In the Manninen case, the police officers had informed the respondent of his right to remain silent, but had proceeded to question him after he had "clearly asserted his right to remain silent and his desire to consult a lawyer. Although a person may implicitly waive the rights under section 10 b , the standard is very high and was not met in this case.
Baig , the Supreme Court of Canada held that the police obligation to provide an opportunity to retain and instruct counsel was not triggered until the accused expressed a desire to exercise that right. The corollary of this ruling would seem to be that police failure to promote the exercise of a Charter right would not amount to a Charter violation if the accused had not invoked the right. However, in R. The accused — a resident of Alberta who had been arrested in Manitoba for murder — was informed without delay of his right to retain and instruct counsel.
He was again advised of this right at the police station. When the accused asked the investigating officer if Legal Aid existed in Manitoba, because he could not afford a lawyer, the officer replied that he thought there was such a system in the province, but made no attempt to confirm this.
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When then asked if he had a reason for wanting to speak with a lawyer, the accused said that he had none. After making a number of incriminating statements, the accused asked to speak with a Legal Aid lawyer. After his request had been granted, the accused declined further discussions with the police. The decision in Brydges confirmed that the police are under two additional duties beyond that of informing the detainee of his or her section 10 b rights: they "must give the accused or detained person a reasonable opportunity to exercise the right to retain and instruct counsel, and The Supreme Court of Canada also said that the police must advise of the existence and availability of duty counsel and Legal Aid in all cases of arrest or detention, not only those where the detainee is or appears to be impecunious.
This is the case even if, following advice from the police about section 10 b rights, the detainee does not ask to speak with a lawyer.
If the accused does not make a reasonably diligent effort to exercise the right after such advice is given, then, as the Supreme Court of Canada said in the Smith case, the police are not required to refrain further from attempting to elicit evidence. Notwithstanding Brydges , the nature and extent of the advice that must be available to an accused in order to preserve section 10 b rights were not yet settled.
In addition to requiring that detainees be advised of their right of access to duty counsel, the Prince Edward Island Court of Appeal, in R. Matheson , held that Brydges meant that it was "up to those responsible for the administration of justice in the Province to ensure that the service is available. Prosper , a decision of the Nova Scotia Court of Appeal that took a different view. On appeal of those two cases, the Supreme Court of Canada ultimately held that "s.
Burlingham , the Supreme Court of Canada had occasion to consider the obligations of police or Crown counsel with respect to plea bargains. Writing for the majority, Mr. Although Burlingham states that counsel must be present during any plea-bargaining, generally the right to counsel is not a continuing right.
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It is the right to retain and instruct counsel. Once this has been complied with, that is the end of the right under section 10 b. There is no right to have counsel present at any subsequent stage of the investigation as there is in some jurisdictions. It is assumed that counsel will have given her client advice and instructions as to whether to respond to police questioning and if so, how to respond, and an accused who chooses not to abide by such advice, only has himself to blame. An example of such a breach is discussed in more detail in the section below entitled "The Right to Remain Silent.
A police officer, in the course of his or her duties, is authorized to question individuals and may invite individuals to accompany him or her to the police station for that purpose. Generally, however, there is no obligation on the individual to answer these questions or to accept the invitation. As explained above, once a person is arrested or detained, certain Charter rights arise, such as the right to counsel. A police officer may want to question a suspect as part of the investigative process for many reasons, including establishing if there are reasonable and probable grounds to make an arrest.
As stated earlier, the individual is generally under no legal obligation to answer such questions. Although the police obviously hope to obtain a confession, they are also attempting to obtain any information that will lead to a prosecution. It can be an admission of guilt or an admission of any fact which tends to prove his guilt. The rules that govern the admissibility of statements made by an accused are complex; a general outline of these rules is presented below.
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The general rule is that the Crown will have to prove that any statement made by an accused was made voluntarily and was the product of a conscious operating mind. An early formulation of the rule is found in R. Ibrahim :.
