As a result of the Times Square bombing plot, Eric Holder, the U.S. Attorney General, indicated that changes may be required to permit the police additional time to question suspected terrorists before they are given their Miranda rights to a lawyer and the right to remain silent during questioning.
The radical change would create a special rule for every terrorist suspect and would expand a pre-existing public safety exception. This exception to the Miranda rule grants police the authority to question a suspect without reading any rights if the police need to collect information to prevent a further crime.
The value of modifying the traditional Miranda rule is questionable. The Times Square bomber confessed freely after been given his right to a lawyer. This situation is hardly unique. As Dan Castleman, the former Chief Assistant to the District Attorney in Manhattan observes, "in my experience the Miranda warnings very rarely resulted in suspects refusing to talk to me, especially in the context of violent crime. Either the suspect thought he or she could talk his or her way out of trouble or they just wanted to explain themselves. It's human nature, and the Miranda warnings do not trump human nature."
There is a lack of similar barriers in Canada limiting a suspect's right to be informed of the right to counsel. Although the right to counsel is guaranteed by the Charter, it is quite different in scope from the Miranda rule. As legal luminary Marie Henein notes, "the Miranda rule is far more expansive. Upon the assertion of the right to counsel, it is my understanding that the police are required to stop questioning.
In Canada, once an individual has been advised of the right to counsel, they can either decide to contact a lawyer or not. After they have contacted a lawyer, there is no legal requirement for the police to stop questioning an accused person. Even if an accused asserts the right to silence, the police are entitled a significant amount of latitude to continue questioning an accused. While Mirandizing an accused can effectively shut down police questioning in the U.S., this is not so in Canada. The creation of any special rule in Canada is unnecessary.''
U.S. opposes review of extraordinary rendition
The Obama administration filed a brief last week urging the Supreme Court not to hear the contentious lawsuit of Maher Arar against former Attorney General John Ashcroft and other federal U.S. officials. Arar, a Canadian citizen, was seized at JFK Airport in New York and transported to Syria following a program of extraordinary rendition. Arar was subsequently questioned and tortured in Syrian captivity.
The claims in Arar's lawsuit would represent the first test case challenging the extraordinary rendition program. It is being fiercely resisted in the new brief filed by the Acting Solicitor General arguing that the case "does not concern the propriety of torture or whether it should be 'countenanced' by the courts." The argument reflects a position of the Obama administration that extraordinary rendition may be a valid technique in limited circumstances.
According to ScotusBlog (May 12), the case "poses the legality of the 'rendition' program in a clear-cut test case." A decision whether the Court will grant review is expected before the end of the current term.
Online talk, suicides and a criminal case
William Melchert-Dinkel stands charged in Minnesota with two counts of aiding suicide. The allegations are that he presented himself as a female nurse in communications over the Internet with two people contemplating suicide. As he urged them to complete the task, suitable methods of suicide were recommended. One of the counts relates to an eighteen-year-old Canadian college student, Nadia Kajouji, whose body was discovered in the Rideau River. It is alleged that Dinkel made a suicide pact with the distressed victim in a series of e-mails, where she agreed to jump from a bridge into a river.
The conduct of Melchert- Dinkel, if proven, would undoubtedly constitute a crime in Canada of counseling a person to commit suicide. It is an indictable offence with a maximum sentence of fourteen years of imprisonment. A person who counsels someone who is vulnerable, depressed with suicidal thoughts to end their life cannot shield themselves with the Charter and principles of free expression.
The New York Times (May 13) reported that the Melchert-Dinkel case raises "thorny" legal issues and "brings up questions about the limits of speech on the Internet." The Times cites legal experts who suggest that there may be opportunity for challenges to an overly broad Minnesota law that includes protected speech. One of the defendant's lawyers cautioned that "as a society, we need to be careful when we start putting together laws that prohibit things like 'encouragement' without a really clear definition of what in God's name you're talking about."
Conservatives move to toughen pardon system
The Conservative government has introduced a bill to revamp the entire pardon system. Pardons will be replaced by 'record suspensions' and will generally take longer to obtain and governed by an arduous merit system. Anyone with a record for sexual offences against children or convicted of more than three indictable offences will be barred form eligibility.
The opposition parties have stated that they will need to carefully review the proposed legislation before deciding whether to support it. This seems like a sensible approach. Radically transforming the pardon system in this country and expunging its key feature of state forgiveness should warrant more research than studying for a middle school exam.
Elena Kagan on her way to the Supreme Court
Politico (May 13) is reporting that Elena Kagan's is unlikely to confront a Republican filibuster of her nomination to the Supreme Court. Even Laura Bush has embraced Kagan's appointment.
A highlight of the summer hearings before the Senate Judiciary Committee will be Kagan's explanation of a law review article that she wrote during her tenure at Harvard Law School. She described the Supreme Court confirmation hearings as "a vapid and hollow charade" noting that "senators today do not insist that any nominee reveal what kind of justice she would make, by disclosing her views on important legal issues."
'Law & Order' cancelled after 20-year run
With the announcement of the demise of the legendary television program, the show's producers should firmly set their sights on their northern neighbour for the next spin-off. Law & Order: Dartmouth could introduce barristers and solicitors and Crown attorneys. Lawyers robed in court would address each other as "my friend" and bow their heads respectfully to the judge. Pre-trial motions would be decided under the courtroom spotlight instead of acrimonious exchanges in dank judges' chambers. Meetings in an Assistant Crown Attorney's office would occur with the defendant notably absent and police would make charging decisions without the prior blessing of sombre prosecutors like Adam Schiff.
And yes, the defence might even win a few trials.
It's a fitting time for a legal drama in this country. Rumpole of the Bailey could be replaced by Darymple of Osgoode Hall. B.C. Law or Sherbrooke Legal are prospects for hit shows. An enterprising Canadian producer should seize the propitious moment.
Email: skurka@crimlaw.org
