You have the right to remain silent. Until you don't

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You have the right to remain silent. Until you don't




The right to silence in Canada is not an absolute rule that requires police to stop interrogating people who have no wish to speak with investigators, the Supreme Court of Canada has ruled.

In a 5-4 decision yesterday, the court refused to treat the right to silence, as guaranteed by Canada's Charter of Rights and Freedoms, in the same manner as the "Miranda" rule so deeply ingrained in the United States, where police must cease questioning anyone who asserts a desire to say nothing.

. . . .

The court was sharply divided over an appeal by Jagrup Singh, who asserted his wish to remain silent no fewer than 18 times while under interrogation by the Royal Canadian Mounted Police in 2002 in connection with a shooting that killed an innocent bystander at a bar in Surrey, B.C.

His questioner, Cpl. David Attew, admitted his objective was to get a confession "no matter what."

. . . .

"The question on this appeal is whether `no' means `yes,' where a police interrogator refuses to take `no' for an answer from a detainee under his total control," Fish said on behalf of a minority that included Justices Ian Binnie, Louis LeBel and Rosalie Abella. "I much prefer a system of justice that permits the effective exercise by detainees of the constitutional and procedural rights guaranteed to them by the law of the land," Fish wrote. "The right to silence, like the right to counsel, is in my view a constitutional promise that must be kept."

What's "particularly disturbing," said Fish, is that Attew "subtly but unmistakably" urged Singh to forsake his lawyer's advice.

"`No' – especially after legal advice – must mean `no,'" said Trudell, who suggested the decision could well usher in an era of "wrongful admissions," in which police find it easier to get questionable evidence, obtained under duress, placed before a judge.


Frustrated Mess Frustrated Mess's picture

Excellent. Canadian constitutional rights are worth the paper they are printed on and not a thing more. I feel more confident. [img]rolleyes.gif" border="0[/img]

M. Spector M. Spector's picture

This is a very unfortunate decision.

The case was complicated by Singh's decision not to contest, on appeal, the trial judge's finding that the statements were "voluntary". The ordinary common-law rule is that any admission made "voluntarily" to a cop or other person in authority is admissible in evidence.

His counsel, therefore, could not argue on appeal that the denial of his right to remain silent rendered his eventual admissions "involuntary". They would have to persuade the court that denying Singh his right to remain silent under s.7 of the Charter of Rights (and also, by the way, his right to the benefit of legal counsel under s.10b) ought to render the statements inadmissible [i]despite[/i] the uncontested fact that they were made voluntarily.

The issue apparently centred on the overlap between the common-law "voluntary" standard and the Charter right to remain silent. The majority in the Supreme Court said, in effect, that once the statements were found to be voluntary, that was "determinative" of the Charter issue of whether the detainee was denied his right to remain silent. In other words, the two tests were "functionally equivalent".

The minority of four judges had no difficulty calling bullshit on the majority view.


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 or not.”

Clearly, said Justice Fish, a confession that meets the common law standard of voluntariness does not invariably represent a “free and meaningful choice” for the purposes of the Charter. The minority would have ruled the statements to be inadmissible.

[url=]Text of the decision[/url]

The moral of the story?

I think it is that the right to remain silent is merely a factor in determining whether the statement in question was made voluntarily. Denying his right to remain silent [b]could[/b] result in an accused person's making an involuntary (and therefore inadmissible) statement, but not necessarily. It is open to a court to find that even though the Charter right to remain silence was denied, the detainee's statement was voluntary and therefore admissible.

I don't like it, because it severely weakens the Charter protection, but now it's the law.

M. Spector M. Spector's picture

Globe editorial, Nov. 3:

But as Mr. Justice Morris Fish noted in a dissent on behalf of four of the nine judges, the common-law rule essentially excuses anything if the suspect had "an operating mind" and if "his will was not overborne by threats or promises, by oppression, or by police trickery that would shock the community." Surely, he wrote, the right to silence in the Charter of Rights and Freedoms is a notch above the common-law rule; it is designed to constrain government action with respect to certain rights and freedoms, and demands a tighter control on interrogators. That right, and the right to counsel, "are Charter rights, not constitutional placebos."

