A court that respects police

National Post ^ | 2007-11-05 | (editorial page)

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We know it is not polite to suggest that Canadian judges come to the bench sharing some of the ideological predispositions of the governments that pick them. Nonetheless, it is a fact of life that it is going to be a long while before the Liberal red dye in our federal judiciary is mixed with any significant amount of Conservative blue. Yet we noticed something decidedly purplish about Thursday's Supreme Court decision in R. vs. Singh.

Today's court contains only two Conservative appointees: Chief Justice Beverly McLachlin, first clad in ermine by the Mulroney government, and the newest puisne justice, Marshall Rothstein. Both were on the majority side in last week's 5-4 decision, one in which the minority contained the most recognizable small-l liberals on the court. After decades of aggressiveness from the Court in creating new safeguards for the rights of arrestees and prisoners, it was a welcome surprise to receive an essentially pro-police majority decision that eschewed activism.

Lawyers for the appellant, Jagrup Singh, had asked the Court to adopt the principles of Miranda vs. Arizona, the 1966 U.S. Supreme Court decision that created the "You have the right to remain silent" arrest ritual that has become so familiar from American television. Canadians and Americans both enjoy the right to remain silent when interrogated by the police. But Miranda made the requirements upon police south of the border highly formal -- indeed, almost baroque -- and created a rule that all police interrogation must cease when a citizen explicitly exercises this right. There exists no such rule in Canada. Our principle is a more general one -- that the law must not trick or intimidate a suspect into confessing or making an inculpating admission.

Jagrup Singh was arrested in April, 2002, as a suspect in a second-degree murder that had taken place several nights beforehand in a Surrey, B.C., pub. He was informed of his relevant Charter rights and acknowledged that he understood them. He talked in a friendly way with police but clammed up when quizzed directly about the shooting. The trial record notes that "he asserted his right to silence 18 times," and the interviewer backed off every time. But later the police presented Singh with a photograph of himself inside the pub and another photograph in which he had been identified by witnesses as the gunman. Without confessing outright, Singh admitted to being the person in both photographs. When the trial judge allowed that admission into evidence, his defence was doomed.

At the Supreme Court of Canada, the minority, led by Justice Morris Fish (formerly the acknowledged heavyweight champ of the Quebec criminal-defence bar), cited Miranda as a desirable model and declared that "nothing in this Court's jurisprudence permits the police to press detainees to waive the Charter rights they have firmly and unequivocally asserted, or to deliberately frustrate their effective exercise ?While detainees who have asserted their right to silence are entitled to change their minds, they cannot be compelled to do so by the persistent disregard of that asserted choice."

At first blush, that may sound convincing -- until you realize that all arrestees have the right to silence whether they assert it or not. And so any police interrogation is inherently an effort to "press detainees to waive" those rights, and any confession by a criminal constitutes an abandonment of them. Justice Fish's logic is circular: In suggesting that Singh had been "compelled" to admit damaging information, the minority presumed the answer to the very question before the Court.

Realizing this, the majority properly deferred to the trial judge's handling of the facts (which, broadly speaking, is what an appeals court is supposed to do) and could not find a reason to adjust the existing balance of interests between police and detainee. The lesson from Singh: As long as a suspect's "operating mind" is not threatened by coercion, fraud or inducements, he remains just as free to spill his guts as he is to keep silent. And the police remain free to try new lines of questioning on a difficult suspect or, within reason, to repeat themselves.

A second lesson is that this Court respects the thin blue line. Singh is not an isolated case: In R. vs. Clayton, decided in July, the court unanimously found that Toronto police hadn't violated the Charter when they responded to a vague 911 handgun tip by searching every car coming out of a strip club parking lot.

Since the Trudeau era, conservative critics have been complaining that the Supreme Court has become dominated by bleeding hearts who are overly sympathetic to the procedural complaints of criminals. With its latest jurisprudence, Chief Justice Beverly McLachlin's court is doing a great job of refuting the charge. Canada is a safer country as a result.

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[fanfan]

[Seruzawa]

Singh is not an isolated case: In R. vs. Clayton, decided in July, the court unanimously found that Toronto police hadn't violated the Charter when they responded to a vague 911 handgun tip by searching every car coming out of a strip club parking lot.

What a great way to create a diversion. Just call in some phony handgun tips to the Canadian police and you'll be free to operate with impunity while they frantically search everyone in sight for an evil handgun.

[Clive]

OTOH displaying a firearm in a crowded entertainment facility full of immature young men displays an appalling lack of fire discipline of which the police ought rightly to be concerned.