Research Proposal
CORR 104 Criminal Justice System
Research question: What obligations under the Canadian Charter of Rights and Freedoms are police obligated to follow during an interrogation?
Research sources:
Saunders in Canadian Charter of Rights and Freedoms, S. (2018, October 16). Https://roylelaw.ca/police-interrogations-what-rights-do-we-have/. Retrieved October 15, 2020, from https://roylelaw.ca/police-interrogations-what-rights-do-we-have/
Defence, N. (2015, March 11). Government of Canada. Retrieved October 15, 2020, from https://www.canada.ca/en/department-national-defence/corporate/reports-publications/military-law/interrogations-guide/legal-framework.html
Davison, C. (2018, November 27). What Do I Have to Tell the Police if They Stop Me? Retrieved October 15, 2020, from https://www.lawnow.org/what-do-i-have-to-tell-the-police-if-they-stop-me
Goff, C. H. (2020). Interrogations. In Criminal justice in Canada (Eighth ed., pp. 209-214). Toronto, Ontario: Nelson
Obligations of the Police During Interrogations As Per Canadian Charter of Rights and Freedoms
CORR 104 Criminal Justice System
Professor: Michelle Andrews
Research Question
What obligations under the Canadian Charter of Rights and Freedoms are police obligated to follow during an interrogation?
Introduction
A considerable number of crimes are generally and quite appropriately handled through the help of an offender’s confession. However, some useful strategies in getting confessions from guilty persons will, at times, bring forth false confessions from innocent parties. Issues such as particular aspects in the interview or individual traits of a subject could increase the chance of getting a false confession. To this effect, law enforcement and prosecutors have been prompted to have internal consistency in a supposed confession together with an external confession that comprises known facts and corroboration. This is to prevent having a prosecution from being based solely on the confession.
Notably, the Canadian Charter of Rights and Freedoms has stipulated police obligations that should be followed while undertaking an interrogation. Generally, the Charter guarantees the Canadian citizens special rights and freedoms subject to reasonable limits denoted by law that can also be justified within the free and democratic society. The police’s interrogation obligations fall under Section 10 of the Canadian Charter of Rights and Freedoms, which has specified the rights accorded to the country’s citizens upon being arrested or detained. These rights mainly include the right to consult a lawyer and the right to habeas corpus. Habeas corpus is primarily a law recourse in which an individual is allowed to report illegal detention or imprisonment to a court and request that the court orders the individual’s custodian, which is usually a prison official, to determine the lawfulness of that detention.
Obligations of the Police During Interrogations As Per Canadian Charter of Rights and Freedoms
Canadian society has been founded on the fundamental tenet of freedom from the government and its officials, including law enforcement, except when allowed by the law. In Canada, the law enforcement officer has no authority to randomly need a person to stop and identify oneself or answer the officer’s questions (National defense, 2015). To comply with the demands, the officer needs to have a legal basis for them. The officers need to have reasonable grounds to believe 5that the individual has committed a crime, and then ensue an arrest. In the event of an arrest, the individual is termed to be under the officer’s legal custody and should act as per the directions given. When the officer fails to have any reasonable grounds to believe the individual has committed a crime but is carrying out investigations on allegations based on similar elements, then the officer could require the individual to remain temporarily, which is considered to be “investigative detention.” The arrest and investigative detention situations require the law enforcement officers to explain why the citizens have been held as the latter does have the right to know. The police are not allowed to detain individuals randomly; hence anyone that faces a general officer demanding to stop and speak with them is not mandated to comply but go on with their way.
There usually are misconceptions about how the criminal justice process works, especially among those who have not been employed in criminal law and those with no personal involvement with the systems. The most typical ones are on the functioning of police interrogations. Many individuals have indicated that during questioning by the police, they do have the right to counsel, and after that, the questioning would cease until the arrival of the counsel. While the misunderstanding is not surprising considering the scenario does occur, especially in many films related to crime, the reality is that procedural protections are broadly different in Canada. The rights and protections accorded to a person in custody when being interrogated by the police are governed by what Justice Binnie termed as the Interrogation trilogy, the decisions made by the Supreme Court in the Oickle, Singh and Sinclair cases had the court’s ruling on the scope of the common law rule of voluntariness, silence, and council respectively. The three doctrines heavily inform one another, and when together, they give guidelines on the procedural protections to be upheld by the police interrogations.
The Confessions Rule
The case of R v Oickle would form the fundamental basis of the confessions rule, which provides guidelines on the factors to be considered while analyzing voluntariness. The case entailed the interrogation of a suspect who had been accused of several reasons. The accused, Oickle, submitted to a polygraph test for probing him to be involved in any fires (Smith et al., 2012). After administering the polygraph test, the police would immediately begin interrogating him for an extended period. The interrogations incorporated several tactics that were meant to put pressure on the accused to confess. The accused made several self-incriminating statements and ultimately confessed to causing seven of the eight arsons being investigated (Smith et al., 2012). The trial court admitted these statements and convicted Pickle after indicating that they were all voluntary. The Nova Scotia Court of Appeal considered the statements to be involuntary hence need to be excluded; the convictions were overturned, leading to acquittals on all counts.
