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Why we don't have Miranda rights in Canada

Why the Charter does not mandate the presence of a lawyer throughout a custodial interrogation

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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.

Significant differences exist between the Canadian and American regimes. Miranda came about in response to abusive police tactics then prevalent in the U.S., and applies in the context of a host of other rules that are less favourable to the accused than their equivalents in Canada. For example, Miranda applies only to persons “in custody”. Custody, for these purposes, means “‘formal arrest or restraint on freedom of movement’ [to] the degree associated with a formal arrest”: California v. Beheler, 463 U.S. 1121 (1983), at p. 1125; Yarborough v. Alvarado, 541 U.S. 652 (2004). The Canadian understanding of psychological detention triggering s. 10(b) is more expansive: R. v. Grant, 2009 SCC 32 (CanLII), 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 44. Moreover, breach of the Miranda rule does not prohibit use at trial of the detainee’s evidence for the purpose of impeaching the accused’s testimony at trial (Harris v. New York, 401 U.S. 222 (1971); Oregon v. Hass, 420 U.S. 714 (1975)), nor prohibit the introduction at trial of real derivative evidence (United States v. Patane, 542 U.S. 630 (2004)). By contrast, Canadian rules on the admissibility of evidence obtained in violation of s. 10(b) are much more favourable to the accused: see R. v. Calder, 1996 CanLII 232 (SCC), [1996] 1 S.C.R. 660; R. v. Noël, 2002 SCC 67 (CanLII), 2002 SCC 67, [2002] 3 S.C.R. 433, at para. 55; Grant, at paras. 116‑28.

Additionally, the empirical research on Miranda has not reached a definitive conclusion as to the nature or magnitude of its effects. Some have posited that it has had a detrimental effect on law enforcement. Others have vigorously contested such empirical conclusions. See generally, e.g., P. G. Cassell, “Miranda’s Social Costs: An Empirical Reassessment” (1996), 90 Nw. U. L. Rev. 387; P. G. Cassell and R. Fowles, “Handcuffing the Cops? A Thirty-Year Perspective on Miranda’s Harmful Effects on Law Enforcement” (1997-1998), 50 Stan. L. Rev. 1055; S. J. Schulhofer, “Miranda’s Practical Effect: Substantial Benefits and Vanishingly Small Social Costs” (1996), 90 Nw. U. L. Rev. 500. Whatever the merit of these arguments, the existence of such a controversy should signal caution in relying on any empirical conclusions about Miranda in departing from our own constitutional traditions. Moreover, any inferences drawn from the American experience as to the effects on law enforcement of a Miranda-type regime must be tempered by the fact that about 80 percent of suspects ultimately waive their Miranda rights: see, e.g., P. G. Cassell and B. S. Hayman, “Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda” (1995-1996), 43 U.C.L.A. L. Rev. 839; R. A. Leo, “Inside the Interrogation Room” (1995-1996), 86 J. Crim. L. & Criminology 266. This has led some authors to assert that Miranda provides only illusory protections to the vast majority of individuals who are subjected to custodial interrogation: see C. D. Weisselberg, “Mourning Miranda” (2008), 96 Cal. L. Rev. 1519; R. J. Allen, “Miranda’s Hollow Core” (2006), 100 Nw. U. L. Rev. 71; M. A. Godsey, “Reformulating the Miranda Warnings in Light of Contemporary Law and Understandings” (2006), 90 Minn. L. Rev. 781.

We conclude that s. 10(b) should not be interpreted as conferring a constitutional right to have a lawyer present throughout a police interview. There is of course nothing to prevent counsel from being present at an interrogation where all sides consent, as already occurs. The police remain free to facilitate such an arrangement if they so choose, and the detainee may wish to make counsel’s presence a precondition of giving a statement.