Development of Miranda-Like Doctrines under the · PDF filebetween laudible protections for the rights of accused ... The Development of Miranda-Like Doctrines ... The Development

THE DEVELOPMENT OF MIRANDA-LIKE DOCTRINES

UNDER THE CHARTER

David M. Paciocco*

I. INTRODUCTION

The infamous American case of Miranda v. Arizona' has beenmentioned in the same breath as subsection 10(b) of the Canadian Charterof Rights and Freedoms2 on more than one occasion by our courts and byCharter observers. 3 This phenomenon causes many of us to becomeuneasy. After all, Miranda is the seminal case in the Warren Court'scriminal procedure revolution, a revolution that a good number of critics,including apparently the presently constituted American Supreme Court,believe caused American constitutional jurisprudence to cross the linebetween laudible protections for the rights of accused persons and self-destructive zealotry which causes criminals to run free, regardless of whatthey did, because of what may or may not have been done to them. It isnot my intention, however, to sound the alarm and to rally a defence atthe Canadian border to keep Miranda from sneaking into this country.My enterprise is far more clinical. It is, first, to simply chronicle theextent to which Miranda-like doctrines have, in fact, developed here. Theconclusion that this paper ultimately arrives at is that we have produced,or are in the process of producing, "made in Canada" doctrines that

* Faculty of Law, Common Law Section, University of Ottawa. I would like toexpress my thanks to Don Greenfield, my research assistant, for his help in researchingand organizing background material dealing with the American decision of Miranda v.Arizona.

1 86 S. Ct. 1602 (1966) [hereinafter Miranda].2 Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982

(U.K.), 1982, c. 11 [hereinafter the Charter].3 The prospect of the development of Miranda-like rules in this country was

recognized by Lamer J. in R. v. Therens (1985), [1985] 1 S.C.R. 613 at 625, 59 N.R.122 at 143 [hereinafter Therens]. The significance of Miranda was also discussed inpassing in R. v. Esposito (1985), 53 O.R. (2d) 356 at 367, 24 C.C.C. (3d) 88 at 99(C.A.), leave to appeal to S.C.C. denied (1985), 53 O.R. (2d) 356n., although it wasexpressly stated there that the decision should not be read as suggesting that Mirandawarnings should be developed here. See the concerns expressed at a joint conference ofCanadian and American prosecutors, held in July 1986, as reported in an article by D.Billinger, "Don't Interpret Charter s. 10(b) Like Miranda, Crown's Told", The LawyersWeekly (22 August 1986) 10. See also Menzies v. R. (1986), 51 C.R. (3d) 387 (Ont.Dist. Ct.) [hereinafter Menzies].

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largely parallel those rules that emerged in this American case. My secondobjective is to offer some modest suggestions with respect to some of thequestions that our jurisprudence has yet to answer, based upon an analysisof the Miranda doctrines and the structure and context of our Charter.4

The decision in Miranda essentially developed three rules:

1. The voluntariness rule for determining the admissibility of statementsmade by an accused was replaced with a waiver rule for those state-ments made by an accused during custodial interrogation.5

2. Mandatory procedural safeguards were structured, which require aseries of warnings relating to the accused's right to silence, and tocounsel, to be given to an accused prior to custodial interrogation. 6

The failure of the police to observe these safeguards results in theexclusion of almost all subsequent statements made by the accused. 7

3. An absolute ban on questioning a suspect was developed for thosecases where the suspect expressed a desire to consult counsel, or toremain silent.8

4 The emphasis in the paper is on the constitutional Miranda-like rights thatpersons in Canada possess. There is, therefore, no attempt to provide a detailed discussionof the appropriate remedies for the breaches of the various doctrines discussed.

5 See supra, note 1 at 1612, 1618-9.6 Ibid. at 1626-7.7 The failure to adhere to Miranda procedures does not require the exclusion of

every statement made for every purpose. For example,(a) If a statement is to be used solely to impeach the credibility of in court

testimony provided by the accused at his trial, the statement can bereceived for this purpose alone, provided the statement was not originallyobtained under circumstances that cast serious doubt upon its credibility.See Harris v. New York, 91 S. Ct. 643 (1971); Mincey v. Arizona, 98 S.Ct. 2408 (1978).

(b) If the Miranda procedures are not honoured on the first available oppor-tunity and impermissible interrogation arises, statements made during asubsequent interrogation conducted after the suspect has been properlywarned, may nonetheless be admissible. See Michigan v. Mosely, 96 S.Ct. 321 (1975).

(c) If the questions asked of a suspect are prompted by a reasonable concernfor public safety, the fact that the answers to these questions were notgiven under the protection of Miranda's procedural safeguards may notrender these answers inadmissible. See New York v. Quarles, 104 S. Ct.2626 (1984) [hereinafter Quarles].

(d) It has been suggested that a "good faith" exception to the Mirandaprocedural requirement may emerge based upon the reasoning of theSupreme Court in United States v. Leon, 104 S. Ct. 3430 (1984), andMassachusetts v. Sheppard, 104 S. Ct. 3405 (1984). In this regard, seeM. Gardner, The Emerging Good Faith Exception to the Miranda Rule-A Critique (1984) 35 HASTINGS L.J. 429.

(e) Real evidence discovered as a result of "non-Mirandized" interrogationmay be admissible, even though the statement is not, on the basis thatsuch evidence would have been inevitably discovered in any event. SeeNix v. Williams, 104 S. Ct. 2501 (1984).

8 See supra, note 1 at 1627-8.

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The Development of Miranda-Like Doctrines Under the Charter

Based on Charter jurisprudence to date, it appears that subsection10(b) has developed to the point where the following parallel propositionscan be stated:

1. The voluntariness rule for determining the admissibility of statementshas been supplemented by a waiver rule, which may cause the exclusionof even voluntary statements made in the absence of counsel by personswho have been arrested or detained.

2. The mandatory procedural safeguard of requiring arrested or detainedpersons to be advised of their right to retain and instruct counsel withoutdelay is expressly provided for in the Charter, and the possibility existsthat it may be supplemented by the development of mandatory warningsrelated to the liberty of the arrested or detained person not to speak. 9

The failure to provide any of these warnings may raise the prospect ofthe exclusion of incriminating statements.

3. An absolute ban on questioning a suspect is developing for those caseswhere the suspect expresses a desire to consult counsel, or to remainsilent.

H. THE DEVELOPMENT, IN CANADA, OF A WAIVER RULE FOR THEADMISSIBILITY OF STATEMENTS BY DETAINED SUSPECTS

A. The Miranda Waiver Standard Described

In Miranda it was decided that statements made by persons exposedto "custodial interrogation" are not to be admitted simply because themanner in which they were obtained satisfied the voluntariness require-ment established at common law. Rather, the suspect must be shown by

9 I use the phrase, "liberty not to speak", in place of the more common articu-lation, the "right to remain silent", advisedly. The accepted position in this country isthat there is no positively protected right to remain silent as such, just the absence of alegal obligation to speak. See E. Ratushny, SELF-INCRIMINATION IN THE CANADIANCRIMINAL PROCESS (Toronto: Carswell, 1979) at 185. See also Rothman v. R. (1980),[1981] 1 S.C.R. 640 at 683, 59 C.C.C. 30 at 64, Lamer J.

10 See supra, note 1. The concept of "custodial interrogation" is not entirelysettled, even now. In Quarles, supra, note 7 at 2631, it was indicated that custodydescribed "formal arrest or restraint on freedom of movement of the degree associatedwith arrest", quoting California v. Beheler, 103 S. Ct. 3517 (1983), which relied uponOregon v. Mathiason, 97 S. Ct. 711 (1977). See generally G. Stone, The MirandaDoctrine in the Burger Court (1977) Sup. CT. REV. 99, for a discussion of what maysatisfy that standard. The concept of "interrogation" does not require specific question-ing. A whole series of practices not amounting to formal questioning can be the functionalequivalent to interrogation. The test described in Rhode Island v. Innis, 100 S. Ct. 1682(1980), inquires whether words or actions by the police, not typically associated witharrest or custody, are such that they might reasonably be expected to cause incriminatingstatements.

