IT WAS two o’clock in the morning, Jim O’Connor had had a couple of drinks, now he was standing there, shivering, in a cold empty police station in Toronto’s North York, while a couple of big cops rigged him into a breathalyzer machine — well, who could think clearly in a jam like that? Not Jim. It didn’t enter his mind to ask if it was all right to call up his lawyer. But then nobody had actually accused him of anything, had they? The police who’d pulled Jim’s Dodge over to the curb out on Weston Road 45 minutes earlier hadn’t said he was under arrest, and the guys running the breathalyzer hadn’t mentioned a charge or anything. Maybe there were no worries after all.
The cops took two breathalyzer readings — 2.0 at 2 a.m., 1.9 at 2.15 a.m. Not good. One cop started to lead Jim down the corridor to the cells out back, and on the way he said, kind of off-hand, you’re under arrest fella, we’re charging you with impaired. That’s when Jim panicked. He asked to use the phone and the cop let him make one call. His lawyer was out — not just for the evening, out of town. The cop said, OK, that’s your one call, and Jim spent the night in a cell.
Fifteen days later, on Feb. 20, 1964, Jim O’Connor was convicted in North York Magistrates’ Court of driving while his ability was impaired by alcohol. He was fined $100. But the case didn’t stop there. Jim decided to fight the thing all the way to the Supreme Court of Canada, and because he did, Regina vs. O’Connor stands as a kind of small landmark in Canadian jurisprudence: the case makes the point, in perfectly explicit language, that a man in a Canadian police station — unless he happens to be a Mafia overlord. the president of General Motors, a professional man, anyone sophisticated enough to know how to handle himself around the cops — has few rights, little protection and not much hope. The O’Connor case makes it clear, in short, that all those fancy privileges that the United States Supreme Court has been handing out lately to American citizens who find themselves hauled in by the police just don’t wash up here in Canada.
Three superior courts had a crack at Regina vs. O'Connor along the way
— the High Court of Ontario, the Ontario Court of Appeal and the Supreme Court of Canada — and among them they managed to make, or to reaffirm, these points:
* There is no onus on the police at any time to tell someone in Jim O’Connor’s position — or someone facing a much more serious legal jam
— that he‘s entitled to have his lawyer in the station to advise him.
^ There's nothing wrong, either, w'ith the cops’ failure to make it clear to a citizen they’ve brought in off the street that he’s under arrest.
As for the breathalyzer test, anyone can legally refuse to take it, but the police's silence on that point — they certainly didn’t tell Jim O’Connor he could refuse — doesn't prevent the test results from being used in evidence against an accused at his trial.
^ Even if an accused man can show that a breathalyzer test was in some w'ay taken illegally, the test results can still be used in court—against him.
The section in the Bill of Rights that seems glowingly just — “no law of Canada shall be construed so as to . . . deprive a person who has been arrested or detained ... of the right to retain and instruct counsel without delay ...” — applies only to court proceedings, not to what happens in the station house.
But it's precisely in the station house, as Jim O'Connor for one learned to his endless sorrow, that any citizen, no matter how slight or how serious the charge he might have to face, most needs the advice of counsel. If the police wring an admission from him there — never mind whether it’s true or false, or how it’s obtained — the trial becomes a sad formality: the suspect, like poor old Jim, has already cooked himself. And it’s in the station house, too, that the cops have all the weapons on their side, not excluding the suspect’s own nervousness.
These are the hard facts of North American life that the United States Supreme Court, unlike its Canadian counterpart, has recently chosen to recognize, and in a couple of remarkably enlightened decisions, the American court has extended the protection a citizen can normally expect in a courtroom into the police station. The cases:
*" Escobedo v.v. Illinois (1964). As soon as a police investigation makes a man a prime suspect, the court ruled, then he is entitled to consult his lawyer. To bar legal aid from the station house, wrote Justice Arthur Goldberg before he left the court for the UN, “would make the trial no more than an appeal from the interrogation.”
* Miranda v.v. Arizona (1966). Every suspect must be reminded by the police "prior to questioning” of his right to remain silent and of his right to have his own counsel present. What’s more, the court said, if the suspect is an indigent, the police must advise him that the court will provide him with free counsel.
None of these protective rights apply to a citizen in Canada who finds himself in trouble with the police. And that isn't the worst of it for the poor suspect. Canadian court tests of what is and what isn't admissible as evidence in criminal proceedings are considerably more lenient than they are in the U.S.. and it’s the man on trial who's the loser.
In a Canadian court, to begin with, the judge alone decidesat his discretion whether a statement to police was made voluntarily and is therefore admissible as evidence against him. But in U.S. courts, there's no discretion; the judge must follow hard and fast rules — the rules established by the Escobedo and Miranda decisions, for example — that decide the voluntariness of the confession for him.
Then there's the doctrine of “poisoned fruit,” an American concept that has no application up here. A hypothetical illustration: police submit X to a third-degree grilling and X finally blurt's out, “The gun is under my porch.” Police find the gun under his porch and take it and X’s admission to court. In Canada, the illegally obtained confession is out but the gun is allowed in. In the U.S., the confession is out and, because the
gun was located only as a result of evidence illegally obtained, "poisoned" evidence, it is excluded too.
Once a man is taken out of the station house and into the court house, no longer a suspect but now an accused defendant, his rights to protection are again more secure in the U.S. than in Canada — especially if he has the bad luck to be broke.
The U.S. Supreme Court, in another landmark decision, Gideon vs. Wainwright (1963), ruled that all indigents get free legal counsel in the court room in felony cases without question. A Manitoba lawyer recently quoted the Gideon case to the Manitoba Court of Appeal in an effort to win a new hearing for his client. The client, an indigent, had appeared in Magistrates’ Court without counsel, without asking for counsel and without being advised by the magistrate that he qualified for free counsel, and was convicted of escaping from the Manitoba Penitentiary.
The court looked at Gideon and at that section of the Bill of Rights that guarantees “the right to retain and instruct counsel without delay.” Its ruling: "It would have been preferable if [the magistrate] had informed the accused that he might request the services of the Legal Aid Committee but . . . there was no infringement of a right guaranteed by the Bill of Rights since he was not deprived of the privilege to retain and instruct counsel.” Noted.
All of which leaves Jim O’Connor, who turned out to be an Escobedo or a Miranda in reverse, with a criminal record attached to his name — simply because he did his driving in Canada. In the U.S., it’s true, a court might still have convicted him, but not unless these things had first happened: (a) the cops had told him that he could have a lawyer, any lawyer if his own was off in Acapulco; (b) they mentioned to Jim that he could keep his mouth shut if he wanted; (c)
they’d given him a choice to take the breathalyzer test or refuse it.
And, don’t forget, (d) supposing the police failed in any of those duties, then the U.S. court would throw out the breathalyzer tests, throw out any admissions Jim made in the station— and it would probably throw out the whole case against Jim too.
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