It has long been established as a positive rule of English criminal law that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. The first is the concern about their unreliability. A person who has given a statement as a result of a threat or promise may have given a false confession.
By accepting statements that are not freely given, the public will believe that oppressive conduct by the police is condoned by the courts, and this will result in a loss of support and respect for the criminal justice system by the community.
The prosecution has the burden of showing that the statement was made voluntarily and this issue will be determined at a hearing known as a voir dire conducted by the trial judge. This hearing is conducted in the absence of the jury, if there is one. At the hearing, the prosecution is required to call as witnesses all police officers who were present when the statement was made. What conduct by the police will render a statement involuntary? A threat or promise made by the police will generally render a statement inadmissible. Basically, then, a statement is admissible only if the accused made it free from the fear, as a result of the police conduct or statements, that something bad would happen to him if he did not make the statement, or free from the hope that some benefit would accrue to him if he did make the statement.
There is not much point in trying to set out the thousands of possible fact situations that might be caught by the rule — they range from the obvious ones of beating or threatening to beat the accused or of threatening to "throw the book at him" if he did not confess or telling him that he would get a lighter sentence or be allowed to see his wife if he did confess, to the less obvious ones such as threatening to deny him bail if he did not confess or promising bail if he did.
The courts will examine the context in which the words were spoken to determine whether there has been a threat or inducement. Other police conduct that may render a statement inadmissible is an interrogation under oppressive conditions. The court will review all of the circumstances surrounding the interrogations to ensure that there are no factors that may affect the voluntariness of the statement. Notwithstanding police conduct, the statement made must be the product of the conscious operating mind of the accused. The person must understand the questioning and know what they mean.
Not all statements made by an accused will satisfy these requirements. An accused may make a statement while he is drunk, or in a state of shock. He could even be under some form of hypnosis or under the influence of medication or drugs. In such cases, he may not be aware of what he is saying or even that he is saying anything. If this is so, it is difficult to call it "his" statement and thus it has no evidentiary value or, if it has some evidentiary value, it may be so slight that its value is outweighed by the opposing prejudicial effect. In these cases, the statement is excluded not because it is not voluntary, but because it cannot be regarded as the statement of the accused.
Thus, police must ensure that the statement made is the product of the conscious operating mind of the accused and that no threat or promises were made.
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The courts will review all of the circumstances surrounding the interrogation to determine whether the statement was made freely and voluntarily. Although it is forbidden for the police to make a threat or promise, nothing strictly prohibits the police from merely tricking or manoeuvring the accused into making a statement. Police officers know quite well what the rules regarding the admissibility of confessions are and, by and large, do not beat accused persons or threaten them or hold out promises, knowing quite well that if they do, the confession is going to be kept out anyway.
In any case, there are many ways of getting confessions short of brutality or promises. Trickery, in various forms, is often effective. An undercover policeman will be put in the same cell as the accused and boast of his criminal record. Or, when there are two accused, they are put in separate rooms and one is told that the other has pinned all the blame on him, thus spurring the second accused to make a statement admitting guilt, but trying to pin most of the blame on his accomplice.
There are many variations of this sort of trickery, but none of them fall within the definition of threats or inducements and are not, therefore, "involuntary" in the classical sense.
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If there is any objection to them, it is not because they were induced by threats or promises, but because, in some way they are seen to be "unfair," and this raises the more important issue of the effect of the Charter on all of this. As will be discussed in the next section of the paper, the Charter has been employed to attack certain police tactics that are used to trick an accused into confessing. However, vigorous and skilful questioning, misstatements of fact by the police, and appeals to the conscience of the accused and other similar police tactics will not necessarily render a statement inadmissible.
In , the Supreme Court of Canada had the opportunity to review the scope of the common law confessions rule and the limits it places on police interrogation.
Oickle was the first time the Court had directly addressed the issue since the introduction of the Charter. In this case, the accused had been convicted based solely on two confessions he made after the police told him he had failed a lie detector test which the police had invited him to take so they could eliminate him as a suspect for a series of suspicious fires.