For the past twenty years, Canadian judges have been schooling their American colleagues about the robust protection of civil liberties. Our courts have been aggressively protecting rights and liberties while American courts backtrack and repeatedly doubt the value of their constitution.
This contrast with our neighbours makes Canadian case law on custodial interrogation stick out like a sore thumb. The Supreme Court of Canada has turned the right to silence into a meaningless formality. It has invented a police “interest” in investigations as a legal value to be balanced against the Charter right to silence and its partner, the right to counsel. The result is a failure for civil liberties.
Despite the ascendance of law-and-order jurisprudence, American judges are stubbornly good on this stuff. A case released late last week shows how common sense about police-prisoner dynamics leads to stronger protection after arrest. Read more
The “iron triangle”
How should courts view the police-suspect relationship? Early Charter cases on the right to silence recognized the power imbalance inherent in custodial interrogation. Our Chief Justice once called it “the superior power of the state” being exercised after detention. Not so much anymore.
This position has been completely overtaken by three recent cases, known as the interrogation trilogy or the “iron triangle”: Oickle, Singh and Sinclair. Canadian law now permits the police to ignore a defendant’s repeated assertions of the right to silence and imposes no obligation on the police to stop questioning. Repeated requests to speak to counsel create no police duty to facilitate contact, except in very limited circumstances. The police have physical control of the detainee and they can ignore his express wish not to speak with them. They can use tricks, lies and psychological techniques and Canadian trial judges have been told to support them. Police interrogators hold all the cards.
This is the exact opposite of how constitutional protection of civil liberties is supposed to work! The state is not supposed to encourage judges to empathize with its interests; judges are meant to protect the little guy from the big guy. For a lesson on how this works, keep reading.
The Miranda of your Dreams
James Dorsey, a repeat offender with a nasty streak, was charged with beating and robbing an 83-year-old street vendor in Washington, DC. After his arrest, the police pressured him for hours, ignoring his repeated assertions of his rights to silence and counsel. They used a bag of tricks all intended to undermine his constitutional rights. A jury convicted him. He appealed, arguing that the trial judge was wrong to admit the confession he gave to police.
The appeal court sided with Dorsey, finding that the police not only ignored his requests to remain silent and speak with counsel, but also badgered him “with a vengeance.” In doing so, the court restated some basic rules of custodial interrogation:
- The police must ensure that the suspect knows he can invoke his rights “at any time.”
- If a suspect is tricked or cajoled into waiving his right to counsel or silence, the waiver is involuntarily given.
- If a suspect invokes his right to remain silent or counsel at any time during questioning, the interrogation must end. This is the only sure way to protect the suspect from the inherently coercive pressures of interrogation.
- Once a suspect has invoked his right to counsel, the police cannot resume the interrogation unless the suspect initiates it. The rationale? To “ensure that police will not take advantage of the mounting coercive pressures of prolonged police custody, by repeatedly attempting to question a suspect who previously requested counsel until the suspect is badgered into submission.”
Frazier v. Ali?
Why do some judges get the custodial interrogation issue so wrong? One problem is the belief that detention is a level playing field. This is just not realistic. Experience has shown that the best method to override a detainee’s choice is the power to detain and interrogate for an undetermined length of time.
Many detainees do not hold up under prolonged interrogation. Where the police routinely subvert assertions of the right to silence, detainees may become confused about the advice they received to stay silent. A suspect in Canada who wants further legal advice won’t get it. The Supreme Court has chosen effective policing (confessions through badgering) over civil liberties.
As cases like Dorsey show, upholding civil liberties sometimes requires judges to frustrate police goals. The custodial setting, where the clash between those goals and individual rights is most stark, challenges many judges. But this is not a contest between two equal parties. It is the little guy, vulnerable to the big guy, with only a few abstract constitutional rights between them. It is up to the court to paint inside those lines.
 In Michigan v. Mosley, the Supreme Court emphasized that the suspect’s “right to cut off questioning” is the “critical safeguard” in Miranda’s framework because “[t]he requirement that law enforcement authorities must respect a person’s exercise of that option” is what effectively serves to “counteract the coercive pressures of the custodial setting.”