Your Rights on Arrest
Written by Michael V. Coyle, JD.
Posted in Legal, Opinions
Tagged: Arrest or Detention, being arrested, Canadian Charter of Rights and Freedoms, Canadian Rights, Criminal Code of Canada, criminal law, legal, legal advice, Police, questioning, rights on arrest
Published on August 20, 2012
by Michael V. Coyle, JD*
We all know the lines by heart. We've heard them a million times. The police officer tells the suspect: "You have right to remain silent. Anything you do say can and will be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford a lawyer, one will be appointed for you."
These lines are so familiar to us from American TV shows that most Canadians would naturally assume that we have similar rights in this country. But Canadian law – and what the police are required to tell us about our rights – is very different.
In Canada, the police tell the suspect something like this: ""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 what I just told you? Would you like to speak to a lawyer?"
You will note that there is nothing said about any "right to remain silent" and nothing about any "right to have an attorney present" when you are questioned by the police. The only "right" they mention is the "right to retain and instruct counsel without delay", whatever that means. Let's look at that.
At the police station you will be given access to a telephone. You will be allowed to call the lawyer of your choice – if you know a lawyer and are able to reach them quickly. Otherwise, the police will dial the number of the "duty counsel" lawyer for you. Duty counsel are Legal Aid lawyers or private lawyers hired by Legal Aid to answer these phone calls 24-7.
In Canada, it is the responsibility of the lawyer, if you call one – not the police – to tell you about your "right to remain silent" under the Canadian Charter of Rights and Freedoms. In a short telephone call the lawyer will try to explain this aspect of our Constitution to you (when you are very upset, worried and distracted by what is happening to you) and will often strongly advise you to exercise that right by refusing to answer police questions. They will explain that it is an important right enjoyed by all Canadians and that it is there to protect you from the legal consequences of statements you make to the police, especially since you may not know what those consequences are at the time you are speaking with police.
This advice is almost always ignored, except by hardened criminals. That is because, once the phone call is over and the person is back with the police, they will continue their questioning very persistently. They will tell you (as I know from watching the videos of dozens of actual police interrogations over the years) that you can and should ignore the advice of the "legal aid lawyer". The police will belittle the lawyer's advice by saying, "They always say that." They will often point out to you that the lawyer is not there and he/she doesn't know what the police "know". They will lie to you about what they "already know" from their "investigation" or about statements that they claim to have received from others, when that is not true. They will suggest that it is in you best interests to give a statement "if you have nothing to hide" and they will say, over and over, that they are "only trying to help you" or that "I've been good to you, so be good to me and tell me your side". They will carefully imply that you will face dire consequences unless you "co-operate" with them by giving a statement.
This is all "fair ball" inCanada. Police officers in this country consider it a matter of professional pride to elicit an incriminating statement from those who show any signs of wanting to heed the lawyer's advice and exercise their Constitutional right to remain silent. They are very skilful at it.
Most of us were brought up to respect the police. For all but the most experienced criminals, it is virtually impossible to stand up to the police in these circ*mstances and maintain your "right to remain silent". In many cases, it is not simply a case of a person being "guilty" or "innocent" of the crime they are being questioned about. It often involves situations where the police merely suspect that a person has committed a crime, or where the person is genuinely not sure whether what they did amounts to a crime at all, or where there is a real doubt that the "evidence" the police have would ever "stand up" in court.
Of course, the less certain the police are that they can prove you committed a crime, the more intensely they will question you to try to get your confession. Because, obviously, if the police already actually have the evidence they think is necessary to convict you, they don't need your confession. All too often, in my experience, the police will try to get a confession from a suspect when they don't have any real evidence against that person, simply because it is easier to do that than to go through all of the trouble of conducting an actual, evidence-gathering police investigation. Sadly, extracting confessions is a short cut that Canadian law gives the police so they don't have to investigate crimes.
Unlike in the United States, or in Great Britain, you do not have the right inCanada to have a lawyer present when you are being questioned by the police. Your right to legal advice on arrest begins and ends with that phone call. You will not see a lawyer until the police are finished with you. If you are released you can go speak to a lawyer but it is often too late once you've given a statement. If you are kept in custody, you probably won't see a lawyer until he/she visits you in your cell just before you go into court.
