Background
On December 8, 1982, Lana Louise Clarkson, in an intoxicated state, called to her sister to tell her that her husband, Mr. Clarkson, had been shot. Several members of the family came over to find Clarkson in a hysterical state. Her husband was in the living room slumped in a chair with a bullet hole in his head.
When the police arrived, they arrested Clarkson, informed her of her right to retain and instruct counsel, and then charged her with the murder of Mr. Clarkson. Clarkson was taken to the hospital along with her aunt, Lorna Estey. Along the way, the police overheard Clarkson make several inculpatory statements to her aunt.
Afterwards, the police took Clarkson to the station where she was informed of her rights again. However, she refused to contact a lawyer. During interrogation, Estey was present and made several attempts to stop Clarkson from answering and insisted that she get a lawyer. Nevertheless, Clarkson made several incriminating statements.
At trial, the court found that the statements were made in violation of section 10(b) and excluded under section 24(2) of the Charter. On appeal, the decision was overturned, and Clarkson was convicted.
The issue before the Supreme Court was whether the police violated her rights under section 10(b) and if so whether the statements should be excluded under section 24(2).
Opinion of the Court
Justice Wilson, writing for the majority, held that the trial judge was correct, and that Clarkson should be acquitted.
Wilson noted that in order for a waiver of right to counsel to be valid, it "must be premised on a true appreciation of the consequences of giving up that right." She identified the purpose of the right is to ensure that the accused will be treated fairly.
She proposed that an accused must satisfy an "awareness of the consequences test" to properly waive their rights. On the facts, there was evidence that due to her intoxication, Clarkson was not entirely aware of the consequences of her waiver. The police, in their questioning, violated 10(b) and the statements should be excluded under section 24(2).
In the United States, the Miranda warning is a type of notification customarily given by police to criminal suspects in police custody advising them of their right to silence and, in effect, protection from self-incrimination; that is, their right to refuse to answer questions or provide information to law enforcement or other officials. Named for the U.S. Supreme Court's 1966 decision Miranda v. Arizona, these rights are often referred to as Miranda rights. The purpose of such notification is to preserve the admissibility of their statements made during custodial interrogation in later criminal proceedings. The idea came from law professor Yale Kamisar, who subsequently was dubbed "the father of Miranda."
Miranda v. Arizona, 384 U.S. 436 (1966), was a landmark decision of the U.S. Supreme Court in which the Court ruled that law enforcement in the United States must warn a person of their constitutional rights before interrogating them, or else the person's statements cannot be used as evidence at their trial. Specifically, the Court held that under the Fifth Amendment to the U.S. Constitution, the government cannot use a person's statements made in response to an interrogation while in police custody as evidence at the person's criminal trial unless they can show that the person was informed of the right to consult with a lawyer before and during questioning, and of the right against self-incrimination before police questioning, and that the defendant not only understood these rights but also voluntarily waived them before answering questions.
The right to silence is a legal principle which guarantees any individual the right to refuse to answer questions from law enforcement officers or court officials. It is a legal right recognized, explicitly or by convention, in many of the world's legal systems.
Section 10 of the Canadian Charter of Rights and Freedoms specifies rights upon arrest or detention, including the rights to consult a lawyer and the right to habeas corpus. As a part of a broader range of legal rights guaranteed by the Charter, section 10 rights may be limited by the Oakes test and/or the notwithstanding clause. However, section 10 has also spawned considerable litigation, and has made an impact in numerous cases.
R v Daviault [1994] 3 S.C.R. 63, is a Supreme Court of Canada decision on the availability of the defence of intoxication for "general intent" criminal offences. The Leary rule which eliminated the defence was found unconstitutional in violation of both section 7 and 11(d) of the Canadian Charter of Rights and Freedoms. Instead, intoxication can only be used as a defence where it is so extreme that it is akin to automatism or insanity.
Section 11 of the Canadian Charter of Rights and Freedoms is the section of the Canadian Constitution that protects a person's legal rights in criminal and penal matters. There are nine enumerated rights protected in section 11.
R v Manninen [1987] 1 S.C.R. 1233 is a leading Supreme Court of Canada decision on an accused Charter right to retain and instruct a lawyer as well as the right to silence.
