You have the right to remain silent, eh?

Separating fact from fiction: comparing American melodramas to the Canadian Justice System

Nothing makes the justice system look snazzier or brings the legal melodrama like Law and Order. Or remember the quirky – and at times agitating – Ally McBeal, whose lawyers could closing-argument their way out of anything while simultaneously engaging in endless interpersonal quadrangles in the firm’s unisex bathroom?

Legal dramas have long been a prime time staple, but their presence has also seriously undermined the publics’ comprehension of the reality of the legal system in Canada. Here is a breakdown of some popular misconceptions;
1.  You have the right to remain silent- Actually, you totally do. But Miranda rights, which begin with the “right to remain silent” and which most people can probably recite thanks to Lenny Briscoe, are based on a 1966 United States Supreme Court case. While our rights are similar upon arrest, we are read our charter rights.

2. A warrant must be obtained to enter your home-  Detectives always seem to be scrambling to obtain a warrant at all hours, waking up judges and busting down doors. In Canada, the case R v. Feeny outlines that a warrant should be obtained, but there are exceptions, such as in the course of a chase or if there are exigent circumstances. “Judges are not on call just giving out warrants. You can’t just call up a judge at four in the morning,” non-practising lawyer Melanie Hawkes adds.

3. You can plead the fifth- “The fifth amendment right, which can be invoked to avoid self-incrimination, is based on the American constitution, which we don’t follow”, explained Hawkes. Anything we say in one trial however, cannot be used against us in another, therefore avoiding self-incrimination.

4.  Asking open-ended questions and dramatic courtroom confessions- Clearly, script writers are a fan of this one: a persistent attorney gives a dramatic recounting of events and a defendant is compelled to confess all. But Hawkes explained that law students are actually taught to frame their questions so that the witness will have to give a yes or no answer, without actually being able to tell them to give a yes or no answer. “That would restrict the truth, and a trial is a truth seeking exercise,” she said. And as for the climactic on-the-stand confession,  it is laughably non-existent in reality.

5. Turnaround time-While TV trials go by in the blink of an eye, Hawkes said the average criminal trail where a serious offence is committed takes about 18 months to two years.

Published in Volume 64, Number 11 of The Uniter (November 12, 2009)

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