M. Spector M. Spector's picture


Timothy Breen, lawyer for the Criminal Lawyers’ Association who intervened in the case, tells [url= Times[/url] that the effect of the majority opinion, in the CLA’s view, is that “because there are no limits on what police can do in the face of an assertion of a right to silence by a detainee, there is effectively a suspension of the right in that situation,” he says.

The majority’s approach gives the police “no disincentive at all from over-reaching and engaging in potentially oppressive tactics,” adds James Stribopoulos, assistant professor at Osgoode Hall law school. “The incentive structure that’s created because of this case is all about giving the police reason to keep trying until they get the statement,” he says.

As Singh had retained counsel, says William Trudell, chair of the Canadian Council of Criminal Defence Lawyers, he adds that there is a concern that no longer “can you expect that a police officer will respect the relationship between a solicitor and client.”

“It’s a shock in terms of how we should operate in relation to whether the police will respect the fact that there’s a solicitor-client relationship. That, on a practice level, is a real concern to me,” he says….

Another concern, says Trudell, is that there does not seem to be any room for consideration of vulnerability in the decision.

“I’d be concerned, very much concerned, about those people who have challenges in terms of immaturity, mental-health issues, language issues, and this case really kind of opens the door to wrongful admissions, which will lead the way to wrongful convictions,” he says.

Stribopoulos adds that he is also worried about those who are facing their first encounter with the criminal justice system, who are most in need of the Charter’s protection, but are “most likely not to receive it because they don’t know what’s required.”

“It’s hard not to conclude that most reasonable people, if they’re in police custody, and they say to the police, ‘I don’t want to speak,’ and . . . the assertion of the right has no practical effect, are ultimately going to conclude that the right is really a hollow one,” he says.

Sean in Ottawa

I am sorry to say I think this might be overblown.

First, while caselaw can be compelling it is not binding and anyone who expects this case to be used against them can respond quite well by avoiding any admission that the statements could be volountary-- if that is what turned the decision.

In this case, it seems to me, the lawyer made a huge mistake in conceeding that the statements were volountary as that is the point of the appeal. Unfortunately the lawyer took a narrow definition of the meaning of volountary when a broad one was needed. It would seem this turned on the technicality of not appealing the judge's decision.

If I am wrong and this was not the turning point in the decision then the decision is a seriously bad one however, if I am right and this is not a mere complication but an actually turning point than the decision is merely an illustration of poor legal strategy than anything else.

I personally find I am agreeing with both sides to a point: I agree with the minority in that he did have his rights trampled on-- except I would not be able to agree with their decision. Law is a process. You can't say on the one hand he was forced to speak and on another he did so voluntarily.

I would have to agree with the majority in that if you look at this in the light of an agreement that he made the decision to speak voluntarily (failure to appeal the finding) on what basis can you claim his rights were interfered with? The problem is you can't give in on a point that is central to your argument and then expect to win.

Yes the man got screwed-- but if my understanding is correct (and it may not be as I don't see the full case) then he got screwed by the decision not to appeal the finding central to his argument not by those on the bench who may sympathize but have no legal basis to agree with him. This is a lot more common than many people think-- a decision correct in law at times may need to be made even if it is obviously unfair because law and process cannot be applied selectively (or all our rights WILL be diminished).

M. Spector M. Spector's picture

The voluntariness of the statement doesn't depend on whether or not the accused [i]admits[/i] it was voluntary. In fact, at the trial of this case, Singh's counsel challenged the admissibility of the statements on the grounds that they were [i]involuntary[/i], and also invoked the Charter of Rights. The trial judge held a hearing to determine the admissibility (known as a [i]voir dire[/i]) and he found, as a fact, that the statements in question were made voluntarily.

Findings of fact by a trial judge are virtually impossible to overturn on appeal, as appeal courts deal almost entirely with questions of law (or "mixed fact and law") and defer to the trial judge's fact findings.

The decision not to appeal the specific factual finding of voluntariness may have been a tactical error on the part of counsel, but it also may be that the Charter arguments were seen, rightly or wrongly, as the only practical way to have the decision overturned. Until the [url=]BC Court of Appeal dismissed[/url] the appeal, I would have thought the Charter argument was the best chance of winning on appeal.

