If Jian Ghomeshi is ultimately arrested for one or more sexual assaults in relation to the allegations that have recently gone viral in the media, he will be advised by his lawyer to keep his mouth shut, or, in legal parlance, to exercise his ‘right to remain silent’.
Our constitution guarantees this right, however, the Supreme Court of Canada has whittled it away to the point of meaninglessness in the context of police interrogation. Simply put: An accused under arrest or detention has the right to remain silent, however, the police have the right to pursue incriminating answers, for hours, even in the face of an accused’s continual exercise of his rights. After speaking to his lawyer, an accused does not have the right to speak to him further during the course of the interrogation, unless the direction of the investigation changes, and the accused is subject to further jeopardy. Not surprisingly, an accused is not allowed to have his lawyer present during the interrogation.
“I wish to exercise my right to remain silent.”
At The Criminal Law Team, we are forever advising our clients to not talk to the police and to parrot the words, ad nauseum, “I wish to exercise my right to remain silent”. These words will not magically cast a spell over the interrogator to stop his questioning. The courts have said that the police can continue to question an accused who exercises his right to remain silent so long as he is not broken down to the point where his confession is involuntary, or not the product of an “operating mind”.
The Reid Technique
The result is that the police have developed The Reid Technique, a step-by-step method to breakdown an accused under interrogation. If my client is fortunate enough to know, in advance, that he is going to be arrested, I will review with him the nine steps of interrogation that are designed to extract a confession from a suspect. I usually tell the client that the officer will most likely suggest to him that he must have had a justification for committing the crime (Step 2), and that he should not engage in any such discussion. This discussion inevitably contains the phrase “you seem like a nice guy. How old is your son…” Again, I tell the client to not engage in this discussion. The officer will leave the room, and come back with some ‘revealing evidence’ (which may or may not be true) that claims to point to my client’s guilt. I will tell him to not respond to it, to not show any emotion. If there is an accomplice, or co-accused, in the next room, the officer will inevitably come back in the room and claim that “your buddy just told us you were the one who did it. You don’t want the judge to only hear his side?”
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Another trick is to tell the accused that “now is the time to tell your side of the story. If you tell it to the judge later on, he won’t believe you because you had time to make it up”. This is, in fact, untrue and misleading, however, that’s beside the point. The police can use trickery, tell lies and falsehoods. This back-and-forth can go on for hours. Notwithstanding a study finding that of 311 people exonerated due to DNA testing, more than one-quarter of them had provided false confessions, including the Central Park Five, we continue to allow this gross imbalance of power that makes a mockery of the sanctity of silence: the accused is held in a small interrogation room for hours, not allowed to go back to his jail cell (if he wishes), the police are allowed to lie to him, trick him into confessing, all in the face of him exercising his right to remain silent.
In the end, Jian Ghomeshi may have the intestinal fortitude to remain silent during police interrogation. My only advice to him, which is what I say to all of my clients, is: “Do not engage in any conversation with the cop. Name, rank, and serial # only”.
(Photo credits: The Globe and Mail)
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I came to Stephen Hebscher with a somewhat irregular case. Both my spouse and I had been mutually charged with domestic assault, a legal situation that neither of us had wished upon each other. While my spouse's lawyer had been content to seek mutually binding peace bonds, Stephen was able to get in front of the case and negotiate a withdrawal of both of our charges- the best possible outcome on BOTH sides of the table – once we successfully completing the PARs program. I remain entirely pleased with Stephen's competency, professionalism and accessibility, and would not hesitate to recommend him as a criminal defence lawyer. L.A.
Mr. Hebscher: I would like to thank you for your excellent representation of me in relation to the domestic assault charges that you worked so hard to have withdrawn. You have made a critical difference in my future and I am very happy with the outcome. I also appreciate your hard work, and the extra time and effort you have put in to deal with all the other issues that came along. I thank you for being a phone call away (or email) even when you did not have to be. I will gladly recommend your services to any of my friends or family should they ever need it. I am very grateful for what you have done.
I am impressed especially after our meeting on Monday – I was resigned that something bad would befall me, so I am very blessed to have this outcome. I thank you for the hard work that you have put into this case, and the dedication on getting me this fantastic outcome! I am so glad that we retained you as my lawyer! You have done an outstanding job and allowed me to now rebuild my life. Thank you, Bruce Karten.
Dave B. (Ajax, Ontario)
We were referred to Stephen Hebscher when our child was in need of legal representation. He was charged with sexual assault. As parents, we were quite frightened for our child but Mr. Hebscher was the calm voice of reason. We are very grateful to Mr. Hebscher for the excellent results he got for our child, as the charges were dropped.
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Mr. Hebscher is a very professional lawyer who takes pride in his work and because of this the end result was the judge ruling me not guilty and I got my innocence and life back. My family and I would like to thank you again Stephen Hebscher for doing a wonderful job and also being a very supportive man.
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I am happy to report that Bruce’s superior negotiation strategy and ability to present facts effectively helped convince the Crown to reduce his position. I would like to take this opportunity to thank Bruce for getting my charge withdrawn and keep my criminal record clean.
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