R. v. Singh

R. v. Singh
Collection
Supreme Court Judgments
Date
2007-11-01
Neutral citation
2007 SCC 48
Report
[2007] 3 SCR 405
Case number
31558
Judges
McLachlin, Beverley; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 31558
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Singh, [2007] 3 S.C.R. 405, 2007 SCC 48
Date: 20071101
Docket: 31558
Between:
Jagrup Singh
Appellant
v.
Her Majesty The Queen
Respondent
‑ and ‑
Attorney General of Ontario,
Director of Public Prosecutions of Canada,
Criminal Lawyers’ Association of Ontario and
Canadian Association of Chiefs of Police
Interveners
Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 54)
Dissenting Reasons:
(paras. 55 to 100)
Charron J. (McLachlin C.J. and Bastarache, Deschamps and Rothstein JJ. concurring)
Fish J. (Binnie, LeBel and Abella JJ. concurring)
______________________________
R. v. Singh, [2007] 3 S.C.R. 405, 2007 SCC 48
Jagrup Singh Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Ontario,
Director of Public Prosecutions of Canada,
Criminal Lawyers’ Association of Ontario and
Canadian Association of Chiefs of Police Interveners
Indexed as: R. v. Singh
Neutral citation: 2007 SCC 48.
File No.: 31558.
2007: May 23; 2007: November 1.
Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for british columbia
Constitutional law — Charter of Rights — Right to silence — Scope of pre‑trial right to silence — Interplay between confessions rule and right to silence — Accused charged with second degree murder detained by police — Accused making statements to police during interviews after he had asserted his constitutional right to silence many times — Whether police breached accused’s right to silence — Whether police should have stopped trying to obtain admissions once accused asserted his right to silence — Canadian Charter of Rights and Freedoms, s. 7 .
The accused was arrested for second degree murder in respect of the shooting death of an innocent bystander who was killed by a stray bullet while standing just inside the doorway of a pub. The accused was advised of his right to counsel under s. 10 (b) of the Canadian Charter of Rights and Freedoms and privately consulted with counsel. During the course of two subsequent interviews with police, the accused stated on numerous occasions that he did not want to talk about the incident. The interviewing officer persisted in trying to get him to make a statement. While the accused never confessed to the crime, he made a number of admissions which, when taken together with other evidence, later became probative of the issue of identification at trial. On the voir dire to determine the admissibility of the statements made by the accused, the trial judge held, after reviewing all of the circumstances surrounding the interrogation and the making of the incriminating admission, that the admission came freely and did not result from the police systematically breaking down his operating mind or undermining his right to silence. The probative value of the statements was held to outweigh their prejudicial effect and the trial judge thus ruled them admissible. The accused was subsequently convicted by a jury. The Court of Appeal upheld the trial judge’s ruling and affirmed the conviction. Both in the Court of Appeal and in this Court the accused did not contest the trial judge’s findings of fact nor his conclusion that the statements were voluntary; his appeal solely concerns the s. 7 Charter right to silence.