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the state to have made a voluntary, knowing and intelligent waiver of hisconstitutional rights to silence" and to counsel. 12 Only then can thestatement be used as an admission of guilt.

The primary basis for the replacement of the voluntariness rule withan informed waiver standard was the constitutional status accorded to theright to silence, coupled with the Miranda Court's appreciation of whatthat status meant. It simply seemed inappropriate to the Court for thestate to rely upon the ignorance of an accused about his right to remainsilent, or of the consequences of speaking, and to justify that reliance onthe sole basis that the suspect was not forced to speak.13 It seemed morein keeping with the fundamental stature of the constitutional right torequire that any decision by an accused not to rely upon it must be bothinformed and intelligent. 14

B. The Waiver Rule in Canada

Since the American waiver rule developed out of concern for theintegrity of an expressly conferred constitutional right to silence, therecan be no similar basis for the development of a waiver standard here.This is so unless section 7 of the Charter is construed to house a principleof fundamental justice related to a pre-trial right to silence, which wouldbe contrary to the weight of authority to date. 15 The American basis would

i1 Amendment V of the American Bill of Rights being Amendments Ito X, XIIIto XV, XIX, XXIV and XXVI to the United States Constitution [hereinafter the AmericanBill of Rights].

12 Amendment VI to the American Bill of Rights.13 See supra, note 1 at 1609, 1623. This view is pervasive throughout the

plurality's reasoning in the case.14 A curious feature of Miranda (supra, note 1) is that its protections are tied

into the concept of "custodial interrogation" even though the right to silence recognizedin the United States can be equally imperilled in cases other than those of custodialinterrogation. In cases not covered by Miranda, the traditional voluntariness test is stillapplied. See E.W. Cleary, ed., MCCORMICK ON EVIDENCE, 3d ed. (St. Paul, Minn.:West, 1984) at 376. This occurs despite the fact the Sixth Amendment to the AmericanBill of Rights is relied upon to uphold a questioning ban where a person charged with anoffence but not undergoing custodial interrogation indicates his desire to remain silent.See Michigan v. Jackson, 106 S. Ct. 1404 (1986).

15 See, e.g., Transpacific Tours Ltd. v. Director of Investigation and Research(1985), 68 B.C.L.R. 32, [1986] 2 W.W.R. 34 (S.C.); Thomson Newspapers Ltd. v.Director of Investigation and Research (1986), 54 O.R. (2d) 143, 25 C.C.C. (3d) 233(H.C.), aff d (1986), 57 O.R. (2d) 257 (C.A.). But see Haywood Secs. Inc. v. Inter-Tech Resource Group Inc. (1985), 68 B.C.L.R. 145, [1986] 2 W.W.R. 289 (C.A.),where a limited role for section 7 is conceded. See also R.L. Crain Inc. v. Couture(1983), 6 D.L.R. (4th) 478, 10 C.C.C. (3d) 119 (Sask. Q.B.), where a broader role issuggested. While I personally believe that there is, in Canada, a verifiable principle ofjustice against compelled testimonial self-incrimination that is fundamental by any de-scription and thereby protected by section 7, it is not necessary for present purposes topursue that submission because of the conclusions reached with respect to subsection10(b) of the Charter and its connection to the liberty of a person not to speak.

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be inappropriate because our Charter does not confer a relevant expressright to silence; only subsection 11 (c) and section 13 of the Charter dealwith self-incrimination expressly and each applies at formal proceedingsalone. Therefore, even if we accept the proposition that to be trulymeaningful a constitutional right must be more durable than to be disposedof simply because the beneficiary of the right chose, however ignorantlyor imprudently, to act inconsistently with it, there is no obvious peg uponwhich to hang the waiver standard.

Notwithstanding this, a waiver standard which requires knowledgeby the accused that he need not speak has developed in this country, andit has done so indirectly. The liberty of an accused person not to speakreceives constitutional shelter under the right to counsel that is expressedin the Charter, and receives its waiver standard protection out of theconstitutional stature of that right to counsel.

1. Indirect Constitutional Protection for the Liberty Not to Speak

Subsection 10(b) of the Charter provides that:

Everyone has the right on arrest or detention

(a) to retain and instruct counsel without delay and to be informed of thatright.

While on its face the section is directed at the provision of legal services,it is in fact, to a significant extent, in existence to protect the accused'sliberty not to speak. This is because the right to consult counsel is not anend in itself; it is a means to an end. At a trial, access to counsel isintended to enable accused persons to cope with the intricacies of thelegal process and to enable them to avail themselves of those proceduresand entitlements that may enure to their benefit. The same must be truewhere the right to counsel is accorded outside of the trial setting, as isthe case under the Charter with subsection 10(b).16 In the usual situation,the most relevant entitlement of an arrested suspect or detainee thatimmediate access to counsel can protect is the liberty to remain silent.The provision of a right to immediate access to counsel upon arrest ordetention must, therefore, exist to a significant extent to enable arrestedsuspects or detainees to avail themselves of the liberty not to speak.Indeed, the essential link between subsection 10(b) and the right of aperson not to incriminate himself testimonially is suggested by the dis-

16 In this sense, subsection 10(b) houses a procedural protection rather than asubstantive one; it is a way to ensure access by persons to their substantive legal orconstitutional rights. In Miranda, supra, note 1 at 1623, the Court referred to the rightto counsel as "the adequate protective device necessary to make the process of policeinterrogation conform to the dictates of the [constitutional] privilege [against self-incrim-ination]".

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cussion of Mr. Justice Le Dain in Therens,17 and is made quite explicit inthe decision of Madame Justice Wilson in Clarkson v. R. 1,

In Therens, Mr. Justice Le Dain, in applying the purposive mode ofinterpretation appropriate for the Charter,19 stated that subsection 10(b)exists to protect those rights and liberties held by a person charged ordetained. He concluded that because of this, the concept of detentionshould be construed broadly enough to cover any case where a policeofficer "assumes control over a person by demand or direction which mayhave significant legal consequences and which prevents or impedes accessto counsel". 20 In these circumstances, access to counsel may be requiredto enable the detainee to become apprised of his rights and liberties so asto be able to cope with the risk of such significant legal consequences. 21

In Therens, the "significant legal consequences" related to the de-cision by Therens whether to comply with a demand for a breath sample.In Clarkson, the significant legal consequence that threatened to befallMrs. Clarkson if she did not consult counsel immediately was the fur-nishing by her of a self-incriminating statement that could subsequentlybe used to prove her guilt of the murder of her husband. As MadameJustice Wilson said, "[T]he actions of the police in interrogating theintoxicated appellant seem clearly to have been aimed at extracting aconfession which they feared they might not be able to get later whenshe sobered up and appreciated the need for counsel." 22

2. Accepting Waiver Assumptions: The Adoption in Canada ofthe Waiver Standard

This essential link between the right to retain and instruct counselwithout delay, and the liberty of the detainee not to speak, has been forgedby the Supreme Court of Canada into a waiver standard that requirespersons who are arrested or detained and who are speaking in the absenceof counsel to be cognizant of the consequences of what they are saying.

17 Supra, note 3 at 626, 59 N.R. at 125, dissenting on another ground.

18 (1986), [1986] 1 S.C.R. 383, 25 C.C.C. (3d) 207 [hereinafter Clarkson]. See

also R. v. Gillespie (1 May 1986), (Ont. Dist. Ct.) [unreported], wherein Borins J. notesthat subsection 10(b) reflects the privilege against self- incrimination.

