Issue 5, June 5, 1998
We are very pleased to introduce His Honour Judge Gilles Renaud's contribution to the defence brief. His Honour was an accomplished defence counsel and prosecutor before his appointment to the Ontario Court of Justice (Provincial Division) in Cornwall, Ontario.
Disclosure of Information Prior to Police Interrogations:
Guidance from the novels of Georges Simenon
By Gilles Renaud
Ontario Court of Justice (Provincial Division)
The Supreme Court of Canada has provided valuable instruction on the question of disclosure of evidence in a number of cases since the seminal decision in R. v. Stinchcombe (1992), 8 C.R. (4th) 277, notably the recent judgment in R. v. McQuaid (1998), 13 C.R. (5th) 251. However, there is one area that appears to require greater clarification. What are the disclosure rights, if any, of a person being questioned by the police but not yet charged? In an effort to canvass the potential issues engaged in this respect, I have elected to make reference to an unconventional legal source: the novels of Georges Simenon1. In fact, as will be seen, the interrogation methods adopted by Inspector Maigret and his fictional colleagues underscore the basic injustice of questioning detainees who are not fully informed as to the reasons for the questioning, to say nothing of the absence of a meaningful opportunity to consult with counsel prior to the start of the interview.
I am hopeful that counsel, whether briefed for the prosecution or for the defence, will look to these few illustrations as the basis for legal research and commentary. In the final analysis, it is my hope that they will assist in stimulating debate leading to a delineation of the extent to which the rules governing disclosure of evidence to persons charged with criminal offences govern the disclosure of information to persons interrogated by the police.
As noted, attention is drawn to the duty of the police to provide information about the arrest or the investigation in advance of any interview by citing various interrogations conducted by fictional characters invented by Simenon. In considering each example, it will be useful to evaluate how the lack of disclosure impairs the right to consult with counsel prior to a proposed interview.
I begin by putting the question: must the suspect be told the reasons for the interrogation? Stated otherwise, is a person not yet charged entitled to be informed of the nature of the investigation or of the suspected offence prior to being questioned? This was asked directly by a witness in Maigret and the Burglar's Wife2: "I believe I have the right to know the reason for this interrogation." A somewhat different example is found in Inspector Maigret and the Strangled Stripper3. "If you let me in on what's going on maybe I can help you. Don't you think we've played cat and mouse long enough?" Consider also the direct question asked of Maigret in Maigret Loses His Temper4: "First of all, tell me what you know...". There follows the inspector's evasive yet intimidating reply: "I ask the questions here..."5.
I wish to point out that in this discussion, we are not concerned with the rare instances of suspects who do not wish any information. In The Lodger6, for example, the police officer states, "Know why I've come...?" and the reply he gets is: "Of course.". This is different from the person questioned who is of the belief that he or she knows the reasons for the interview. Thus, in Maigret Mystified7, one reads: "If you think I can't see what you're getting at!" But what if the suspect is mistaken in this belief? What if he or she knows nothing of the matter? Will a refusal to cooperate be judged incorrectly, as the celebrated cases of Susan Nelles and Guy-Paul Morin have made plain?
From the perspective of the law enforcement authorities, the concern that arises from pre-interview disclosure is an obvious one: the suspect will script an account or fabricate one entirely. But these same concerns were raised and rejected by the Supreme Court of Canada in R. v. Stinchcombe, supra. The better view may be that an uninformed person will more readily elect not to answer questions, even if it may result in arrest and prosecution, for fear of providing an incomplete or erroneous account of the relevant events. The long-term harm to the administration of justice is obvious. Needless trials will result from the inability to permit early innocent explanations to be advanced. Surely the possibility that certain guilty parties will take advantage of the situation is less a concern than is the prospect of innocent persons being prosecuted?
In support of these concerns, I turn again to the world of fiction penned by Georges Simenon. Note firstly that in Liberty Bar8, the person questioned is reluctant to give an account of his whereabouts at the time of the murder for fear of disclosing an intimate encounter. If he was warned that the absence of an alibi may result in greater suspicion being directed at him or, for that matter, that he will be charged, he may then make a considered decision as to the potential prejudice from remaining silent. In other words, a person who is asked simply to give an account of his actions may rely on the right to silence; a person who is informed of the circumstantial evidence pointing to his guilt is in a better situation to elect to answer questions.