Held (Binnie, LeBel, Fish and Abella JJ. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and Bastarache, Deschamps, Charron and Rothstein JJ.: There was no error in law in the approach adopted by the courts below. Although historically the confessions rule was more concerned with the reliability of confessions than the protection against self‑incrimination, this no longer holds true in the post‑Charter era. The modern expansive view of the confessions rule clearly includes the right of the detained person to make a meaningful choice whether or not to speak to state authorities. On the question of voluntariness, as under any distinct s. 7 review based on an alleged breach of the right to silence, the focus is on the conduct of the police and its effect on the accused’s ability to exercise his or her free will. The test is an objective one, but the individual characteristics of the accused are obviously relevant considerations in applying this objective test. Although the confessions rule applies whether or not the suspect is in detention, the common law recognized, long before the advent of the Charter , that the suspect’s situation is much different after detention. After detention, the state authorities are in control and the detainee, who cannot simply walk away, is in a more vulnerable position. There is a greater risk of abuse of power by the police. [8] [21] [32] [35‑36]
In the context of an interrogation of a detainee by an obvious person in authority, a finding of voluntariness will be determinative of the s. 7 issue since voluntariness, as it is understood today, requires that the court scrutinize whether the detainee was denied his or her right to silence. In such circumstances, the confessions rule effectively subsumes the constitutional right to silence because the two tests are functionally equivalent. It follows that, where a statement has survived a thorough inquiry into voluntariness, the accused’s Charter application alleging that the statement was obtained in violation of the pre‑trial right to silence under s. 7 cannot succeed. Conversely, if circumstances are such that the accused can show on a balance of probabilities that the statement was obtained in violation of his or her constitutional right to remain silent, the Crown will be unable to prove voluntariness beyond a reasonable doubt. However, this does not mean that the residual protection afforded to the right to silence under s. 7 of the Charter cannot supplement the common law in other contexts. [8] [37] [39]
It is not appropriate to impose a rigid requirement that police refrain from questioning a detainee who states that he or she does not wish to speak to police. Such an approach would overshoot the protection afforded to the individual’s freedom of choice both at common law and under the Charter . More importantly, this approach ignores the state interest in the effective investigation of crime. The critical balancing of state and individual interests lies at the heart of this Court’s decision in Hebert and in subsequent s. 7 decisions. There is no reason to depart from these established principles. [6-7] [43] [45]
Under both the common law and Charter rules, police persistence in continuing an interview, despite repeated assertions by the detainee that he wishes to remain silent, may well raise a strong argument that the subsequently obtained statement was not the product of a free will to speak to authorities. The trial judge in this case was very much alive to this risk. His ultimate judgment call on this issue is supported by the record and is entitled to deference. There is thus no reason to interfere with his ruling on admissibility. [47] [52]
Per Binnie, LeBel, Fish, and Abella JJ. (dissenting): The impugned statements were obtained in violation of the accused’s s. 7 right to silence. The interrogator understood very well that the accused had chosen not to speak with the police but nonetheless disregarded the accused’s repeated assertions of his right to silence. In his relentless pursuit of a confession “no matter what”, the interrogator urged the accused, subtly but unmistakably, to forsake his counsel’s advice. The accused was thus deprived not only of his right to silence, but also, collaterally, of the intended benefit of his right to counsel. Detainees left alone to face interrogators who persistently ignore their assertions of the right to silence and their pleas for respite are bound to feel that their constitutional right to silence has no practical effect and that they in fact have no choice but to answer. Where continued resistance has been made to appear futile to one person under the dominance or control of another, as it was in this case, ultimate submission proves neither true consent nor valid waiver. Furthermore, nothing in this Court’s jurisprudence permits the police to press detainees to waive the Charter rights they have firmly and unequivocally asserted, or to deliberately frustrate their effective exercise. This is true of the right to counsel and true as well of the right to silence. While detainees who have asserted their right to silence are entitled to change their minds, they cannot be compelled to do so by the persistent disregard of that asserted choice. The right to silence, like the right to counsel, is a constitutional promise that must be kept. There is no evidence to support the proposition that requiring the police to respect a detainee’s right of silence, once it has been unequivocally asserted, would have a “devastating impact” on criminal investigations anywhere in this country. [59‑60] [62] [66] [71] [81] [88] [95] [97] [99]
The rationale of the enhanced confessions rule adopted in Oickle is distinct from the purposes served by the Charter . A confession may be “voluntary” under the common law rule and yet be obtained by state action that infringes s. 7 of the Charter . And s. 7 will be infringed where, as in this case, a police interrogator has undermined a detainee’s freedom to choose whether to make a statement. Thus, while it is true that there is considerable overlap between the Charter protection of the right to silence and the common law confessions rule, given their different purposes, they should remain distinct doctrines. A purposive approach makes plain that the right to pre‑trial silence under s. 7 of the Charter is not eclipsed by the common law confessions rule under Oickle. A statement is admissible at common law where the detainee had an operating mind and the confession did not result from inducements, oppression, or police trickery that would shock the community. Clearly, however, a confession that meets these common law standards does not invariably represent a free and meaningful choice for the purposes of the Charter . A choice that has been disregarded and unfairly frustrated by relentless interrogation is neither free nor meaningful. In the present appeal, the impugned statements were obtained in violation of s. 7 and should have been excluded under s. 24(2) of the Charter . [73] [75] [77] [79] [99]
Cases Cited
By Charron J.
