30 August 2010

For any Dramaturgist who needs to research Canadian cop procedures

Further on my husband's little ditty on the state of Television good bad and totally awful. One aspect of procedural cop shows that I hate, Bear touched on it, is American police officers coming upt to Canada and arresting people in Canada and then reading them the Miranda Rights.

Okay first, The Basic Miranda rights:

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 speak to an attorney. If you cannot afford an attorney, one will be appointed to you. Do you understand these rights as they have been read to you?

Some jurisdictions add instead of the above providing attorney line above

We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court.
You can decide at any time from this moment on to terminate the interview and exercise these rights. OR ASK
Question 1: Do you understand each of these rights I have explained to you?
Question 2: Having these rights in mind, do you wish to talk to us now?

Named the Miranda Rights due to Miranda V Arizona case

The Miranda Case and it's decision has no bearing in Canada so when placed under arrest in Canada one is NOT entitled to hearing the Miranda warning per se.

The arrested persons rights in Canada are guided by The Charter of Rights and Freedoms, especially the parts that say:
  • to be informed promptly of the reasons therefor;
  • to retain and instruct counsel without delay and be informed of that right;
  • to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

And the warning usually reads:

You are under arrest for _________ (charge), do you understand? You have the right to retain and instruct counsel without delay. We will provide you with a toll-free telephone lawyer referral service, if you do not have your own lawyer. Anything you say can be used in court as evidence. Do you understand? Would you like to speak to a lawyer?

Or a more detailed warning reads thusly:

"I am arresting you for (charge). It is my duty to inform you that you have the right to retain and instruct counsel without delay. You may call any lawyer you want. There is a 24-hour telephone service available which provides a legal aid duty lawyer who can give you legal advice in private. This advice is given without charge and the lawyer can explain the legal aid plan to you. If you wish to contact a legal aid duty lawyer, I can provide you with a telephone number. Do you understand? Do you want to call a lawyer? You are not obliged to say anything, but anything you do say may be given in evidence."

The part about Legal Aid Legal Assistance is in reference to the decision in R v Brydges sometimes known as the Brydges Duty Counsel.

In short American Law Enforcement officers who enter into Canada in the course of an investigation cannot arrest people in Canada, and can most definately not inform the person of his Miranda Rights, because s/he does have Miranda Rights in Canada, cannot question the accused period. They may sit in on questioning, they might be able to ask a few questions in the presence of the Canadian constabulary, but the arrest itself, if one is made must be made by a member of the Canadian Police Force who has jurisdiction.

Jurisdiction of Police Forces in Canada are another fun topic- but that for another information session.

Herein endeth the lesson for anyone researching Canadian Cop Procedures. TTFN

1 comment:

Mary333 said...

Thanks for the lesson on Canadian police procedure, Puff. If I ever get arrested by a Canadian cop it'll come in handy ;)