Television legal dramas are quite popular and can be very entertaining. Many of these dramas are American and can create misconceptions about the criminal] justice system in Canada.
In legal dramas, the timeline of the story is highly compressed. The time of the offence to the triumphant conclusion must fit within an hour television slot. Unfortunately, criminal justice is a much slower process that could take months or even years to reach a conclusion. This extended timeline is not necessarily a bad thing. Police must complete the investigation and provide everything to the Crown Prosecutor who assesses the evidence before proceeding with a charge. Prosecutors must then provide all the evidence to the accused, who can assess the strength of the case against them and prepare to defend themselves at trial. Although the passage of too much time may be detrimental, the criminal justice system should not be rushed.
Legal dramas have also created the myth that an accused has a right to have a lawyer present when speaking with the police. A television accused will often be seated next to a lawyer when the heroic police are attempting to get the accused to confess. In Canada, an accused only has the right to consult with a lawyer (i.e. a phone call), but not to have a lawyer present during any subsequent police questioning. This consultation is meant to provide an accused with an independent assessment of their legal situation, an explanation of any jeopardy an accused may be facing, and abridged legal advice on how to proceed. An accused will then have to face the police questioning alone.
Legal dramas often show an accused being arrested and read the “Miranda Rights”. These rights are routinely heard in movies and on television:
You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have a right to an attorney. If you cannot afford an attorney, one will be appointed for you.
Miranda rights stem from a 1966 decision of the United States Supreme Court. Miranda Rights are American and do not exist in Canada. Instead, in Canada police will read an accused the Charter rights followed by caution and will typically prompt an accused to answer four yes or no questions:
- First, police explain why an accused is being arrested, then ask the accused if they understand. The accused then responds either yes or no.
- Second, police explain an accused’s right to consult with a lawyer, then ask the accused if they understand. The accused then responds either yes or no.
- Third, police ask whether an accused wants to speak with a lawyer. The accused then responds either yes or no.
- Finally, police caution an accused that they are not obligated to speak with police, but that anything said may be used as evidence in court. Police will then ask the accused if they understand. The accused then responds either yes or no.
Although similar to the Miranda Rights, Charter rights reflect Canadian constitutional protections, as well as attempt to ensure an accused understands what is being said rather than simply being recited verbatim.
Another misconception is when police require a warrant to enter a home. Residences attract a high level of privacy protection and a warrant is needed when police want to search a home for evidence or arrest someone believed to be inside. Generally, police need the warrant to enter a residence, but like everything in Canadian law, there are exceptions:
- Police can enter a residence without a warrant if they are in “hot pursuit” of a suspect who leads them inside the home. This type of situation is commonly depicted in movies and television, where police chase and eventually arresting a suspect following a dramatic foot pursuit. Although rare, this type of situation does occur in real life. When it does, police can enter a residence without a warrant.
- Police can enter a residence without a warrant if they reasonably believe a criminal offence is in progress. This type of situation is also commonly depicted in movies and television. Police do have this power in real life, but it is used sparingly as police risk losing the use of any evidence found within the residence. A potential situation where this police power could be used is if a 911 call reports a violent offence occurring within a residence. Police attend and have an obligation to enter to ensure the safety of anyone within the residence, preventing the perpetrator from simply answering the door and telling the police everything is fine.
- Police can enter a residence without a warrant if they receive informed consent. This type of situation occurs when police would normally require a warrant but are permitted to enter by an adult resident of the home, such as a spouse, roommate, or parent.
- Police can also enter a residence without a warrant if they have legislative authority. An example is the Fatality Inquiries Act, which allows police to enter a residence without a warrant if they have reasonable grounds to believe that a dead body is, or has been, located within the residence.