Applied: R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38; approved: R. v. C.G., [2004] O.J. No. 229 (QL); referred to: R. v. Jones, [1994] 2 S.C.R. 229; R. v. White, [1999] 2 S.C.R. 417; R. v. Whittle, [1994] 2 S.C.R. 914; R. v. Turcotte, [2005] 2 S.C.R. 519, 2005 SCC 50; Rothman v. The Queen, [1981] 1 S.C.R. 640; Blackburn v. Alabama, 361 U.S. 199 (1960); Boudreau v. The King, [1949] S.C.R. 262; R. v. Fitton, [1956] S.C.R. 958; R. v. Esposito (1985), 24 C.C.C. (3d) 88; R. v. Grandinetti, [2005] 1 S.C.R. 27, 2005 SCC 5; R. v. Otis (2000), 151 C.C.C. (3d) 416.
By Fish J. (dissenting)
R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38; Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157; R. v. Otis (2000), 151 C.C.C. (3d) 416; R. v. McKay (2003), 16 C.R. (6th) 347, 2003 MBQB 141; R. v. Manninen, [1987] 1 S.C.R. 1233; Miranda v. Arizona, 384 U.S. 436 (1966); Michigan v. Mosley, 423 U.S. 96 (1975); Dickerson v. United States, 530 U.S. 428 (2000); R. v. Timm (1998), 131 C.C.C. (3d) 306; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Stillman, [1997] 1 S.C.R. 607.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 10 (b), 24 .
Authors Cited
Delisle, Ronald Joseph, Don Stuart and David M. Tanovich. Evidence: Principles and Problems, 8th ed. Scarborough, Ont.: Thomson/Carswell, 2007.
Marin, Ren_ J. Admissibility of Statements, 9th ed. Aurora: Canada Law Book, 1996 (loose-leaf updated 2006, release 11).
Paciocco, David M., and Lee Stuesser. The Law of Evidence, 4th ed. Concord, Ont.: Irwin Law, 2005.
Wharton, Francis. Wharton’s Criminal Procedure, 14th ed. by N. Hollander et al. Eagan, Minn.: Thomson/West, 2002 (loose-leaf updated 2007).
Wigmore, John Henry. A Treatise on the Anglo‑American System of Evidence in Trials at Common Law, 2nd ed. Boston: Little, Brown and Co., 1923.
APPEAL from a judgment of the British Columbia Court of Appeal (Hall, Mackenzie and Thackray JJ.A.) (2006), 227 B.C.A.C. 241, 374 W.A.C. 241, 38 C.R. (6th) 217, 142 C.R.R. (2d) 68, [2006] B.C.J. No. 1274 (QL), 2006 BCCA 281, upholding the accused’s conviction for second degree murder. Appeal dismissed, Binnie, LeBel, Fish and Abella JJ. dissenting.
Gil D. McKinnon, Q.C., for the appellant.
Wendy L. Rubin and Kate Ker, for the respondent.
Jamie C. Klukach, for the intervener the Attorney General of Ontario.
Ronald C. Reimer and Nicholas E. Devlin, for the intervener the Director of Public Prosecutions of Canada.
Timothy E. Breen, for the intervener the Criminal Lawyers’ Association of Ontario.
David Migicovsky and Margaret Truesdale, for the intervener the Canadian Association of Chiefs of Police.