*Michael Coyle is an experienced lawyer, mediator and arbitrator based in Kentville. Information and opinion expressed in this article is meant for general interest only and is not a substitute for legal advice about your own situation. Michael can be reached by email at michael@... For more information and tips, visit his website at http://www.michaelcoyle.ca
http://annapolisvalleynews.com/your-rights-on-arrest/1645/
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[LawUnion]
Calling Mental Illness "Myth" Leads to State Coercion
From Bruce D. Woodrow <bruce@...>
To Law Union
SentSunday, August 19, 2012 at 11:24 PM
Although this article uses American statistics, it helps to explain why so many people with mental illness end up in prison, why many find this acceptable and why it is such a bad idea.
-- Bruce (sent from my iPad)
2012 International Year of Co-operatives
http://www.canada2012.coop/t
Calling Mental Illness "Myth" Leads to State Coercion
by Amanda Pustilnik, cato-unbound.org
August 13th 2012
State psychiatry is a mouse in the manger of an elephant, a barnacle on a Leviathan. The coercive giant that straddles our country and that feeds its maw with people who have serious mental illnesses is not state psychiatry. It is our vast prison system, which coercively confines hundreds of thousands of nonviolent, severely mentally ill people who have wound up there for want of adequate treatment.
Some numbers tell the story:
Five times more people with severe mental illnesses are confined in penal institutions than are treated (or confined) in all psychiatric facilities combined in any given year. In a typical year, according to the Department of Justice, over 300,000 people with severe mental illnesses are incarcerated in state and federal jails and prisons. Yet for the same period, only about 40,000–60,000 people with such conditions reside in public psychiatric hospitals. This current total psychiatric hospital population is also only about ten percent of what it was at its height over a half-century ago, in or around 1957.
These numbers drive to two conclusions. First, what Professor Schaler calls "coercive psychiatry" is objectively a very small problem, although it was ten times greater in the past. Far from forcing people into treatment, psychiatrists every day face hard choices about who to force out of treatment: People who need and want help must be discharged due to lack of hospital space. People with major mental illnesses like psychosis and schizophrenia seek help at hospitals but are routinely turned away because the few available beds must be reserved for the handful who are truly dangerous. Getting out of psychiatric hospitals is occasionally hard for some people. Getting into them is hard for everyone.
It's so hard to get treatment in a psychiatric hospital because nearly all of the funds that used to support them have been diverted into state prison systems. Which leads to the second conclusion from the incarceration numbers: Coercion of the mentally ill without psychiatry is an enormous problem.
The United States uses its prison system as a warehouse for adults and children with severe mental illnesses. This might be acceptable if it reflected the greater average criminality of this group. But it does not. As a group, people with these conditions are no more likely than typical people to break the law or to commit a violent crime. Their overrepresentation in the criminal system results from a host of factors including poor ability to communicate with police and attorneys, low socioeconomic status, confusion, and inability to follow directions—which leads to unintentional violations of parole or conditions of release, which leads to reincarceration. The list of such quotidian-but-important factors unrelated to increased culpability or public safety goes on and on. One of these factors is not, however, the role of psychiatrists, who become involved in a trivial, near-zero percentage of criminal cases.
Whether or not one views this mass incarceration as morally troubling, it is undeniably hugely costly. State prisons alone spend nearly $5 billion annually just to incarcerate non-violent mentally ill inmates. Many studies show that providing medical treatment and supportive housing to the same group of people would increase their subjective quality of life and reduce public spending. So why don't we do this?
Put simply: Housing and treatment sound like benefits while prison sounds like (and is) punishment. And the punishment of people with mental illnesses seems to fit more easily with a certain version of the idea of personal responsibility. This version of personal responsibility suggests that if somebody doesn't act right, you don't give him a golden ticket—you give him a whack on the backside. Regardless of what that whack (or repeated whacking) costs to taxpayers and regardless of whether the approach changes behavior or produces any benefits.
This rational actor model of punishment and behavior change might make some sense if we were talking about rational actors and the importance of respecting their free choices. But despite the bizzaro edge cases that Professor Schaler describes of people choosing to mutilate themselves in gruesome ways, people with severe mental illnesses often are not expressing anything that looks like free choice because it doesn't look like choice at all: Nobody has the power to choose to be confused, disoriented, or hallucinating.
