One interesting scrap of legal news that passed under the radar recently was a testy exchange involving Hideaki Ueda, Japan’s human rights envoy to the United Nations at a session of the UN torture committee in Geneva, Switzerland. The donnybrook arose when a fellow envoy called-out the Japanese criminal system for not mandating electronic recording or the presence of counsel at police interrogations. Mr. Ueda sprang to his nation’s defence, only to be met by the audience’s muffled laughter. In true diplomatic fashion, Japan’s emissary responded by telling his esteemed colleagues to “shut up” not once, but twice.
At first glance, Japanese procedure regarding the recording of police interrogations shouldn’t be that shocking to Canadian lawyers. Like our Japanese friends, Canada doesn’t require that interviews be videotaped or that defence counsel be present. That said, the Japanese context is somewhat different in that the police over there seem a little more fixated on scoring confessions than adhering to any pesky constitutional limits.
That the Japanese authorities refer to an accused’s confession as “the King of Evidence” should give you some insight into how they roll. Japanese police have been in the spotlight over the past decade for reaching an altogether new standard in “robust” interview methods that reportedly include physical abuse, sleep deprivation, threats, isolation and marathon sessions. In fact, Amnesty International cites the Japanese justice system’s propensity for “torture and ill-treatment” to procure confessions as an ongoing concern. In one 2007 case, a court in Saga prefecture acquitted a man who confessed to three murders following seventeen days of ten hour-plus grilling by the local constabulary. More recently, a hacker was apprehended and subsequently convicted of making threats over the internet, but not before police had managed to extract four separate confessions from four different individuals for the exact same crime. In an interesting twist, the real perpetrator cited their reason for making the threats as a way “to expose the police and prosecutors’ abomination.”
Comparatively speaking, Canada appears to be a veritable nanny state. In this country, the rule relating to the evidentiary admissibility of confessions is rooted in centuries of common law, and holds that any confession made by an accused to an authority figure outside the courtroom is inadmissible unless the prosecution can illustrate beyond a reasonable doubt that the confession was made voluntarily. This was reaffirmed most recently by the Supreme Court of Canada in R. v. Oickle, which revisited the rule precisely because of growing judicial cognizance of aggressive interrogations and the false confessions they can engender.
Japanese authorities however appear quite blasé about the whole phenomenon. In fact, they’re aided in their Bronson-esque investigative methods by a legal system that essentially puts suspects at their mercy. A suspect can be held for up to three days by police and prosecutors before he or she sees the inside of a court room. Moreover, police and prosecutors frequently work together to avail themselves of the daiyo kangoku, or ‘substitute prison’ procedure which permits a suspect to be detained for a further 23 days without charge. This extended period of incarceration must be approved and then renewed every 10 days by a judge – something that happens 99.77% of the time according to official government statistics. Contrast this with Canada’s “soft on crime” approach which mandates that according to Section 503(1)(a) of the Canadian Criminal Code, an accused must be brought before a Justice of the Peace within 24 hours to determine if they will be released or remanded into custody.
The Japanese are also not too hot about having suspects talk to their lawyers. While Articles 34 and 37(2) of the Japanese Constitution purportedly enshrine the accused’s right to counsel, Article 39 of the Japanese Code of Criminal Procedure eviscerates this principle by permitting authorities to control the timing and duration of these consultations if it would “interfere with the ongoing investigation”. In contrast, the Supreme Court of Canada has been a little more protective of an accused’s rights. In R. v. Suberu, the Court interpreted Section 10(b) of the Canadian Charter of Rights and Freedoms: “everyone has the right upon detention to retain and instruct counsel without delay and to be informed of that right”, to mean that a detained suspect is entitled to speak to a lawyer “immediately” upon their detention and that the police have a duty to facilitate the process.
So, how do these two legal systems stack-up? The stats are telling – while the Japanese might be loose cannons, dammit, they get results. With a commendably efficient conviction rate of 99.7%, Japanese police and prosecutors make their Canadian brethren look like black sheep living in their parents’ basement – the latter checking-in with a paltry 64% success-rate as of 2011.
Given that Japan strove to fashion itself as a western-style liberal democracy in the decades following World War Two, the authorities’ prevailing tactics and attitudes are particularly perplexing. For example, Chapter Three of the Japanese Constitution offers broad protections to the criminally accused that bear striking resemblance to those enshrined in the U.S. constitution, and so would be recognizable to any Canadian who has watched an episode of Law and Order. The similarity is unsurprising: the Japanese document was drafted with heavy American involvement following Tokyo’s defeat in World War Two. Specifically, Articles 36 and 38 of the Japanese Constitution explicitly prohibit the use of torture by police as well as self-incrimination and compelled confessions.
So how did the islands that gave us Hello Kitty and astonishingly jovial Blue Jays’ shortstop Munenori Kawasaki also manage to create a criminal justice system that’s presumptively modeled on an episode of The Shield? The answer has something to do with the difference between legal codification and legal culture. In 1890 Japan introduced a constitution that provided for the rule of law through representative government, separation of powers and the protection of civil liberties. One important, nagging carve-out however, was that the Emperor retained absolute power over the country. While the Emperor is only a figurehead these days, police and prosecutors have since done their best to take up his mantle as “heavenly sovereign” when it comes to assigning guilt. The result is that Japan’s Thin Blue Line apparently sees its Constitution not so much as a set of codified, unalienable rights, as an inconvenient guideline that hinders them from putting no-good punks behind bars.
In fact, some of the policy rationales used to justify business-as-usual in Japan would strike Canadian observers as bizarre inversions of how a justice system should work. While Japan’s law talks about a presumption of innocence, observers have noted a de facto onus on defendants to prove their innocence at trial.  Moreover, there is no requirement that authorities reveal exculpatory evidence, increasing the risk of false convictions.  When the debate over recording of police interrogations erupted in the early 2000s, police justified their opposition on the grounds that suspects would be less likely to confess. Too true.
