Little doubt that you’ve heard the following spiel or similar rendition cited in a movie or a television show:
“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided to you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”
Reading the “Miranda Rights” quickly became a staple of police TV dramas and movies after the U.S. Supreme Court ruled in the 1966 Miranda v. Arizona case that police must advise criminal suspects of their Fifth Amendment right against compelled self-incrimination and Sixth Amendment right to legal counsel. In particular, the stars of the popular late-1960s-era police dramas Dragnet and Adam-12 made a point of citing the Miranda Rights to every perp they arrested. It’s probably not a stretch to say that by the end of the decade, just about every American — and many Canadians — over 10 could at least paraphrase the Miranda statement.
Because the U.S. Supreme Court does not have cross-border jurisdiction, don’t expect Canadian law enforcement officials to advise you of your “Miranda Rights” if they detain or arrest you. However, they should inform you that you have the right to keep silent and consult with legal counsel, as provided by the Canadian Charter of Rights and Freedoms. And if Canadian police fail to advise you of these Charter Rights, it can be used to challenge your arrest and suppress any evidence they may have secured during it. As the Greater Toronto Area criminal defence lawyers of Mass Tsang will tell you, Canadian law provides similar protections to people facing arrest as those offered by the U.S. Miranda Rights, but there are subtle differences. Let’s take a closer look.
The U.S. Miranda right to keep silent when arrested is not clearly stated in the Fifth Amendment of the American Bill of Rights. Instead, court precedents culminating with the high court Miranda v. Arizona case established that criminal suspects should be legally advised of this right upon arrest.
Similarly, the Canadian Charter does not specifically state that criminal suspects must be advised of their right to keep silent in the face of police detainment or arrest — court precedents established this right through their interpretation of the Charter’s language. In particular, the court system’s interpretation of Sections 7 and 11(c) of the Charter gave rise to the police practice of advising criminal suspects of their right to keep silent. Section 7 states, “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Section 11(c) states that any person charged with an offence has the right not to be compelled to be a witness in proceedings against that person in respect of the offence.”
Canadian courts further established that the right to silence only exists when suspects knowingly interact with law enforcement officers. Thus, the right to silence does not apply when a suspect voluntarily imparts information to an undercover officer. Whether the right to silence is violated in such cases is subject to whether the undercover officer forced or unduly coerced information from the suspect in a manner that violates Section 24 of the Charter against anything that “would bring the administration of justice into disrepute.”
Court precedents also created differences between Charter and Miranda rights to legal counsel. Miranda established that U.S. criminal suspects have the right to legal counsel during the course of all police interrogations. However, the Canadian Supreme Court in R v. Sinclair (2010 SCC 35) determined that the right to legal counsel does not extend to the allowance of an attorney’s presence throughout all police interviews. That said, Mass Tsang’s lawyers note that if a suspect feels that they need their lawyer present during an interrogation, they should invoke their right of silence until police agree to allow it.
While the language in the Charter may have been vague about the right to silence, it is more clearcut about the right to legal counsel and being informed of the reason behind the police interaction. Section 10 of the Charter states specifically that “[e]veryone has the right on arrest or detention:
Naturally, Canadian courts have weighed in on some of the subjective language within these provisions by trying to interpret things like “promptly” and “without delay.” While the subjectivity remains, because of court rulings, police know that any delays in informing suspects detained or arrested of these rights could lead to Charter Rights violation challenges in court. Thus, police cite a Miranda-like statement to criminal suspects they detain or place under arrest.
If Canadian police arrest you, they will cite a statement that closely mirrors the Miranda advisement you’ve undoubtedly heard on TV and movie police dramas. Depending on the jurisdiction, it goes something like this:
“I am placing you under arrest for [name of the offence]. You have the right to retain and instruct counsel without delay. You may call any lawyer you want, or we can connect you with a 24-hour telephone service that provides a legal aid duty lawyer who will give you legal advice in private. This advice is given without charge, and the lawyer can explain the legal aid plan to you. Do you understand these rights, and do you want to consult with your lawyer or the duty lawyer? You are not obliged to say anything to me, but anything you do say may be used in evidence in court.”
Perhaps the most significant difference between Miranda and Charter Rights is that the latter emphasizes your right to legal counsel more than the right to keep silent. This likely resulted from how the Charter provides greater clarity on legal counsel than on the right to stay silent.
Whatever the nature of your arrest or detainment, competent defence lawyers will always advise you to take full advantage of your Charter Rights (or Miranda Rights, if arrested in America). Because failing to identify yourself to law enforcement officers can be charged as an offence in many circumstances, lawyers typically advise clients to always provide police with the basic identifying information of name, address, and date of birth. Beyond that, though, if arrested or detained, you should refrain from making any statements to the police until you have been provided with the right to consult a lawyer. Your lawyer will likely advise you to continue invoking your right to keep quiet until they have had a chance to further investigate the case details against you.
If you’ve been arrested for a criminal offence in the Greater Toronto Area, turn to the expertise of the skilled criminal defence lawyers of Mass Tsang. We can help you protect your Charter Rights and strategize an effective defence against the charges. To schedule your free consultation, contact Mass Tsang Today.
