The Power of Perspectives

The Canadian Bar Association
Criminal law

Why we don't have Miranda rights in Canada

By Yves Faguy April 22, 2013 22 April 2013

There was plenty of debate over the weekend about whether or not Dzhokkhar Tsarnaev should be read his Miranda rights. The Dish has a pretty complete roundup of the different views. And interestingly a FiveThirtyEight poll shows a small majority of Americans in favour of reading him his rights. In Canada, of course, we have our own rights protected under the Charter. Section 10(b) states that, “everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.” But Canadians might be surprised to learn that in a 2010 decision the Supreme Court rejected the idea of transplanting wholesale the US Miranda rule which ensures ”the right to have counsel present at the interrogation,” deemed “indispensable to the protection of the Fifth amendment privilege.” Indeed the SCC found, by a slim margin, that the Charter does not mandate the presence of a lawyer throughout a custodial interrogation for a number of reasons (UPDATE: hat tip  @APribetic):

… The scope of s. 10(b) of the Charter must be defined by reference to its language; the right to silence; the common law confessions rule; and the public interest in effective law enforcement in the Canadian context. Adopting procedural protections from other jurisdictions in a piecemeal fashion risks upsetting the balance that has been struck by Canadian courts and legislatures.

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Positive rights

By Emmett Macfarlane April 16, 2013 16 April 2013

Positive rights

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Blakes' Howard Levine on securities regulators and a new approach to dealing with poison pills

April 8, 2013 8 April 2013

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Michael Osborne on Bill S-14, Fighting Foreign Corruption Act

April 2, 2013 2 April 2013

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David Sterns and Paul Sweeny on CBA's intervention in <em>Bruno Appliance</em>

March 27, 2013 27 March 2013

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Article

Budget 2013: Proposed tax changes

By CBA/ABC National March 25, 2013 25 March 2013

Budget 2013: Proposed tax changes

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Article

You’ve come a long way VBF

By CBA/ABC National March 4, 2013 4 March 2013

You’ve come a long way VBF

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Article

Making a Difference: Karen Restoule

By CBA/ABC National March 4, 2013 4 March 2013

Making a Difference: Karen Restoule

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Article

Animal rights, sure...

By Douglas Mah March 1, 2013 1 March 2013

Animal rights, sure...

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Article

Interview with Joe Magnet

By CBA/ABC National March 1, 2013 1 March 2013

Interview with Joe Magnet

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Article

Out of office

By Rose Wilson March 1, 2013 1 March 2013

Out of office

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Article

Cut the legalese

By Ann Macaulay March 1, 2013 1 March 2013

Cut the legalese

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