A Descriptive Analysis of How Canadian Police Officers Administer the Right-to-Silence and Right-to-Legal-Counsel Cautions

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Introduction

Suspects and accused persons facing a police interview are generally made aware of their legal rights through standardized pieces of text called police cautions. It is imperative that interviewees understand the legal rights contained in those cautions so that their rights are protected and the police are able to ensure the admissibility of statements (Marin 2004; Whittemore and Ogloff 1994). Unfortunately, experimental studies in various countries, such as Canada, the United States, and the United Kingdom, have demonstrated that it is rare for people to understand fully the rights contained in police cautions (e.g., Cooke and Philip 1998; Eastwood and Snook 2009; Fenner, Gudjonsson, and Clare 2002; Grisso 1981). Such studies have typically presented the cautions in an ideal manner under highly controlled conditions. How well those past studies reflect reality is unknown, however, because there is a dearth of research on how police officers administer police cautions in actual interviews. By analysing a sample of police interviews, it may be possible to better understand and potentially improve this particular aspect of justice administration.

Canadian police cautions entail two basic rights: the right to silence and the right to legal counsel. The right to silence is derived from section 7 of the Canadian Charter of Rights and Freedoms (1982), which states that "[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." Case law dictates that interviewees must be given a free choice about whether or not to speak to the police and that the police cannot interfere with this right (e.g., offer promises or threats in exchange for a confession) (see R v. Hebert). The right-to-silence caution is typically delivered when the interviewer has reasonable and probable grounds to believe that the interviewee has committed an offence (Marin 2004).

The right to legal counsel is contained in section 10(b) of the Charter and states that "[e]veryone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right." As clarified in subsequent cases (i.e., R v. Brydges; R v. Bartle), the right to legal counsel includes the following four basic rights: (1) to retain and instruct counsel (i.e., a lawyer) without delay; (2) to access immediate, temporary, legal advice irrespective of financial status (duty counsel); (3) to obtain basic information about how to access available services that provide free, preliminary legal advice (e.g., phone number); and (4) to access legal counsel free of charge where an accused meets prescribed financial criteria set up by provincial legal aid plans.

Although police organizations presumably deliver cautions to detainees that outline both the right to silence and the right to legal counsel, case law states that they are only obligated to inform detainees of their right to legal counsel (see R. v. Papadopoulos). As discussed in R v. Hebert, one of the primary purposes of informing individuals of their right to legal counsel is to provide them with the ability to get legal advice regarding their rights, with the right to silence being chief among them. It is important that accused persons and suspects understand the right-to-legal-counsel caution because individuals can only waive or invoke their right to legal counsel if they have knowledge of those rights and can appreciate the consequences of giving up those rights (Korponay v. Attorney General of Canada; Clarkson v. The Queen). If the cautions are misunderstood from the outset, there are two consequences: (1) the protections that the cautions are supposed to afford are missing, and (2) subsequent statements from suspects may be ruled inadmissible.

Research has shown that the comprehension of Canadian police cautions is relatively low. …