19 See Hunter v. Southam Inc. (1984), [1984] 2 S.C.R. 145 at 157, [1984] 6W.W.R. 577 at 587.

20 Therens, supra, note 3 at 642, 59 N.R. at 134 (emphasis added).21 Ibid. In Clarkson, supra, note 18 at 394, 25 C.C.C. (3d) at 218, Wilson J.

interpreted Le Dain J.'s comments in this fashion:[the aim of subsection 10(b)] "is to ensure that in certain situations a personis made aware of the right to counsel" where he or she is detained by policein a situation which may give rise to a "significant legal consequence".22 Clarkson, ibid. at 397, 25 C.C.C. (3d) at 220. See also R. v. Kelly (1985), 17

C.C.C. (3d) 419 (Ont. C.A.), where it was stated that the relevant interest affected bysubsection 10(b) is the prevention of the detainee from prejudicing his case by somethinghe says or does in the absence of counsel.

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In fact, the waiver requirement probably goes so far as to require knowl-edge by the speaker of his liberty not to speak. The significant step towardsa waiver standard was taken in the case of Clarkson, referred to above.23

(a) The Awareness of Consequences Requirement

Lana Clarkson was detained in connection with the shooting deathof her husband and was advised by the police of her right to counsel. Sheindicated that she did not wish to see a lawyer and, over the protestationsof her aunt who was present at the time, proceeded to make several self-incriminating statements in response to police questioning. While thiswas happening, Mrs. Clarkson was heavily intoxicated. Because of thestate of authorities at the time, the primary issue in the lower courts hadbeen whether Clarkson's level of intoxication made her statements in-voluntary according to the common law standard. 24 Madame JusticeWilson, for the majority of the Supreme Court of Canada, dispensed withthe need to decide the issue25 and proceeded on the assumption that thestatements would have been admissible at common law.26 Her Ladyshipultimately ruled that the confession must in any event be excluded becauseClarkson had not effectively waived her right to counsel. Even thoughthe issue that the case turned upon was the validity of this waiver of theright to counsel, the focus of the case became the integrity of the decisionby the accused to speak.

Madame Justice Wilson did not describe with precision the necessarycomponents of a valid waiver of the Charter's subsection 10(b) right tocounsel where a detainee has spoken in the absence of legal representation.Indeed, she expressly refrained from resolving the general questions27

and only settled enough of those matters raised to resolve the specificissue before her. Only two propositions can therefore be gleaned fromHer Ladyship's judgment with certainty:

1. The decision to speak in the absence of counsel will not amount to a waiversimply because the decision was made in the absence of some form ofcompulsion exercised by the police; and

23 Supra, note 18.24 See ibid. at 398, 25 C.C.C. (3d) at 210, where McIntyre J., in a concurring

opinion, preferred to base his decision on the voluntariness test as it pertains to intoxicatedconfessions and to avoid the constitutional issue altogether.

25 The choice to rely on the Charter and not to resolve the case according to thecommon law rule is welcomed to the extent that it provides guidance on an importantCharter issue. It is curious, however, because of the usual policy not to deal with aconstitutional argument where it is unnecessary to the decision in a case. See Singh v.Minister of Employment and Immigration (1985), [1985] 1 S.C.R. 177 at 188-9, 17D.L.R. (4th) 422 at 435, Wilson J.

26 See Clarkson, supra, note 18 at 396, 25 C.C.C. (3d) at 219.27 Ibid., 25 C.C.C. (3d) at 218-9. "Whether or not one goes as far as requiring

[as the Americans appear to require] . . . . it is clear that the waiver of the s. 10(b)right by an intoxicated accused must pass some form of the 'awareness of the conse-quences' test."

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2. A necessary condition of a valid waiver is that the detainee have a trueappreciation of the consequences of not exercising the constitutional right.

As for the second proposition, Madame Justice Wilson did notprovide any express guidance as to how aware of the consequences adetainee must be in order to satisfy the waiver requirement. She shiedaway, for example, from deciding whether a detainee must "be tuned into the legal intricacies of the case" before a waiver is valid.2 8 Yet it isclear from the judgment as a whole that, at the very least, detainees whowaive the right to counsel through speaking must comprehend the con-sequences of speaking in the sense that the answers given by them willproduce evidence of guilt that can be used against them. I say this withsuch confidence because, in holding there to be no valid waiver, MadameJustice Wilson relied upon the trial judge's finding about Clarkson's lackof awareness of the consequences of speaking.29 The trial judge hadapplied a controversial common law standard which asked whether thespeaker appreciated "what was at stake" in speaking, 30 and Her Ladyshipsimply transported his conclusions on this point to the Charter issue ofwaiver.

(b) The Knowledge of the Rights Protected Requirement

In the course of her judgment, it was unnecessary for Madame JusticeWilson to resolve the very basic question of whether a person must alsoknow what rights exist in order to waive them. Appreciating, for example,

28 Ibid. at 395, 25 C.C.C. (3d) at 218. By way of illustration of what "beingattuned to the full intricacies of a case" might require, she quoted from Von Moltke v.Gillies, 68 S. Ct. 316 at 323 (1948), where it was said that the suspect must know thenature of the charges, the statutory offences included in the charges, the range of allowablepunishments, the possible defences and circumstances of mitigation, as well as "all otherfacts essential to a broad understanding of the whole matter".

29 Ibid. at 396, 25 C.C.C. (3d) at 219. This is curious in itself because the trialjudge made that finding in the context of the common law "operating mind" rule, wherethe onus is on the Crown. The accused need merely raise a reasonable doubt about theoperative condition of his mind. In substance then, the trial judge's finding was that theCrown had not established that the accused understood the consequences of speaking.Yet, Her Ladyship's judgment converts that reasonable doubt into an affirmative findingof fact that Lana Clarkson did not have such awareness.

30 This test is derived from the judgment of Beetz J. in Horvath v. R. (1979),[1979] 2 S.C.R. 376 at 425, 44 C.C.C. (2d) 385 at 424, where His Lordship said: "Hisawareness of what was at stake in making a statement is very much a matter of doubt."The standard is controversial because some authorities had insisted that intoxicatedsuspects need only appreciate what they are saying in order for their statements to beadmissible. In the Clarkson case, McIntyre J., who attempted to settle the issue, optedfor the "knowledge of consequences" test. See supra, note 18 at 399, 25 C.C.C. (3d)at 211. This is arguably a curious result because in cases where the voluntariness issuerelates to fear of prejudice or hope of advantage, the confessions are admissible whetheror not the accused appreciates the consequences of speaking so long as he chooses to doso without such pressure. For further discussion on the subject, see R. v. Lapointe (1983),9 C.C.C. (3d) 366, 1 O.A.C. 1 (C.A.).

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that the decision not to consult counsel makes one vulnerable to unin-formed co-operation with the police does not necessarily presupposeawareness of the entitlement to counsel or of the range of specific rightsit is intended to protect. Insofar as the primary constitutional right toconsult counsel is concerned, the issue is largely moot because the policehave an expressly provided Charter duty to advise the detainee of thatconstitutional right. The failure to advise is itself a Charter violation,irrespective of the waiver issue. Where the question takes on significance,however, is with respect to those ancillary rights that the constitutionalright to counsel is meant to safeguard, most importantly, the liberty notto speak. For a waiver of the right to consult counsel to be valid, mustpersons, in addition to realizing the risks of speaking, also know that theyare free not to speak?

