Lawyering up and why you should.


In last week’s blog post, I mentioned some of the many potential consequences associated with having a criminal record.

A criminal record can have a significantly negative impact on virtually all aspects of a person’s life.

Career-wise, a criminal record can be extremely limiting. Nowadays, most employers will require prospective employees to submit to record checks. Jobs that would require employees to be bonded, to drive company vehicles, to handle money, or to otherwise be placed in positions of trust may become out of reach to individuals with criminal records (depending on the offence(s) listed). This may mean that a person with a criminal record is relegated to working in low-level, poor-paying jobs (if that person is even able to obtain employment).

With regard to personal-life repercussions, a criminal record can restrict one’s ability to travel—even decades after the conviction (for instance, see: http://toronto.ctvnews.ca/man-turned-away-from-u-s-for-24-year-old-drug-charge-1.1744832).

Because of the significant issues associated with having a criminal record, it is imperative to protect yourself if you ever find yourself in a position of potential criminal liability.

Upon arrest, police will inform an accused of the reason for his arrest and of his Charter rights. In the United States, the police caution given to individuals under arrest is widely known as the “Miranda warning,” after the groundbreaking decision of the Supreme Court of the United States in the case of Miranda v Arizona, 384 US 436 (1966). The Canadian version of rights and caution—though somewhat similar—is distinct from the Miranda warning. An example of the Canadian “script” may be viewed here: https://en.wikibooks.org/wiki/Canadian_Criminal_Procedure_and_Practice/Arrest_and_Detention/Arrest_Procedure.

I have seen countless cases where it would have been advantageous to the accused to take advantage of his right to counsel. Many private defence lawyers have their phones on 24 hours per day, 7 days per week. (Additionally, it is important to note that Legal Aid duty counsel is available at any time to offer free and immediate legal advice over the phone to individuals who have just been arrested.) This is because time is of the essence with respect to criminal cases. Immediate legal advice from knowledgeable counsel can, if properly followed, in some cases ultimately mean the difference between an acquittal and a conviction. (Remember that a lawyer can never counsel the commission of an offence.)

It is vital to remember that an individual is not obligated to say anything upon his arrest; in fact, anything said or done by an accused may be (and almost invariably is) used as evidence at trial. It is very difficult for the defence to exclude statements made by the accused against his interest.

This is very similar to the Miranda warning. Whenever I think of the Miranda warning, I am reminded of a fantastic scene in Shrek 2 where Donkey (voiced by Eddie Murphy), upon being detained, exclaims to his captors, “What about my Miranda rights? You’re supposed to say, ‘You have the right to remain silent.’ Nobody said I have the right to remain silent!”

In response, Shrek (voiced by Mike Myers) states, “Donkey, you have the right to remain silent. What you lack is the capacity.”

If you ever find yourself in the unfortunate position of being under arrest, it’s best to avoid being like Donkey. Silence—at least until you’ve had the opportunity to obtain legal advice from counsel—can sometimes go a long way, even if it feels awkward in the circumstances.


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About Brandon Trask

Brandon Trask is a regular blog contributor and former colleague of Daniel Murphy and currently a doctoral student at the University of Toronto’s Faculty of Law. He was formerly a Crown Attorney in Newfoundland and Labrador. Brandon holds law degrees from the University of Manitoba and the University of Toronto.