You have the right to remain silent - use it!

Now that that's out of the way, constant reader (well, okay, since yesterday reader) and one of my fave family members Rob C. writes to ask:

Hey Cuz,

How about this for a blog question...

Do the police in Canada have to read me my rights like they do on the American cop shows?

R

ANSWER: Well, Rob, the short answer is yes, they do. But they won't be doing it with pithy one-liners and taking their sunglasses on and off (remember, it's still Vancouver or Toronto or Montreal or Halifax or Canada - are there really enough days to take sunglasses on and off?).

In both Canada and America, the proscribed process for an arrest is very similar. In Canada, criminal law is federal; in the United States, the criminal law is state by state but in both countries, the recommended process is the same country-wide. Both countries have a Supreme Court that makes law for the entire country.

The States has adopted a process outlined in what is now considered the landmark case of Arizona v. Miranda (hence "Miranda rights"). In that case, an immigrant named Ernesto Miranda was accused of rape and was held without his fifth and sixth amendment rights (the right to remain silent and the right to have an attorney present) being explained to him. He gave a confession after two hours of interrogation. At trial, he was convicted and appealed to the Arizona Supreme Court. The Arizona Supreme Court ruled that the confession was admissible. The U.S. Supreme Court reversed the Arizona Supreme Court and held that statements obtained from defendants during interrogations in police-dominated atmosphere without full warning of right to remain silent and right to counsel violated the Fifth and Sixth Amendments and were inadmissible. Generally, the police read or recite a standard warning to an accused that is based on the guidelines in Miranda, and is recited to every accused at the time of arrest.

In Canada, a number of pieces of jurisprudence have developed the law in this regard. The right to silence is protected under section 7 of the Canadian Charter of Rights and Freedoms. The accused may not be compelled as a witness against himself in criminal proceedings, and therefore only voluntary statements made to police are admissible as evidence. Prior to an accused being informed of their right to legal counsel, any statements they make to police are considered involuntarily compelled and are inadmissible as evidence. After being informed of the right to counsel, the accused may choose to voluntarily answer questions and those statements would be admissible.

Although an accused has the right to remain silent and may not be compelled to testify against himself, where an accused freely chooses to take the witness stand and testify, there is no further right to silence and no general restriction on what kinds of questions they may be required to answer. This may be contrasted with the US right to refuse to answer incriminating questions under the 5th Amendment even while on the witness stand. However section 13 of the Canadian Charter of Rights and Freedoms guarantees that a witness may not have any incriminating evidence they gave as testimony used against them in separate proceedings. In effect, a person can be compelled to give involuntary self-incriminating evidence but only where that evidence is to be used against a third party.

A leading case on the right to silence was R. v. Hebert, which held that the accused cannot be tricked into divulging any information until they consult with a lawyer.

The police in Canada actually have a card that they carry, where they give the following information to an accused at the time of arrest:

1. Why the accused is being arrested;
2. Whether the accused wants to talk to a lawyer;
3. That free legal aid is available; and
4. A "secondary warning" which details that the accused is under no obligation to speak to the police.

Hope that answers your question in a lot of detail, Rob!