When the Constable Blunders: a Comparison of the Law of Police Interrogation in Canada and the United States
| Jurisdiction | United States,Federal,Canada |
| Citation | Vol. 19 No. 03 |
| Publication year | 1996 |
I. Introduction
The Fifth Amendment to the United States Constitution ensures that no person "shall be compelled in any criminal case to be a witness against himself."(fn1) In 1966, the United States Supreme Court handed down its famous decision in
Prior to the enactment of the Canadian Charter of Rights and Freedoms in 1982,(fn6) the Supreme Court of Canada eschewed any relationship between self-incrimination and admissions made to the police by suspects before trial.(fn7) The privilege against self-incrimination, the Court held, meant only two things: (1) the witness was protected while testifying, and (2) the defendant did not need to testify at all.(fn8) Nevertheless, the Supreme Court of Canada historically excluded confessions that were obtained involuntarily by the police.(fn9) Statements were involuntary if they were obtained from suspects as a result of "fear of prejudice" or "hope of advantage" held out by a "person in authority" and were made without an operating mind.(fn10) Under this common law confession rule, police officers were not required to advise suspects of their right to remain silent, but failure to administer such a caution was a factor examined in determining whether the confession was obtained voluntarily.(fn11)
In April 1982, the government of Canada patriated the Canadian Constitution, which includes a constitutionally entrenched Charter of Rights and Freedoms.(fn12) The Charter owes some of its substance to the Bill of Rights in the United States Constitution.(fn13) Like the Bill of Rights, the Charter protects the rights of the accused from government action.(fn14) However, unlike the Bill of Rights, the Charter explicitly states that it applies to provincial as well as federal governments.(fn15)
The provisions of the Charter relating to confessions and their exclusion from trial are relatively straight-forward. Section 10(b) of the Charter requires the police to inform a detained or arrested person of his right to retain and instruct counsel without delay.(fn16) Section 7 ensures that everyone has the right to life, liberty, security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice.(fn17) Section 24(2) requires trial judges to exclude from trial evidence obtained by the police in a manner that violated a Charter right(fn18) if it is more probable than not that admission of the evidence would bring the administration of justice into disrepute.(fn19) The Supreme Court of Canada has said that exclusion is mandatory once these conditions have been met, and that they will not review the judgment of the lower courts regarding application of section 24(2) to the facts of each case.(fn20) There is room, however, for judicial discretion at the trial level to exclude or admit evidence, and the Supreme Court will review the trial judge's decision when there is an apparent error in the application of the principles or when the judge's findings are unreasonable.(fn21)
The Court has found that the policy underlying sections 10(b) and 7 is to ensure, in part, that the accused is treated fairly during the investigatory process and given a choice whether to talk to the police.(fn22) Although section 11(c) of the Charter retains Canada's doctrine that the privilege against self-incrimination applies only at trial,(fn23) interpretation of sections 10(b) and 7 by the Supreme Court of Canada suggests that the purpose of the rights to silence and to retain and instruct counsel without delay before trial is to protect the privilege.(fn24) Thus, sections 10(b) and 7 protect the fairness of the trial by ensuring that the accused is not subjected to compelled incrimination.(fn25)
Moreover, the Court has also found a fair trial policy underlying the exclusionary rule.(fn26) The admission of confessions obtained in violation of the Charter, according to the Court, would undermine "one of the fundamental tenets of a fair trial, the right against self incrimination."(fn27) The close affinity between the purposes underlying sections 10(b), 7, and 24(2) has led the Canadian Court to go beyond the Supreme Court of the United States in excluding confessions at trial.
This Article explores the Supreme Court of Canada's use of the Charter of Rights and Freedoms in limiting police interrogations and compares its case decisions with cases from the Supreme Court of the United States. Part II of this Article examines the purposes and policies underlying sections 10(b), 7, and 24(2) of the Charter. Part III then examines the application of sections 10(b) and 7 in situations where (1) suspects are interrogated by uniformed police officers or other persons known to be in authority, and (2) suspects are interrogated surreptitiously by persons not known to be in authority. In both situations, the Supreme Court of Canada has been more solicitous of the rights of the accused than has the Supreme Court of the United States.
II. Policy Considerations Underlying Sections 10(b), 7, AND 24(2)
The Supreme Court of Canada has given the Charter a purposive interpretation. The Charter, the Court stressed, must be capable of growth and development to meet new social, economic, and political changes that its framers did not foresee.(fn28) The definition of a right should be, according to former Chief Justice Brian Dickson, "a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection."(fn29) The interpretation of a Charter right, the Court emphasized, must not exceed the actual purpose of the right but must conform to its proper linguistic, philosophic, and historical context.(fn30)
The Court has examined the interests and policies underlying the Charter sections concerning self-incrimination. The values identified as protected by that Charter section play a dominant role in the Court's willingness to exclude evidence from trial, as will be discussed throughout this Article.
Section 10(b) guarantees the right of the accused, upon arrest or detention, to "retain and instruct counsel without delay and to be informed of that right."(fn31) The right to retain and instruct counsel in Canada protects the dignity of defendants, ensures that statements made by defendants are properly transcribed, expedites the preparation of the defense, reduces the possibility of coercion by the police,(fn32) and promotes fair treatment of defendants in situations that may give rise to a "significant legal consequence."(fn33) Perhaps more importantly, the right to counsel protects the due administration of the adversary system by giving detainees the option of seeking the assistance of counsel to protect their legal interests. Without such an option, the right against self-incrimination might be compromised and suspects placed in a position of having to take the witness stand to counter the damaging effects of statements they may have made. Madame Justice Bertha Wilson summarized the Supreme Court of Canada's philosophy regarding the right to counsel when she opined that "[t]he fairness of the trial would be adversely affected since the admission of the statement would infringe on the appellant's right against self-incrimination, a right which could have been protected had the appellant had an opportunity to consult counsel."(fn34)
Section 7 provides that everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.(fn35) The rights protected by section 7 are broader than those safeguarded by the enumerated rights in the Charter. Life, liberty, and security of the person are given individual meaning, and the "principles of fundamental justice" are not to be seen as separate rights but as qualifiers of the right to life, liberty, and security of the person.(fn36) They are found, according to the Court, "in the basic tenets and principles of our legal system."(fn37) Recently, the Supreme Court examined the basic tenets of the Canadian legal system and found a right to silence in section 7 that attached upon detention.(fn38)
The essence of the pre-trial right to silence, according to the Court, is freedom of choice.(fn39) If the conduct of the police effectively and unfairly deprives a detainee of his or her right to refuse to speak to the authorities, section 7 is violated.(fn40)...
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