Cautions, Secondary Cautions, and all manner of other fun things
I should really rubber-band these in my notebook (way, way, way better than bookmarks. Seriously). All of the following wording of the cautions is taken from my handy dandy little 2008 duty notebook. I'll only be doing the English unless specifically asked for the French.
miss_zedem's recent post managed to remind me that I had not, as promised, done a post on the subject of Police Cautions within Canada. Well, I'll do one now:
Police cautions are used under the following circumstances:
Upon arrest
When about to be interrogated
Whilst being interrogated*
When an interview turns into an interrogation (yes, those are two separate and distinct things)
When being charged
*This is a 'may' option. It is not a requirement, but when a person being interrogated is about to reveal some serious stuff, it's a good idea to restate the appropriate cautions. This is about covering your arse, to quote one of my teachers.
For all of these situtations, it is adviseable (though not necessary) to actually ensure that the person being cautioned is fully aware and comprehending of the meaning of the caution itself. Checking this is simple: Ask the now-cautioned person to explain what he or she believes the caution to mean in his or her own words. Yes, it may sound silly. But this is the sort of extra thing that is likely to result in far less cases being thrown out on the grounds that the person so cautioned 'didn't understand his or her rights'. Yes, this sort of argument happens a lot.
Notice upon Arrest & Right to Counsel:
I am arresting you for [briefly desribe the reasons for arrest]. It is my duty to inform you that you have the right to retain and instruct counsel without delat. You have the right to telephone any lawyer you wish. You also have the right to free advice from a legal aid lawyer. If you are charged with an offence, you may apply to the legal Aid Plan for assistance. Telephone number [insert appropriate number here] will put you in contact with a Legal Aid Duty Counsel Lawyer for free legal service right now. Do you understand? Do you wish to call a lawyer now?
Caution to Charged Person:
You (are charged/will be charged) with [insert charge(s) in here]. Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence.
Do you understand?
Secondary caution to Charged Person:
If you have spoken to any police officer or to anyone with authority or if any such person has spoken to you in connection with this case, I want it clealy understood that I do not want it to influence you in making any statement.
Do you understand?
(Note: It's possible to give this one immediately after giving the 'Notice upon Arrest & Right to Counsel' one. Again: Not necessary, but a good idea.)
Arrest: YCJA (Youth Criminal Justice Act)
Notice upon Arrest & Right to Counsel:
You have been arrested for [briefly describe reasons for arrest]. Do you understand the reason for your arrest?
It is my duty to tell you that you do not have to tell me anything about this unless you want to. Do you understand?
It is also my duty to tell you that whatever you say will be taken down in writing and may be used in proceedings against you. Do you understand?
I must also tell you that you have the right to call and consult with a lawyer, and your parents, or some adult relative, or some other adult if your parents or adult relatives are not available. Do you understand?
You have the right to telephone any lawyer you wish without delay. Do you understand?
You also have the right to free legal advice from a legal aid lawyer. Do you understand?
If you are charged with an offence you may apply to the Legal Aid Plan for legal assistance. Do you understand? Telephone [insert number in here] will put you in contact with a legal aid lawyer for free legal aid rights. Do you wish to call a lawyer now?
You have the right to have a lawyer and your parent, or an adult relative or another appropriate adult present here with you if you want. Do you want someone here with you?
If you have spoken to any Police officer or to anyone in authority, or if any such person has spoken to you in connection with this case, I want it clearly understood that I do not want it to influence you in making any statement. Do you understand?
(Note: The requirements of the Canadian Charter of Rights and Freedoms and the cautions must be explained to Young Offenders in a language which they understand - check this, really do check this. If they do not wish a lawyer or an adult for consultation, or to be present, before any oral or written statement is taken, a waiver must be signed acknowledging this fact - check this too, and I suggest more than once. A case was recently thrown out on the basis that the youth in question had a mild form of a mental disorder - I think it may have been ADD or dyslexia, and thus 'didn't understand', according to the lawyer that the parents hired.)
