One thing about Americans is that most of them know they have a constitution that protects their rights. Americans know about their Miranda rights; essentially that they have a right to silence, they have a right to a lawyer and they have a right to demand that a lawyer be present in any police questioning.
This makes for great television because the police questioning happens with the wily attorney right there in the interrogation room.
If the police can just violate your Charter rights and not abide by your Charter rights how are you ever to come to the sense that you have rights?
In Canada it’s not the same. For example, you have no entitlement to have your lawyer present during police questioning. Did you know that? Almost nobody seems to know that, which is a little sad because it’s your Charter of Rights.
Why don’t Canadians know about their rights? Why is the Charter of Rights a nebulous nothing to most Canadians? You may wish to blame the courts which have undermined the Charter with exemption after exemption.
The Charter of Rights in the collective consciousness
The Charter of Rights became law in April 1982. It is primarily a document designed to provide legal rights with respect to the relationship people have with governments in Canada. One would imagine that the people who backed the Charter would have liked to see a development in the collective Canadian consciousness — that Canadians would start to apply and understand their rights under the Charter to their normal concept of their relationship to governments. A development such as this in the collective consciousness could allow people to live a more comfortable and secure life, knowing that organizations such as the police were bound by laws to make them behave fairly.
It would be nice to know when you can safely step in to protect yourself or your neighbours from the police. Can they haul away you or your roommate in the middle of the night? Not without informing you of your Miranda rights if you live in the US and bringing you before a judge to determine the validity of your detention and to determine bail.
Canadians know that about American law. Do you know as much about Canadian law?
Do you know the Charter of Rights?
Our Charter of Rights contains powerful words but you probably don’t know them. In part the reason you don’t know them is because they’ve been whittled away so the words are not so powerful after all. Let’s look at the provisions of the Charter most often engaged right away in our dealings with the police.
Arrest or detention
10. Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right…
Section 10 of the Charter is probably the most commonly engaged section of the Charter of Rights. When the police pull you over, you are detained. They have control over your movement.
Almost every Canadian who drives will be pulled over at some time or another, either for some alleged traffic offence or at a DUI roadblock. At this point it’s a detention. What normally happens?
In traffic ticket cases, the officer usually asks you if you know why you were pulled over. Does this constitute being promptly informed of the reason for your detention? No way.
In traffic ticket cases the police don’t bother to comply with your 10(a) rights. The message they’re sending you is that you have no rights. It undermines the acceptance into the collective consciousness that we have rights.
Drunk driving investigations and the Charter of Rights
Our courts in Canada stripped away your rights when it comes to drunk driving investigations. It’s all very rational in the sense that they tried to give effect to the Government’s legislation. But it completely undermines our collective idea that we have rights. Allow us to explain.
The courts have overlooked the violation of section 10(a) in drunk driving investigations. Whether at a roadblock or just when pulled over, the police are permitted to detain you without informing you of the reason therefor. In a roadblock situation, the reason for the detention is obvious to most drivers. It’s not always so obvious if it’s a pull over or an investigation after an accident.
The reasoning makes sense, but the effect is terrible. The idea is that any evidence collected would (before IRPs were introduced) not be used to incriminate or punish you but only be used for the purpose of authorizing other investigatory steps. This gives the police some tools to investigate drunk driving offences. The effect is that people are left with the impression that they have no rights and the police are an arbitrary force.
ASD tests and your Right to Counsel
When it comes to Approved Screening Device tests, the Supreme Court of Canada has said that the police have no obligation and indeed should probably not tell people about their 10(b) right to consult a lawyer during the process of the investigation when an ASD is used.
If you’re not so concerned about protecting those Charter rights, the reasoning makes sense. In this case, despite the violation of Charter rights, the court said they police could not inform people of their right to counsel when using an ASD because the test results (until the IRP scheme was introduced) were not used to incriminate/punish or tarnish the individual but could only be used as the basis to permit further investigation at which point people would be granted their Charter rights.
Should you be granted your Charter Rights?
You should have your Charter rights and not have them granted to you. You should know that you have rights. You should have rights. But how would you know you have Charter rights if they can be stripped away at the very start of the process because the Court wants to facilitate the Government in the application of their unconstitutional legislation?
If the police can just violate your Charter rights and not abide by your Charter rights how are you ever to come to the sense that you have rights? How would our rights ever become part of the collective consciousness?
Unfortunately, looking back it seems that despite having had a Charter of Rights, most Canadians know more about American Miranda rights than Canadian rights. If asked, most people say the Charter of Rights is a good thing, but they have no sense of the rights they may have under the Charter.
Is that your Charter of Rights?
The primary interaction people have with the government in a situation of jeopardy is with the police. It’s part of the common Canadian experience. From that experience most people take away the idea that they have no rights worth mentioning.
Is that your Charter of Rights? The police can simply violate the rights that are described in the Charter upon contact with a person they detain. If they can violate your rights as a matter of policy, then it isn’t a right.
That’s the message most people take from their interactions with the police. It’s no wonder that most people in Canada can’t say anything substantive about their Charter of Rights.