like in TV" stupid.

And I can imagine remaining sullen and quiet for hours, arms crossed, with police officers pricking you with questions to crack you open, can be a long, harrowing experience. How long can the police continue the interrogation when faced with a silent suspect who doesn't budge before giving up? Hours?

[Barrister]

Why should the law protect the stupid?

Because stupid people still have rights?

Stupid people have the same rights as everyone else.

But why should people be protected from their own stupidity?

[Sheilbh]

Well, this sounds like a job for Barrister!

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

You've been waiting for this thread for a long time haven't you? 

[Drakken]

Why should the law protect the stupid?

Because stupid people still have rights?

Stupid people have the same rights as everyone else.

But why should people be protected from their own stupidity?

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.

Imagine the shock for a common person who is arrested for a "common" crime (like assault) or just for investigative detention, ready to cooperate, 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 may be enough to disorientate a suspect enough to put him in vulnerable state, like a lamb within a pack of wolves (or pigs, here).

[Barrister]

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.