Statements by the Accused

Right to Silence and Improperly Obtained Evidence

s.10(b) Charter: Right to Counsel

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  Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right
  

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  No right to have counsel present
  
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  S.10(b) supports the detainee’s s.7 right to choose whether or not to cooperate with the police investigation
  
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  Normally, a single consultation at the time of detention or shortly thereafter, gives the detainee the info he needs to make a meaningful choice whether to cooperate with the investigation or decline
  
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  There is no right to repeated consultations or to have counsel present during custodial interrogation
  
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  Changed Circumstances
  

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  May require a second consultation, in order to allow accused to get advice he needs to exercise his right to choose in the new situation, ex:
  

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  New procedures involving detainee
  
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  Change in jeopardy facing the detainee, or
  
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  Reason to believe that the detainee may not have understood the initial advice of right to counsel
  

s.7 Charter: Right to Silence

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  Everyone has right to life, liberty, security of the person and right not to be deprived except in accord with PFJ
  

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  Triggered by: arrest or detention (does not apply where accused/person is not detained) – question to ask is, if person got up to leave, would officer detain them – if answer is yes, they are already detained
  
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  Burden of proof: balance of probabilities on the accused
  

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  Remedy for violation: excluded only if s. 24(2) satisfied
  
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    Where court concludes that evidence was obtained in a manner that infringed/denied right/freedom guaranteed by Charter, evidence shall be excluded if it is established that, having regard to the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute
    
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    4 issues arise under s. 24(2):
    
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      Who has standing to apply for the exclusion of evidence?
      
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      What does “obtained in a manner” mean?
      
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      When does the admission of unconstitutionally obtained evidence bring the administration of justice into disrepute?
      
    • 
      Does a change in circumstances during the trial every justify revisiting a s. 24(2) ruling? (Calder)
      
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  What underlies s. 7 right to silence:
  
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    Right to choose to speak to agent of state, whether or not to make a statement
    
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    Includes negative right to be free from coercion, threats, promises or violence
    
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  Right to speak to authorities is objective, not subjective: (Hebert)
  
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    Basic requirement: suspect possesses operating mind (subjective), then focus shifts to authorities
    
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    Was the suspect accorded right to counsel
    
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    Did police conduct effectively and unfairly deprive the suspect of the right to choose whether or not to speak
    
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  Right is not absolute (Hebert)
  
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    Accused can waive right, but waiver doesn’t have to be express
    
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    Police persuasion short of preventing the accused from exercising his right to choose, or removing from the accused an operating mind, will not violate the Charter (Singh)
    

General points about right to silence

1. 
   Nothing in the rule in s. 7 right to silence prohibits police from questioning accused in absence of counsel after accused has retained counsel (Singh)
   
2. 
   Right to silence is not violated by police continuing to question the accused after accused has “invoked” right to silence
   
3. 
   No requirement that police inform accused of right to remain silent
   
4. 
   Police allowed to persuade accused to talk up to certain point
   

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  Facts: H said he didn’t want to speak to police, put in cell, undercover cop went in and elicited incriminating statements
  
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  CL confessions rule not violated, but s. 7 right to silence was, and H’s right to chose whether to not to speak to person in authority was violated
  
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  State not entitled to use superior power to override suspects will and right to choose
  
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  The essence of the right to silence is that the suspect be given a choice… the freedom to choose… the freedom to speak to the authorities on the one hand, and the freedom to refuse to make a statement to them on the other
  
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  Rationale for Right to Silence:
  

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  CL on confessions and privilege against self-incrimination reflect common theme in adversarial system: the accused has right to choose whether to speak or remain silent before and at trial
  
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  This right is “fundamental” and is protected by s.7
  
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  Police must not engage in tricks which would effectively deprive a person in police custody of the right to choose whether to speak
  
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  The logic which led the majority in Rothman to conclude that a confession obtained by a police trick could not be excluded, finds no place in the Charter
  
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  The purpose is to control the superior power of state vs. individual who has been detained, in its power
  

Right to Silence Limits Herbert

1. 
   Police may question and persuade accused to speak after he has retained counsel
   
2. 
   The right applies only after detention
   
3. 
   The right does not affect voluntary statements made to fellow cell-mates
   
4. 
   UCO may observe accused in cells, bu can’t use subterfuge or actively elicit so as to undermine accused’s choice to remain silent
   

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  S arrested for death of bystander who was killed by stray bullet – was advised of right to counsel and privately consulted lawyer – subsequently during long interview said numerous times he didn’t want to talk about incident, but then would sometimes answer questions – some of which were incriminating
  
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  Trial – statements voluntary – S didn’t prove breach of his rights under s. 7 – upheld at SCC
  
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  CL confessions rule and s. 7 right to silence are functional equivalents, meaning once confession is voluntary is passes s. 7 scrutiny
  
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  Right to be silent, not right to be spoken to – importance of police questioning in investigation of crime
  

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  Question was whether “no” means “yes” where a police interrogator refuses to take “no” for an answer from a detainee under his total control
  

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  Ultimate question is whether the accused exercised free will by choosing to make statement
  
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  Considerable overlap between right to silence and post-Charter, broader voluntariness rule Oickle
  

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  Tests functionally equivalent where detainee is in custody and knows he is speaking to person in authority
  

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  Facts: C was officer, charged with attempting to purchase sexual services of prostitute, prior to being charged he was cautioned that he didn’t have to say anything, asked why the caution several times with no direct answer but rather responses of reading sections of code, or getting caution again – during interview C denied going to place where alleged meeting was with S – this was a lie, C’s testimony at trial contradicted by independent evidence – statements excluded - C acquitted
  
