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Saturday, November 03, 2007


CANADA: WHERE YOU HAVE THE RIGHT TO REMAIN SILENT .... UNTIL YOU DON'T

Canadians are an odd people for four reasons.

First, we're all lumberjacks. That's not entirely true. Some of the fucking thrill-seekers in Quebec trade in beaver pelts but the rest of us try not to talk about Quebec too much.

Second, each and every one of us has had out genitals genetically enhanced to previously unknown levels of fabulousness. Foreigners are known to have explosive and potentially harmful orgasms whenever they so much as see one of us naked. Frankly, I'm shocked that we're still allowed to leave the country.

Any questions regarding the above should be referred to Pamela Anderson and Peter North.

Third, the Jews don't control Hollywood, Canadians do. Rather, we did until Jim Carrey's career went south, but we still have Mike Myers and the Chinese chick on Grey's Anatomy, and Eugene Levy has been in every movie released in the last fifteen years, so I guess we still call the shots.

Fourth, the justices of our Supreme Court dress like Santa Claus and deliver particuarly weird rulings from time to time. This comes from the old English tradition of looking like a douchebag when trying to be taken seriously.

Okay, the last part was only half true. The Supreme Court of Canada delivers particularly weird rulings all the time. It's actually gotten to the point where the townsfolk are shocked when a ruling comes down that seems to follow a discernable pattern of logic.

There are a couple of reasons for this. You see, the prime minister of Canada has almost Caligula-like powers of appointment. There is no confirmation process whatsoever. Executive appointments are not subject to either review of any kind by Parliament. I'm convinced by any doubt that the only reason that crazy bastard, Jean Chretien, didn't name a horse to the Senate or Supreme Court is that its been done. To be sure, Chretien is a psychopath, but he's a psychopath with an exacting demand for originality in his weirdness.

That said, no one has any idea at all what a potiential justice's legal theories are before they take their seats on the court.

Canada also has what can only be described as a useless and odious constitution. If you actually sit down and read the Charter of Rights and Freedoms - which no rational adult should ever do sober - it looks fairly standard upon first glance. However, closer inspection reveals that it has two built in "self-desctruct" mechanisms.

The first is Section 1, which reads "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

That is to say that your right to, say, free speech can be limited by either an act of Parliament or a court ruling. All they need do is deem such a limit to be "reasonable" and "demonstrably justified in a free and democratic society." There is no compulsion to actually explain how such a limitation is reasonable, or how any restriction of personal freedom can be demonstrably justified in a free and democratic society. I'm given to believe that restricting freedom has a tendency of making a society less free, rather than more. On the other hand, I'm a really bad Canadian.

Should the courts or the legislature fail to find a way to exercise even that overly broad section to fuck with you, Parliament or any provincial legislature can invoke Section 33 - the dreaded Notwithstanding Clause - to over-rule any court ruling. Your right to free speech or to free of unreasonable search and seizure can be suspended at any time, for any reason, anywhere in Canada.

Pretty sweet, huh?

Canadian jurisprudence also has no use for absolutes in protecting the rights of the people. We do have an exclusionary rule, but there is no Canadian equivilent of Mapp v. Ohio, which would dictate that any illegally produced evidence be excluded from a criminal trial. Such evidence may be excluded, but that is within the sole discretion of the trial court. Furthermore, such a ruling almost never constitutes reversible error at the appelate level.

The government of Canada and the judiciary can pretty much do whatever it wants and the people have no recourse. The Charter of Rights and Freedoms is really little more than the USA PATRIOT Act writ large and dressed up in the garb of an instrument of democratic governance. According to my Supreme Court, the only inalienable right I have is to marry a homosexual. And that would be funny, if there wasn't a very real possibility that I may be forced to resort to that pretty soon. I'm awfully lonely.

And this week, the Supreme Court of Canada demonstrated yet again how seriously it takes the fundamental rights of criminal suspects and, by extension, all Canadians.

I trust that everyone has seen those cops and robbers shows on television that are ever so popular. You know how on Law & Order when the cops are interrogating a skell and said skell insists on not saying shit until his shyster comes a-callin' and everybody stops talking? That's called invoking your right to remain silent. It is seen as being a pretty important thing in the criminal justice system pretty much everywhere that pretends to respect the rights of the individual.

In the United States, it is called the Miranda rule and pretty much everyone who isn't Rudy Giuilani agrees that its a neat legal protection. And that's only because Rudy has a rather "elastic" view of what the Bill of Rights provides for.

Well, the Supreme Court of Canada this week decided that the right to remain silent isn't as important as it used to be.



The right to silence in Canada is not an absolute rule that requires police to stop interrogating people who have no wish to speak with investigators, the Supreme Court of Canada has ruled.

In a 5-4 decision yesterday, the court refused to treat the right to silence, as guaranteed by Canada's Charter of Rights and Freedoms, in the same manner as the "Miranda" rule so deeply ingrained in the United States, where police must cease questioning anyone who asserts a desire to say nothing.

"What the common law recognizes is the individual's right to remain silent," said Justice Louise Charron, who wrote the majority decision. "This does not mean, however, that a person has the right not to be spoken to by state authorities."
Essentially, getting arrested is now a lot like a child's relationship with his or her parents. Mom and Dad will keep pestering and nagging about why the cat's head is in the fishbowl, and the kid plugs his fingers in his ears and sings "I can't hear you" over and over again.

Eventually, the kid's ears and throat start to hurt, so he explains to mom and dad that his imaginary friend decapitated Garfield. Amazingly, it's almost never the imaginary friend who goes to bed without dinner.

The case at issue, Regina v. Singh is particularly enlightening in respect to what the cops are now allowed to do.


