R. v. Hebert

R. v. Hebert
Collection
Supreme Court Judgments
Date
1990-06-21
Report
[1990] 2 SCR 151
Case number
21161
Judges
Dickson, Robert George Brian; Lamer, Antonio; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley
On appeal from
Yukon
Subjects
Constitutional law
Evidence
Notes
SCC Case Information: 21161
Decision Content
R. v. Hebert, [1990] 2 S.C.R. 151
Neil Gerald Hebert Appellant
v.
Her Majesty The Queen Respondent
indexed as: r. v. hebert
File No.: 21161.
1989: November 8; 1990: June 21.
Present: Dickson C.J. and Lamer, Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.
on appeal for the court of appeal for the yukon territory
Constitutional law -- Charter of Rights -- Fundamental justice ‑‑ Right to silence -- Scope of right to silence -- Accused refusing to make statements to police after consulting counsel -- Accused later making inculpatory statements to undercover police officer placed in his cell -- Whether accused's right to remain silent infringed -- If so, whether statements admissible -- Canadian Charter of Rights and Freedoms, ss. 7 , 24(2) .
Constitutional law -- Charter of Rights -- Waiver -- Right to silence -- Whether doctrine of waiver applies to right to silence -- Canadian Charter of Rights and Freedoms, s. 7 .
Constitutional law -- Charter of Rights -- Reasonable limits ‑‑ Accused refusing to make statements to police after consulting counsel ‑‑ Accused later making inculpatory statements to undercover police officer placed in his cell -- Violation of accused's right to remain silent -- Whether limit imposed on accused's right to remain silent "prescribed by law" within the meaning of s. 1 of the Canadian Charter of Rights and Freedoms .
Constitutional law -- Charter of Rights -- Admissibility of evidence ‑‑ Bringing administration of justice into disrepute -- Accused refusing to make statements to police after consulting counsel -- Accused later making inculpatory statements to undercover police officer placed in his cell ‑‑ Violation of accused's right to remain silent -- Whether statements should be excluded pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms .
Evidence -- Confessions -- Admissibility -- Accused refusing to make statements to police after consulting counsel -- Accused later making inculpatory statements to undercover police officer placed in his cell ‑‑ Violation of accused's right to remain silent -- Whether statements admissible -- Canadian Charter of Rights and Freedoms, s. 24(2) .
The accused was arrested on a charge of robbery and informed upon arrest of his right to counsel. At the police station, after consulting counsel, he advised the police that he did not wish to make a statement. The accused was then placed in a cell with an undercover police officer posing as a suspect under arrest by police. The officer engaged the accused in conversation, during which the accused made various incriminating statements implicating him in the robbery. Prior to trial, there was a voir dire to determine the admissibility of these statements. The judge held that the accused's right to counsel under s. 10 (b) of the Canadian Charter of Rights and Freedoms and his right to remain silent asserted under s. 7 of the Charter had been violated and excluded the statements pursuant to s. 24(2) of the Charter . The Crown offered no evidence, and the accused was later acquitted. The Court of Appeal set aside the accused's acquittal and ordered a new trial. The Court found that the police conduct did not violate the accused's right to counsel or his right to remain silent.
Held: The appeal should be allowed.
Per Dickson C.J. and Lamer, La Forest, L'Heureux‑Dubé, Gonthier, Cory and McLachlin JJ.: Section 7 of the Charter accords a detained person a pre‑trial right to remain silent, and the scope of that right extends beyond the narrow formulation of the confessions rule. The rules relating to the right to remain silent adopted by our legal system, such as the common law confessions rule and the privilege against self‑incrimination, suggest that the scope of the right in the pre‑trial detention period must be based on the fundamental concept of the suspect's right to freely choose whether to speak to the authorities or remain silent. This concept, which is accompanied by a correlative concern with the repute and integrity of the judicial process, is consistent with the right to counsel and the right against self‑incrimination affirmed by the Charter . It is also consistent with the Charter 's approach to the question of improperly obtained evidence under s. 24(2) and with the underlying philosophy and purpose of the procedural guarantees the Charter enshrines -- in particular in s. 7 . That section imposes limits on the power of the state over the detained person and seeks to effect a balance between their respective interests. Under s. 7, the state is not entitled to use its superior power to override the suspect's will and negate his choice to speak to the authority or to remain silent. The courts, therefore, must adopt an approach to pre-trial interrogation which emphasizes the right of a detained person to make a meaningful choice and which permits the rejection of statements which have been obtained unfairly in circumstances that violate that right of choice. The test to determine whether the suspect's choice has been violated is essentially objective. The focus of the inquiry under the Charter will be on the conduct of the authorities vis-à-vis the suspect. Further, since the right to remain silent under s. 7 is not an absolute right but must be qualified by considerations of the state interest and the repute of the judicial system, the Clarkson standard relating to waiver of a Charter right does not apply to the right to silence.
