Law Times

Law Times • December 11, 2017 Page 7 www.lawtimesnews.com Contradiction of reconciliation and royal allegiance BY FATHIMA CADER I n 2014, I asked my first-year law stu- dents how many of them had heard of residential schools. To my surprise, roughly two-thirds of this post-graduate classroom — people on their way to careers as lawyers, judges and politicians — had not heard of Can- ada's centuries-long program of abducting indigenous children from their families and nations. As we now know, what unfolded in the name of "education" was the deten- tion, alienation, torture and death by the Canadian state of indigenous children. No wonder the provincial government ex- empts indigenous employees from having to swear "true allegiance" to the Queen, her heirs and successors. The oath is man- datory for Canadian citizens entering the public service, but the exemption in Ontario Regulation 373/07 provides an acknowledgment that an indigenous employee might find swearing fealty to a Queen of Canada unconscionable. The Law Society of Upper Canada is even more f lexible — the oath to the Queen administered during the call to the bar is optional for all licensees. In contrast, the Citizenship Act requires all citizenship applicants to make public declarations of royal allegiance, although some of those required to give the oath came here from countries that had renounced British col- onization. For example, in McAteer et al. v. At- torney General of Canada, Michael McAteer explained that "his family had fought for Irish independence from the Brit- ish Crown." He argued that to now proclaim allegiance to "a hereditary monarch who lives abroad" violated his s. 2(a) (freedom of religion), 2(b) (freedom of expression) and 15(1) (equality rights) under the Canadian Charter. Other legal challenges to the oath include the grievance and subsequent judicial review of Can- adian Forces Captain Mac Giolla Chain- nigh, who argued in Giolla Chainnigh v. Canada that he was being "subjected to a form of institutional harassment by the obligation to participate in 'outward dis- plays of loyalty to an unelected monarch of foreign origin.'" To date, every courtroom challenge to the oath has been unsuccessful, despite challengers assuring the government their only objection was to swearing loyalty to the Queen specifically. They were pre- pared to swear oaths to Canada and its laws, as is done in jurisdictions such as Australia, where the British Queen is like- wise the nominal head of state. Nevertheless, the very first sentence of Immigration, Refugees and Citizenship Canada's citizenship guide is explicit. It says "In Canada, we profess our loyalty to a person who represents all Canadians and not to a document such as a constitution, a banner such as a f lag, or a geopolitical entity such as a country." The guide, on which Canadian cit- izenship tests are based, states "Canada is personified by the Sovereign just as the Sovereign is personified by Canada." Notably, the guide, amend- ed in 2012, brief ly describes residential schools as "poorly funded" before asserting that "in today's Canada, Aborig- inal Peoples enjoy renewed pride and confidence." The guide bears a photograph of John Buchan, a Scottish Baron and once Governor Gen- eral of Canada, wearing a "Blood (Kainai First Nation) headdress" — under the heading "Unity in Diversity." This is the context that explains how even law students can be made unaware of a violence so foundational, staggering and recent in Canada. Were I to do that poll in a law class now, the results would perhaps be different. Since 2015, law schools across the country have very publicly turned their attention to the Truth and Reconcilia- tion Commission's recommendation to increase cultural competency in the legal profession, and Prime Minister Justin Tru- deau raises awareness about colonial vio- lence every time he calls for reconciliation. But raising awareness is not the goal, change is. The federal government persists in underfunding child welfare services on reserve, despite a crisis of suicides among indigenous children in Canada. Canada thus remains to date in breach of the order in First Nations Child and Family Car- ing Society of Canada et al. v. Canada. Records released under the Access to In- formation Act also revealed that in Shiner v. Canada, the Liberals spent more than $110,000 in legal fees to avoid buying $6,000 dental braces for a Sucker Creek First Nation teenager named Josey Willier. In McAteer, the court held that "the sovereign has come to represent the an- tithesis of status privilege." "The Crown is, inter alia, the re- pository of responsibility toward aborig- inal peoples," it continued. This claim obscures the Crown's persistent refusal to address indigenous people and nations with substantive respect and justice. There is nothing more Canadian about us than our settler colonization; this country would not exist but for Canada's historic and ongoing exploitation of in- digenous people, territories and nation- hood. Let this awareness be the responsib- ility underscored on entry into Canadian citizenship. With another royal wedding afoot, it's time we took measure of the pomp and glory of Canada's relationship with the British monarchy. The mental gymnastics involved in looking to a for- eign throne should be eschewed in favour of tackling privilege right here. LT uFathima Cader practises human rights and labour law in Toronto. She is an ad- junct professor at the Faculty of Law at the University of Windsor. She can be reached at cader@mmwlaw.ca. Reid technique is problematic BY JEFFREY MANISHEN I n 1998, a 25-year-old unsophisticated man in Alberta was arrested for aggravated assault on his