Fall leaves fall on the grounds infront of the Supreme Court of Canada in Ottawa, Thursday October 7, 2010.Adrian Wyld/The Canadian Press
The right to counsel and the right to silence have been taken out to the parking lot and given a good working over - by the Supreme Court of Canada, no less. Both these rights are intimately connected to the core premise of Canadian justice: that the state bears the burden of proving an individual's guilt. Our highest court has unjustifiably and surprisingly weakened those rights.
In one case before the court, a British Columbia man accused of murder was put through several hours of interrogations, during which he repeatedly asked to speak with a lawyer. In a separate case, a B.C. man accused of a series of assaults on women tried over and over again to invoke his right to silence and a lawyer. In both those cases, the men had spoken briefly, over the telephone, to a lawyer before being questioned. Having done so, they had, in effect, exhausted their right to counsel.
Section 10 (b) of the Canadian Charter of Rights and Freedoms reads, "Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right." But a majority of the nine-member court - six judges - says that the initial phone call is enough, unless something has changed during the interrogation to justify another call. As for what that change is, consult a constitutional scholar - it is now beyond the average person's ability to understand. Simply being questioned for several hours in the middle of the night while being refused the right to return to one's cell is not deemed reason enough to have a lawyer present.
The only instruction that now makes sense for an anticipated interrogation, Mr. Justice Ian Binnie wrote in dissent in one case, is "'You have reached counsel. Keep your mouth shut. Press one to repeat the message.'"
Detainees have no legal obligation to participate in a custodial interrogation, other dissenters, going even further, said. How can they be in the wrong in asking for their constitutional right to counsel?
The Charter's right to counsel, even the right to silence, no longer seems to say what it means. In practical terms, it will be easier for police to find incriminating information. But in the end, the Charter rights to silence and to counsel have been undermined.