The judgment of McLachlin C.J. and Bastarache, Deschamps, Charron and Rothstein JJ. was delivered by
Charron J. —
1. Overview
1 This appeal concerns the scope of a detainee’s pre-trial right to silence under s. 7 of the Canadian Charter of Rights and Freedoms and, in particular, the intersection between this Charter right as defined in R. v. Hebert, [1990] 2 S.C.R. 151, and the common law voluntary confessions rule as restated in R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38. As in those cases, the discussion in this appeal focusses on the tension between the rights of the accused and society’s interest in the effective investigation and resolution of crimes.
2 The appellant Jagrup Singh was arrested for second degree murder in respect of the death of an innocent bystander who was killed by a stray bullet while standing just inside the doorway of a pub. Mr. Singh was advised of his right to counsel under s. 10 (b) of the Charter and privately consulted with counsel. During the course of two subsequent interviews with Sgt. Attew, Mr. Singh stated on numerous occasions that he did not want to talk about the incident, that he did not know anything about it, or that he wanted to return to his cell. On each occasion, Sgt. Attew would either affirm that Mr. Singh did not have to say anything and state that it was nonetheless his duty or his desire to place the evidence before Mr. Singh, or he would deflect Mr. Singh’s assertion and eventually engage him again in at least limited conversation. During the course of the first interview, Mr. Singh did not confess to the crime but made incriminating statements by identifying himself in pictures taken from the video surveillance inside the pub in question and in another pub.
3 At the conclusion of the voir dire on the admissibility of Mr. Singh’s statements, the trial judge was satisfied beyond a reasonable doubt that the statements were voluntary: [2003] B.C.J. No. 3174 (QL), 2003 BCSC 2013. He also concluded that Mr. Singh had not proven a breach of his right to silence under s. 7 of the Charter on a balance of probabilities. Finally, he considered the exercise of his residual discretion and concluded that the probative value of the statements, once edited, outweighed any prejudicial effect. The statements were therefore admitted in evidence and, following his trial by judge and jury, Mr. Singh was convicted as charged. The British Columbia Court of Appeal upheld the trial judge’s ruling and affirmed the conviction: (2006), 38 C.R. (6th) 217, 2006 BCCA 281.
4 Both in the British Columbia Court of Appeal and in this Court, Mr. Singh did not contest the trial judge’s findings of fact nor his conclusion that the statements were voluntary. His appeal solely concerns the s. 7 right to silence.
5 Mr. Singh contends that trial and appellate courts, including the courts below, have generally misinterpreted the holding in Hebert as an authoritative statement which permits the police to ignore a detainee’s expressed wish to remain silent and to use “legitimate means of persuasion” to break that silence (p. 177). He contends that the British Columbia Court of Appeal in the case at bar went even further and effectively extinguished the s. 7 right to silence when it questioned the utility of conducting “a double-barrelled test of admissibility”, stating that “[i]n the context of an investigatory interview with an obvious person in authority” the expansive view of the common law confessions rule adopted in Oickle “may leave little additional room” for a separate s. 7 Charter inquiry (para. 19). Mr. Singh therefore submits that the Court of Appeal proceeded on the basis of erroneous legal principles when it affirmed the trial judge’s dismissal of his s. 7 Charter application.
6 Further, Mr. Singh invites this Court to enhance the protection afforded to detainees under s. 7 by adopting a new approach that would require police officers to inform the detainee of his or her right to silence and, absent a signed waiver, to refrain from questioning any detainee who states that he or she does not wish to speak to the police.
7 First, I reject the appellant’s contention that this Court should change the law relating to the pre-trial Charter right to silence. The new approach advocated by the appellant ignores the critical balancing of state and individual interests which lies at the heart of this Court’s decision in Hebert and of subsequent s. 7 decisions. I see no reason to depart from these established principles.
8 Second, I find no error in law in the approach adopted by the courts below. The Court of Appeal’s impugned comment on the interplay between the confessions rule and s. 7 of the Charter merely reflects the fact that, in the context of a police interrogation of a person in detention, where the detainee knows he or she is speaking to a person in authority, the two tests are functionally equivalent. It follows that, where a statement has survived a thorough inquiry into voluntariness, the accused’s Charter application alleging that the statement was obtained in violation of the pre-trial right to silence under s. 7 cannot succeed. Conversely, if circumstances are such that the accused can show on a balance of probabilities that the statement was obtained in violation of his or her constitutional right to remain silent, the Crown will be unable to prove voluntariness beyond a reasonable doubt. As I will explain, however, this does not mean that the residual protection afforded to the right to silence under s. 7 of the Charter does not supplement the common law in other contexts.
