Quieting the Right to Silence - Justin Paulic

Section 7 of the Canadian Charter of Rights and Freedoms (“Charter”) states:

“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.”

The right to silence is drawn from section 7 of the Charter and is one of the principles of fundamental justice that must be adhered to prior to denying a suspect of their right to liberty in the event of imprisonment. The right to silence gives suspects the freedom to remain silent after being detained or arrested, even during interrogation. The purpose of section 7 is to provide a balance between the interests of detainees and the interests of the state. From the perspective of the detainee, section 7 and the right to silence provide protection against an unfair use of resources by the state. From the perspective of the state, section 7 allows the state to deprive suspects of life, liberty, and security if the deprivation respects the principles of fundamental justice. Overall, the right to silence, and its purpose of balancing the interests between individuals and the state, seemingly demonstrates society’s eagerness to mitigate crime while maintaining a structure that respects individuals’ rights and freedoms.

Although the right to silence seeks to provide a balance between the interests of detainees and the state, the right often fails to provide a balance in practice. Allowing a detainee the freedom to remain silent when being questioned or interrogated is simply a shield against the state’s power and resources. Exercising this right does not give individuals an advantage throughout the judicial process. It merely prevents the state from garnering a further advantage. For example, the right to silence stems from common law rules which aim to (1) prevent individuals from incriminating themselves and (2) require that individuals confess voluntarily. Neither of these principles drive a suspect closer to acquittal but, instead, prevent the suspect from inching closer to conviction. It may be argued that keeping the state from gaining an advantage equates to an advantage for detainees. However, numerous cases exemplify the constant attempt, and occasional success, of the state in working around individuals’ right to silence.

Working around the right to silence

In R v Hebert (“Hebert”), the accused exercised his right to silence, but, after being taken to his cell, he made an incriminating statement to an undercover police officer who impersonated a detainee and elicited information from the accused. Hebert is an example of police attempting to work around the right to silence. However, the Supreme Court of Canada (“the Court”) in this case held that obtaining a confession in this manner does not align with section 7 and that such confessions cannot be used as admissible evidence. The Court in Hebert created the framework for allowable police actions regarding the right to silence and gathering information from detainees. Police persuasion does not infringe on section 7, provided that the suspect is not deprived of the right to choose and is not deprived of an operating mind. Additionally, a violation of section 7 and the right to silence only occurs when the state gathers information by undermining the suspect’s right to remain silent. This means that the state can gather information through an undercover agent so long as the agent does not perform any eliciting behavior. Although the Court in Hebert set out the framework for the right to silence, there are still cases that leave ambiguity as to what amounts to persuasion and what amounts to inadmissible trickery when trying to gather information from a suspect.

In R v Singh (“Singh”), the police essentially ignored the accused’s assertion of his right to silence eighteen times before the accused eventually admitted incriminating information. Despite the accused not being allowed to leave the interrogation, the majority of the Court held that the actions of the police amounted to reasonable persuasion in encouraging the accused to break his silence after his right to silence had been asserted. Although it appeared prima facie that the police did not deprive the accused of the right to choose, a closer analysis of the accused’s circumstance provides potential evidence to the contrary. By continually disregarding the accused’s wishes to remain silent, the interrogator sent a message to the accused that resistance was meaningless and that any attempt to remain silent would be ignored and merely result in an extended interrogation.

The dissenting judges in Singh observed that “[w]here 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.” Moreover, the Court in Hebert identified that the state has the power to intrude on both the physical and mental freedom of individuals, but “the state is not entitled to use its superior power to override the suspect’s will and negate his or her choice.” It appears that this was the situation in Singh. The state used its superior power to detain the accused and then overrode the suspect’s will by systematically disregarding the accused’s attempts to exercise his right to silence. Alternatively, it can be argued that the state deprived the accused of his right to choose. The accused attempted to remain silent, but the state did not accept any of the attempts, leaving the accused no choice but to surrender his right to silence.

From the state’s perspective, interrogation tactics are potential methods of mitigating and resolving crime. