I have now watched four episodes of Law & Order Toronto: Criminal Intent. While the show showcases Toronto’s landmarks (and perhaps it even puts the city more firmly in our American friends’ minds), it is yet another television show that misrepresents how the criminal justice system really works. I believe that it ultimately contributes to the public's misunderstanding of how the criminal justice system actually works.
Each episode begins with a murder, which is followed with a not-so captivating series of witness interviews conducted by detective duo Graff and Munroe. Following the formula of a stereotypical legal drama, the detectives take an adversarial tone with every suspect until they corner the actual murderer - at which point, they moralize or bully him/her into confessing.
I have noticed a few common themes from episode to episode: portrayals of police tactics that any seasoned criminal lawyer would chide as either
totally unrealistic; or
misconduct that judges would tear their hair out if proven in court.
They are as follows:
Fly-By-the-Seat-of-Your-Pants Interviews
Detective Graff and Detective Munroe are often shown crossing their arms or keeping their hands in their pockets while interviewing witnesses. You know what they’re never seen doing? Writing things down.
When talking to witnesses, real-life police are writing notes… a lot of them. When taking statements at the scene of an offence, witnesses often sign written statements. For serious cases, witnesses usually come to a police station to have their statements video-recorded. There are very good reasons for all this.
Bigger investigations require multiple officers to work as a team. Officers leading the investigation will want to know what other officers observed at the crime scene or heard from other witnesses (especially the accused). Having statements accurately preserved in notes, signed statements, and audio/video recordings allows the lead investigator to come to reliable conclusions.
By providing a cogent chronical of the investigation with contemporaneous notes and written statements, Crown prosecutors can get an understanding of the case. Equally important, the accused (and their defence lawyers) can only exercise their right to make a full answer and defence if they have easily digestible documentation of what witnesses actually said.
It is very difficult to investigate a case, prosecute a case, and defend against a case when police officers keep their recollections of witness-statements in their heads.
Here's the most obvious problem that can arise when police fail to record statements: what happens when a witness is testifying in court and says, “I never said that”? Cross-examination on the statement becomes much trickier without a signed statement or video to contradict the witness with.
Detective Graff is an Expert on Everything
Law & Order Toronto – Criminal Intent portrays its star, Detective Graff, as an authority on expensive liquor, engines, Chinese military strategist Sun Tzu, et cetera. Each episode has at least one point in the plot where his unique insight into art, or construction, or whatever subject, leads him on a new trail of breadcrumbs directly toward the confessing culprit.
Don’t get me wrong. Police officers usually reach detective-status by being smart and meticulous investigators. In fact, my experience is that most police officers are bright and hardworking professionals. The reality, however, is that most investigations are not solved by a worldly detective’s eureka moment.
When a lightbulb goes off in a police officer’s head, it may happen because he or she was combing through boxes of documents. Or it may occur when a toxicologist at the Centre for Forensic Sciences sends back a lab report. Sometimes that happens early in the investigation; and sometimes it takes several months to make an important discovery.
However, it is rarely the lead officer’s interest in art history that solves the case. A witness who comes forward puts the nail in the accused’s coffin far more often than the savant detective who gets a suspect to confess.
Rights to Counsel – Having a Lawyer Present
As early as episode #2, I saw a suspect giving a statement to the police with his lawyer present. This almost never happens in Canada.
Section 10(b) of the Canadian Charter of Rights and Freedoms provides that
10. Everyone has the right on arrest or detention:
(b) to retain and instruct counsel without delay and to be informed of that right;
This guarantees people arrested (or detained) the right to speak to a lawyer before they are questioned by police or made to participate in any evidence-gathering technique. The detained/arrested person usually gets legal advice by calling his or her lawyer of choice.
Yet movies and shows like Law & Order give people the impression that they are entitled to have their lawyer present during an interview. They aren’t. The Supreme Court of Canada said in R. v. Sinclair, [2010] 2 S.C.R. 310,
We conclude that s. 10(b) does not mandate the presence of defence counsel throughout a custodial interrogation. We further conclude that in most cases, an initial warning, coupled with a reasonable opportunity to consult counsel when the detainee invokes the right, satisfies s. 10(b).
One exception to this rule pertains to arrests and detentions of young persons. Section 146(2)(iv) of the Youth Criminal Justice Act provides that statements taken from detained young persons (under the age of 18 years) are only admissible in court if they are told about their right to have counsel present (or a parent, adult relative, or other appropriate adult).
The Supreme Court also said in R. v. Sinclair that witnesses who are not arrested or detained can get the police to agree to have counsel present in exchange for an agreement to be interviewed. As a matter of practice, however, this rarely happens. If the witness is not a suspect, there is seldom a reason for people to want a lawyer present at an interview. Where the witness is a suspect, every lawyer will almost always tell his or her client to say nothing at all (rendering the interview pointless).
Rights to Counsel – Obvious Breaches of an Important Constitutional Right
As noted above, a person has the right to retain and instruct counsel without delay on arrest or detention.
Arrests and detentions can happen in a few ways. When a person is arrested, an officer says "you're under arrest" or touches a person in a way that restricts his or her liberty. When a person is detained, the police make that person reasonably believe that he or she is not permitted to leave (or actually stops that person from leaving).
When a person is arrested or when a person is detained, the police must inform him or her of the right to speak to a lawyer. If that person then says that he or she wants to do so, the police must cease questioning until that person has a reasonable opportunity to speak to the lawyer of his or her choice.
At the end of episode #2, Detectives Graff and Munroe close in on their suspect during an interview at the police station. Midway through the interview, they start accusing him of murder. The suspect then says that he will want his lawyer present next time he speaks to them, and begins to stand up – at which point, Det. Graff forces him back down into his chair.
Just about any judge would rule that he was most certainly under arrest at that point (and was arguably detained moments before). Instead of informing the accused of his rights to counsel, the detectives continue to question the suspect until he confesses. Such a confession – and any statement occurring out of that interview – would almost certainly be excluded from evidence at trial.
At the end of the episode, Det. Graff goes on to mock what he believes will be his future lawyer’s closing arguments. In real life, his defence lawyer would make closing arguments at an application to exclude evidence (or maybe even have the proceedings stayed) by arguing something like this:
“It is inconceivable that a police officer as well seasoned as Detective Graff could be so oblivious to years’ old Supreme Court precedents like R. v. Sinclair and R. v. Suberu, and DECADES’ old Supreme Court precedents like R. v. Therens and R. v. Prosper, and ACTUALLY NOT KNOW that he is required to inform detained persons of their right to counsel, and to cease questioning when they invoke it.”
The end of the third episode follows the same formula. Detective Graff closes in on his suspect; he accuses her of murder; he continues to question her; he stands in her way when she tries to leave. No information about her right to counsel is given. Instead, he induces her into making a statement. Such tactics can jeopardize a prosecution. On top of that, no police officer will want to gain a reputation for breaching constitutionally protected Charter-rights. It makes it much easier for defence lawyers to cross-examine such police officers by raising those breaches at the next trials in which they testify.
In Summary
To people who are not criminal lawyers, the process of criminal law can be quite boring. Its players email each other way more than they have heated exchanges; they do lots and lots of writing; they do lots and lots of reading; and they do lots of consideration of what the law actually says.
That just isn’t really what makes for entertaining television.
This blog is for general informational purposes only. Matthew Wolfson does not distribute legal advice through this blog. As such, this blog does not constitute legal or other professional advice, and no attorney-client relationship is created between the reader and Matthew Wolfson.
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