In the course of her judgment Her Ladyship has arguably endorseda waiver standard that would require such knowledge. It appears that sheconsiders the requirement of knowledge of the ancillary rights beingforegone as implicit within an awareness of consequences test. In apparentelaboration on her statement that awareness of the consequences of speak-ing is crucial, 3' she quoted from the decision of Korponay v. A.G. ofCanada,32 a case involving the waiver of a mere statutory proceduralright. Any waiver, the Supreme Court of Canada had said in that case:

is dependant upon it being clear and unequivocal that the person is waivingthe procedural safeguard and is doing so with full knowledge of the rights theprocedure was enacted to protect and of the effect the waiver will have onthose rights in the process.33

It would, of course, not be surprising to find that this is what MadameJustice Wilson had intended. After all, as a matter of principle, if knowl-edge of the rights being waived is not required for a valid waiver, thosewho happen to know of their rights (typically those who need less pro-tection because of their level of awareness) will be at an advantage overthose who do not.34

(c) The Burden of Proving Waiver or the Lack Thereof

A difficult issue not addressed directly in Clarkson35 is who theburden of proof falls upon on the waiver issue. Must the Crown prove avalid waiver of the right to counsel or must the Charter complainantdemonstrate the absence of a valid waiver? It appears that the majorityproceeded on the assumption that the Crown bears the burden. This seemsto be so because, as I have indicated, Madame Justice Wilson simplytransferred the trial judge's finding on the voluntariness, "awareness of

3' Clarkson, ibid. at 394, 25 C.C.C. (3d) at 217-8.32 (1982), [1982] 1 S.C.R. 41, 65 C.C.C. (2d) 65.33 Ibid. at 49, 65 C.C.C. (2d) at 74.34 See Miranda, supra, note 1 at 1602, 1626, for similar reasoning.35 Supra, note 18.

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consequences test" to the waiver issue, and the burden of proving "aware-ness of consequences" under the voluntariness test had fallen upon theCrown, arguably to the standard of proof beyond a reasonable doubt. 36

Moreover, Her Ladyship spoke of "the test for a valid and effectivewaiver of the right" not being "met", 37 rather than of Clarkson meetingthe test of establishing an invalid waiver.

This conclusion may seem sensible as a matter of principle giventhat the state is attempting to rely upon the accused's non-invocation ofa constitutional right, yet it is not without its problems. The burden ofproving that a primafacie violation of a legal right has occurred typicallyfalls on the Charter claimant. 38 In the case of a claim by a detainee thathe asked for the right to counsel but had it denied to him or that he wasdenied an opportunity to even ask for it, this has meant that the initialburden of proof is imposed upon the detainee.39 Why should it be differentwhere the complaint of the detainee is that he did not appreciate theconsequences of his waiver? As County Court Judge Leggatt pointed outin R. v. Cuff,40 it seems improper to draw an inference that subsection10(b) of the Charter has been violated simply because a suspect who hasbeen advised of his right to counsel does not request legal assistance. Yetthis is precisely the effect that an unmodified burden of proof, resting onthe Crown, would produce; if the Crown did not call evidence of valid

36 SeeR. v. Pickett (1975), 28 C.C.C. (2d) 297, 31 C.R.N.S. 239 (Ont. C.A.),a case dealing with the traditional voluntariness rule. See generally P. Healy, The QuantumRequired for Proof of Voluntariness of Confessions (1984) 17 OTrAWA L. REv. 132. Thebasis for such a high standard is applicable equally in other confession situations andshould arguably be adopted here where the issue relates to the waiver of a fundamentalright. Yet, it should be noted that the Americans do not hold the state to such a highstandard. See Cleary, supra, note 14 at 397, where it is stated: "Apparently the prose-cution's evidence of implied waiver is adequate. . . if there is sufficient conduct of thesuspect shown beyond the fact of confessing. . . from which a reliable inference canbe drawn that the suspect was aware of his rights and made a conscious choice not toexercise them." Moreover, inR. v. Oakes (1986), [1986 1 S.C.R. 103 at 137, 24 C.C.C.(3d) 321 at 347 [hereinafter Oakes], Dickson C.J.C. stated that the burden of proof onthe state in demonstrating a reasonable limitation upon a Charter right requires proofonly to the standard of the balance of probabilities. Should a higher standard be imposedwhen the issue is whether a person imposed his own limits on his ability to invoke aconstitutional right by waiver, than where the state seeks to remove a constitutional rightin a given type of situation? In R. v. Shields (1983), 6 C.R.R. 194 (Ont. Dist. Ct.),Borins J. apparently thought so, suggesting that the onus on the Crown to establish awaiver is a substantial one.

37 Clarkson, supra, note 18 at 396, 25 C.C.C. (3d) at 219.38 See, e.g., R. v. Roach (1985), 66 Alta. R. 733, 29 C.C.C. (3d) 262 (C.A.);

R. v. Rahey (1983), 61 N.S.R. (2d) 385, 9 C.C.C. (3d) 385 (S.C.T.D.), rev'd on othergrounds (1983), 63 N.S.R. (2d) 275, 13 C.C.C. (3d) 297 (S.C.A.D.); R. v. Lundrigan(1985), 33 Man. R. (2d) 286, 19 C.C.C. (3d) 499 (C.A.). Once this burden is met, theonus shifts to the state to establish on a balance of probabilities, any reasonable limitationprescribed by law. See Oakes, supra, note 36 at 136-7, 24 C.C.C. (3d) at 346.

39 See R. v. Anderson (1984), 45 O.R. (2d) 225, 10 C.C.C. (3d) 417 (C.A.); R.v. Sabourin (1984), 29 Man. R. (2d) 101, 13 C.C.C. (3d) 68 (C.A.). But see R. v.Stamper (1982), 20 M.V.R. 94 (Ont. Prov. Ct.).

0 (1983), 10 W.C.B. 177 (B.C. Co. Ct.).

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waiver and prove it to a presumably high standard, the inference wouldbe drawn. Not surprisingly, some courts have held that the burden is onthe Charter claimant to establish that there was no valid waiver.41

A possible compromise left entirely open by Clarkson is that, beforethe validity of an apparent waiver is in issue, there must be some credibleindication presented on the evidence which raises the prospect that thedecision to speak was not in fact a valid waiver. This is the approachtaken by those decisions that deal with the awareness of the consequencesof not insisting on the right to counsel. In R. v. Baig,42 for example, itwas held that in the ordinary case there is no duty on the prosecution toprobe into the suspect's degree of understanding or comprehension. Wherethere are special circumstances, 43 however, or where there are no wordsor conduct from which comprehension can be inferred reasonably, thenthe Crown must present its case about the comprehension of rights. Inother words, before the Crown need discharge its burden, there must besome foundation laid before the Court to raise the prospect that there isdoubt about the validity of a waiver.

The need for a foundation to exist before the validity of an apparentwaiver is questioned by a court seems to be quite in keeping with theneed for Charter claimants to raise a prima facie case that a Charterviolation has occurred. Where the foundation requirement arguably pre-sents problems, however, is with respect to the potential waiver require-ment that the beneficiary of the right to counsel must know of the ancillaryrights protected by that constitutional right before it can be validly waived.If this knowledge is indeed required, as it seems to be, the preconditionof a foundation before an inquiry is almost tantamount to applying thediscreditable presumption that persons know the law; absent evidence tothe contrary that assumption would be made. Moreover, and more im-

41 See, e.g., Menzies, supra, note 3 at 399; R. v. Glancey (20 September 1985),(Ont. Co. Ct.) [unreported].

42 (1985), 20 C.C.C. (3d) 515, 9 O.A.C. 266 (C.A.) [hereinafterBaig]. AccordR. v. Anderson, supra, note 39.