R v Therens [1985] 1 S.C.R. 613 is an early Supreme Court of Canada decision on an accused's right to retain and instruct counsel without delay under section 10(b) of the Canadian Charter of Rights and Freedoms. The Court held that when a person was detained for the purpose of giving a breath sample under section 235(1) of the Criminal Code, they have the right to consult counsel. Since the police did not allow the accused to do so, they violated the accused's right to retain counsel. The Court ruled that the evidence was properly excluded.
R v Brydges, [1990] 1 S.C.R. 190 is a leading Supreme Court of Canada decision on the right to retain and instruct counsel under section 10(b) of the Canadian Charter of Rights and Freedoms. The Court held that the right imposed a duty upon the police to provide information and access to a legal aid lawyer if needed. From this case came the term "Brydges Counsel" to refer to legal aid lawyers that assist recently arrested individuals.
R v Bartle, [1994] 3 SCR 173 is a leading Supreme Court of Canada decision on the right to retain and instruct counsel under section 10(b) of the Canadian Charter of Rights and Freedoms ("Charter"). The Court held that a police officer is required to hold off on his or her investigation upon arresting an individual until the detainee has been informed of his or her rights and given sufficient information and access to contact a private lawyer or duty counsel. The case applied the earlier Supreme Court of Canada decision R v Brydges. The judgment was released with three other decisions: R v Pozniak, R v Harper, R v Matheson and R v Prosper.
R v Prosper, [1994] 3 S.C.R. 236 is a decision of the Supreme Court of Canada on the right to duty counsel upon arrest or detainment by police under section 10(b) of the Canadian Charter of Rights and Freedoms. The Court found that merely reading the accused his or her rights is insufficient to discharge the right to counsel; the police must also provide the accused with access to legal aid or duty counsel.
R v Burlingham, [1995] 2 S.C.R. 206 is a leading decision on the Supreme Court of Canada on the right to counsel under section 10(b) of the Canadian Charter of Rights and Freedoms and the exclusion of evidence under section 24(2).
R v Wigglesworth, [1987] 2 S.C.R. 541 is a leading Supreme Court of Canada decision on the constitutional right against double jeopardy under Section 11(h) of the Canadian Charter of Rights and Freedoms. The Court gave a two-part test to determine whether a proceeding deals with a criminal matter.
McNeil v. Wisconsin, 501 U.S. 171 (1991), held that the right to counsel secured by the Sixth Amendment and the right to counsel protected by Miranda v. Arizona are separate and distinct, such that invoking one does not implicitly invoke the other.
Massiah v. United States, 377 U.S. 201 (1964), was a case in which the Supreme Court of the United States held that the Sixth Amendment to the United States Constitution prohibits the government from eliciting statements from the defendant about themselves after the point that the Sixth Amendment right to counsel attaches.
Fellers v. United States, 540 U.S. 519 (2004), is a United States Supreme Court case regarding the Sixth Amendment's right to counsel.
Edwards v. Arizona, 451 U.S. 477 (1981), is a decision by the United States Supreme Court holding that once a defendant invokes his Fifth Amendment right to counsel, police must cease custodial interrogation. Re-interrogation is only permissible once defendant's counsel has been made available to him, or he himself initiates further communication, exchanges, or conversations with the police. Statements obtained in violation of this rule are a violation of a defendant's Fifth Amendment rights.
Berghuis v. Thompkins, 560 U.S. 370 (2010), is a landmark decision by the Supreme Court of the United States in which the Court considered the position of a suspect who understands their right to remain silent under Miranda v. Arizona and is aware that they have the right to remain silent, but does not explicitly invoke or waive the right.
R v Cook, [1998] 2 SCR 597, is a leading Charter decision of the Supreme Court of Canada. The Court held that Canadian police located in the United States were still subject to the Charter when interrogating a suspect for a murder in Canada.
Iowa v. Tovar, 541 U.S. 77 (2004), was a unanimous decision of the Supreme Court of the United States that clarified how well-informed a defendant had to be to waive their right to counsel under the Sixth Amendment. The defendant in this case had waived his right to counsel and pled guilty to drunk driving, and then had been convicted of drunk driving twice more, with sentences increasing as his convictions piled up. He argued that the judge in the first case had not explained that multiple drunk driving convictions would lead to more severe sentences, so his waiver of counsel had been invalid. The Supreme Court disagreed, saying that the judge's warnings had been adequate, and the defendants' waiver was "knowing, voluntary, and intelligent."
