Written by April Lount
Legal literacy is a cornerstone to access to justice. However, considering the serious nature of legal literacy, there is a growing irony given its increasingly close relationship to television and popular culture. The average household consumes 4 hours and 27 minutes of television a day, with some of the most widely consumed television and movies being legal-based pieces.[1] As a result, legal literacy is increasingly being taught through the lens of pop culture. In the words of legal scholars Michael Asimow and Shannon Mader, today, the relationship between law and popular culture can be “expressed as a feedback loop,” where it is simultaneously drawing its material from the real world and informing the public.[2] There is an appetite for legal content in pop culture, and while it offers high entertainment value, the information disseminated about the law can prove problematic when it comes to legal literacy. “Pop culture producers always distort reality, including the operation of the legal system, for dramatic, commercial, or ideological purposes.”[3] For Canadian viewers, the inaccuracies are further compounded when consuming legal information that is not applicable to a Canadian context. Canadians are huge consumers of American content, and likewise, American legal tropes are widely disseminated to the Canadian public leading to mis-held beliefs about the operations of the legal system. This blog post disentangles three of the most common American legal tropes that are muddying legal literacy for Canadians in the criminal justice system.
Miranda Rights:
The ubiquity of Miranda Rights used as a trope used to convey the arrest of a character could easily mislead Canadians to believe the same is true for arrest procedures in Canada. Most could likely recall the Miranda warning from memory: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights that I have just read to you?”[4] While there are similarities to the rights provided to Canadians, there are distinct differences in the script relayed to accused persons. The famous Miranda Rights are the result of the landmark U.S. Supreme Court case Miranda v. Arizona (1966) interpreting police duties based in the United States Constitution’s Fifth and Sixth Amendment, the right against self-incrimination and the right to counsel.[5] In Canada, police highlight constitutional protections from Section 10(a) and (b) from the Canadian Charter of Rights and Freedoms:
10 Everyone has the right on arrest or detention
- To be informed promptly of the reasons therefor;
- To retain and instruct counsel without delay and to be informed of that right.[6]
Therefore, Canadian police are obligated to tell the accused why they are being arrested and inform them of their right to counsel.
However, things become more nuanced in the right to silence. Where American police are obligated to remind people of their right to silence during arrest, there is no specific warning or reminder required of Canadian police. Section 7 of the Charter, “the right to life, liberty, and security of the person,” implicitly carries with it the right to silence. Perhaps the consumption of Miranda Rights content makes clear the value of this protected right, but remembering to exercise this right is up to the individual, and it is much more difficult to prove a post hoc infringement of the Canadian right to silence than it is to prove a violation of American criminal procedure should Miranda rights not be respected.
Right to counsel during police questioning:
As mentioned, both the United States and Canada have a constitutional right to counsel in the criminal context. However, there are significant differences in the procedural obligations surrounding the request for counsel during police questioning. Television and movies often highlight police treading carefully during early questioning to avoid the individual making their request for counsel. This is because in America the request for counsel triggers an obligation for the police to halt questioning until legal representation is present.[7] Otherwise, any confession garnered through questioning without counsel present is inadmissible in court.[8] However, Canadian law does not impose a similar obligation. Rather, the Supreme Court of Canada confirmed in R v Sinclair that one does not have the right to have counsel present while being interviewed by police. John Burchill in his article “The Right to Counsel and the Right to Have Counsel Present” succinctly summarizes the procedural norm in Canada: “Once an adult has been arrested and received advice from counsel the police can begin questioning them. Generally, there is no right for an adult suspect to have counsel present before questioning can take place.”[9] Television and movies incorrectly suggest to Canadians that the request for counsel in itself affords protections to self-incrimination. In actuality, Canadian law values the role of police in eliciting confessions and are entitled to use “legitimate means of persuasion to encourage the suspect to [give a statement].”[10] This includes proceeding without having legal representation present, and any voluntary confession elicited during this process will likely be admissible in court. While the common law recognizes the individual’s right to remain silent, “this does not mean, however, that a person has the right not to be spoken to by state authorities.”[11] Therefore, once again, it is up to the individual to exercise the right to silence during questioning.
Pressing Charges:
Television and movies often portray characters instructing police whether or not they are going to “press charges” against wrongdoers. This suggests that there is a voluntary power grounded in victims to choose whether or not perpetrators will face criminal charges. There are certain circumstances that this dynamic operates in America, but this concept is largely inapplicable to a Canadian context. Unlike the portrayal on screen, Canada’s legal system grounds the authority for prosecutorial discretion in the Crown Attorney—not the victim. While the victim may have a significant evidentiary role, they do not have the power to steer the criminal law process. Rather, the Crown Attorney makes the decision based on their assessment of whether there is a reasonable prospect of conviction based on the available evidence, and whether the prosecution is in the public interest.[12] If these conditions are met, the Crown will proceed with prosecutions.
Conclusion:
In conclusion, while pop culture is a powerful dissemination tool, the legal information that Canadians are consuming is colouring legal literacy through an American lens. There are many similarities in both systems; however, there are crucial differences when it comes to the interpretations of rights and procedural norms—particularly in the right to silence. These differences skew assumptions about criminal law and the protections afforded to members of the public.
[1] Michael Asimow & Jessica Silbey, Law and Popular Culture: A Course Book 3rd ed (Boston: Vandeplas Publishing, 2020) at 4.
[2] Ibid at 6.
[3] Ibid.
[4] “Miranda Rights Infographic” online (pdf) US Courts <https://www.uscourts.gov/sites/default/files/mirandawarningfinal.pdf> [Federal Courts’ Miranda Rights Infographic].
[5] Miranda v Arizona, [1966] 384 US 436.
[6] Charter of Human Rights and Freedoms, CQLR s C-12, s 10.
[7] Supra note 5, at para 469.
[8] Ibid at para 475.
[9] John Burchill, “The Right to Counsel and the Right to Have Counsel Present,” (2022) 45:5 MB L J at 7.
[10] R v Herbert, [1990] 2 SCR 151 at para 186; approved by the majority in R v Sinclair, 2010 SCC 35 at para 25.
[11] R v Singh, 2007 SCC 48 at para 28.
[12] Public Prosecution Service, “Public Prosecution Service of Canada Deskbook” Canada: Public Prosecution Service, ch 2.3(1).
The views expressed in these blogs do not necessarily reflect the views of the Faculty of Law at the University of Manitoba and should not be construed as legal advice or endorsement.