9 Finally, I see no basis for interfering with the trial judge’s factual determinations concerning Sgt. Attew’s conduct and its effect on the appellant’s freedom to choose whether to speak to the police. I would therefore dismiss the appeal.
2. The Facts and Proceedings Below
10 Richard Lof was killed by a stray bullet in April 2002 while standing just inside the doorway of a pub. An argument had erupted in the pub between three Indo‑Canadian men and the employees of the club. Lof had nothing to do with the argument. The group took the argument outside into the parking lot. One of the Indo‑Canadian men pulled out a gun and fired several shots, one of which struck Lof.
11 The weapon was never found and no forensic evidence linked Mr. Singh to the shooting. Identification was the central issue at trial. A doorman, who had been four feet from the shooter, identified Mr. Singh as the shooter in a photo line-up. A witness viewed videotape footage of the three Indo-Canadian men inside the pub and identified a man with a baseball cap on backwards as the person who had the gun. The day after the fatal shooting, a police officer photographed Mr. Singh in another pub. That officer reviewed a photo taken from the videotape of the three Indo-Canadian men inside the pub and she identified Mr. Singh as the man wearing his cap backwards.
12 During the course of the first of two police interviews at the police station after his arrest, Mr. Singh admitted that he had been in the pub on the night of the shooting but he stated that he left before the shooting occurred. He admitted to being in the second pub on the day after the shooting, where he was photographed, and he identified himself in that photograph. He then identified himself as the man with the cap on backwards in the photo from the videotape taken inside the pub on the night of the shooting. These admissions, when taken together with other evidence, later became probative of the issue of identification at trial. Their admissibility is what is at issue on this appeal.
13 Before the interviews, Mr. Singh was given proper Charter and official police warnings and spoke to counsel by phone and in person. During the interviews, Mr. Singh spoke with the interviewing officer about his family, his background, his religious beliefs and his employment. He also discussed injuries he sustained when he was shot at a party. Whenever the discussion turned to the incident in question, however, Mr. Singh was less forthcoming. Although he provided some information regarding his presence at the pub on the night of the shooting, he repeatedly denied his involvement and asserted his right to silence. He indicated that he did not want to talk to the police, that he had nothing to say, that he knew nothing about the shooting, or that he wanted to return to his cell. Before Mr. Singh was shown the photographs in question and made the impugned admissions, he asserted his right to silence 18 times. Each time, the interviewing officer would either affirm that Mr. Singh did not have to say anything, or would explain to Mr. Singh that he had a duty or desire to place the evidence before him and he continued the interview.
14 On the voir dire to determine the admissibility of the two statements made by Mr. Singh, Bauman J. instructed himself that the central issues were whether the Crown had proven beyond a reasonable doubt that the statements were made voluntarily and, alternatively, whether Mr. Singh had proven on a balance of probabilities that there was a breach of his right to silence under s. 7 of the Charter . Mr. Singh did not testify and called no evidence on the voir dire.
15 Bauman J. held that nothing in the police officer’s conduct was so oppressive as to overbear Mr. Singh’s will. He noted that the stratagem of placing evidence before an accused to extract a confession, no matter what the suspect says, runs the risk of being construed by the reviewing court as depriving the suspect of the right to make a meaningful choice whether to speak to the authorities or not, stating that “it is all a matter of degree” (para. 35). After reviewing all of the circumstances surrounding the interrogation and the making of the incriminating admission, he held that Mr. Singh’s admission that he was in the still photograph came freely and did not result from the police systematically breaking down his operating mind or undermining his right to silence. He concluded that Mr. Singh was well aware of his right to silence and that he had successfully exercised it repeatedly. Finally, Bauman J. held that the probative value of the statements outweighed their prejudicial effect and ruled that the statements, with some editing as agreed to by counsel, were admissible.