The Supreme Court permitted the appeal in a 6-1 majority and also reinstated the accused convictions. The judges indicate that the confessions rule remains applicable as an issue of the common law. The protections provided by the Charter do co-exist with the confessions rule without any one of them subsuming another (Smith et al., 2012). The ju8dge explained that the restatement of the confessions rule was required while responding to the increasing consciousness of how false confessions are dangerous. The main reason for excluding involuntary confessions was that they were unreliable. The confessions rule needs to be informed by knowing the interrogation strategies that could produce false confessions. The confessions rules needed to be defined with the focus on its twin objectives: the protection of the suspect’s rights without placing unduly limitations on the society’s requirement of investigating and solving crimes (Saunders, 2018). Therefore, statements would not be admissible in courts if they were obtained through circumstances that raise reasonable doubt on the suspect’s voluntariness. These include inappropriate inducements, threats, or oppressive conditions. The court also stated that police trickery could lead to inadmissible statements, but it also clarified that the case involved a particular inquiry within a very high threshold (Saunders, 2018). The trickery could go to the extent of even shocking the community.
This case did focus on the broad understanding of voluntariness, and the Supreme Court stated that all factors need to be considered to determine whether a confession was voluntary or express or implied threats or promises were made by the authorities together with the use of oppressive circumstances during the interrogation. Also, an involuntary confession is obtained when the suspect lacks an operating mind. The police must consider these factors to ensure that they get confessions that are admissible in court during interrogations.
The Right to Silence
The Charter fails to explicitly point out the right to silence, but the Supreme Court, in the case of R v Hebert, stated that the accused has a right to silence, which is protected under Section 7. The landmark Hebert case stated that this right, in essence, meant to choose freely whether one does have the authority to speak with authorities or not. Considering the Hebert case’s circumstance and the definition provided, section 7 pretrial right had a narrow definition (Dufraimont, 2011). The majority stated that the right was applicable only when 5the suspect has been detained, and the undercover operations have elicited the statement. The courts were not sure how the right applied when the police are interrogating one.
However, the Supreme Court of Canada would provide clarifications on this ruling in R v Singh’s case through a 5-4 majority ruling. The court states that the police are not required to stop questioning when the detainee has asserted their right to silence (Dufraimont, 2011). When the police interrogate a detainee, the right to silence stipulated in Section 7 avails no protection that goes beyond the protection already provided by the confessions rule, which has effectively subsumed the constitutional right to silence. The two tests become functionally equivalent when the police are questioning the detainee. Also, the concerns related to persistent interrogation even in the face of the constant assertion of the silence right hence overwhelming the detainees will need to be handled and could cause exclusion under the confessions rule (Dufraimont, 2011). Nonetheless, if the crown has proven beyond a reasonable doubt that the detainee’s statement while being interrogated was offered voluntarily, then there will be no chance for a Charter claim that the statement was obtained in a way that has violated the right to silence in Section 7.
The Right To Counsel
According to Section 10(b) of the Charter, an individual that is under arrest or detention has the right to retain and instructing counsel without any delay and need to be informed of the existence of that right. This section has precisely imposed both informational and implementational duties on law enforcement. These include informing the detainees of their right to counsel and offering them a reasonable opportunity to exercise the right when the former has indicated they want to. In the case of R v Sinclair, the Supreme Court looked into the meaning of this right to counsel and the police’s implementational obligations concerning being interrogated (Dufraimont, 2011).
The Supreme Court offered clarifications on an individual’s right or rec-consulting counsel during interrogations to rule that Section 10(b) of the Charter has not obligated that counsel present during the process (Saunders, 2018). The court further stated that the right to re-consult with counsel only comes up in particular instances, including when new procedures are being used, there is a change in jeopardy or a reason to believe that the advice given was inadequate. Notably, the case did have a vigorous dissent, emphasizing the right to counsel not being exhausted after the initial consultation. The dissenting judges’ concern was that most of the judges depended much on the analysis of voluntariness in determining whether statements were admissible. The statements that violate a person’s section 7 or 10(b) rights would be admissible just because they adhered to the voluntariness requirements (Saunders, 2018).
The Impact of the Interrogation Trilogy
An understanding of these cases presents the present state of the law on police’s obligations as they carry out the interrogations, which mainly is that when the court does prove that the elicited statements are voluntary, they can be admitted. The Supreme Court of Canada defines a “voluntary statement” when dealing with interrogations happening within the criminal law context to illustrate the circumstances in which a detainee has been denied a meaningful opportunity to decide whether to make either inculpatory or exculp[atory statements. The police conduct needs to be appropriate to determine that the detainee did avail a voluntary statement. Imp[roper persuasion and pressure that leads to an individual being broken down by the interrogation is not acceptable, and the admission will be improper. However, in the context of interrogations to gather intelligence, it is known that the domestic criminal regulations do allow law enforcement officers to try and influence the behavior of detainees to change their minds and provide a statement. They have to ensure they use the right persuasion trucks since the Supreme Court does acknowledge police questioning as a legal tool of investigation.