43 In describing the absence of special circumstances requiring evidence of com-prehension, the Court in Baig, ibid. stated that the accused was sober (there was noindication as there was in Clarkson, supra, note 18, of impairment) and that he had noapparent difficulty hearing, appeared intelligent and had a good grasp of the Englishlanguage. The presence of any of these infirmities could have laid the foundation for theburden to fall upon the Crown. See R. v. Nelson (1982), 3 C.C.C. (3d) 147, 32 C.R.(3d) 256 (Man. Q.B.) (impaired suspect); R. v. Tanguay (1984), 27 M.V.R. 1 (Ont. Co.Ct.) (unsophisticated man, grade 6 education, limited knowledge of English); R. v.Leatherdale (30 January 1985), (B.C. Co. Ct.) [unreported] (intoxicated suspect); R. v.Johnny (11 September 1984), (B.C.S.C.) [unreported] (severe hearing impairment); R.v. R.W.T. (1986), 73 N.S.R. (2d) 236 (A.D.) (impaired youth); R. v. Oegema (5November 1984), (Ont. H.C.) [unreported] (juvenile accuseds, in some cases). But seethe clearly erroneous case of R. v. MacDonald (18 June 1985), (B.C. Co. Ct.) [unre-ported] where the accused was incapable because of mental deficiency of understandingthe concepts of "obtain", "instruct", "retain" and "without delay" but where the Courtheld that he had been properly warned.

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portantly, perhaps the only effective way for the foundation to be raisedwould be for the Charter claimant to assert in evidence that he did notknow of the relevant ancillary entitlement, typically the liberty not tospeak. This is because ignorance of one's legal rights does not suffersymptoms such as impairment or poor language facility as do problemsof comprehension. Nevertheless, when it is considered that once the issueis raised, the Crown will probably have to establish knowledge to a highstandard of proof, it becomes apparent that the imposition of a foundationrequirement would not be a heavy obligation for Charter claimants. Afterall, the only time the Crown will discharge its ultimate burden in the faceof such a claim is where the claim is so incredible, taken by itself or inconjunction with other evidence, that it is incapable of even shaking thatdegree of reliability that the Crown's case must ultimately attain. 44

(d) The Waiver Requirement Summarized

The decision in Clarkson45 is almost tantamount to the adoption, inCanada, of the Miranda waiver rule. In particular, Clarkson removes theautomatic admission of any confession made in the absence of counselby a person who is arrested or detained, simply because the confessionmeets the common law voluntariness rules;46 the prospect of exclusionwill occur despite voluntariness where the right to retain and consultcounsel without delay has not been validly waived, even where theaccused has been warned and not obstructed in his efforts to obtain advice.A valid waiver manifested through or accompanied by a decision to speakrequires, at least, that the person arrested or detained appreciates theconsequences of making a statement, and probably goes so far as torequire knowledge by that person that he does not owe a legal obligationto make any statements or answer any questions. The major differencebetween the Clarkson waiver standard and the Miranda waiver rule is

44 The experience in the United States has apparently been that where the man-datory procedural warnings have been provided, claims by defendants that they did notunderstand that their oral confession could be used in evidence against them have beengreeted with suspicion. See Cleary, supra, note 14 at 402. The same experience maydevelop here, absent special circumstances. In R. v. Schlosser (1985), 43 Sask. R. 110(C.A.), the accused testified that he did not know what "counsel" meant but the Courtupheld the admissibility of the evidence. The decision is questionable on its reasoningsince it required special circumstances to be evident to the police officer before morethan the standard advice is required to satisfy the Charter. Under the waiver standard, itis the state of mind of the accused that is relevant, not whether that state was apparentto the officer.

There is no need for American courts to engage the issue where the warnings havenot been provided because the absence of the warnings requires the evidence to beexcluded in any event. There is no reason to believe that claims about ignorance byunwarned suspects would not be taken seriously.

45 Supra, note 18.46 But see the early Charter case of R. v. Kamaka (1982), 9 W.C.B. 2 (Ont.

Prov. Ct.).

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that even if the Clarkson waiver standard is not met, the evidence willstill be admissible where its admission does not contravene subsection24(2) of the Charter. In the United States exclusion is automatic. Lesssignificant but still important differences may exist. The most obvious isthat there may be a divergence between our concepts of "arrest or deten-tion", 47 and the American notion of custody.48 Moreover, it is possiblethat the requirement under the Miranda rule that a statement be made asthe result of interrogation before it may be excluded is not a requirementhere.49

III. MANDATORY PROCEDURAL SAFEGUARDS IN CANADA

The issue of whether to develop procedural safeguards to protectpersons who have been arrested or detained has already been settled bythe express language of the Charter; we require that such persons beadvised of their right to retain and instruct counsel without delay. Thequestion then, is whether that expressly provided safeguard will be aug-mented by the other procedural safeguards provided for in Miranda.50

47 It appears from the judgment of Le Dain J. in Therens, supra, note 3, thatdetention will exist where:

1. the person "detained" is deprived of "liberty by physical constraint", ibid. at642, 59 N.R. at 134;

2. a state agent "assumes control over the movement of a person by a demand ordirection which may have significant legal consequence and which prevents or impedesaccess to counsel", ibid. at 642, 59 N.R. at 134; or

3. "the element of psychological compulsion, in the form of a reasonable percep-tion of suspension of freedom of choice, is enough to make the restraint of libertyinvoluntary. Detention may be effected without the application or threat of applicationof physical restraint if the person concerned submits or acquiesces in the deprivationof liberty and reasonably believes that the choice to do otherwise does not exist."Ibid. at 644, 59 N.R. at 135.

48 See the discussion in note 8, supra.49 It is possible that, in Canada, any statement made while under arrest or

detention before counsel is consulted must be the product of an informed choice, whetheror not the statement is made in response to interrogation. This possibility is raised becausestatements made by Mrs. Clarkson to her aunt, which were overheard by the police,were excluded by the trial judge, and it appears that this exclusion was upheld by MadameJustice Wilson. The trial judge had excluded these statements under the operating mindrule. However, Her Ladyship refrained from applying that rule in the case and resolvedthe issues using subsection 10(b) of the Charter. This aspect of Her Ladyship's judgmentis troublesome; did she intend to extend the application of subsection 10(b) in thissignificant way without full discussion? This broad application of the provision raisesdifficult questions about the need for police action for there to be a subsection 10(b)contravention, about the causal connection requirement under subsection 24(2), andabout forensic practices like those which had received the endorsement of the Court inRothman v. R., supra, note 9. It is difficult to conclude that the Court intended to addressthe issue in Clarkson given its failure to speak directly about it.

5o In Miranda, supra, note 1, the Court emphasized time and again that the statescould replace the Miranda warning requirements devised by the Court with any equallyeffective safeguards.

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A. Miranda's Procedural Safeguards Described

To succeed in having statements that have been made by personswhile subject to custodial interrogation admitted in the United States, theprosecutor must prove more than a voluntary, knowing and intelligentwaiver of the relevant constitutional rights. The prosecutor must alsoprove that procedural safeguards effective to secure the Fifth Amendmentprivilege against self-incrimination have been adhered to at the time ofinterrogation.51 This has come to mean that the accused person must be

(i) informed on his right to silence,

(ii) advised that any statement he does make may be used as evidenceagainst him,

(iii) told that he has the right to the presence of an attorney, and

(iv) advised that if he cannot afford an attorney, one will be appointedfor him if he so desires.52

B. The Case For, and Against, Enhanced Procedural Safeguardsin Canada

It seems rather enticing to impose a requirement, in Canada, thatthe police advise a detainee of his liberty to remain silent and that anythinghe says may be used as evidence against him. After all, it would not bea great imposition given that there is already a constitutional advicerequirement respecting the consultation of counsel that must be met. Whatare a few more sentences,53 especially given that it is already customaryfor the police to provide silence warnings?54 Moreover, if subsection 10(b)is primarily about ensuring detainees access to their rights and liberties,why not advance that purpose by the relatively simple expedient of havingthe interrogator advise the detainee of this most relevant liberty?