16 Mr. Singh did not testify and did not call evidence at trial. He was convicted of second degree murder by a jury.
17 Mr. Singh appealed from his conviction to the British Columbia Court of Appeal (Hall, Mackenzie and Thackray JJ.A.). He did not contest that the statements were voluntary and confined his appeal to the s. 7 Charter issue. Much as he did in this Court, Mr. Singh argued that the proper application of the s. 7 right to silence required the police to stop trying to obtain admissions once the detainee asserted his right to silence. He argued further that the trial judge’s approach erroneously subsumed the Charter right to silence under the common law confessions rule, leaving s. 7 with virtually no significance.
18 The Court of Appeal held that Mr. Singh’s broad proposition on the limits of police interrogation could not be supported by a fair reading of Hebert and was inconsistent with the weight of authority. Rather, the case law recognizes that “the police are not precluded from using reasonable persuasion to encourage a detained person to break his silence after his right to silence has been asserted following the exercise of the right to counsel” (para. 15). The court concluded that the trial judge properly relied on the holding in Hebert that “[p]olice persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence” (Hebert, at p. 184).
19 The Court of Appeal found no error in the trial judge’s approach to the intersection between the confessions rule and the s. 7 Charter right to silence. The court explained that Oickle is the definitive exposition of the confessions rule and that, apart from the confessions rule, the Charter proscribes conduct that is unfair and brings the process of police investigation into disrepute. The police deception in Hebert was an illustration of conduct that did not breach the common law rule but did offend the Charter . The court commented further that “[i]n the context of an investigatory interview with an obvious person in authority, the expansive view of the confession rule in Oickle may leave little additional room for s. 7 but there is no particular utility in a double-barrelled test of admissibility” (para. 19).
20 The court found no error in the trial judge’s conclusion that the police stratagem used in this case was a legitimate technique of persuasion and that it did not deny the appellant the choice to remain silent. Both interviews were videotaped and the trial judge was in an excellent position to assess the fairness of the process. Accordingly, the court held that there was no reason to disturb his findings of fact and the appeal was dismissed.
3. Analysis
3.1 Self-incrimination: The Overarching Principle from Which Both the Confessions Rule and the Right to Silence are Derived
21 Although historically the confessions rule was more concerned with the reliability of confessions than the protection against self-incrimination, this no longer holds true in the post-Charter era. Both the confessions rule and the constitutional right to silence are manifestations of the principle against self-incrimination. The principle against self-incrimination is a broad concept which has been usefully described by Lamer C.J. as a “general organizing principle of criminal law” from which a number of rules can be derived: R. v. Jones, [1994] 2 S.C.R. 229, at p. 249. Similarly, Iacobucci J. in R. v. White, [1999] 2 S.C.R. 417, described the principle against self-incrimination in these words:
The jurisprudence of this Court is clear that the principle against self-incrimination is an overarching principle within our criminal justice system, from which a number of specific common law and Charter rules emanate, such as the confessions rule, and the right to silence, among many others. The principle can also be the source of new rules in appropriate circumstances. Within the Charter , the principle against self-incrimination is embodied in several of the more specific procedural protections such as, for example, the right to counsel in s. 10 (b), the right to non-compellability in s. 11 (c), and the right to use immunity set out in s. 13 . The Charter also provides residual protection to the principle through s. 7 . [Emphasis added; para. 44.]
22 Mr. Singh concedes that his statements were obtained in conformity with the common law confessions rule — in other words, that they were voluntary. His application to exclude his statements from the evidence is grounded, rather, in the residual protection afforded to the right to silence under ss. 7 and 24 of the Charter . These provisions read as follows:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
It is clear that Mr. Singh’s liberty interest, protected under s. 7 of the Charter , is engaged by the potential admission of his incriminating statements in evidence at his trial for second degree murder.