The scope of the right to silence, however, does not go as far as to prohibit police from obtaining confessions in all circumstances. The proposed approach to the s. 7 right to silence retains the objective approach to the confessions rule and would permit the rule to be subject to the following limits. First, there is nothing that prohibits the police from questioning an accused or a suspect in the absence of counsel after he has retained counsel. Police persuasion, short of denying the suspect the right to choose or of depriving him of an operating mind, does not breach the right to silence. Second, the right applies only after detention. Third, the right does not affect voluntary statements made to fellow cell mates. The violation of the suspect's rights occurs only when the Crown acts to subvert the suspect's constitutional right to choose not to make a statement to the authorities. Fourth, a distinction must be made between the use of undercover agents to observe the suspect, and the use of undercover agents to actively elicit information in violation of the suspect's choice to remain silent. Finally, even where a violation of the suspect's right is established, the evidence may, where appropriate, be admitted. Only if the court is satisfied that its reception would be likely to bring the administration of justice into disrepute can the evidence be rejected under s. 24(2) of the Charter . Where the police have acted with due care for the suspect's rights, it is unlikely that the statements they obtain will be held inadmissible.
Here, the accused exercised his choice not to speak to the police and the police violated his right to remain silent under s. 7 of the Charter by using a trick to negate his decision. Section 1 of the Charter was inapplicable because the police conduct was not a limit "prescribed by law" within the meaning of that section.
The evidence obtained in breach of the accused's right under s. 7 should be excluded pursuant to s. 24(2) of the Charter . Where an accused is conscripted to give evidence against himself after clearly electing not to do so by use of an unfair trick practised by the authorities, and where the resultant statement is the only evidence against him, the reception of the evidence would render the trial unfair. The accused would be deprived of his presumption of innocence and would be placed in the position of having to take the stand if he wished to counter the damaging effect of the confession. Further, the Charter violation was a serious one as the conduct of the police was wilful and deliberate. Finally, while the exclusion of the evidence would result in an acquittal, since virtually the only evidence against the accused was his statement to the undercover policeman, it is clear in balancing the three factors set out in Collins that, under the present circumstances, it is the admission of the evidence, not its exclusion, that would bring the administration of justice into disrepute. It is contrary to the notions of fundamental justice to require an accused to secure his own conviction.
Per Wilson and Sopinka JJ.: The right to remain silent is an integral element of our system of criminal justice and has the status of a principle of fundamental justice within the meaning of s. 7 of the Charter . This right is distinct from the privilege against self‑incrimination, which applies only in the course of proceedings. The content of the residual right to remain silent protected by s. 7 extends at least as far as the common law right. The content of the right at common law, however, should not be confused with the efficacy of its enforcement. The enforcement mechanisms available to judges at common law do not compare to those granted by s. 24 of the Charter , particularly the power to exclude evidence under s. 24(2) . To define Charter rights only in accordance with the ultimate effectiveness of their common law and statutory antecedents would be to deny the supremacy of the Constitution.
The right to remain silent, which is designed to shield an accused from the unequal power of the prosecution, arises when the coercive power of the state is brought to bear against the individual, either formally (by arrest or charge) or informally (by detention or accusation). It is at this point that an adversary relationship comes to exist between the state and the individual. The right, however, does not avail against private individuals. Once the right to remain silent attaches, any communication between an accused and an agent of the state (including a suborned informer) is subject to the right and may proceed only if the accused waives the right; but communication between an accused and another private individual is not subject to the right.