This leads to the question of the reality of mental illnesses. Professor Schaler claims that as a matter of pure logic there can be no such thing as mental disease because the mind is a metaphor, not a bodily thing, and a metaphor cannot have a physical disease. Mind, he allows, may have reality as a social fact or construct but this is not real reality, the kind of reality you can put stitches in or cut with a scalpel.
This is a misdirection. "Mind" is not a metaphor. It is an abstraction that functionally describes some part of what our brains do. Abstractions and metaphors are not the same thing.
We use many abstractions to refer to our experience of the functions of diverse systems within our brains and bodies, like "memory" and "hunger." When I describe my ability to visualize my mother's face as "memory," that's an abstraction (or a functional description) about specific neurological processes. It corresponds to a hard core of physical reality. If I describe my imperfect memory as a capricious butterfly, that's a metaphor. There is no butterfly. There is no correspondence between my imperfect memory and any butterfly "out there" in the world. But there is a correspondence between what I refer to as my "memory" and an "in there" that exists in my brain.
Doctors, scientists, and laypeople are comfortable speaking of "memory disorders" and "developmental disabilities" (formerly referred to as retardation). We accept that "cognitive impairments" often result from traumatic brain injury. Memory disorder, developmental disability, and cognitive impairment are abstract terms that functionally describe a range of underlying neurological injuries or diseases.
While philosophers continue to debate whether mind is entirely reducible to brain states or merely totally enabled by brain states, there is no doubt that the mind arises from the brain and that when the brain suffers injury or disease, those changes change the mind. As they change memory. As they change intellectual abilities. Imagine suggesting that people with memory disorders or developmental disorders suffer from no real medical condition and ought just to act differently because memory and intellect are metaphors. The universal response would be to find such a suggestion cruel and outlandish. Yet this suggestion remains acceptable in relation to mental illnesses.
The vast institution of coercive mental health treatment designed to transform socially unacceptable behavior into an illness and then forcibly treat that illness is itself a myth – or, more accurately, a ghost: the ghost of a long and sordid history in which mere social deviance was punished in the asylum. Yet severe mental illnesses properly defined are not myths, nor are they personal choices or eccentricities. They are genetically and developmentally influenced biological diseases. And the tragic problem is not government-coerced treatment, which almost never happens: It is the lack of treatment for people with severe mental illnesses that sends them into a spiral of homelessness, crime, substance abuse, and ultimately lives served out in prison or early death.
This entry was posted on Monday, August 13th, 2012 at 8:57 am and is filed under Reaction Essay.
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[LawUnion]
Abolition of the Office of the CSIS Inspector General
by Reg Whitaker
From Paul Copeland <paulcope9@...>
To Law Union
Sent Monday, August 20, 2012 at 12:35 PM
Canadian Government Weakening National Security Accountability
Reg Whitaker. Published on August 13, 2012
There were extraordinary scenes in Parliament this June as opposition filibusters forced the House of Commons to vote continuously through one night, all the next day, and into the next night to pass the Harper government's monster omnibus so-called `budget' bill C-38. By the end, a plethora of significant changes to a wide range of laws and regulations over a number of matters that had little or nothing to do with the 2012 budget had been rammed through, and a few weeks later rubberstamped by the Senate. Among these were the gutting of the National Energy Board's independent power to review energy export projects; the scrapping of Canada's world-renowned fish habitat regime; new controls over "foreign-funded" NGOs accused of "political activities' (i.e., advocacy critical of government environmental policy); allowing American law enforcement officers to carry guns while operating on Canadian soil – and abolishing the office of the Inspector General of the Canadian Security Intelligence Service.
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A Conservative party that came into office under the banner of installing `accountability', whose very first piece of legislation in 2006 was the so-called Accountability Act, was in full-throttle mode of rolling roughshod over any and all opposition while removing all those annoying checks and balances that might impede the plans of the Prime Minister.
