- John Burchill
Investigation Rights in Canada: No Miranda, No Cry
On Tuesday, February 28, 2017 at 1pm in Room 207 at Robson Hall Sergeant John O'Donovan will be speaking (in Professor David Ireland’s class on Charter Issues in the Criminal Law). Sergeant O’Donovan has investigated over 180 death cases during his career, including a fateful plane crash on Logan Avenue in 2002 to the death of Brian Sinclair at the Health Science Centre in 2008. He is currently a Supervisor in the Homicide Unit. He will discuss his involvement in the trial of Michael Lynn Pearce for the murder of Stuart Mark in 2007, which concluded on January 26, 2016 before Justice Martin with a finding of guilty. This was a statement case. Pearce self-initiated contact with the police and waived his right to legal counsel over several interviews.
The same year that Michael Pearce was arrested the Supreme Court of Canada held that nothing prevents the police from attempting to obtain an admission from a suspect in the absence of counsel. To have held otherwise would have overshot the protection afforded to the individual's freedom of choice both at common law and under the Charter. More importantly, the majority noted, requiring a suspect to remain silent in the absence of counsel, ignores the state’s interest in the effective investigation of crime.1
"What the common law recognizes is the individual’s right to silence. The importance of police questioning in the fulfillment of their investigative role cannot be doubted. One can readily appreciate that the police could hardly investigate crime without putting questions to persons from whom it is thought that useful information may be obtained. The person suspected of having committed the crime being investigated is no exception. Indeed, if the suspect in fact committed the crime, he or she is likely the person who has the most information to offer about the incident. Therefore, the common law also recognizes the importance of police interrogation in the investigation of crime."2
In 2010 a majority of the Supreme Court of Canada confirmed that a “Miranda” USA style rule to have counsel present throughout a police interview should not be transplanted in Canadian soil, holding that:
“The scope of s. 10(b) of the Charter must be defined by reference to its language; the right to silence; the common law confessions rule; and the public interest in effective law enforcement in the Canadian context. Adopting procedural protections from other jurisdictions in a piecemeal fashion [the majority noted] risks upsetting the balance that has been struck by Canadian courts and legislatures”.3
While these cases have created some concern within the defence community that the police will now trample on suspect rights, especially those of vulnerable individuals, who may have mental health issues such as Michael Pearce, as the courts now expect the videotaping of interviews and interrogations in serious cases, such arguments are no longer as substantial as they once might have been. In fact, much of the contact with Michael Peace was videotaped, providing the court with an accurate and unbiased account of what transpired in the interview room including the actual words used and the manner in which they were spoken.
The fact is, the courts in Canada want to hear trustworthy and highly probative evidence, especially when it is a voluntary confession. As noted by the majority in Singh “the suspect may be the best source of information and it is in society’s interest to tap into this source”.4
Notwithstanding attempts by the defence to have the statements excluded based on the nature of the police interrogation techniques and the incidents of false confessions generally, the evidence was admitted. While Michael Pearce was, like many people, 'vulnerable to the techniques and tactics of a forceful and skilled police interrogation, the evidence did not raise a credible concern of a potentially false confession, especially in light of independently reliable holdback evidence'.
In a companion paper (now posted on Robsoncrim.com) to Sergeant O’Donovan’s presentation, Robson Hall alumni and Robsoncrim Blog Collaborator, Sergeant John Burchill (retired), canvasses a number of court decisions dealing with the Constitutional right to remain silent leading up to and including the Supreme Court decisions in Singh, Sinclair, Willier and McCrimmon, that interviewing a suspect in the absence of counsel has long been a staple of Canadian law.
1. R. v. Singh,  3 SCR 405, at paras. 43 & 45.
2. Ibid, at para 28.
3. R. v. Sinclair,  2 SCR 310 at paras. 37-38. The case was part of a trilogy of cases released by the Supreme Court, along with R. v. Willier,  2 SCR 429 and R. v. McCrimmon,  2 SCR 402. Also see R. v. Alix, 2010 QCCA 1055 application for leave to appeal dismissed (2010) S.C.C.A. No. 278, where the accused’s statements were admitted notwithstanding the police refused to allow her counsel to be present during interrogation and not suspending questioning when she asked to contact counsel again after already being afforded that opportunity.
4. R. v. Singh, supra note 1 at para. 45. Also see R. v. B.(K.G.),  1 S.C.R. 740, in which Mr. Justice Cory stated “a trial must always be a quest to discover the truth. Irrational and unreasonable obstacles to the admission of evidence should not impede that quest. In order to reach a true verdict, a court must be able to consider all the relevant admissible evidence”.