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  Crown: the tender of C’s out of court statements for purpose of cross-examination constituted a change in the circumstances, justifying a reconsideration of the judge’s earlier ruling that the admission of the evidence would bring the administration of justice into disrepute
  
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  No – once evidence is excluded under the Charter, it cannot be admitted for any purpose
  

Common Law Right to Silence

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  Pre-Trial Conduct
  

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  Where a statement is made to person in authority, CL needs it be shown to be voluntary before it is admissible
  
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    Why? Well recognized ability of persons in authority to induce, intentionally or unintentionally, false confessions through torture, threats, bribery and other improper means
    
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  Voluntariness broadly defined – any circumstance where accused did not have opportunity to choose Oickle
  
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  Silence may be admissible if inextricably bound up in other evidence such as narrative and cannot be extricated Turcotte
  
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    By choosing to speak selectively to police, accused makes the whole conversation, including his silence, admissible
    

R v. Turcotte

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  Facts: T appeared at police station, made statements to police about rifle in truck, need to send car to where he just was, and an ambulance, but wasn’t answering questions about what was going on
  
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  Claimed that silence/conduct created a “consciousness of guilt” – not called “post offence conduct”
  
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  Court does say jury can use silence to assess accused’s state of mind at the time – questionable??
  
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  Since there is right to silence, it would be a snare to caution accused that he need not say anything in response to police officer’s questions, but nonetheless put in evidence that the accused clearly exercised his right and remained silent in the face of a question which suggested guilt
  
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  CL right to silence exists at all times against the state, whether or not the person asserting it is within its power
  

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  Like confessions rule, accused’s right to silence applies any time he or she interacts with a person in authority, whether detained or not
  
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  Law imposes no duty to speak or cooperate with police: severs any link between silence and guilt
  

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  Jury Instruction when Silence Admitted:
  

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  TJ obliged to tell jury in clearest terms that it could accused’s silence at police station could not be used to support an inference of guilty in order to contradict an intuitive impulse to conclude that silence is incompatible with innocence
  

s.24(2) Charter Exclusion

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  (1) Anyone whose rights or freedoms… have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as court considers appropriate and just
  
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  (2) Where, under (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, regarding all circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute
  

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  Jurisdiction: Only Court of Competent Jurisdiction may grant a remedy
  
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  Standing: s.24(2) provides remedies only to applicants whose own Charter rights have been infringed Edwards
  
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  Obtained in a Manner: causal connection not strictly required; Generous approach is to be taken; is there sufficient connection given temporal, contextual, causal factors for it to be said the evidence has been tainted by the breach?
  

TEST Collins, Stillman:

1. 
   Would admitting the evidence adversely affect trial fairness?
   
2. 
   Was the Charter breach a serious one?
   
3. 
   Would the exclusion of evidence bring the administration of justice into greater dispreute than admitting the unconstitutionally obtained evidence?
   

TEST s.24(2) Post-Grant

Three Lines of Inquiry

1. 
   The seriousness of the Charter-infringing state conduct
   
2. 
   The impact of the breach on the Charter protected interests of the accused
   
3. 
   Society’s interest in the adjudication of the case on its merits
   

Court’s Role is to Balance the Assessments under each of the lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute
Classification of Evidence

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  Conscriptive:
  

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  In violation of his Charter rights “accused is compelled to incriminate himself at the behest of the state by means of a statement, the use of the body or the production of bodily samples” Stillman
  

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  Derivative:
  

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  Subset of conscriptive evidence; Accused conscripted against self, leading to discovery of real evidence
  

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  Otherwise Discoverable:
  

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  Evidence which could have been discovered by alternative non-conscriptive means or would have inevitably been discovered
  

R v. Cote

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  Seriousness
  

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  The more serious the state conduct constituting the Charter breach, the greater the need for courts to distance themselves from that conduct by excluding evidence linked to the conduct
  

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  Impact
  

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  The impact may range from that resulting from minor technical breach to that following a profoundly intrusive violation
  
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  The more serious the impact on the accused’s constitutional rights, the more the admission of the evidence is likely to bring the administration of justice into disrepute
  

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  Adjudication of the Merits
  

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  Reliability of evidence and its importance to Crown case are key
  
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  Admitting unreliable evidence won’t serve Accused’s fair trial interests nor Public desire to uncover truth
  
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  But excluding reliable evidence may undermine the truth-seeking function of the justice system
  
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  Importance of the evidence to the Crown’s case is corollary to reliability
  
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  Admitting evidence of questionable reliability is more likely to bring administration of justice into disrepute where it forms the whole of the prosecution’s case but excluding highly reliable evidence may more negatively affect the truth seeking function of the criminal law process where the effect is to “gut” the prosecution’s case
  

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  Discoverability
  

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  If the police could have conducted the search legally but failed to turn their minds to obtaining a warrant or proceeded under the view that they could not have demonstrated to a judicial officer that they had reasonable and probable grounds, the seriousness of the state conduct is heightened
  
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  If the search couldn’t have occurred legally, it’s considerably more intrusive of individual’s reasonable expectation of privacy; on the other hand, the fact that police could have demonstrated they had reasonable and probable grounds to believe offence had been committed and there was evidence to be found at place of search will tend to lessen impact of illegal search on accused’s privacy and dignity interests protected by Charter
  

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