Foremost among these threatened plans is the Northern Gateway/Enbridge pipeline project to run Alberta oilsands bitumen through northern British Columbia to the port of Kitimat, whence it would be carried on supertankers plying the hazardous Pacific coastline to markets in China and Japan. Opposition to this project in BC is fierce, beginning with First Nations whose lands are endangered by the Enbridge `Keystone Kops' (in the words of an American watchdog looking into the company's disastrous oil spill in Michigan) and environmental groups deeply apprehensive not only about the dubious safety of the pipeline across remote, rugged mountainous terrain but even more about the near-certainty at some point of an horrendous Exxon Valdez-BP type catastrophe on the Pacific coastal ecosystem, now extending to a clear majority of almost two out of three British Columbians. Even the usually pro-Harper premier of BC, Christy Clark, has been forced by an aroused public to take a stand.
Many of the changes steamrollered into law under C-38 are designed to weaken or remove potential points of resistance to Northern Gateway. This is not surprising given that the Harper government has declared that the export of Alberta oilsands bitumen is not only in the national interest, but is at the top of the national agenda. Of course a majority government can set its priorities and do its best to achieve them, but not at the expense of treating opposition as disloyal and illegitimate. Yet this is exactly what the Harper government has been doing.
Resources minister Joe "McCarthy" Oliver is on public record as denouncing "environmentalists and other radicals" for opposing Northern Gateway with "foreign money": "These groups threaten to hijack our regulatory system to achieve their radical ideological agenda". The charitable tax status of NGOs that engage in `political advocacy' (that is, criticism of Conservative policies) has been threatened, as well as a bar on any government grants. A witch-hunting Senate committee has been attacking NGOs that Tories dislike.
The federal government created a vast surveillance network in early 2007 to monitor protests by First Nations
Public Safety Minister Vic Toews recently issued a paper outlining Canada's counter terrorism strategy which warned of "low level violence by domestic issue-based groups in Canada." Based on grievances "real or perceived", such groups include those promoting "animal rights, white supremacy, environmentalism and anti-capitalism". Documents released under Access to Information show that CSIS and the RCMP have designated Greenpeace and People for the Ethical Treatment of Animals (PETA) and aboriginal groups among "multi-issue extremists" posing a potential threat to Canada. We have learned that the RCMP has been spying on a group of British Columbia First Nations vocally opposed to Northern Gateway, closely tracking their potential for "acts of protest and civil disobedience" and monitoring their meetings with environmental groups also opposed to the pipeline. The Toronto Star reported that "the federal government created a vast surveillance network in early 2007 to monitor protests by First Nations, including those that would attract national attention or target `critical infrastructure' like highways, railways and pipelines, according to RCMP documents."
In June the Canadian Press reported that a new Integrated National Security Enforcement Team (INSET) has been established in northern Alberta to match the counter terrorist INSETs already in place in Vancouver, Toronto, Montreal, etc. since 9/11. It will be led by the RCMP and include CSIS, Canadian Border Services and Calgary and Edmonton police, and is directed to "help protect the energy industry from attacks by extremists". The RCMP Assistant Commissioner said that the Alberta unit had not been formed to snoop on people or groups that oppose energy projects such as the oilsands or the proposed Northern Gateway pipeline to the B.C. coast. There has to be violence attached to their activities in order for us to pay attention to them. That being said, in our role of preventing these threats from occurring, it is important that intelligence is collected against the activities of groups before they become violent.
When a government publicly tries to discredit environmentalists as foreign radicals because of their opposition to environmentally threatening mega-projects, and at the same time its security and policing agencies are targeting environmental and aboriginal groups as threats to Canada, not only these groups but all Canadians have reason for concern.
In defence of targeting environmental and aboriginal groups, CSIS and the RCMP claim that that they are only concerned with their potential for violence. On the face of it, this seems to offer plausible grounds for domestic spying. After all, Canadians are right to be concerned when violence is employed for political ends, endangering the safety of innocent persons. They expect their public security agencies to protect peace, order and good government. But there is a bigger problem here than meets the eye.
Is intrusive surveillance of legitimate political dissent acceptable so long as the state is only looking for the few bad apples in the barrel?
Is intrusive surveillance of legitimate political dissent acceptable so long as the state is only looking for the few bad apples in the barrel? There is a historical precedent that casts this argument in an ambiguous light.