In this case, the accused's right to remain silent under s. 7 of the Charter was violated. The undercover police officer "engaged the accused in conversation" after the latter was charged and while he was in custody. In light of the Clarkson standard relating to waiver of a Charter rights, the accused did not waive his right to remain silent by speaking to the undercover officers. The limiting effect on the accused's right to remain silent was not "prescribed by law", and it is therefore unnecessary to consider the application of s. 1 of the Charter .
The evidence of the incriminating statements elicited by the undercover police officer should be excluded pursuant to s. 24(2) of the Charter . The self‑incriminating evidence sought to be adduced in this case, if admitted, would render the trial unfair and would bring the administration of justice into disrepute. It would strip the accused of the presumption of innocence and would place him in the invidious position of having to take the stand, contrary to the privilege against self‑incrimination, in order to disclaim the confession. The good faith of the police officers, who arranged for the deception of the accused relying on the authority of Rothman, is not a significant factor in favour of receiving the evidence. Where impugned evidence falls afoul of the first set of factors set out in Collins (trial fairness), the admissibility of such evidence cannot be saved by resort to the second set of factors (the seriousness of the violation). These two sets of factors are alternative grounds for the exclusion of evidence, and not alternative grounds for the admission of evidence.
Per Wilson J.: The right to remain silent is a principle of fundamental justice within the meaning of s. 7 of the Charter . This right, which arises whenever the coercive power of the state is brought to bear upon the citizen, must be given a generous interpretation to fulfill its purpose. It is accordingly inappropriate to qualify it by balancing the interests of the state against it or by applying to it the considerations relevant to the admissibility of evidence set out in s. 24(2) of the Charter . In deciding whether or not the authorities have offended fundamental justice, it is essential to focus on the treatment of the accused and not on the objective of the state. It would be contrary to a purposive approach to the s. 7 right to inject justificatory considerations for putting limits upon it into the ascertainment of its scope or content. For the same reasons, it is inappropriate to merge the question whether statements elicited in violation of the s. 7 right should be admitted into evidence with the question whether the right has in fact been violated. The repute of the justice system has no bearing on whether the right to silence has been violated contrary to the principles of fundamental justice. Finally, the doctrine of waiver applies to the right to remain silent under s. 7 as it does to other rights in the Charter .
Cases Cited
By McLachlin J.
Distinguished: Rothman v. The Queen, [1981] 1 S.C.R. 640; R. v. Wray, [1971] S.C.R. 272; referred to: R. v. Woolley (1988), 40 C.C.C. (3d) 531; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Therens, [1985] 1 S.C.R. 613; Commissioners of Customs & Excise v. Harz, [1967] 1 All E.R. 177; Ibrahim v. The King, [1914] A.C. 599; Horvath v. The Queen, [1979] 2 S.C.R. 376; Ward v. The Queen, [1979] 2 S.C.R. 30; Gach v. The King, [1943] S.C.R. 250; Boudreau v. The King, [1949] S.C.R. 262; R. v. Fitton, [1956] S.C.R. 958; R. v. McLeod (1968), 5 C.R.N.S. 101; R. v. McCorkell (1964-65), 7 Crim. L.Q. 395; R. v. Collins, [1987] 1 S.C.R. 265; Marcoux v. The Queen, [1976] 1 S.C.R. 763; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Clarkson v. The Queen, [1986] 1 S.C.R. 383; Kuhlmann v. Wilson, 477 U.S. 436 (1986); R. v. Logan (1988), 46 C.C.C. (3d) 354; R. v. Thomsen, [1988] 1 S.C.R. 640; R. v. Clot (No. 1) (1982), 69 C.C.C. (2d) 349.
By Sopinka J.
