Playing the Charter card

One of the interesting bits of human rights law that is implicit in Part 2 of the Charter is the law about when these rights are gained and lost. People under criminal investigation and prosecution have lots and lots of rights:

21(4) A person who is arrested or detained must be informed at the time of arrest or detention of the reason for the arrest or detention and must be promptly informed about any proceedings to be brought against him or her. (5) A person who is arrested or detained on a criminal charge- (a) must be promptly brought before a court; and (b) has the right to be brought to trial without unreasonable delay; and (c) must be released if paragraph (a) or (b) is not complied with. (6) A person awaiting trial must not be automatically detained in custody, but his or her release may be subject to guarantees to appear- (a) for trial; and (b) at any other stage of the judicial proceeding; and (c) if appropriate, for execution of judgment. (7) Any person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration or order regarding the lawfulness of his or her detention, and the court must- (a) make a decision without delay; and (b) order the release of the person if it finds that the detention is unlawful.

25(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees- (a) to be informed promptly and in detail of the nature and reason for the charge in a language or, if necessary, a type of communication that he or she speaks or understands; and (b) to have adequate time and facilities to prepare his or her defence and to communicate with a lawyer or advisor chosen by him or her; and (c) to be tried without unreasonable delay; and (d) to be tried in person, and to defend himself or herself personally or through legal assistance chosen by him or her or, if eligible, through legal aid provided by Victoria Legal Aid under the Legal Aid Act 1978; and (e) to be told, if he or she does not have legal assistance, about the right, if eligible, to legal aid under the Legal Aid Act 1978; and (f) to have legal aid provided if the interests of justice require it, without any costs payable by him or her if he or she meets the eligibility criteria set out in the Legal Aid Act 1978…

This lengthy list of rights can prove problematic for law enforcement, who have to keep track of what they are meant to say and do.

Famously, the four warnings set out by the US Supreme Court in Miranda v Arizona have appeared on cards that police carry around so that they don’t read the wrong rights.  Ernesto Miranda himself, following his retrial, conviction and sentence for rape, made a living selling signed copies of Miranda cards. He was killed in a bar fight in 1976. And, according to my comparative criminal procedure teacher, the police officer who arrested the alleged killer at the scene picked a Miranda card out of Miranda’s own pocket and read the man his rights (which he exercised.)  So, Justice White was not entirely correct when he famously lamented, in his dissent, that the Miranda ruling would free killers to kill more victims who are “are uncertain, unnamed and unrepresented in this case.”

The other solution is the holdings of overseas courts that not all criminal process rights are automatic and mandatory. Rather, some of them have to be asserted – e.g. habeus corpus – and many of them can be waived, e.g. the  right to be given a legal aid lawyer if eligible. There are lots of overseas cases on whether assertion and waiver apply for particular rights, how assertion and waiver can occur and the state’s duties to work out exactly what is happening. Behind these questions is a difficult policy question about whether criminal process rights are the responsibility of the state or the individuals who have them. The really controversial part of Miranda is its holding that defendants don’t have to assert their right to silence or to a lawyer; rather, they always have those rights until they are expressly and unequivocally waived, in practice by signing an express waiver form. Other countries, including Australia and Canada, don’t go so far, requiring assertions in some cases and permitting implicit and equivocal waivers in others.

But can Australians and Canadians gain American-style waiver rights through the use of the police’s own tool?: a rights card. Late last year, Kristopher Duncan failed a breath test while crossing the border from the U.S. to British Columbia. The border officer read out a card asking Duncan to consent to a second breath test. When Duncan refused, the officer pulled out another card telling Duncan his rights under the (Canadian) Charter. Duncan’s response was tell the officer to go and read a card Duncan had in his wallet, which he explained set out his rights. The officer replied that he already knew Duncan’s rights, pointing to his own card. He then asked Duncan whether he wanted a lawyer. At a later voir dire, a trial judge accepted the police officer’s claim that Duncan said that he didn’t. Duncan nevertheless asked the trial judge to throw out the case because Duncan had been denied his right to a lawyer.

So, what did Duncan’s card say?:

Officer, please understand I refuse to talk to you, other than to identify myself, until I consult with my lawyer. I also refuse to consent to any search of these premises, or any other premises under my control with which I have a possessory, proprietary or privacy interest, including my car, my body or effects. I further refuse to consent to the taking of any portion of my property, or specimen of my breath, bodily fluids or tissue for scientific analysis without the opportunity to obtain the advice of my lawyer. I desire to exercise all my rights guaranteed by the constitution of Canada to be free from your interference with my person or affairs. If you attempt to question me, I want my lawyer present.

I refuse to participate in any line up or to perform any physical acts, or to speak or display my person and property at your discretion, without first consulting my lawyer. If I am under arrest, I wish to invoke and exercise my constitutional rights. If you ignore my exercise of these rights and attempt to procure a waiver, I want to confer with my lawyer prior to any conversation with you. If I am not under arrest, I want to leave. If I am free to leave, please tell me immediately so that I may go about my lawful business. Please return card and other properties. Thank you.

It’s obvious that this is an attempt to overcome the law on assertion and waiver, by asserting every criminal process right and refusing to waive any of them!

Alas, the British Columbia Supreme Court held in R v Duncan [2008] BCSC 1348 that the card didn’t work in this case. The Court agreed with the trial judge who said:

With respect to the card, I find that the officer in this case is under absolutely no obligation to read this card and try to understand it. It is a very difficult card to understand. It is written in find print. Much of it is totally out of context to anything that is going on. It talks about searches property and searches of body, none of which are applicable to this particular case. It talks about participating in line-ups. Again, nothing to do with this case.

I agree with the Crown that far from being helpful, much of the card’s content is misleading and confusing as to the appellant’s rights in the context of this case. The card suggests a number of other legal rights which did not exist in the appellant’s situation. The appellant was a traveller crossing the border. In entering a sovereign country, as a matter of law, he was not “free from [state] interference with my person and or affairs”, but was obliged to answer questions regarding his travels and to submit to routine searches. As the driver of a motor vehicle, the appellant could be asked questions about alcohol consumption without having the opportunity to speak to a lawyer. Similarly, he was also required to provided the ASD breath sample without first speaking to a lawyer. The trial judge also observed that the card’s suggestion of a right to have a lawyer present during questioning was not a constitutional right.

Far from containing an assertion of the right to counsel, the card appears to be an attempt to provide information to the detainee about the extent of his rights in all situations of detention. However, a detainee does not have the right to consult a card, pamphlet, textbook or generally even another person if that person is not a lawyer, before exercising due diligence in asserting his rights.

Hmmm. So, the card only works if all of it applies to the situation at hand. Looks like, in Canada, you’ll need a whole deck!:

This particular card did not relieve the appellant from his obligation to be reasonably diligent in exercising his right to counsel. The card in question had little meaning, relevance or specificity. Therefore, the appellant was obliged to answer the officer’s very basic and simple question about contacting counsel. To respond to the important question, “Did you want to call a lawyer?” by insisting on reading a pre-printed card that touched on many irrelevant matters, rather than simply saying “Yes” or “No” was neither reasonable nor diligent.

So, a generic card cannot beat a specific answer. Or, more practically, you can’t escape Canada’s less protective law on assertion and waiver. But why?

The court concluded with this vague solace for the rights card movement:

The appellant submits that a rights card acts as a crutch for unsophisticated and uneducated detainees that would allow them to express non-waiver of their s. 10(b) Charter rights while providing them with detailed assistance in exercising those rights. In other circumstances, or on other facts, a detainee might be able to assert his right by using a clearly worded card. However, the case before me is confined to its own facts. I make no further comment on whether a “rights card” could ever be used to assert the right to counsel in other circumstances.

Is anyone in Victoria – VEOHRC perhaps – going to start distributing Charter of Human Rights and Responsibilities cards?

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