Introduction
As some of the left fall all over themseves referring to the genocide in Gaza and the West Bank as a breach of international law without gaining any criticial distancing from the limitations of “the law,” , the actual nature of law and its procedural acrobatics lies hidden. It is better to remind workers, citizens, immigrants and migrant workers of the real nature of law and not its rhetoric.
This is a continuation of a series that exposes the reality of courts as part of the exposure of the reality of the rule of law.
The series involves quotes from the book by Doreen McBarnet (1983) Conviction: Law, the State and the Construction of Justice as well as short commentaries related to the quotes. I use her book as a way of exposing the real nature of the rule of law and the role of courts in both hiding the real nature of law and enforcing the real nature of the rule of law. (If others know of similar sources that expose the reality of law and the courts, it would be appreciated that they provide information in the “Comments” section.)
Rhetoric
There are supposedly various controls that protect the rights of a detained person in the face of police interrogation. One such alleged control is “legal advice for the suspect” (page 59).
Reality
This check is far from adequate. Page 60:
The structure, substance, and practice of the law make [it] all too weak.
Legal Advice for the Suspect
Imagine being taken to a place where there are armed people all around. Even before you have access to legal advice, you are subject to intimidation and degradation. Page 61:
But for the moment the accused is alone with the police and the formal structure creates an informal situation of unilateral power. The police are in the position to define what may be an ambiguous situation for the accused with no contradictory expertise to challenge it. Arrest, search, fingerprinting, questioning, being charged are all part of a degradation ritual which constructs an atmosphere of .guilt. Alone with the police the accused is exposed to only one version of how the law defines his behaviour or alleged
behaviour, how the evidence looks against him, be he innocent or guilty, and what his chances are in court. Given their own involvement, interests, and indeed beliefs in the case the police are likely to create, with the best will in world, a sense of pending conviction which makes co-operation, not silence, the only sensible reaction.
It should be remembered that the rhetoric is that a person is considered innocent until proven guilty. However, the procedures experienced by those detained (even when they are not charged) makes the reality of being detained almost a presumed sense of being guilty even if the person is not guilty.
Indeed, police are often trained to deal with those detained in such a way as to make the person detained feel guilty. Page 61:
Indeed American police manuals, and English Police Review editorials (Release, 1973, p. g) provide lists of techniques designed to produce precisely this effect. The first technique of interrogation listed in lnbau and Reid’s manual is: ‘Display an Air of Confidence in the Subject’s Guilt’ (1974 pp. ix).
In Canada, a person who is detained for questioning (not arrested yet) or who is arrested does have the right to consult a lawyer (including a duty counsel from legal aid if s/he does not have a lawyer or sufficient funds to hire one).
Note that the detained person has a right to consult a lawyer–usually by telephone. There is no right to have a lawyer present during interrogation. Even if the lawyer recommends that you say nothing over the telephone (you do have the right to remain silent), police also have the right to continue questioning you after you have consulted the lawyer–and without a lawyer present. From Amar Khoday (2024), “A Lifeline During Custodial Interrogations? The Right to Counsel and Reflections on R. v. Dussault and R. v. Lafrance.” The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 115, .page 197:
As mentioned earlier, in Sinclair and McCrimmon, the SCC [Supreme Court o Canada] rejected the notion that section 10(b) provided an accused with the right to have counsel present during a custodial interrogation. The right affords the accused the right to consult counsel following arrest or detention (including receiving advice about their right to remain silent) prior to questioning.
This situation reflects the reality of a detained person’s circumstances whereas the following reflects the rhetoric. Page 197:
Indeed, if section 10(b) is simply limited to a one-time consultation, this would be hard to reconcile with the towering language the SCC has since advanced about the right to counsel being the single most important principle in criminal law.
The reality is that the lack of right to counsel during questioning provides the police with a decided advantage in intimidating the detained person into saying something that can be used against her/him. Page 198:
… while an interrogation is not a judicial proceeding, the ramifications of providing incriminating statements are well known; they may be used as evidence at a criminal trial. If the incriminating statements are false, their admission could lead to wrongful convictions. Police officers have significant latitude in the tactics they can employ. While an accused possesses the right to silence, this does not compel interrogators to halt their questioning. Furthermore, police officers can adopt numerous tactics over lengthy periods, including deception and lies — all of which are permissible. As LeBel
and Fish JJ. posited in McCrimmon, custodial interrogations are relentless affairs, involving attempts “by police officers, who have total physical control of a detainee, to obtain an incriminating statement by systematically disregarding the detainee’s express wish and declared intention not to speak with them”.
Conclusion
The so-called right to consult a lawyer for legal advice, one of the checks that is supposed to limit police power to intimidate a detained person, constitutes the rhetoric of the rule of law in Canada. The reality of the rule of law is that the police can legally intimidate a detained person in various ways in order to try to have the person say something that can be used against her or him.
The Abolitionary 