A note or so from Case Law (no, not all of the notes on this subject, just some of them), since we're hanging around here anyway (and now we move onto my copy of the Criminal Code):
There is no rule that limits the detainee to a single phone call. A detainee who wishes to make successive phone calls in the exercise and pursuit of the right to retain and instruct counself but be able to do so unfettered by police questioning. The relevant inquiry after an ititial phone call to a law office is not simply whether the detainee spole to a lawyer but rather whether he had the opportunity to have meaningful contact with and advice from counsel (R. v. Whitford (1997))
Police are prohibited from belittling an accused's laawyer with the express goal or effect of undermining the accused's confidence in a relationship with defence counsel. The accused's rights were also violated when the police pressured the accussed into accepting a 'plea bargain' without the accused first having the opportunity to sconsult with his lawyer. Thus it is mandated that the Crown or police, when offering a plea bargarin, must tender that offer either to accused counsel or to the accused while in the presence of counsel, unless the accused has expressly waived the right to counsel.
And now, because it's the phrase mentioned by miss_zedem in her post, here's the wording in use by Corrections Canada:
It is my duty to inform you that you need not say anything. You have nothing to hope from any promise or favour and nothing to fear from any threat whether or not you say anything. Anything you do say may be used against you as evidence. Do you understand?
(Yes, I did look; this one appears to be the most legitimate source for this precise phrasing. I'll keep looking though, because I'm certain I went over this stuff in Communications I, and this post shall be edited accordingly.)
From this section, I'd like to highlight the following sentence:
'You have nothing to hope from any promise or favour and nothing to fear from any threat whether or not you say anything.'
This is really interesting wording. It means that a person does not actually take anything away from a plea bargain - you have nothing to hope from any promise or favour. It's null and void as an interrogation tool ("just tell me what happened and I'll see this attempted murder moved to assault causing bodily harm" is not allowed). Conversely, however, a threat is also wrong in this instance - nothing to fear from any threat. Thus a threat is equally void as an interrogation tool ("just tell me what happened or I'll see this assault causing bodily harm moved up to attempted murder" not only is this one not allowed, but it also probably wouldn't work - you can only go down in charges within Canada's legal system, not up. I believe the only exception to this instance might be the discovery of major new evidence).
So.
Do you understand these rights?
miss_zedem's recent post managed to remind me that I had not, as promised, done a post on the subject of Police Cautions within Canada. Well, I'll do one now:
Police cautions are used under the following circumstances:
Upon arrest
When about to be interrogated
Whilst being interrogated*
When an interview turns into an interrogation (yes, those are two separate and distinct things)
When being charged
*This is a 'may' option. It is not a requirement, but when a person being interrogated is about to reveal some serious stuff, it's a good idea to restate the appropriate cautions. This is about covering your arse, to quote one of my teachers.
For all of these situtations, it is adviseable (though not necessary) to actually ensure that the person being cautioned is fully aware and comprehending of the meaning of the caution itself. Checking this is simple: Ask the now-cautioned person to explain what he or she believes the caution to mean in his or her own words. Yes, it may sound silly. But this is the sort of extra thing that is likely to result in far less cases being thrown out on the grounds that the person so cautioned 'didn't understand his or her rights'. Yes, this sort of argument happens a lot.
Notice upon Arrest & Right to Counsel:
I am arresting you for [briefly desribe the reasons for arrest]. It is my duty to inform you that you have the right to retain and instruct counsel without delat. You have the right to telephone any lawyer you wish. You also have the right to free advice from a legal aid lawyer. If you are charged with an offence, you may apply to the legal Aid Plan for assistance. Telephone number [insert appropriate number here] will put you in contact with a Legal Aid Duty Counsel Lawyer for free legal service right now. Do you understand? Do you wish to call a lawyer now?
Caution to Charged Person:
You (are charged/will be charged) with [insert charge(s) in here]. Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence.
Do you understand?
Secondary caution to Charged Person:
If you have spoken to any police officer or to anyone with authority or if any such person has spoken to you in connection with this case, I want it clealy understood that I do not want it to influence you in making any statement.
Do you understand?
