What crime shows get completely wrong about Canadian law

Crime television delivers plenty of drama, but it isn’t always the best guide to how justice actually works in Canada

CRIMINAL TELEVISION IS great fun. In terms of being a guide to how the Canadian justice system works, though, there may be some strange notions that could form from viewing criminal television.

We asked four Ontario defence lawyers to assist us in distinguishing television law from Canadian law.

“You Have the Right to Remain Silent…”

Anybody who has viewed an American crime series likely remembers the quote: “You have the right to remain silent. Anything you say can and will be used against you…”

People find this quote so memorable that they often feel Canadian police must follow a similar format after making an arrest.

They do not.

Canada has its own constitutional provisions to protect citizens. Section 10 of the Canadian Charter of Rights and Freedoms provides that a citizen who is arrested or detained has the right to be informed of the reasons for detention and to retain and instruct counsel without delay. There exists a similar right to silence under section 7 of the Charter.

“The largest misconception is probably that U.S. Miranda rights are applicable in Canada,” states Toronto lawyer Calvin Barry, formerly a Crown Attorney for 16 years prior to becoming a defence lawyer. “Many people watch that scene countless times on television. Therefore, they naturally anticipate that the Canadian process will look similar.”

Another misconception of television lies here as well.

If police fail to properly uphold a citizen’s Charter rights, the citizen’s criminal case does not automatically go away. A court may disallow evidence collected by virtue of a Charter violation. However, evidence is not always disallowed each time a violation occurs.

Therefore, announcing, “He violated his rights! Case dismissed!” may be premature.

“I Want to Speak to My Lawyer Right Away”

This is another favourite line of TV shows.

A suspect requests a lawyer. Immediately after requesting a lawyer, a defence lawyer arrives, sits next to the defendant, and objects to all remaining questions during the interrogation.

Unlike TV shows, Canadian law operates slightly differently.

An individual who is arrested or detained has the right to consult with and instruct counsel without undue delay. The Supreme Court of Canada has determined that the Charter generally does not provide individuals with a constitutional right to have a defence lawyer physically present during an interview with police.

“Most people are surprised to learn this because what they know regarding interrogations typically comes from U.S. television,” states Ahmad Karzai of Karzai Law. “While having access to counsel is very important in Canada, it does not mean your defence lawyer automatically sits beside you during the entire interrogation.”

Additionally, simply stating, “I’m not going to answer anything,” does not necessarily mean police must cease questioning you.

Canadian law affords a detained individual the option to decide if they wish to communicate with police. In some instances, police questioning may continue as long as an individual retains the ability to determine if they desire to speak with authorities.

In other words, simply stating, “I’m not answering anything,” does not automatically shut off the interrogation-room lights.

“I Don’t Want to Prosecute”

Crime television portrays victims as having quite a bit of power over prosecutions.

A victim walks into the local police station and declares, “I’ve had second thoughts… I no longer wish to pursue this case.”

Case closed.

That is not generally how criminal prosecutions operate in Ontario.

While police have considerable authority and discretion over investigating crimes and charging suspects in most jurisdictions, once a case proceeds within the prosecution system, it is Crown Attorneys who ultimately make determinations regarding whether to proceed with the prosecution.

“People sometimes think that the person filing the original complaint has complete control over whether charges are laid,” states Manbir Nirwal, founder of Nirwal Law in Brampton. “While a complainant’s wishes are certainly a factor, the final determination regarding whether to lay charges rests solely with Crown Attorneys.”

The distinction between these positions can be particularly important in domestic violence cases. If a complainant asks for charges to be dropped against their alleged attacker, it does not automatically terminate the prosecution.

The TV phrase, “I don’t want to prosecute anymore,” merely begins a discussion. It does not act like an undo button.

“You Can’t Search That Item Without a Warrant!”

One aspect of television law that holds considerable truth is the concept of protection against unreasonable search and seizure.

Under the Canadian Charter of Rights and Freedoms, Canadian citizens have protection against unreasonable searches and seizures. Therefore, a warrantless search is considered unreasonable per se.

However, things get much more complicated after that point.

“Many people view search warrants as an absolute yes-or-no proposition,” states Gurasish Pal Sandhu of GPS Criminal Law Firm. “However, in reality, the legitimacy of a search can depend entirely on the specific circumstances surrounding the search, such as the location, the authority police were acting on, and what was occurring at the time of the search.”

Canadian law acknowledges certain scenarios in which warrantless searches may be permissible. For example, under the Criminal Code, police may enter a residence without an entry warrant in emergency-type situations.

That does not grant police limitless authority to conduct searches. Judges will carefully analyze warrantless searches along with any authority that police claim to have acted upon.

Thus, yelling, “Get back here with a warrant!” at the top of your lungs through the front door may be an exciting moment on television. In reality, there will likely need to be much more conversation between characters before reaching a conclusion.

Five-Minute Plea Bargains

TV show plea bargaining is lightning fast.

The prosecutor offers five years.

The defence lawyer responds with two years.

“Three.”

“Agreed.”

All parties depart.

Negotiations between the Crown and defence counsel can occur in connection with a resolution in the Canadian justice system. The Crown and defence counsel can potentially engage in discussions regarding the strength of the case for each side, possible defences available, Charter violations related to the investigation or charges filed, and potential sentences.

However, this negotiation process is significantly longer than what is portrayed on TV.

“This is another area where TV captures the general idea but distorts the timing,” states Barry. “Cases can reach resolutions through discussions between Crown and defence counsel. What TV condenses into three minutes can include reviewing disclosure materials, researching law, consulting with clients, and engaging in negotiations over extended periods of time.”

Apparently, “Law & Order: Disclosing Numerous Pages of Discovery Material” has still never aired in prime time.

Surprise Witnesses Are Far More Boring Than Television Portrays

Perhaps the best television crime-fantasy scenario is the surprise witness.

Someone unknown until now appears in court as a witness and discloses something previously unknown that totally flips the script.

As stated above, Canadian courts emphasize disclosure and fair trials. In fact, Crown Attorneys have numerous responsibilities to disclose material evidence to defence counsel. Thus, introducing a previously unknown, last-minute witness would be far less common than television depicts.

“On television, trials appear spontaneous,” Karzai notes. “In reality, months and even years of hard work precede anyone standing up in court and asking questions.”

Sandhu concurs.

“A good cross-examination looks like a lawyer thinks of everything spontaneously,” he says. “Generally speaking, what you see is the product of preparation, research of evidence, and knowledge of the issues.”

The dramatic courtroom moment may last 30 seconds. Preparing for it may take 30 hours.

Keep Viewing Your Favourite Crime Series

None of this suggests you shouldn’t continue viewing your favourite crime series.

Crime dramas would likely lose some of their appeal if each episode contained lengthy descriptions of document reviews, scheduling negotiations, and lawyers waiting for their respective matters to be called.

The fictionalized version of events moves faster. It includes better lighting. Somehow, it always seems as though the forensic lab contacts them just when they need it to.

The Canadian justice system functions more slowly, requires additional procedural steps, and rarely reaches conclusions in time to make the 11 p.m. local news.

As Barry said:

“Criminal television can entertain. Trouble arises when people confuse television law with actual law.”