The second concern, the fear entertained by a witness of being trapped or tricked into waiving the right to silence, is closely related to the first, the refusal to answer questions without an indication of the object of the interrogation. To illustrate this concern, consider The Madman of Bergerac9. "Maigret engaged in an old trick. He rattled along unconcernedly, jumping abruptly from one subject to another. His listener would suspect a trap, and, making a great effort not to give anything away, would end by getting hot and bothered and losing the thread of his own ideas."10 Doubtless, this rapid fire pace of unrelated and undisclosed questions, devised so as to rattle the witness, is offered in order to check the witness who may be lying. Here are the thoughts of one such individual: "Think fast, all the time, and not get caught, not contradict himself." A further example of the difficulties faced by a person being questioned is found in Maigret in Society11, "[He] was not asking questions in any logical order, for nothing struck him as logical in this case, and he moved from one subject to another as if he were looking for the tender spot." By way of contrast, note the transparency shown by the police in Maigret in Vichy12. Maigret states: "I wanted to give you a little time to think, Monsieur Pelardeau. I have no wish to harass you or to tie you up in knots."
But what of the innocent individual who cannot think quickly enough, who is incapable of recalling distant events without great effort; of the person being harassed? Will such interrogations not lead to poor evaluations of their information; to poorly considered prosecutions? Recall the sage comments found in Maigret and the Hundred Gibbets13: "From other little details, his manner, and the way he sat down and looked about him, the Inspector summed him up as a casual worker, who, even if on the right side of the law, could not disguise his anxiety when confronted with the police." The obvious danger in such cases is that the honest person will become confused and will be able later to explain away any damaging comments on this ground. In fact, this is what "poor" Jonas claims in The Little Man from Archangel14: "If only he could have a chance to tell the story the way it happened, there would be some hope of being understood." He was not, and he died as a result of this miscarriage of justice. In the same vein, as remarked in Maigret and the Calame Report15:
"If only he could have been allowed to tell the story as he wanted to tell it. But he was continually interrupted. He was becoming confused."
One last brief comment prior to leaving this part. A premature interrogation, based on little but suspicion or hunches, may lead to the suspect finding out far too much about what the police know of his or her actions, even in the absence of disclosure. For example, in The Premier16, the person interviewed is thinking: "He came here to pick my brains, and I've been picking his!"
In the result, although this is not intended to be an analysis of the case-law and the doctrine on disclosure, it seems obvious that the examples provided by Georges Simenon of unfair dealings with witness are not limited to the novelist's pen. There are fundamental issues of fairness that militate in favour of disclosure of information to a person prior to questioning, not the least of which is the question of how to permit meaningful legal advice in the absence of any information? These questions must be answered...
See also a previous research guide, "Evidence of Demeanour: Some Instruction Found in the Early Works of Georges Simenon", in (1998), 21(4) Prov. Judges J. 5-23. Harcourt/HBJ Book, Orlando, 1991, translated by J. Maclaren-Ross, at page 65. Signet Book, N.Y., 1964, translated by Cornelia Schaeffer, at p. 27. Harcourt Brace Jovanovich, N.Y., 1965. See p. 128. Found in Escape in Vain, Penguin Books, Middlesex, 1952, translated by Stuart Gilbert, at pp. 106-7. Penguin Books, Middlesex, 1987, [translated by Jean Stewart], at p. 36. In Maigret Travels South, Penguin Books, Middlesex, 1952, at p. 53. Translated by G. Sainsbury. See Maigret Travels South, Penguin Books, Middlesex, 1952, [translated by G. Sainsbury], at p. 216. See The Little Man from Archangel, in Georges Simenon, Heinemann/Octopus, 1978, at p. 391. See Georges Simenon, Heinemann/Octopus, 1978, at p. 734. Harcourt Brace Jovanovich, San Diego, 1984, at p. 162. Translated by Eileen Ellenbogen. He added, at p. 170: "I feel for you, and indeed respect you as a man... I'm not fabricating all this to trick you into making admissions which, anyway, would be superfluous...". In passing, note that Maigret once asked a witness whether the police who questioned him in the past resorted to ruses: "You mean that he didn't set any traps for you and that he questioned you gently?" See p. 127 of Maigret Loses His Temper, supra, note 4. Penguin Books, Middlesex, 1963, at p. 57. Translated by Toni White. Supra, note 10, at page 407. Curtis Books, N.Y., 1954, at p. 41. Translated by Moura Budberg. See Georges Simenon, Heinemann/Octopus, 1978, at p. 665..
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