Following the October 1970 FLQ crisis, the government of Pierre Trudeau ordered the security service, then a section of the RCMP, to `counter' and crush the terrorist wing of the Quebec separatist movement. How that was to be done was left to the Mounties; it was results that counted. The FLQ was defeated, but the methods used to achieve that objective caused no end of trouble. RCMP `dirty tricks' involved illegal police activities that were condemned by official inquiries. Ultimately the security service was removed from the RCMP with the creation of CSIS as a civilian security intelligence agency in 1984.
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Take Two #43: What Purpose Our Prisons
08/20/2012 updated 6 hours ago
By Kyra-lin Hom
This week I've been blessed enough to host a friend I haven't seen in over a year. We were room mates in college for nearly all four years and have never quite seen eye to eye, but one of the great things about friendship is that you don't have to.
She and I first met while touring our potential college as part of the incoming Honors Program freshman tour. We sat next to each other only once, during a half-hour bus ride, and decided in that time 'uh-uh, anybody but this girl.' I was a pure city girl still in the height of my fishnet and heavy make up phase. She was a small town Texan right down to her freckles and cowgirl boots. Of course, lo' and behold we ended up as randomly assigned room mates once the school year started. The rest is history. We might have come from very different places, but we were both bold women with an aversion to keeping our mouths shut (still are). Turns out that bold and upfront are great traits for roomies to have.
Skip ahead five years to this last week. One of the things I love about this friend of mine is her perspective. I feel like I've been constantly picking her brain this week because a Catholic, theology MA point of view isn't something we generally have in abundance out here in the Northwest. One of the topics that rose to the surface was the prison system. We were going back and forth on the right to life and ended up talking about the death penalty. She doesn't believe in it. I do.
We didn't linger here, though. We broke down our arguments into the why's and why not's and realized that, regardless of the origins of our opinions, we both believe something is wrong with the prison system. As far as we are both concerned, having to choose between death and an indefinite stay in inhumane circ*mstances is no choice at all. So why are those the options?
Well, the dominant attitude (and mine falls somewhere under this umbrella too) seems to be that prison is about punishment and retribution. Based solely on our judicial system, you would think this world doesn't favor second chances. In America, our prison system seems almost designed to produce hardened reoffenders (the recidivism rate in the US being nearly 70%) and our laws allow for extreme prejudice against anyone with a criminal record, making it difficult for anyone to get a fresh start. The new 'Jim Crow Laws' so to speak. Yes, they are criminals. They did wrong – sometimes evil levels of wrong – and they should be punished. This is what our storybooks have taught us from day one. But especially with one of the highest incarceration rates in the world, is this attitude practical or sustainable? A lot of research money would say no.
The best example of a completely alternative approach to prison and their prisoners is the Bastoy Island Eco Prison in Norway. Here on this isolated but very beautiful self-sufficient island, prisoners are granted something given them almost nowhere else: trust. Yes, this is the prison famously mocked for its beaches, horseback riding, sport courts, conjugal overnight rooms, dorm-like living situations and quality food. For obvious reasons, many people dismiss this prison as being too cushy to be effective. But with a recidivism rate of around 16%, I'd say it's quite effective indeed.
See, Norway has a maximum sentence of 21 years. It doesn't matter if someone slaughters whole families, they will only get a maximum sentence of 21 years in prison. This means that the people of Norway must confront the idea that criminals will some day be released back into society. This forces their prison system to focus on rehabilitation not punishment.
On Bastoy Island, prisoners are not only treated like but are also expected to act like people. They're retreat-like perks only come in exchange for a hard days' skilled work just like in the 'real world.' If they don't come into the prison with any usable skills, they are taught them there. My favorite example of this is a former bank worker turned cattle herder. After all, what use does a farm-style island have for a banker? According to him, being and working on Bastoy gave him self-confidence for the first time in his life.
Above all, the prisoners learn how to be functioning members of a non-criminal society. Several inmates even work alongside the small prison staff. And if you think the freedom encourages prisoner misbehavior, you're very wrong. Bastoy has a strict one-strike-and you're-out policy. No one on the island wants to go back into the regular system so disruptive incidents are extremely rare.