Sean in Ottawa

I understood findings of fact can be appealed (misapprehension of the evidence) findings of credibility cannot. In any case there would be fair questions as to whether this is a finding of fact(being voluntary or not)and I do not believe it is. A fact would be more like did he assert his desire not to continue speaking? Did they continue to press after that? A question of law (conclusion based on the facts and legal definition)would be does this mean he did speak voluntarily when he gave the information? Since there is never an objective record of intent I don't see how this can be a question of fact.

If you force somebody to say something the facts would be that they said it -- the veracity of what they said is a conclusion that can be based on credibility, fact and law. There may be a number of facts that would have to be acknowledged in this case but the conclusion that the statements were voluntary would have to be challenged if a "poisoned well" argument is used.

I don't know how early in the process the hearing was but if it were not final disposition of the matter it ought to have been appealable once the matter was finally disposed of and could not have been appealed earlier.

While the finding of the voluntary nature of a statement may not depend on it being admitted at some point the appeal may have depended on challenging this finding, otherwise a contradiction in the case is left.

There should be enough here with respect to the procedure and arguments made for someone who started in the same position (was coerced) to argue that this decision does not apply to their case. If that is the case then this decision would have little value as a reference case.

Sean in Ottawa

This case concluded that-- 1) the person spoke voluntarily and did not ever dispute that; 2) he was not coerced into speaking and maintained choice; 3) the person he was speaking to was known by him at all material times to be a police officer. The question therefore seems to have come down to whether the police can after the person has said they wish to remain silent keep asking. The court is saying yes they can- numerous cases say they can't inflict unreasonable pressure or force the person to speak but they can keep asking. Ultimately, the case seems to turn on the issue of if the statements were voluntary so without disturbing this finding there was simply no place for the court to go to agree with the appellant.

The appellant relied on a previous decision that had this passage:

"There is nothing in the rule to prohibit the police from questioning the accused in the absence of counsel after the accused has retained counsel. Presumably, counsel will inform the accused of the right to remain silent. If the police are not posing as undercover officers and the accused chooses to volunteer information, there will be no violation of the Charter. Police persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence."

Comes back to one issue-- did the later police actions make the statment not voluntary-- if that issue is removed then there is, as I said, no where to go to help him.

The conclusion is exactly what we would want-- we have a right to counsel, we have a right to retain our own control over what we say and anything extracted from us in the absence of this control is not admissable. Howeveer, police have the ability to keep asking so long as their tactics fall short of deception or the result of making a statement not voluntary. In this case none of this applied and the appeal was lost. I have trouble seeing what the big deal with this case would be in this context.

M. Spector M. Spector's picture

[url=]No right to remain silent[/url]
by Alan Young, professor of law, Osgoode Hall law school.


If you ever have the misfortune to be interrogated while in police custody, I would strongly advise you to start speaking in tongues or an obscure foreign language. The police will not listen when you tell them in plain English that you do not wish to speak to them.

And now the Supreme Court has effectively given the police the authority to simply ignore your wish to remain silent.

In Canada, once the police provide the right-to-counsel warning, they need only suspend the interrogation until the suspect has been given a "reasonable opportunity" to consult a lawyer. A conversation over the phone suffices.

But if the suspect cannot reach his or her lawyer after a number of attempts, the police will expect the suspect to make use of the 1-800 free duty counsel service.

Regardless of whether you speak to private counsel or a phone centre lawyer, the advice you receive will be simple and blunt: "Keep your mouth shut."

Most people think talking to the police will help, but it rarely does.

First, you should know that any protestation of innocence will not be admissible in court.

A confession is admissible, but a denial is inadmissible because it is considered self-serving.

Second, it is unlikely the police will release you even if you provide an innocent explanation (unless it's an iron-clad alibi).

And, finally, although an overnight stay in police custody isn't much fun, you will be taken to court within 24 hours and your exercise of silence will not be used against you in court.

While you wait to be taken to court, the police may pound the table and act in strange and menacing ways, but it is highly unlikely that you will be beaten or hurt for remaining tight-lipped.

The courts have acknowledged that the right to silence is a fundamental principle of justice, but it is limited to the right to hear a disembodied voice tell you over the phone that silence is golden while the police patiently wait for you to hang up to convince you in their own inimitable way why it is best to talk.