23 Since voluntariness is conceded, the scope of the common law confessions rule and its application to the facts of this case are not strictly in issue on this appeal. However, a question is raised concerning the interplay between the confessions rule and the Charter right to silence. More specifically, Mr. Singh takes the position that the Court of Appeal erred in law in stating at para. 19 that “[i]n the context of an investigatory interview with an obvious person in authority, the expansive view of the confession rule in Oickle may leave little additional room for s. 7 but there is no particular utility in a double-barrelled test of admissibility.” It therefore becomes necessary to examine the various components of the confessions rule to determine how they relate to the right to silence.
24 As we shall see, there is considerable overlap between the inquiry into voluntariness and the review under s. 7 of the Charter in respect of an alleged breach of the right to silence. This should come as no surprise. First, the right to silence is not a concept that was newly born with the advent of the Charter . The right long pre-dated the Charter and was embraced in the common law confessions rule. Second, in Hebert, this Court’s recognition of the residual protection afforded to the pre-trial right to silence under s. 7 of the Charter was largely informed by the confessions rule and the scope of the protection it provides to an individual’s right to choose whether or not to speak to the authorities. Third, this Court’s expansive restatement of the confessions rule in Oickle, in turn, was largely informed by a consideration of Charter principles, including the right to silence as defined in Hebert.
25 I therefore read the Court of Appeal’s comment on the interplay between the confessions rule and the s. 7 right to silence as a recognition of this considerable overlap. Indeed, as I will explain, in the context of a police interrogation of a person in detention, where the detainee knows he or she is speaking to a person in authority, the two tests for determining whether the suspect’s right to silence was respected are functionally equivalent. (The symmetry between the confessions rule and related Charter rights in so far as the requisite mental capacity is concerned was previously recognized in R. v. Whittle, [1994] 2 S.C.R. 914, where the Court held that the operating mind test at common law fully answers the mental capacity requirement for an effective waiver of the right to counsel and the mental capacity necessary to make an active choice with respect to the right to silence.) Therefore, in the context of an interrogation of a detainee by an obvious person in authority, the Court of Appeal was correct to question the utility of a “double-barrelled test of admissibility”. In addition, because the Crown bears the burden of establishing voluntariness beyond a reasonable doubt and exclusion is automatic if the test is not met, the common law affords greater protection to the accused and there is no point in conducting a distinct s. 7 inquiry. However, as I will explain, the residual protection afforded to the right to silence under s. 7 of the Charter will be of added value to the accused in other contexts.
26 I will now examine the nature and scope of the confessions rule, particularly in respect of its commonality with the right to silence.
3.2 The Confessions Rule
27 As stated earlier, the right to silence, although now constitutionally entrenched, long pre-dates the Charter . The right to silence as a common law principle was recently affirmed by this Court in R. v. Turcotte, [2005] 2 S.C.R. 519, 2005 SCC 50. Stated broadly, the common law right to silence simply reflects the general principle that, absent statutory or other legal compulsion, no one is obligated to provide information to the police or respond to questioning. At para. 41, Abella J., writing for the Court, reiterated Lamer J.’s defining statement of the right in Rothman v. The Queen, [1981] 1 S.C.R. 640:
In Canada the right of a suspect not to say anything to the police . . . is merely the exercise by him of the general right enjoyed in this country by anyone to do whatever one pleases, saying what one pleases or choosing not to say certain things, unless obliged to do otherwise by law. It is because no law says that a suspect, save in certain circumstances, must say anything to the police that we say that he has the right to remain silent, which is a positive way of explaining that there is on his part no legal obligation to do otherwise. [Footnotes omitted; p. 683.]
28 What the common law recognizes is the individual’s right to remain silent. This does not mean, however, that a person has the right not to be spoken to by state authorities. The importance of police questioning in the fulfilment of their investigative role cannot be doubted. One can readily appreciate that the police could hardly investigate crime without putting questions to persons from whom it is thought that useful information may be obtained. The person suspected of having committed the crime being investigated is no exception. Indeed, if the suspect in fact committed the crime, he or she is likely the person who has the most information to offer about the incident. Therefore, the common law also recognizes the importance of police interrogation in the investigation of crime.