The lesson here is that those of us living in worlds of right and wrong and just desserts might need to rethink our philosophies. As uncomfortable as it makes me to admit, our old-fashioned concepts of harsh negative reinforcement aren't actually doing society any good. We might get a little thrill out of punishing the bad guy, but that's all we're getting.
As the Bastoy Prison governor, Arne Kvernvik Nilsen, says, "There will always be a need for conventional high-security prisons for people who are simply too damaged. But those people are few and far between."
http://www.westseattleherald.com/2012/08/20/opinion/take-two-43-what-purpose-our-prisons
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9th Circuit upholds 'Die Hard' director's sentence
August 20, 2012 03:24 PM EST |
LOS ANGELES — An appeals court has upheld a judgment that "Die Hard" director John McTiernan serve a year in prison for lying about discussing illegally wiretapping a movie producer.
The 9th U.S. Circuit Court of Appeals on Monday affirmed the judgment of U.S. District Judge Dale Fischer who sentenced McTiernan in late 2010 to a 1-year prison term.
McTiernan argued the judge erred in denying a motion to suppress a recording in which he and private investigator Anthony Pellicano talked about wiretapping producer Charles Roven.
McTiernan pleaded guilty to two counts of making false statements to the FBI and one count of perjury.
Pellicano was convicted at two trials on racketeering, conspiracy and wiretapping counts for digging up dirt for well-heeled clients to use in lawsuits, divorces and business disputes.
http://www.huffingtonpost.com/huff-wires/20120820/us-hollywood-wiretaps/
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COMMUNITY | AUGUST 18, 2012 |
Playboy Playmate busted for allegedly smuggling man across Canadian border
In this handout image provided by the Clinton County Sheriff's Department, model Colleen Shannon is see in a police booking photo August 16, 2012 in Plattsburgh, New York. She was arrested for illegally bringing someone across the Canadian border into the United States.
Playboy Playmate Colleen Shannon got busted August 16 for allegedly smuggling a man into the U.S. from Canada.
Police brought the 34-year-old beauty to upstate New York's Clinton County Jail and booked her for "bringing in and harboring aliens." Customs and Border Protection made the arrest. She was released on bond and is currently out of custody.
For violating this federal statute she could face ten years in prison if convicted, reports TMZ.
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Ex-prison guard to pay $750,000 judgment to inmate
The Associated Press
Published: Thursday, Aug. 16, 2012 - 6:43 am
TOPEKA, Kan. -- A former Topeka Correctional Facility officer who had sex with inmates has been ordered to pay $750,000 to one of the inmates.
U.S. District Court Judge Richard Rogers ordered the fine against former guard Nathan Van Dyke. Under a plea agreement in 2010, Van Dyke was found guilty on two counts of improper sexual conduct with female prison inmates. He received probation.
The Topeka Capital-Journal reported ( http://bit.ly/NH41of) Van Dyke didn't respond to a lawsuit filed against him by John Kurtz, an attorney representing former inmate Rebecca Fleetwood.
Court records indicate Rogers signed an order Monday entering the civil judgment against Van Dyke.
The judge's order also releases supervisors at the prison and Kansas Department of Correction officials from the lawsuit because the state paid a $30,000 settlement to Fleetwood.
http://www.sacbee.com/2012/08/16/4731386/ex-prison-guard-to-pay-750000.html
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August 17, 2012, 4:58 p.m. ET
NY man gets 70 years for producing child p*rn
Associated Press
BUFFALO, N.Y. — A western New York man has been sentenced to 70 years in prison for producing child p*rnography.
Federal authorities in Buffalo say 32-year-old Roger Luczkowiak (LUCKS'-koh-vee-ack) of Dunkirk produced home videos victimizing a 6-year-old girl. They say he also appeared in p*rnographic images found on his computer.
He was sentenced Friday in U.S. District Court in Buffalo, where he pleaded guilty in January to charges of production and possession of child p*rnography.
James Spero, of Immigration and Customs Enforcement's Homeland Security Investigations, says the lengthy sentence is fitting for someone who robbed a child of her innocence and freely traded illegal images with predators around the world.
—Copyright 2012 Associated Press
http://online.wsj.com/article/AP18525b9dd41b4c2b99b3ca212031f9e5.html
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