And historically-speaking, Japanese society hasn’t seemed to mind the state’s general aversion to protecting their constitutional rights. The theories explaining this cognitive dissonance are broad and varied, ranging from Japan’s history as a civil law system, to its cultural tendency towards deference to authority, to its general attitudes towards crime and punishment, to straight-up bureaucratic and judicial inertia.
But, before we Canadians get too smug about the splendour of our own criminal justice regime, it should be noted that Canadian police aren’t exactly paragons of virtue when it comes to making suspects talk. Cops in Canada have repeatedly been taken to task by judges for their aggressive use of interview methods such as the ‘Reid technique’, which have been found in some cases to produce false confessions. In the Reid scenario, an interviewing officer will subject the accused to lengthy questioning, repeated interruptions and constant assertions of guilt in the hope of garnering an admission of guilt. In R. v. Chapple, an Alberta court was scathing in its appraisal of the Calgary police service’s methods when it ruled that a defendant’s confession was inadmissible as evidence on the grounds that the Reid technique had been employed in an oppressive way:
I denounce the use of this technique in the strongest terms possible and find that its use can lead to overwhelmingly oppressive situations that can render false confessions and cause innocent people to be wrongfully imprisoned. In this case, the police were convinced of the accused’s guilt even though there was medical evidence available that was consistent with the accused’s version of events. They pushed ahead with the interview with one goal in mind: a confession.
Moreover, before one criticizes the underlying assumptions and mores of Japanese legal philosophy, it also bears mentioning that Japan is home to far lower per capita incarceration and recidivism rates than most developed nations. The moral of the story is that while helpful, recording interrogations is by no means a cure-all for police excess. Instead, what’s required is broad, societal commitment to the presumption of innocence and a transparent justice system – and it’s here where Japan has traditionally been M.I.A.
All of which brings us back to the travails of the hapless Mr. Ueda. While the use of video recording has expanded in police and prosecutorial interrogations over the past decade, practical problems remain evident. Electronic documenting of police interrogations in Japan began in 2006, and this year it was proudly proclaimed that 97% of interviews relating to “major” crimes were taped. In absolute numbers however, this amounted to a mere 67 cases in a nation of approximately 130 million people. Prosecutors have also jumped on the VHS bandwagon, though a majority of prosecutorial examinations still aren’t taped. As of June 2013, recordings are only mandated for certain serious offences, and even then, police and prosecutors have the final say on what portions of their interviews actually get recorded.
But times in Japan may well be a-changin’. The Japanese Federation of Bar Associations has been outspoken in its efforts to reform the law, and there is increasing public outcry over highly-publicized examples of police and prosecutorial misconduct.  The authorities appear to be listening. In 2009 Japan instituted the jury-style ‘Saibanin’ system for serious crimes in an effort to make legal proceedings more transparent. This shift marked the first time in the postwar era that Japanese citizens had a participatory role in court proceedings.  More recently, the widespread shock expressed in the Japanese media following Mr. Ueda’s outburst in Geneva suggests that popular attitudes towards suspects’ rights may be evolving. With this development comes the realization that the sun might indeed be setting on a truly badass era in the history of Japanese policing.
Despite the differences between the laws of our two great nations, Japanese cops have clearly taken at least one cue from the Canadian experience. Foremost, they appear to have directly cribbed the Mounties’ old adage “we always get our man” though, in true Japanese style, they’ve adapted it to suit their own sensibilities: while the RCMP sees the motto as more of a loose aspirational goal, Japanese cops mean it. I mean, they really mean it.
Mark Donald is a member of the Ontario bar.
 R. v. Sinclair,  2 S.C.R. 310, 77 C.R. (6th) 203 at paras. 2, 33-42, 46. See also The Path to Justice: Preventing Wrongful Convictions, Public Prosecution Service of Canada (2011), chapter 6: False Confessions, online: http://www.ppsc-sppc.gc.ca/eng/pub/ptj-spj/ch6.html. For a more in-depth discussion of Canadian law pertaining to police interrogations and suspects’ rights, see Lisa Dufraimont, The Interrogation Trilogy and the Protections for Interrogated Suspects in Canadian Law, (2011), S.C.L.R. (2d) at 309.
 Arne F. Soldwedel, Testing Japan’s Convictions: The Lay Judge System and the Rights of Criminal Defendants, 41 Vanderbilt Journal of Transnational Law 1417 at 1433 [Soldwedel].
 R. v. Oickle,  2 S.C.R. 3, 147 C.C.C. (3d) 321 at para. 32.
 The United Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders (UNAFEI), Criminal Justice in Japan, (2011) at fn. 11, online: http://www.unafei.or.jp/english/pdf/CJSJ_2011/00CJSJ_2011.pdf.
 Soldwedel, Supra note 2 at 1435.
 R. v. Suberu, 2009 SCC 33 at para. 42.
 Soldwedel, Supra note 2 at 1432.
 Soldwedel, Supra note 4 at 1428.
 Kazuko Ito, Rule of Law and the Criminal Justice Reform in Japan, (2011), 6 N.T.U.L.R. 367 at 372, online: http://www.law.ntu.edu.tw/ntulawreview/articles/6-1/13Article-Kazuko%20Ito_p367-387.pdf [Ito].
 Ito, Supra note 10 at 380-381.
 Soldwedel, Supra note 5 at 1427-30. See also Ito, Supra note 18.
 Ito, Supra note 10 at 384-385.
 Soldwedel, Supra note 4 at 1420.
 Ito, Supra note 10 at 370.