(Note: It's possible to give this one immediately after giving the 'Notice upon Arrest & Right to Counsel' one. Again: Not necessary, but a good idea.)
Arrest: YCJA (Youth Criminal Justice Act)
Notice upon Arrest & Right to Counsel:
You have been arrested for [briefly describe reasons for arrest]. Do you understand the reason for your arrest?
It is my duty to tell you that you do not have to tell me anything about this unless you want to. Do you understand?
It is also my duty to tell you that whatever you say will be taken down in writing and may be used in proceedings against you. Do you understand?
I must also tell you that you have the right to call and consult with a lawyer, and your parents, or some adult relative, or some other adult if your parents or adult relatives are not available. Do you understand?
You have the right to telephone any lawyer you wish without delay. Do you understand?
You also have the right to free legal advice from a legal aid lawyer. Do you understand?
If you are charged with an offence you may apply to the Legal Aid Plan for legal assistance. Do you understand? Telephone [insert number in here] will put you in contact with a legal aid lawyer for free legal aid rights. Do you wish to call a lawyer now?
You have the right to have a lawyer and your parent, or an adult relative or another appropriate adult present here with you if you want. Do you want someone here with you?
If you have spoken to any Police officer or to anyone in authority, or if any such person has spoken to you in connection with this case, I want it clearly understood that I do not want it to influence you in making any statement. Do you understand?
(Note: The requirements of the Canadian Charter of Rights and Freedoms and the cautions must be explained to Young Offenders in a language which they understand - check this, really do check this. If they do not wish a lawyer or an adult for consultation, or to be present, before any oral or written statement is taken, a waiver must be signed acknowledging this fact - check this too, and I suggest more than once. A case was recently thrown out on the basis that the youth in question had a mild form of a mental disorder - I think it may have been ADD or dyslexia, and thus 'didn't understand', according to the lawyer that the parents hired.)
A note or so from Case Law (no, not all of the notes on this subject, just some of them), since we're hanging around here anyway (and now we move onto my copy of the Criminal Code):
There is no rule that limits the detainee to a single phone call. A detainee who wishes to make successive phone calls in the exercise and pursuit of the right to retain and instruct counself but be able to do so unfettered by police questioning. The relevant inquiry after an ititial phone call to a law office is not simply whether the detainee spole to a lawyer but rather whether he had the opportunity to have meaningful contact with and advice from counsel (R. v. Whitford (1997))
Police are prohibited from belittling an accused's laawyer with the express goal or effect of undermining the accused's confidence in a relationship with defence counsel. The accused's rights were also violated when the police pressured the accussed into accepting a 'plea bargain' without the accused first having the opportunity to sconsult with his lawyer. Thus it is mandated that the Crown or police, when offering a plea bargarin, must tender that offer either to accused counsel or to the accused while in the presence of counsel, unless the accused has expressly waived the right to counsel.
And now, because it's the phrase mentioned by miss_zedem in her post, here's the wording in use by Corrections Canada:
It is my duty to inform you that you need not say anything. You have nothing to hope from any promise or favour and nothing to fear from any threat whether or not you say anything. Anything you do say may be used against you as evidence. Do you understand?
(Yes, I did look; this one appears to be the most legitimate source for this precise phrasing. I'll keep looking though, because I'm certain I went over this stuff in Communications I, and this post shall be edited accordingly.)
From this section, I'd like to highlight the following sentence:
'You have nothing to hope from any promise or favour and nothing to fear from any threat whether or not you say anything.'
This is really interesting wording. It means that a person does not actually take anything away from a plea bargain - you have nothing to hope from any promise or favour. It's null and void as an interrogation tool ("just tell me what happened and I'll see this attempted murder moved to assault causing bodily harm" is not allowed). Conversely, however, a threat is also wrong in this instance - nothing to fear from any threat. Thus a threat is equally void as an interrogation tool ("just tell me what happened or I'll see this assault causing bodily harm moved up to attempted murder" not only is this one not allowed, but it also probably wouldn't work - you can only go down in charges within Canada's legal system, not up. I believe the only exception to this instance might be the discovery of major new evidence).
So.
Do you understand these rights?