In the end, this line of argument may prove too attractive to resist.Yet, those inclined to accept it should bear in mind two things. The first

51 Ibid. at 1626.52 Whether subsection 10(b) of the Charter, or some other provision, imposes a

duty on the states to provide legal representation is a complex question beyond the scopeof the discussion here. In the United States, the failure to advise a suspect that counselwill be provided for him is not fatal to admission if he is known without doubt to havea lawyer or the funds to obtain one. Ibid. at 1627, n. 43.

53 The simplicity of providing the warnings was a significant point for theMiranda Court majority. Ibid. at 1625.

5 Even before the Charter, such warnings were often provided and then reliedupon by the Crown as some evidence of voluntariness. The Supreme Court of Canadaindicated that the provision of such warnings would be a relevant factor in Boudreau v.R. (1949), [1949] S.C.R. 262, 94 C.C.C. 1, which case appears to have redefined theholding in Gach v. R. (1943), [1943] S.C.R. 250, 79 C.C.C. 221, which had seemed torender such warnings mandatory.

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is that the ultimate assumption underlying the mandatory warning require-ment is one that we may not wish to accept. The second is that if theseprocedural safeguards are developed on the theory that they are implicitin subsection 10(b), the failure by the police to provide the advice rep-resents a constitutional violation and, as I will argue, undesirably deflectsthe focus of the inquiry from whether the detainee knowingly and vol-untarily waived his substantive rights to whether the procedural safeguardshave been met.

1. The Assumptions Underlying the MandatoryWarningRequirement

Three closely connected reasons are said to support the developmentin Miranda of the mandatory warning requirement. The first is the as-sumption that custodial interrogation is inherently coercive such that thechoice of a detained suspect to speak is unlikely to be "truly the productof free choice";55 the procedural safeguards are relied upon to "dispel"that coercive atmosphere.5 6 The second reason is that the Miranda Courtbelieved that a decision by a judge about whether the suspect had knowl-edge of his rights "can never be more than speculation"; the "warning isa clearcut fact" upon which the courts can rely.5 7 The third reason is thatthe Miranda Court believed that the provision of warnings would under-score the importance of the rights to the suspect. 58

I suggest that on close examination in light of the Miranda waiverrule discussed above, the first and third reasons disappear. Assume, forthe moment, that a suspect, interrogated in custody, speaks in the absenceof counsel either involuntarily or because he did not know of, or appreciatethe nature of his rights. The statement made would be inadmissibleaccording to the waiver requirement, irrespective of whether the proce-dural safeguards were complied with, because the statement is not theproduct of a voluntary or informed choice. The procedural safeguards aretherefore superfluous in a case like this.59 Now assume that a suspect,interrogated in custody, speaks voluntarily in the absence of counsel, withfull knowledge of his rights and with full appreciation of the consequencesof doing so. The most striking feature of the Miranda warning require-ments is that if they had not been complied with in a case like this,exclusion would still be required, even though the provision of warnings

55 Miranda, supra, note 1 at 1624.56 Ibid.57 Ibid. at 1625.5 Ibid.59 This is why another argument frequently cited in favourof theMiranda warning

requirements is quite irrelevant. It is often said that the warnings ensure that the ignorantsuspect will not be disadvantaged by not knowing of his rights to counsel and to silence,relative to a suspect who is fully aware of his entitlement. If the ignorant suspect'sconfessions never meet the informed waiver standard then it seems to me that hisignorance is a blessing, not a handicap, since that ignorance will cause the confession tobe excluded.

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to this particular suspect would have been pointless. Why should theevidence be excluded? The assumption that custodial interrogation isinherently coercive is irrelevant to this scenario because, ex hypothesi,the suspect was not in fact intimidated or coerced into speaking by thatatmosphere. Furthermore, the third reason underlying the Miranda warn-ing requirement is equally irrelevant because, ex hypothesi, this suspectappreciated the importance of his rights. The only remaining reason tosupport the exclusion of such valuable evidence, which it must be remem-bered has not been obtained in violation of the suspect's right to silenceor to counsel, is the concern that a judge would be unable to recognizethat the suspect spoke in a voluntary, informed manner. The judge couldonly speculate as to whether the suspect did so. suggest that this kind ofassumption is not one that we have indicated any predisposition to sharing,nor should we. We have purported to be able to resolve factual issuesabout voluntariness. 60 The developing oppression doctrine also requiresus to determine the impact of circumstances upon the decision of a suspectto speak. 61 Our courts have acted with confidence in determining a widevariety of complex issues where the assessment of motive, intention andbelief is crucial. 62 Why should it be different where the issue is theintegrity of a waiver of the right to counsel? The very decision in Clarkson63

suggests that we can resolve such questions. 64 Naturally, we recognizethat our determinations of fact rarely approach absolute certainty. Wecope with the moderate insecurity this creates, however, by developingappropriate standards and burdens of proof. In the subsection 10(b) con-text the issue need only be whether, where a foundation has been laid asto the prospect of an invalid waiver, the detainee can be shown by theCrown to have voluntarily waived the right to counsel before speaking infull appreciation of the rights being foregone and the consequences ofdoing so. If the Crown cannot do so, subsection 10(b) has not been satisfiedand remedial action may be appropriate under subsection 24(1), or evenrequired by subsection 24(2). It is both unnecessary and undesirable to

60 See R. v. Fitton (1956), [19561 S.C.R. 958, 116 C.C.C. 1, and Rothman,supra, note 9, for the extent to which subjective factors are taken into account in theassessment.

61 See R. v. Hobbins (1982), [1982] 1 S.C.R. 553, 66 C.C.C. (2d) 289; RKaufman, ADMISSIBILITY OF CONFESSIONS, 3d ed. (Toronto: Carswell, 1979) at 232.

62 To take but one example, we purport to decide whether an accused personraising the special defence of provocation to a murder charge acted on the allegedprovocation before his passions cooled, taking into account his mental, emotional andphysical characteristics. See, e.g., R. v. Hill (1986), [1986] 1 S.C.R. 646, 25 C.C.C.(3d) 322. Notwithstanding the difficulties inherent in that kind of determination, we donot give up and apply a general rule that any person in a situation where an ordinaryperson would be provoked shall be deemed to have been provoked. Yet this is preciselythe kind of thing that this aspect of the Miranda rules does with respect to statements byaccused persons; it simply deems them to have been uninformed.

63 Supra, note 18.64 The trial judge made a determination about the awareness of the consequences

by Clarkson and Madame Justice Wilson relied upon that. Is it really so much moredifficult to determine the existence of knowledge about one's rights? Ibid. at 396, 25C.C.C. (3d) at 219.

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throw up our hands and prevent the Crown from even trying to establishsuch a case.

2. Maintaining the Focus of the Inquiry

Even if the auxilliary procedural protections described above weredeveloped in Canada and were violated in a given case, the statementswould not necessarily be excluded, as they would be in the United States.They would only be excluded if the circumstances of the case satisfiedsubsection 24(2), and it could surely be argued that it would be a relevantfact if a suspect could be shown not to have been prejudiced by the failureto warn because he already knew of, and appreciated the nature of, hisrights. 65 What is the grave danger then, of developing Miranda-likewarning requirements here? They would not paint the unsightly, indiscri-minatory broad-brush picture here that some claim has been painted inthe United States. The response to that, I suggest, is simple and compel-ling: where a duty is imposed upon the police to perform an act, such asthe provision of a warning, and the act is not carried out, the inquirybecomes the failure to carry out that duty. The questions become: "Wasthe officer's failure to comply intentional, or blatant, or designed todeprive the accused of his rights?" or "What will the impact of exclusionbe upon police conduct in subsequent cases?" While these kinds ofinquiries may be crucial where the police conduct deprives a person of asubstantive constitutional right, they are not important, I suggest, wherethe issue relates to the non-observance of a procedural requirement thatdoes not, of itself, constitute a substantive deprivation. In particular, ifthe purpose of the warning is to negate intimidation or ignorance, and thesuspect is not intimidated or ignorant, he should be left no room forprocedural objections where the underlying constitutional protectionshave not been denied. For this reason, no further procedural protectionsshould be developed through the inspiration of Miranda to augmentsubsection 10(b) of the Charter.