infant son. After several hours of interroga- tion, during which time he repeatedly denied having hurt his son, he was left in the interview room. Sobbing, he wrote out an apology and made comments like, "How could I have done this?" The investigating officers in M.J.S. [2000] A.J. No. 391 managed to overcome the suspect's refusal to ac- cept responsibility for the offence by the use of what is known as the Reid technique, an interrogation ap- proach developed in the United States by John E. Reid & Associates. The Reid technique instructs investigators to engage in "behaviour symptom analysis," relying on patterns of conduct that supposedly indicate whether or not the suspect is telling the truth. The interrogation begins with the investigator asserting his absolute certainty of the suspect's guilt. The suspect is relentlessly pushed to accept culpability. Moral justifications may be proffered (for example, that the suspect experienced abuse as a child, or that they inf licted the injuries unintentionally). The suspect may be confronted with exaggerated or fabricated evidence. They may be told that the proof of their guilt is incontrovertible, given that all other suspects had been cleared. The investigator may present two alternative ver- sions of the suspect's conduct, one of which is signifi- cantly worse than the other, and encourage the suspect to adopt the less serious model. A suspect who remains silent or continues to deny involvement may be faced with an investigator unwill- ing to accept that position, confronting him with the investigator's theory of what "really" happened and en- deavouring to overcome any reluctance to confess. The trial judge was very critical of the methods used by the police on the suspect in the Alberta Provincial Court Criminal Division case, characterizing it as a "classic illustration of how slavish adherence to a tech- nique can produce a coerced-compliant confession." He ruled the evidence inadmissible. He also wasn't the first to reach such conclusions in assessing the impact of the Reid technique on the ad- missibility of evidence and was, by no means, the last. In R. v. Thaher, 2016 ONCJ 113, Justice Peter Andras Schreck refused to admit a Reid-based con- fession by a mentally ill, fatigued man accused of at- tempted murder and questioned for more than seven hours. Referring to the Supreme Court of Canada deci- sion in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, Schreck characterized the method as a "shoddy police practice … shown to be coercive and to produce false confessions." In R. v. Goro 2017 ONSC 1236, Halton and RCMP police officers executed a warrant for footprint im- pressions on a man under investigation for a cold-case murder. He was never told of his right to counsel, cautioned or told he was free to leave at any time. Rather, he was interrogated for almost six hours. In the face of lengthy police monologues insisting on his guilt, he denied culpability but some of his state- ments could have been contradicted by forensic evi- dence. In the ruling, Justice Dale Fitzpatrick found it un- necessary to decide the Reid issue due to overriding Charter issues on detention. However, he stated, "[U]se of the Reid technique or something akin to it does not automatically render a statement inadmissible. . . However, the technique is inherently coercive and for that reason has been the subject of considerable judicial and academic criti- cism." One may wonder why some police services continue to use such questionable methods, given the risk of wrongful convictions, unsuccessful prosecutions and the attendant failure to investigate and apprehend the real perpetrators. It can't be for a lack of alternatives. The investi- gative interviewing approach involves a thorough and objective investigation of both the offence and the suspect. It is followed by an open-ended interview where the suspect is allowed to talk freely in response to open-ended, non-confrontational questions, which has proven to be very effective in gaining admissions that don't involve the risk of false confessions. One such technique, known as PEACE (prepara- tion, engagement, accounting, closure and evaluation), involves officers asking follow-up questions based on the answers given as well as other information com- piled by the investigators. One need only watch the very skillful interview of Col. Russell Williams by Ontario Provincial Police detective Jim Smyth to see how a suspect may be en- gaged in non-confrontational dialogue, ultimately leading to false statements and a full confession to acts of murder. Several countries in Europe and elsewhere have suc- cessfully implemented the investigative interviewing method. In the United States, Wicklander-Zulaw- ski & Associates, a private agency involved in training police officers for many years, has discontinued teach- ing the Reid technique as a result of concerns over false confessions. While several police services in Canada have incor- porated the use of investigative interviewing methods such as PEACE into their training, many have not yet chosen to discourage or discontinue the use of the Reid technique. Judicial commentary on the problematic aspects of this method of interrogation is going into its second decade. I encourage members of the legal profession to add their voices to those who have urged our police servi- ces to cease utilizing the Reid technique once and for all. Let's hope they'll listen. Our justice system would certainly be better if they do. LT uJeffrey Manishen is a partner with Ross & McBride LLP practising criminal defence law in Hamilton. u SPEAKER'S CORNER COMMENT Law Rebooted Fathima Cader

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