The court was sharply divided over an appeal by Jagrup Singh, who asserted his wish to remain silent no fewer than 18 times while under interrogation by the Royal Canadian Mounted Police in 2002 in connection with a shooting that killed an innocent bystander at a bar in Surrey, B.C.

His questioner, Cpl. David Attew, admitted his objective was to get a confession "no matter what."

Singh eventually admitted being in the bar and identified himself in a photograph, incriminating revelations in a case where no forensic evidence linked him to the crime. He was convicted of murder in 2003.

Singh argued his statements were obtained in violation of his right to silence under Section 7 of the Charter and asked the court to adopt a rule that would require police, unless they have a signed waiver, to refrain from questioning any person who invokes that right.
You read right, Singh invoked his right to remain silent no fewer than 18 times. That's pretty impressive. Indeed, it's a number that approaches how many times I say "Wanna fuck?" over the course of a day whenever I find myself in a relationship with a woman who happens to live in the same time zone as I do. Said woman usually invokes her right to remain silent, too, although she also frequently invokes her right to call me a "brain-damaged, oversexed, mongloid monster." Then she invokes her right to tell me that her pussy hurts. When I point out that her ass looks okay, she invokes her right to throw me out of her apartment.

In their majority opinion, the Court used the most ridiculous stretch of constitutional logic I've ever heard to tell Mr. Singh to go fuck himself.


But imposing such a rigid requirement would ignore the state's important interest in solving crime and goes well beyond provisions in the Charter and common law that protect a person's freedom to choose whether to speak with police, Charron said. "One can readily appreciate that the police could hardly investigate crime without putting questions to persons from whom it is thought that useful information can be obtained," she wrote on behalf of Chief Justice Beverley McLachlin and Justices Michel Bastarache, Marie Deschamps and Marshall Rothstein.
Your right to remain silent is now officially subservient to the right of the police to not have to work very hard. Your rights are now only as effective as your ability to be as much of a prick as the cops are. And it is important to remember that cops work in shifts and you don't. You can be held in an interrogation room for days.

There is no time in a person's life when his or her rights are more important than when that person is in the custody of the state. And those rights are now lawfully less important than the right of Corporal Attew to be home before dinner gets cold. That doesn't seem right to me, but I don't know all of the facts. Mrs. Attew might be a real cunt when poor Dave comes home late for his eats.

What is especially shocking is something that was pointed out in the dissenting opinion of Mr. Justice Morris Fish.


What's "particularly disturbing," said Fish, is that Attew "subtly but unmistakably" urged Singh to forsake his lawyer's advice.
So not only is your right to remain silent gone, so is your right to to retain and instruct counsel (Section 10.b of the Charter) and the right not to be compelled to be a witness in proceedings against yourself in respect of the offence (Section 11.c)

What I find most troubling is the Court's endorsement of Corporal Attew's wanting to get a confession "no matter what." Would "no matter what" include slapping Mr. Singh around if he didn't talk? How about pulling out his fingernails? Sure, Singh has the right "not to be subjected to any cruel and unusual treatment" (Section 12,) but he also used to have the right to remain silent and retain and instruct counsel.

You might be able to make a case for the "reasonableness" of continued questioning after the right to remain silent has been invoked if Jagrup Singh had, say, planted a bomb that was about to go off. And you could only make that case with any measure of self-respect if you were Jack fucking Bauer. Few of us have days as bad as he does.

But that didn't happen in this case. Singh shot somebody in a bar. Unfortunate for the victim, but a pretty commonplace occurence, all told. And for that, the RCMP decided that the Charter and decades of common law could be ignored. Remember, Attew had no idea that this case would end up in front of the Supremes and how they would rule if it did. Can you imagine what the fucking Mounties are doing in kidnapping or terrorism cases, or when they figure that no one's paying attention? Christ, I'm amazed that those assholes don't get their man more often.

Look, I don't believe that cops, Crown attorneys or judges are necessarily bad people - although they frequently are. I believe that they're just like anyone else, interested in making their day go by as quickly and easily as possible, and are willing to cut a few corners to do that. You do it and I know that I sure as shit do.

But the difference between us and law enforcement and the judicial process couldn't be more profound. When they cut corners, they undermine the freedom of the people and the fundamental building blocks of a democratic society. Do it often enough, and you create a police state, albeit an exceptionally polite one. Canada is very rapidly becoming what we so often proclaim overselves better than. A few more rulings like this one and the only significant difference between us and a country like Myanmar will be that we have a much more adorable way of pronouncing the word "about." And our fantastic genitals. One should never forget those.

The worst part? No one in this fucking country seems to care about this ruling a whole lot. They're altogether too busy getting their panties in a bunch over the fact that Stephen Harper isn't going to interfere in some scumbag's date with a Montana needle.

This country's priorities couldn't be more retarded. Say what you will about Ronald Allen Smith, but I'm pretty sure that his Fifth and Sixth Amendment rights were respected in 1982 and that he received a fair trial. For all I care, Smith can be cut to pieces and fed to ferrets before he actually expires.

I trust the state of Montana enough to believe that his conviction and execution are righteous and pure. I don't trust my own government to same degree and can't therefore support the death penalty here, although I'd love to. Canadians are willing to sacrifice process at home as they whine about punishment abroad. This country's priorities are fucked.

But I'm one of those "glass half full" guys. As such, I'm pleased that the justices no longer wear those stupid goddamned wigs. They're demeaning. And if you're going to undermine the rule of law and everything democracy is supposed to stand for, it's important that you don't look silly doing so.

Easy Listening Recommendation of the Day: Breaking the Law (Live) By: Judas Priest From: Metalogy




And before you ask, yes, I do feel as gay as you do watching those Judas Priest outfits prance about, but what can I do? It's a pretty fucking cool song.

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