Before leaving this point, it is important that two things be stressed.The first is that a refusal to develop a mandatory warning requirementrelating to the liberty of a detainee not to speak will not diminish thedetainee's rights, since if the detainee does not know of that liberty, therehas been no valid waiver and the requirements of subsection 10(b) havenot been met. The failure to warn of the liberty would be superfluous forthe provision of the statement itself would fail to meet constitutionalstandards. The second is that it will be in the Crown's best interests tohave detained persons advised of their liberty not to speak and of the

65 See, e.g., R. v. Blackstock (1982), 29 C.R. (3d) 249 (Sask. Prov. Ct.), affd(1983), 32 C.R. (3d) 91 (Q.B.), where the prejudice to the Charter claimant was saidto be a factor. See also R. v. Duguay (1985), 50 O.R. (2d) 375, 18 C.C.C. (3d) 289(C.A.), where the vulnerability of the youthful accused was considered to be an importantfactor in supporting the exclusion.

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consequences of doing so. The provision of a warning will provide someevidence that a subsequent waiver is fully informed. It can therefore beexpected that such warnings will customarily be provided.

IV. THE ABSOLUTE QUESTIONING BAN

A. Miranda's Procedural Ban

The Miranda rules require that if a person being interrogated indi-cates at any time that he does not wish to speak, or that he wishes toconsult with a lawyer, the interrogation must cease. 66 This aspect of therule will be relevant only where the Miranda warning has been providedand where the rights described are validly waived. This is so because theabsence of either the warning or the waiver would have required exclusionin any event. The further questioning ban, then, rests upon the basis thatthe waiver of the rights described in the warning is not absolute oncehaving been made. The waiver can be retracted at any time by the suspect'sre-invocation of his right to counsel or by his indication that he nowwishes to cease answering questions.67

B. The Canadian Authorities Under Subsection 10(b)

In R. v. Esposito the "principle" was enunciated that "if the suspectstates that he wishes to retain counsel all questioning must cease until hehas been afforded the opportunity of consulting counsel." 68 That principlewas said to derive from R. v. Manninen,69 an earlier Ontario Court ofAppeal case, although the articulation of it in Esposito is broader than theManninen holding itself.

Manninen had been arrested and charged with a number of offencesincluding armed robbery and the use of a firearm. He was duly cautioned

66 Miranda, supra, note 1 at 1627. The rule may be qualified where counsel ispresent and questioning persists despite an expression of desire by the suspect that hewishes to remain silent. See Cleary, supra, note 14 at 394.

67 See Miranda, supra, note 1.68 Supra, note 3. This proposition, or a variation of it, has been advanced in

other cases. It was articulated without unequivocal endorsement in R. v. Anderson,supra, note 39 at 230. And see, e.g., R. v. Perrault (1984), 11 C.R.R. 331 (Ont. Dist.Ct.), relying primarily upon a section 7 analysis and referring specifically to a suspect'sexpress desire to remain silent; R. v. Glancey, supra, note 41; R. v. Schmeir (1985), 15W.C.B. 275 (Ont. H.C.). This proposition was also made in R. v. Ironchild (undated),(Sask. Q.B.) [unreported] and in R. v. Gillespie, supra, note 18. See also R. v. Bazinet(1986), 54 O.R. (2d) 129, 25 C.C.C. (3d) 273 (C.A.) where it is recorded that SutherlandJ. excluded statements made after the accused indicated a desire to see a lawyer, butbefore the lawyer arrived. The Ontario Court of Appeal did not have to rule on the mattersince the Crown apparently did not appeal the ruling.

69 (1984), 43 O.R. (2d) 731, 8 C.C.C. (3d) 193, leave to appeal to S.C.C.granted, (1984), 55 N.R. 241.

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about his right to counsel and the customary warning about his right toremain silent was provided. He responded by indicating that he wouldsay nothing until he saw his lawyer, and he expressed a desire to instructcounsel. The police ignored the request and persisted in questioning himin a manner that was somewhat "baiting". Manninen responded hostilely,but in a way that left no doubt that he was guilty of the robbery andfirearms charge. These "confessions" were ultimately excluded fromevidence.

In Manninen it was quite clear that subsection 10(b) had beenbreached. The police ignored his request to see counsel and it was in theface of this that the statements were obtained. As Ontario Chief JusticeMacKinnon stated, "the question was asked as if the appellant had ex-pressed no desire to remain silent and to see his lawyer."70 Thus, Manninencan be interpreted as meaning no more than that where a person, arrestedor detained, expresses a desire to see counsel and that request is ignored,thereby delaying the realization of the right, subsection 10(b) has beenviolated. Indeed, that is how the Manninen decision was treated in thelater decision of the Ontario Court of Appeal in R. v. Ferguson.71 InFerguson, the accused indicated that he would say nothing until heconsulted a lawyer. The police co-operated in his efforts to secure counselby letting him place a call. After Ferguson placed the call, the policeapparently questioned him72 and he incriminated himself. The admissionof the confession was upheld despite Manninen on the basis that, inFerguson, the appellant was not denied counsel whereas Manninen hadbeen.

The holding in Ferguson does not necessarily contradict the principlereferred to in R. v. Esposito.73 Questioning must cease, according to thatprinciple, until the detainee has been afforded the opportunity of con-sulting counsel. In Ferguson, the police did all they could reasonably beexpected to do in order to facilitate Ferguson's efforts. They had providedthe opportunity, thereby removing the no questioning ban. Similarly, inR. v. White,74 the British Columbia Court of Appeal considered it ac-ceptable for the police to question White despite his expressed desire thenight before to see a lawyer. By being left alone until the next morning

7 Ibid. at 738, 8 C.C.C. (3d) at 199.71 (1985), 20 C.C.C. (3d) 256, 10 O.A.C. 5 (C.A.). See also R. v. Anderson,

supra, note 39 at 236, 10 C.C.C. (3d) at 428, where it was stated that Manninen was acase where the police vitiated their obligation to provide the opportunity to consultcounsel without delay. See also R. v. Nikiforuk (1986), 68 Alta. R. 246 (Q.B.) for asimilar case.

72 The report of the decision does not specify that Ferguson was interrogated orquestioned but refers to a conversation. Perhaps Ferguson initiated the conversation.Since this point is not even raised by the Court, and since the Manninen case wasinterpreted narrowly rather than simply distinguished because of the fact that Manninenwas actually questioned, it is probable that Ferguson was as well, or that the Court didnot consider the point to matter. See the discussion concerning the expanded Americannotion of interrogation, supra, note 10 and supra, note 49, as to the prospect that theabsence of questioning may not matter here.

73 See supra, note 3.74 (1985), 15 W.C.B. 377 (B.C.C.A.).

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White had been provided with the opportunity to obtain counsel and wasnot pressed to speak until a reasonable time had passed during which hecould have done so. In R. v. Williams,75 the Alberta Court of Appealenunciated a similar principle. The accused had said he did not wish tosay too much without a lawyer but the police persisted in questioning.While the Court ruled that the answers received in response must beexcluded, it did so on the basis that the officers had failed in theirobligation to leave the accused alone for a reasonable time during whichhe could make efforts to obtain advice.