Referred to: Rothman v. The Queen, [1981] 1 S.C.R. 640; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; Curr v. The Queen, [1972] S.C.R. 889; Marcoux v. The Queen, [1976] 1 S.C.R. 763; R. v. Woolley (1988), 40 C.C.C. (3d) 531; R. v. Hansen (1988), 46 C.C.C. (3d) 504; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Eden, [1970] 3 C.C.C. 280; R. v. Clarke (1979), 33 N.S.R. (2d) 636; R. v. Engel (1981), 9 Man. R. (2d) 279; R. v. Symonds (1983), 9 C.C.C. (3d) 225; R. v. Minhas (1986), 53 C.R. (3d) 128; R. v. Christie, [1914] A.C. 545; Stein v. The King, [1928] S.C.R. 553; Chapdelaine v. The King, [1935] S.C.R. 53; Hall v. The Queen, [1971] 1 All E.R. 322; Bessela v. Stern (1877), 2 C.P.D. 265; MacKenzie v. Commer (1973), 44 D.L.R. (3d) 473; R. v. Esposito (1985), 24 C.C.C. (3d) 88; R. v. St. Lawrence, [1949] O.R. 215; R. v. Wray, [1971] S.C.R. 272; Ibrahim v. The King, [1914] A.C. 599; Dubois v. The Queen, [1985] 2 S.C.R. 350; Taggart v. R. (1980), 13 C.R. (3d) 179; Miranda v. Arizona, 384 U.S. 436 (1966); Massiah v. United States, 377 U.S. 201 (1964); United States v. Henry, 447 U.S. 264 (1980); Kuhlmann v. Wilson, 477 U.S. 436 (1986); Hoffa v. United States, 385 U.S. 293 (1966); Parkes v. The Queen, [1976] 1 W.L.R. 1251; RWDSU v. Dolphin Delivery Inc., [1986] 2 S.C.R. 573; R. v. Hicks (1988), 42 C.C.C. (3d) 394 (Ont. C.A.), aff'd [1990] 1 S.C.R. 120; R. v. Thatcher, [1987] 1 S.C.R. 652; R. v. Smith, Wilson and Quesnelle, Ont. S.C., November 5, 1987; R. v. Duarte, [1990] 1 S.C.R. 30; Clarkson v. The Queen, [1986] 1 S.C.R. 383; R. v. Manninen, [1987] 1 S.C.R. 1233; R. v. Conway, [1989] 1 S.C.R. 1659; R. v. Turpin, [1989] 1 S.C.R. 1296; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Thomsen, [1988] 1 S.C.R. 640; R. v. Ross, [1989] 1 S.C.R. 3; R. v. Black, [1989] 2 S.C.R. 138.
By Wilson J.
Referred to: R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 10 (b), 24(2) .
Criminal Code, R.S.C. 1970, c. C‑34, s. 303 [am. 1972, c. 13, s. 70].
Authors Cited
Cross, Sir Rupert. Cross on Evidence, 6th ed. By Sir Rupert Cross and Colin Tapper. London: Butterworths, 1985.
Freedman, Samuel. "Admissions and Confessions". In Roger E. Salhany and Robert J. Carter, eds., Studies in Canadian Criminal Evidence. Toronto: Butterworths, 1972.
Galligan, D. J. "The Right to Silence Reconsidered" (1988), 41 C.L.P. 69.
Harris, M. H. "Concerning Statements to Police Officers" (1964-65), 7 Crim. L.Q. 395.
Kaufman, Fred. The Admissibility of Confessions, 3rd ed. Toronto: Carswells, 1979.
Kaufman, Fred. The Admissibility of Confessions. Third supplement (cumulative) to the third edition. Toronto: Carswells, 1986.
Ratushny, Ed. "Is There a Right Against Self‑Incrimination in Canada?" (1973), 19 McGill L.J. 1.
Ratushny, Ed. Self‑Incrimination in the Canadian Criminal Process. Toronto: Carswells, 1979.
APPEAL from a judgment of the Yukon Court of Appeal (1988), 3 Y.R. 81, 29 B.C.L.R. (2d) 296, 43 C.C.C. (3d) 56, allowing the Crown's appeal from the accused's acquittal on a charge of robbery contrary to s. 303 of the Criminal Code . Appeal allowed.
Edward L. Greenspan, Q.C., and Paul S. O'Brien, for the appellant.
S. R. Fainstein, Q.C., and D. R. Beardall, for the respondent.
//McLachlin J.//
The judgment of Dickson C.J. and Lamer, La Forest, L'Heureux-Dubé, Gonthier, Cory and McLachlin JJ. was delivered by
MCLACHLIN J. -- This case raises the issue of whether a statement made by a detained person to an undercover police officer violates the rights of the accused under the Canadian Charter of Rights and Freedoms .
The Facts
The accused, after consulting counsel and advising the police that he did not wish to make a statement to them, was tricked into making a statement by the ruse of an undercover police officer placed in the cell to which he was taken. The question is whether this violates his rights under the Charter and if so, whether the trial judge was right in refusing to admit the statement in evidence.
The agreed statement of facts reads as follows:
1.On January 11, 1987 at approximately 6:00 a.m., a male person wearing a ski mask entered the Klondike Inn and approached the front desk clerk, and told the clerk to give him the money. He then raised a claw hammer in the air in a threatening motion and again demanded the money. The clerk complied, and passed over to the culprit the sum of $180.00, the contents of the till. The culprit then told the clerk to wait ten minutes before calling the police, and fled the scene on foot. He was last seen heading in the direction of 4th Avenue.
2.In the course of the investigation over the next several months, police received confident [sic] information from three informants that the person responsible for the robbery was the accused, Neil Gerald HEBERT.
3.On April 15, 1987, at 8:42 p.m., the accused was located by the police in the lounge area of the Taku Hotel in Whitehorse. He was placed under arrest, advised of his right to retain and instruct counsel without delay, and taken to the R.C.M.P. Detachment.
4.Once at the Detachment, HEBERT contacted counsel and obtained advice from counsel regarding his right to refuse to give a statement.
5.The police were aware that HEBERT had contacted counsel and of the identity of that counsel.
6.After exercising his right to contact counsel, HEBERT was taken into an interview room by Constable Mike Stewart. He was given the usual police caution, and then told that the police wanted to know why he had done it. He indicated that he did not wish to make a statement.
7.He was then placed in a cell with Corporal Daun Miller, disguised in plainclothes, and posing as a suspect under arrest by police. While in the cell, Corporal Miller engaged the accused in conversation, during which the accused made various incriminating statements which implicated himself in the robbery of January 11, 1987.
The Legislation
Canadian Charter of Rights and Freedoms
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.
10. Everyone has the right on arrest or detention
. . .
(b) to retain and instruct counsel without delay and to be informed of that right; and
24. . . .
(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.
The Judgments
The trial judge, Maddison J., held that the accused's right to counsel and right to remain silent had been violated: (1987), 3 Y.R. 88. He distinguished Rothman v. The Queen, [1981] 1 S.C.R. 640, where this Court ruled admissible a statement to an undercover police officer, on the grounds that: (1) in Rothman the accused had not retained counsel at the time of the statement; and (2) Rothman was decided before the advent of the Charter .
On the right to counsel, the trial judge said, at p. 91:
I am of the opinion that to subvert the lawyer‑client relationship by means of fraud on the client effectively destroys the retainer and thus destroys one of the legal rights guaranteed by the Charter .
The trial judge also held that the accused's right to remain silent had been violated. He concluded, at p. 91:
The [appellant] exercised his right to remain silent and at no time thereafter waived his right to remain silent by agreeing to speak to a person in authority. He was then, by trickery, induced to make incriminating statements. That is a wilful and deliberate breach of the [appellant's] right to silence, which by itself, in the view of the majority of the Supreme Court of Canada in Rothman is an acceptable means to an end. Done in the context of his having retained counsel and the knowledge of the police to that effect it is unfair and the admission of the evidence in the proceedings could bring the administration of justice into disrepute.
The Court of Appeal for the Yukon Territories held that the trial judge erred in rejecting the accused's statement to the undercover officer: (1988), 3 Y.R. 81, 29 B.C.L.R. (2d) 96, 43 C.C.C. (3d) 56. In its view, neither the accused's right to counsel nor his right to remain silent had been breached. The Court rejected the view that the right to counsel under s. 10 (b) of the Charter precluded questioning in the absence of counsel after counsel had been contacted. As for the right to remain silent asserted under s. 7 of the Charter , the Court of Appeal found the principles of fundamental justice upon which the right must rest must be interpreted in the context of Rothman, where interrogation by a police officer posing as a fellow prisoner was held not to violate the principles of fundamental justice.
The Issues
There are two main issues:
1. Were the appellant's rights under the Charter infringed?
(a) Was his right to remain silent infringed?
(b) Was his right to counsel infringed?
2.If the appellant's rights were infringed, was the statement admissible under s. 24(2) of the Charter ?
