Former United States Attorney General Ramsey Clark wrote in the New York Times, "A right is not what someone gives you; but what no one can take away." It is in this vein that a country drafts legislation to protect the rights of their inhabitants. In the United States there is the Bill of Rights, which consists of a preamble and the first ten amendments to the United States Constitution, 1787 . The Charter of Rights and Freedoms is the first part of the Canadian Constitution Act, 1982 . Both of these documents provide for the rights and freedoms that both countries see as inalienable to their respective populations.
This is where the similarity between them ends. These documents are vastly different. They were crafted in different centuries and therefore have different emphases. One key difference between the two documents is how they treat criminal law and the rights attached to an investigation. Another interesting comparison is what both documents do not discuss.
In Canada, if a person is detained they are required to be informed of their constitutional right to an attorney in accordance to Section 10(b) of the charter and SCR R vs. Therens 1985. The judgment reads:
"Where a detainee is required to provide evidence which may be incriminating and where refusal to comply is punishable as a criminal offence,... s. 10(b) imposes a duty not to call upon the detainee to provide that evidence without first informing him of his s. 10(b) rights and providing him with a reasonable opportunity and time to retain and instruct counsel."
In the United States, a detainee's right to council falls under amendment six to the constitution . Chief Justice Warren's report reads:
"The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination . . . As for the procedural safeguards to be employed . . . the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed."
The difference between the details of these two ideas is great. The Charter makes the reading of the rights mandatory prior to anything that might be incriminating. This includes line ups, breathalyzers, etc . In the United States Miranda only has to be read once the person is custody, under interrogation or arrest. Miranda is the slang term given to the rights that the detainer is obliged to recite to the detainee before their detention. It begins with the lines made famous by cop shows, "You have the right to remain silent. Anything you do or say can and will be used against you in a court of law . . . " In Canada, because we have no Fifth Amendment law the detainee does not need to be warned against self incrimination. Also, in Canada, after the recitation of the rights, the detainee needs to be asked if they understand and if they want to call a lawyer now.
These differences occur because of the nature of the two documents. The Bill of Rights was partially a reaction to anti-federalist complaints that the constitution gave to much power to the federal government. It was not written with the same forethought that was put into the Charter. Justice Lamer suggests that the differences emerge from the expansiveness that needs to be incorporated into a document of the charter variety .
This is seen in other sections of both documents as well. The fourth amendment states, "The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." The Charter states in s. 8, "Everyone has the right to be secure against unreasonable search or seizure." This provision of s. 8 is broad and...
Bibliography: *Amar, Akhil Reed. The Bill of Rights: Creation and Reconstruction. New Haven: Yale University Press, 1998.
*Beaudoin, Gerald A. The Canadian Charter of Rights and Freedoms. Toronto: Carswell, 1989.
*Douglas, Ann. The Complete Idiot 's Guide to Canda in the 80 's. Scarborough: Prentice-Hall Canada Inc., 1999.
*Dumbauld, Edward. The Bill of Rights and What It Means Today. Westport, Conn: Greenwood Press, 1979.
*Greene, Ian. The Charter of Rights. Toronto: J. Lorimer, 1989.
*MacCharles, Tonda. "Book 'Em Dano! Canada 's Tough Arrest Rules." The Toronto Star 15 April 2002.
*McKercher, William Russel. The U.S. Bill of Rights and the Canadian Charter of Rights and Freedoms. Toronto: Ontario Economic Council, 1983.
*Supreme Court of Canada, http://www.lexum.umontreal.ca/csc-scc/en/index.html University of Montreal.
*The Bill of Rights, http://www.nara.gov/exhall/charters/billrights/billmain.html National Archives and Record Administration.
*U.S. Supreme Court, Arizona v Miranda, http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=384&invol=436 Findlaw.
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