If the mere opportunity to consult counsel is enough to lift the ban,then it must be acceptable to question a suspect after counsel has actuallybeen consulted. This was the view of the British Columbia Supreme Courtin R. v. Martell.76 There, the accused told the police of his counsel'sadvice not to speak but police questioning nonetheless lead to admissibleresponses. In R. v. Stone, 77 it was held that the police could question asuspect after he was advised of his rights and had spoken to counsel overthe phone, even though counsel was on the way to the station at the time.It was considered enough that the accused chose to answer questions afterbeing advised that he did not have to.

The Stone case suggests that the accused may even be taken in somecases to have waived the protection of the no questioning ban. There havebeen other holdings which support this prospect. In R. v. Ironchild78 itwas held acceptable for police to question a suspect who responded to acaution that he would not mind seeing a lawyer. Before questioning himthe police asked whether he was prepared to answer questions in theabsence of counsel given that there was no lawyer present and he agreed.In R. v. Howes,79 an Ontario Provincial Court Judge accepted that wherean accused gave written notice that he wished to say nothing, his decisionto answer questions at a later point without reasserting his right constituteda waiver.

Taken together, the foregoing authorities seem to establish that atemporary ban on questioning arises once a detainee expresses a desireto see counsel, to remain silent, or presumably where he fails to waive

-5 (1986), 17 W.C.B. 431 (Alta. C.A.).76 (1984), 13 W.C.B. 151 (B.C.S.C.). But see R. v. Grieg (Ont. H.C.) [unre-

ported]as reported in K. Makin, "Police Must Advise Lawyer if Accused Questioned:Judge's Decision Broadens Right to Counsel", The [Toronto] Globe and Mail (5 February1987) A4, wherein Dupont J. apparently held that where the accused has counsel, counselmust be notified of, and provided with the opportunity to attend any questioning of theaccused. Similarly, in R. v. A & E (9 April 1985), (Ont. H.C.) [unreported], statementswere excluded where they were obtained in a police car from an accused whom theofficers knew had legal counsel.

77 (10 May 1984), (B.C.S.C.) [unreported]. In Crossman v. R. (1984), [1984] 1EC. 681, 12 C.C.C. (3d) 547 (T.D.), the Charter was held to have been violated wherea detainee was questioned after he telephoned counsel, but before counsel arrived,although the Court denied that there is an absolute questioning ban.

78 Supra, note 68.79 (3 October 1984), (Ont. Prov. Ct.) [unreported].

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his right to retain and instruct a lawyer.8 0 The protection of the ban willlapse where the detainee has consulted counsel, has been provided withan opportunity to do so, or where he has otherwise waived the protectionby indicating a readiness to answer questions.

C. The Merits of the No Questioning Ban

The no questioning ban emerging from the Miranda case is basedupon two considerations. The first is that custodial interrogation is con-ceived to be so inherently coercive that once a suspect has indicated adesire not to speak, the response to questions cannot be safely consideredto constitute a voluntary waiver of the right to silence unless counsel ispresent at the time. 81 The second consideration is that where a suspectseeks to avail himself of a constitutional right by expressing his desire torely upon it, it is improper and unseemly for the police to disregard thatinformation and attempt to get the suspect to change his mind. 82 Continuedquestioning where the liberty not to speak has been invoked is clearlysuch an effort to the extent that the liberty is a constitutionally shelteredright. Continued questioning where the suspect expressly desires to con-sult counsel is as well; the continued questioning takes on an aspect ofurgency, since the police know that once counsel arrives, it is unlikelythat self-incriminating statements will be made. They question, in effect,to make the impending consultation with counsel pointless.

In Canada, the former basis is arguably inappropriate. While weprobably accept that interrogation while the suspect is arrested or detainedis inherently coercive,8 3 we have demonstrated confidence that we canresolve the factual issue of whether a particular suspect was affected bythat inherently coercive atmosphere. Whether a subsequent response con-stitutes a re-waiver is an issue that we could probably resolve. However,the latter reason described above is more difficult to dispense with. Itdoes seem improper and unseemly, and somehow inconsistent with the

80 This is the logical corollary of the decision in Clarkson, supra, note 18, sincestatements made in the absence of a valid waiver are considered to be obtained uncon-stitutionally.

8, Miranda, supra, note I at 1628.82 See Cleary, supra, note 14 at 395, interpreting the Miranda decision of Ed-

wards v. Arizona, 451 U.S. 477 (1981), rehearing denied 452 U.S. 973 (1981).83 In Dedman v. R. (1985), [1985] 2 S.C.R. 2 at 29, 20 C.C.C. (3d) 97 at 116,

a non-confession case, a general comment about the power dynamic between the policeand the citizen was voiced: "Because of the intimidating nature of police action anduncertainty as to the extent of police powers, compliance [with a police demand ordirection] cannot be regarded as voluntary in any meaningful sense." If this commentcan be removed from its context of a breathalyzer demand, it says a great deal about theinherently coercive atmosphere where police ask questions, apparently expecting aresponse.

In R. v. Savard (1986), 17 W.C.B. 120 (Ont. Dist. Ct.), Salhany J. describedsubsection 10(b) as being inspired by the inherently compelling pressure of in custodyinterrogation.

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notion of constitutional rights, for the police to take active steps, likequestioning a suspect, to encourage him to relinquish his constitutionalrights. 84 Even in the pre-Charter case of R. v. Howard, the Ontario Courtof Appeal noted that the continued questioning of Trudel after he made itclear he wanted to see a lawyer, and had called the lawyer, "made amockery of Trudel's right to counsel and his right to remain silent."8 5 Itseems probable, therefore, that the uncertainty remaining over the insti-tution of a further questioning ban under subsection 10(b) will be resolvedin favour of such a rule. The real questions appear to relate to theappropriate scope of that rule.

V. CoNcLUSIoN

Prior to the advent of the Charter many Canadians, schooled in alegal system that received illegally obtained real evidence and whichmeasured the admissibility of confessions by a rigid voluntariness rule,considered Miranda6 to be the paradigm example of the pendulum havingswung too far towards the protection of the accused in the United States.Now we find ourselves staring Miranda-like doctrines in the face. Thenature of the Charter right to retain and instruct counsel without delayimpelled the development here of our own Miranda-like waiver standardthrough the decision in Clarkson.s7 The right to counsel warning requiredby subsection 10(b), coupled with the purpose of the right to counsel,may well promote the development of other procedural safeguards likethose in Miranda, although I personally feel that this would be counter-productive.

There are many questions left to be answered, some of them ex-tremely basic, such as whether we will erect an absolute questioning banhere, or whether knowledge of the liberty not to speak is a preconditionto a waiver of the right to counsel where the person charged or detainedhas incriminated himself. When the smoke does ultimately clear, for betteror worse, we will have moved a good deal of the way to adopting majoraspects of the Miranda rules, as modified by the Canadian context; indeed,even now it seems futile to ask whether we will develop Miranda ruleshere. To an extremely significant extent, we already have.

84 In R. v. Dotchuk (1985), 14 W.C.B. 302 (B.C. Co. Ct.) it was held that effortsby the police to dissuade an accused from relying upon his constitutional rights wereunconstitutional.

85 (1983), 3 C.C.C. (3d) 399 at 414. A second accused named Michael Trudelwas tried jointly with Howard for the same offence.

86 Supra, note 1.87 See supra, note 18.

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Development of Miranda-Like Doctrines under the · PDF filebetween laudible protections for the rights of accused ... The Development of Miranda-Like Doctrines ... The Development