29 Of course, the information obtained from a suspect is only useful in the elucidation of crime if it can be relied upon for its truth — hence the primary reason for the confessions rule, the concern about the reliability of confessions. The common law confessions rule is largely informed by the problem of false confessions. As noted in Oickle, “[t]he history of police interrogations is not without its unsavoury chapters” (para. 34). The parameters of the rule are very much tailored to counter the dangers created by improper interrogation techniques that commonly produce false confessions: see Oickle, at paras. 32-46. Further, a confession is a very powerful item of evidence against an accused which, in and of itself, can ground a conviction. One of the overriding concerns of the criminal justice system is that the innocent must not be convicted. Because it is recognized that involuntary confessions are more likely to be unreliable, the confessions rule requires proof beyond a reasonable doubt of the voluntariness of any statement obtained from an accused by a person in authority before it may be admitted in evidence, so as to avoid miscarriages of justice.
30 Of course, not every involuntary confession is false. While the confession rule’s primary concern is with reliability, it is well established that voluntariness is a broader concept. As this Court stated in Oickle (at para. 70): “Wigmore perhaps summed up the point best when he said that voluntariness is ‘shorthand for a complex of values’: Wigmore on Evidence (Chadbourn rev. 1970), vol. 3, § 826, at p. 351.” These values include respect for the individual’s freedom of will, the need for law enforcement officers themselves to obey the law, and the overall fairness of the criminal justice system: see Oickle, at paras. 69-70, citing Blackburn v. Alabama, 361 U.S. 199 (1960), at p. 207.
31 Therefore, the notion of voluntariness is broad-based and has long included the common law principle that a person is not obliged to give information to the police or to answer questions. This component of the voluntariness rule is reflected in the usual police caution given to a suspect and the importance attached (even before the advent of the Charter ) to the presence of a caution as a factor in determining the voluntariness of a statement made by a person under arrest or detention: see Boudreau v. The King, [1949] S.C.R. 262; R. v. Fitton, [1956] S.C.R. 958; R. v. Esposito (1985), 24 C.C.C. (3d) 88 (Ont. C.A.). A common form of the police caution given to a person who has been charged with an offence is the following: “You are charged with . . . Do you wish to say anything in answer to the charge? You are not obliged to say anything but whatever you do say may be given in evidence.” Therefore, the police caution, in plain language, informs the suspect of his right to remain silent. Its importance as a factor on the question of voluntariness was noted by this Court as early as 1949 in Boudreau:
The fundamental question is whether a confession of an accused offered in evidence is voluntary. The mere fact that a warning was given is not necessarily decisive in favour of admissibility but, on the other hand, the absence of a warning should not bind the hands of the Court so as to compel it to rule out a statement. All the surrounding circumstances must be investigated and, if upon their review the Court is not satisfied of the voluntary nature of the admission, the statement will be rejected. Accordingly, the presence or absence of a warning will be a factor and, in many cases, an important one. [Emphasis added; p. 267.]
32 Although the confessions rule applies whether or not the suspect is in detention, the common law recognized, also long before the advent of the Charter , that the suspect’s situation is much different after detention. (As we shall see, the residual protection afforded to the right to silence under s. 7 of the Charter is only triggered upon detention.) After detention, the state authorities are in control and the detainee, who cannot simply walk away, is in a more vulnerable position. There is a greater risk of abuse of power by the police. The fact of detention alone can have a significant impact on the suspect and cause him or her to feel compelled to give a statement. The importance of reaffirming the individual’s right to choose whether to speak to the authorities after he or she is detained is reflected in the jurisprudence concerning the timing of the police caution. Ren_ Marin, in his text Admissibility of Statements (9th ed. (loose-leaf)), at pp. 2-24.2 and 2-24.3, provides a useful yardstick for the police on when they should caution a suspect:
The warning should be given when there are reasonable grounds to suspect that the person being interviewed has committed an offence. An eas