The provision of clear guidelines concerning the detainee’s questioning conduct is not always straightforward, and enlisting particular conduct to either a legal or illegal category can be challenging income circumstances. For instance, when down on its own, some conduct can be acceptable, but when joined with other elements, it becomes unlawful and not allowed. The system does acknowledge that minor physical discomfort will be affiliated with the process of interrogation since it involves one losing their liberty. The establishment of a bright-line rule to define the point in which discomfort will lead to inhumane treatment is not feasible considering several issues need to be considered in that equation. Within the context of police interrogation, the legal parameters have been awarded definition to the factors related to the questioning technique and the extrinsic factors such as the conditions within the detention facility. Also, it has been acknowledged that a particular form of persuasion will be applied to a detainee who does not cooperate to extract information. The precise point at which the persuasive legal techniques surpass the rubicon such that they fall under coercive classification is prohibited and cannot be easily identified. However, this does not suggest that there are methods that cannot be tolerated in all circumstances.
Another basic legal principle that sets out the police’s other obligation is the right of every individual to refuse to aid the state to prosecute the former. This has been illustrated with the right to remain silent, which is, at times, considered protection against self-incrimination (Davison, 2018). Any suspected or accused individual has the right to refuse to speak to law enforcement if they desire so. Witnesses generally have the moral obligation to help the police investigate an incident, but this is not equivalent to a legal duty. The Law enforcement officers are mandated to inform the suspect or the accused of their right to remain silent, and in case they want to give it up, anything said could be used in a court of law.
Nonetheless, law enforcement is entitled to attempt to convince the person to speak, including continually asking questions even when the individual insists on wishing to sit on nothing (Davison, 2018). The Supreme Court indicated that the right to remain silent is only accorded to the individual and not that the authorities cannot speak to them. It has also been noted that if a person does answer the questions or allegations after a long duration of silence, good arguments could be made against the state on the statements being admissible since they were obtained from a worn-down individual questioned (Davison, 2018).
In the right to remain silent, an exception exists related to identifying a suspect or accused individual. The strict meaning of the right of remaining silent encompasses confirmation of one’s identity and the necessary personal information such as birth dates to law enforcement (Davison, 2018). Nevertheless, the many situations involving relatively trivial offenses will have law enforcement officers not allowed to arrest the individual but rather give legal documents that need the individual; to avail themselves in court and answer their respective charges, in such scenarios, if the individual fails to confirm their identity, law enforcement has the power to arrest to establish it which is mainly via fingerprints. Another exception arises in the cases of motor vehicles. The same way the police can stop motor vehicles, they are also allowed to demand the driver to provide proof of registration, insurance, and a personal driver’s license. In case the car has been involved in an accident, the driver will also need to provide a statement of the events that occurred (Davison, 2018). Failure to comply with these duties becomes a provincial offense. Nonetheless, this applies to drivers only with passengers fully entitled to the right to remain silent if they do not want to identify themselves unless law enforcement provides substantial legal grounds for asking them to do so.
Conclusion
The Canadian Charter of Rights and Freedoms, in conjunction with the landmark cases, have provided the principals that provide the doctrinal guidelines and procedures to be followed by the police during interrogatories to ensure they present admissible statements. The purpose of conduct is fundamental, with the inflicted pain and suffering not being the decisive standards for whatever techniques the police utilize during interrogations, how voluntariness, the right to silence, and the right to consult counsel will be analyzed the admissibility of the statements. Notably, any coercion interrogations are not legally acceptable since their im[pugned treatment does not come from the level of torture one has undergone.
References
Davison, C. (2018, November 27). What do I have to tell the police if they stop me? Retrieved from https://www.lawnow.org/what-do-i-have-to-tell-the-police-if-they-stop-me/
Dufraimont, L. (2011). The interrogation trilogy and the protections for interrogated suspects in Canadian law. In The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference (Vol. 54, No. 1, p. 11).
National Defence. (2015, March 11). Legal framework – The law of interrogations guide – Canada.ca. Retrieved from https://www.canada.ca/en/department-national-defence/corporate/reports-publications/military-law/interrogations-guide/legal-framework.html
Saunders, S. (2018). Police interrogations: What rights do we have?: Royle law. Retrieved from https://roylelaw.ca/police-interrogations-what-rights-do-we-have/
Smith, S., Stinson, V., & Patry, M. (2012). Confession evidence in Canada: Psychological issues and legal landscapes. Psychology, Crime & Law, 18(3), 317-333.
