American police arrest caution known as the Miranda warning in the Canadian context of the Charter of Rights and Freedoms. We have all grown up watching tv police arrest somebody and then read them their “Miranda” rights but what is it, and more importantly how has Miranda folklore entered Canadian legal mythology. Canadian Constitutional rights & freedoms under the Charter are different from American rights under the U.S. Bill of Rights. In the United States the general “Miranda” arrest caution states;
You have the right to remain silent.
Anything you say or do can and will be held against you in a court of law.
You have the right to speak to an attorney.
If you cannot afford an attorney, one will be appointed for you.
Do you understand these rights as they have been read to you?
In Canada its more complicated, and the “arrest caution” varies from police force to police force and from province to province. This is a typical example;
You are under arrest for _________ (charge), do you understand?
You have the right to retain and instruct counsel without delay.
We will provide you with a toll-free telephone lawyer referral service,
if you do not have your own lawyer.
Anything you say can be used in court as evidence.
Do you understand? Would you like to speak to a lawyer?
Under the Canadian Charter of Rights and Freedoms a person has the right;
to be informed promptly of the reasons therefor;
to retain and instruct counsel without delay and be informed of that right;
to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
Canadian warnings do not use the phrase “right to remain silent” but that right is implied via s. 7 Charter Rights and the warning. Nearly every single criminal lawyer in Canada and the United States will advise a person arrested, detained, in custody, to keep their mouths closed and not to talk to police, remain silent, and only speak to their lawyer. The burden is on the person to remain silent. People should be aware that though these cautions may seem very similar they have been interpreted very differently by the courts, thus listen to your lawyer, and remain silent. Let the lawyer sweat the details and advocate on your behalf.
The Royal Canadian Mounted Police are Canada’s national police force, yet even this force does not have a universal arrest caution. Below are two unconfirmed R.C.M.P. cautions;
The RCMP’s right-to-silence caution:
“You do not have to say anything unless you wish to do so. You have nothing to hope from any promise of favour and nothing to fear from any threat whether or not you say anything. Anything you say may be used as evidence. Do you understand?”
The RCMP’s right-to-counsel caution:
“I am arresting you for X. It is my duty to inform you that you have the right to retain and instruct counsel of your choice in private and without delay. Before you decide to answer any question concerning this investigation you may call a lawyer of your choice or get free advice from Duty Counsel. If you wish to contact Legal Aid duty counsel I can provide you with a telephone number and a telephone will be made available to you.”
“Do you understand? Do you want to call a lawyer?”
Source RCMP cautions Montreal Gazette July 15, 2011, Douglas Quan, Post media “You have the right to remain baffled: police cautions not always clear”