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The Disappearance of Criminal Law: Police Powers and The Supreme Court - a review by C. Hentig

One of the topics in the book written by Richard Jochelson, Kirsten Kramar, and Mark Doerksen is on the right to silence and counsel. The accused’s right to silence and counsel are both crucial to our justice system and the rights of accused. The authors explain that the right to silence essentially entails that accused have the right to not answer what the officers ask them; officers will continue to interrogate, but the accused can remain silent. It is likely difficult to be subjected to persistent questioning all the while trying to remain silent. Silence is the wisest choice in many cases that an accused can make, however cases like Oickle make it clear that continual police questioning can break a suspect down into confessing as it is difficult to maintain silence while an officer continues questioning. Likely, the accused feels immense social pressure to answer, however, he or she logically knows it is in their best interest not to.


For many Canadians it is surprising to learn that accused do not have the right to have their lawyer present while being interrogated by police. This is one misconception Canadians have, and it likely arises out of watching American crime shows where accused do have a lawyer present. It seems uneven; indeed the authors highlight this difference between the individual and the state, that in the presence of state officials, the accused is not permitted to have his or her lawyer present. The authors point out that this unevenness remains between the state and the accused, even with the right to silence and counsel.


Jochelson, Kramar and Doerksen argue that much of the responsibility of having rights means the accused must do many tasks for him/herself in order to be “reasonably diligent,” such as ensuring they contact counsel as soon as feasible. If an accused does not contact counsel within the reasonable period, police can begin attempting to elicit information by proceeding with interrogation.


The section 10(b) right to counsel is interrelated with the section 7 right to silence: lawyers advise their clients to remain silent in the face of police questioning. It is integral that the accused have access to counsel so they can become aware of their rights and not incriminate themselves by saying something damaging.


Jochelson, Kramar and Doerksen conceptualize rights in a different and creative way: they explain that while most people think of rights as protecting Canadians from the state, rights also give the state the opportunity to discover information that will help the investigation. I have not thought of rights from this approach before, but I can see their point. Even though a lawyer will advise an accused to remain silent, sometimes accused/suspects still speak to officers.


If an accused chooses to speak to officers and confess, that confession must be determined to be voluntary. Some tactics police use point to an accused’s confession being involuntary, such as an oppressive environment created by officers (in which the accused is not permitted food, water, medical attention, sleep or proper clothes) and inappropriate promises and threats made by officers. Clearly, not being allowed to have basic needs met can lead a person to confess involuntarily, merely to escape the oppressive conditions. Where there is an oppressive environment or inappropriate promises and threats made by officers, the confession will be questionable. This is not surprising; it is easy to see why an accused would confess in order to escape an oppressive environment. No one wants an innocent person to falsely confess; that is not justice. The police want to find the actual perpetrator, not just someone who will admit to the crime. Thus, false confessions must be avoided. The methods police choose matter, and can in some instances cause innocent people to involuntarily confess to a crime they did not commit.


The authors assert that the dissenting justices in more recent counsel and right to silence Supreme Court cases point out that the court is moving in a “securitized state” direction, with safety being prioritized over accused’s rights. We have heard time and time again that the Supreme Court is the guardian of the constitution, and while this is true, the way rights are being framed in some cases is not always what Canadians would expect. This is one of the authors’ main arguments, to point out to the reader that the court is giving the state more power, and Charter rights are not necessarily always interpreted as broadly as they could be.


This sentence is striking: “A citizen must enter the interrogation room fluent in the language of the Charter or they may never meet the standard of reasonable diligence that the Court requires.” Most people do not have enough knowledge of the Charter and how the courts interpret its meaning to know exactly what type of action the court will expect of them. Yes, some accused may in theory know that they must remain silent as that is what their lawyer advised them to do, but it is entirely different to have that knowledge and execute and maintain the resolve to not speak in the face of persistent questioning.


The authors argue that the Charter can be conceptualized as a tool for the state to use in its “surveillant assemblage.” Is this pessimism or realism? The more you read case law regarding accused’s rights to silence and counsel, the more it can make you pessimistic and question where our priorities as a society lie. Safety is important, but so are Charter rights. The authors’ premise that the Court is moving more towards surveillance priorities is a dose of realism for those who view the Charter as a document with the goal to protect citizens’ rights above all other priorities.


see https://www.amazon.ca/Disappearance-Criminal-Law-Police-Supreme/dp/1552666840








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