The parties agree that s. 7 of the Charter accords a right to silence to a detained person. As Cory J.A. (as he then was) stated in R. v. Woolley (1988), 40 C.C.C. (3d) 531 (Ont. C.A.), at p. 539: "The right to remain silent is a well‑settled principle that has for generations been part of the basic tenets of our law." The parties disagree, however, over the extent of the right to silence of a detained person accorded by s. 7 of the Charter .
The Crown submits that the right to silence is defined by the ambit of the confessions rule as it stood at the time the Charter was adopted. It would follow from this that statements obtained by tricks such as the one practised here would be admissible: Rothman, supra.
The accused submits that the right to silence guaranteed by s. 7 of the Charter is broader than the confessions rule as it stood in 1982, and that the use of tricks to obtain a confession after the suspect has chosen not to give a statement violates the Charter .
The parties also agree that s. 10 (b) of the Charter creates a right to counsel. The disagreement, once again, is as to the extent of that right. Is it confined to s. 10 (b)? Or is there a broader right to counsel under s. 7 ?
I see the issues of the right of a detained person to remain silent and the right to counsel as intertwined. The question, as I view it, is whether, bearing in mind the Charter guarantee of the right to counsel and other provisions of the Charter , the accused's right to remain silent has been infringed.
Analysis
I. Have the Appellant's Charter Rights Been Violated?
(a) General Considerations
The appellant's liberty is at stake. Under section 7 of the Charter , he can only be deprived of that liberty in accordance with the principles of fundamental justice. The question is whether the manner in which the police obtained a statement from him violates that right. The answer to this question lies in an exploration of the underlying legal principles of our system of justice relevant to a detained person's right to silence. As Lamer J. stated in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 503:
. . . the principles of fundamental justice are to be found in the basic tenets of our legal system.
How do we discover the "basic tenets of our legal system" in a case such as this? Initially, it must be by reference to the legal rules relating to the right which our legal system has adopted. As D. J. Galligan points out in "The Right to Silence Reconsidered" (1988), 41 C.L.P. 69, at pp. 76‑77: "The right . . . is general and abstract, concealing a bundle of more specific legal relationships. It is only by an analysis of the surrounding legal rules that those more precise elements of the right can be identified." Thus rules such as the common law confessions rule, the privilege against self‑incrimination and the right to counsel may assist in determining the scope of a detained person's right to silence under s. 7.
At the same time, existing common law rules may not be conclusive. It would be wrong to assume that the fundamental rights guaranteed by the Charter are cast forever in the straight‑jacket of the law as it stood in 1982. The reference in s. 7 of the Charter is broadly to "principles of fundamental justice", not to this rule or that. Thus Le Dain J. wrote in R. v. Therens, [1985] 1 S.C.R. 613, at p. 638:
In my opinion the premise that the framers of the Charter must be presumed to have intended that the words used by it should be given the meaning which had been given to them by judicial decisions at the time the Charter was enacted is not a reliable guide to its interpretation and application. By its very nature a consitutional charter of rights and freedoms must use general language which is capable of development and adaptation by the courts.
For this reason, a fundamental principle of justice under s. 7 of the Charter may be broader and more general than the particular rules which exemplify it.
A second reason why a fundamental principle of justice under s. 7 may be broader in scope than a particular legal rule, such as the confessions rule, is that it must be capable of embracing more than one rule and reconciling diverse but related principles. Thus the right of a detained person to silence should be philosophically compatible with related rights, such as the right against self‑incrimination at trial and the right to counsel.
The final reason why a principle of fundamental justice under s. 7 may be broader than a particular rule exemplifying it lies in considerations relating to the philosophy of the Charter and the purpose of the fundamental right in question in that context. The Charter has fundamentally changed our legal landscape. A legal rule relevant to a fundamental right may be too narrow to be reconciled with the philosophy and approach of the Charter and the purpose of the Charter guarantee.
These considerations suggest that the task of defining the scope of the right of a detained person to silence under s. 7 of the Charter must focus initially on the related rules which our legal system has developed -- in this case the confessions rule and the privilege against self‑incrimination. However, that is not the end of the inquiry. The scope of a fundamental principle of justice will also depend on the general philosophy and purpose of the Charter , the purpose of the right in question, and the need to reconcile that right with others guaranteed by the Charter .
(b)The Scope of the Pre‑Trial Right To Silence Suggested by Related Rules
A detained person's right to silence under s. 7 of the Charter is general and abstract, subsuming a bundle of more specific legal relationships. The first step in defining the ambit of the right to silence is to consider these specific relationships and the rules which arise from them, with a view to identifying a common substratum of principle.
The right to silence conferred by s. 7 of the Charter is rooted in two common law concepts. The first is the confessions rule, which makes a confession which the authorities improperly obtain from a detained person inadmissible in evidence. The second is the privilege against self‑incrimination which precludes a person from being required to testify against himself at trial. While the exact scope of the confessions rule has been the subject of debate over the past century, a common theme can be said to unite these two quite separate rules -- the idea that a person in the power of the state in the course of the criminal process has the right to choose whether to speak to the police or remain silent.
(i) The Confessions Rule
The exact nature and definition of the confessions rule has long bedeviled our courts. One can, however, discern two distinct approaches. Lord Reid identified them in Commissioners of Customs & Excise v. Harz, [1967] 1 All E.R. 177 (H.L.), at p. 184:
I do not think that it is possible to reconcile all the very numerous judicial statements on rejection of confessions, but two lines of thought appear to underlie them: first, that a statement made in response to a threat or promise may be untrue or at least untrustworthy; and secondly, that nemo tenetur seipsum prodere.
Both versions of the confessions rule focus on voluntariness as the basic requirement for the admission of a statement made to the authorities by a detained person. The requirement of voluntariness, in turn, comports the idea that the detained person is entitled to choose whether to make a statement to the authorities or not. The difference between the two approaches to the confessions rule lies in the way they define voluntariness and choice.
The traditional confessions rule set out in Ibrahim v. The King, [1914] A.C. 599, defines the choice negatively, in terms of the absence of threats or promises by the authorities inducing the statement, and objectively, in terms of the physical acts and words of the parties. The awareness of the detained person of his alternatives is irrelevant. He need not be told that he has the right to remain silent. He need not be told that he has the right to consult counsel to determine what his options are. The only right he has is a negative right -- the right not to be tortured or coerced into making a statement by threats or promises held out by a person who is and whom he subjectively believes to be a person in authority. The act of choosing is viewed objectively, and the mental state of the suspect, apart from his belief that he is speaking to a person in authority, is irrelevant. Were it not for the insistence in the cases that the absence of threats and promises establishes the voluntariness of the statement and that voluntariness is the ultimate requirement for an admissible confession, one would be tempted to say that choice in the usual sense of deciding between alternatives plays little role in the traditional narrow formulation of the confessions rule.
Allied with this narrow concept of choice in the traditional confessions rule, is the view that the rationale for the rule is the rejection of unreliable statements. The questions of the suspect's actual state of mind and whether, given that state of mind, it is unfair to use the statement against him, do not arise.
The second approach to choice in the confessions rule is much broader. It starts from the proposition that choice involves not only an act, but a mental element. On this view, the act of choosing whether to remain silent or speak to the police necessarily comprehends the mental act of selecting one alternative over another. The absence of violence, threats and promises by the authorities does not necessarily mean that the resulting statement is voluntary, if the necessary mental element of deciding between alternatives is absent. On this view, the fact that the accused may not have realized he had a right to remain silent (e.g. where he has not been given the standard warning) or has been tricked into making the statement, are relevant to the question of whether the statement is voluntary.
The modern Canadian confessions rule accepts some aspects of this approach. Thus a voluntary choice to confess presupposes an "operating mind": Horvath v. The Queen, [1979] 2 S.C.R. 376; and Ward v. The Queen, [1979] 2 S.C.R. 30. Beyond this basic requirement, however, the mainstream of contemporary Canadian confessions law has not, by and large, acknowledged the mental element involved in choice. Nevertheless, the second, broader concept of choice persists as part of our fundamental notion of procedural fairness. Older Canadian cases acknowledge it, as does the law in other jurisdictions. And it recurs like a leitmotif through the dissenting judgments of distinguished Canadian jurists and in the work of scholars.
Allied with this second, broader approach to voluntariness or choice under the confessions rule is the view that the rule's rationale goes beyond the exclusion of unreliable statements and extends to considerations of whether reception of the statement will be unfair or tend to bring the administration of justice into disrepute.
Until the case of R. v. Wray, [1971] S.C.R. 272, the confessions rule in Canada, as in England and elsewhere in the Commonwealth, may be characterized as an uneasy and to some extent illogical amalgam of these two quite different views of choice. It was said that the test for admissibility was whether the confession was voluntary, which carries with it the idea of an active choice between alternatives. At the same time, voluntariness was said to be established objectively by the simple absence of threats and promises: Ibrahim.
The law in England went (and continues to go) some way toward the reconciliation of the notion of voluntariness with the narrow legal test, by recognizing a discretion in judges to refuse to admit a statement which meets the Ibrahim test, on the ground that admission of the statement would be unfair to the accused and bring the administration of justice into disrepute. Violation of the Judges' Rules -- guidelines laid down by the judges for the conduct of interrogations -- frequently results in rejection of statements which meet the "threat‑promise" test. Statements made where the police have not advised the suspect of his right to remain silent (required by the Judges' Rules) may be rejected on this basis, as may statements obtained by tricks. The practical result is that judges may reject confessions obtained where the mental factor relevant to true voluntariness is absent. Moreover, this discretion, not being tied to the traditional confessions rule, may be exercised where, because of police deception, the accused is unaware of the fact he is speaking to the authorities.
In Canada we have never had Judges' Rules. Yet one can discern in some of the earlier cases a willingness to go beyond the strict confines of the Ibrahim rule and to accord to the trial judge a discretion as to the admission of a statement taken in circumstances the judge deems unfair. In Gach v. The King, [1943] S.C.R. 250, it was suggested that failure to give the accused the standard warning might render a statement inadmissible. In Boudreau v. The King, [1949] S.C.R. 262, this Court, while stating that the absence of a warning would not necessarily render a statement involuntary, suggested that it might be considered with all the other circumstances in determining whether a confession was voluntary (per Kerwin J., at p. 267). In the same case Rand J. suggested at p. 270 that the decision was very much one for the trial judge:
The underlying and controlling question then remains: is the statement freely and voluntarily made? Here the trial judge found that it was. It would be a serious error to place the ordinary modes of investigation of crime in a strait jacket of artificial rules; and the true protection against improper interrogation or any kind of pressure or inducement is to leave the broad question to the court. Rigid formulas can be both meaningless to the weakling and absurd to the sophisticated or hardened criminal . . . .
At the same time, other cases continued to emphasize the threat‑promise formulation: see R. v. Fitton, [1956] S.C.R. 958.
Nevertheless, until the decision in Wray, supra, generally thought to be open to judges in Canada to reject statements which met the Ibrahim test, but which had been obtained unfairly. As Kaufman J.A. puts it (F. Kaufman, The Admissibility of Confessions (3rd ed. 1979), at p. 236):
It was generally believed, and not without reason, that a judge was entitled to exercise his discretion in cases such as these, and that appellate courts would not lightly interfere.
Examples are not difficult to find. Laskin J.A. (as he then was) took the view in delivering the judgment of the Ontario Court of Appeal in R. v. McLeod (1968), 5 C.R.N.S. 101, at p. 104, that confessions could be excluded where the stratagems of police put in doubt whether the ensuing statement had been properly elicited. Similarly, Gale J. (as he then was) stated in rejecting a confession in R. v. McCorkell (1964‑65), 7 Crim. L.Q. 395, at p. 397:
It is my opinion that once an accused person has retained counsel to the knowledge of the police or other persons in authority, the latter ought not to endeavour to interview and question that accused person without first seeking and obtaining the concurrence of his solicitor. So strong is my view in this respect that I am therefore exercising my discretion in the way I have indicated, perhaps wrongly, because, strictly speaking, the statement thus procured was probably admissible. I decline, however, to give any encouragement in the future to persons in authority to circumvent the position of an accused's solicitor by going directly to speak to the accused.
To this point, the law in Canada was not significantly different from that elsewhere in the Commonwealth.
Wray changed this. The issue in that case was the admissibility, not of a confession but rather of real evidence obtained as a re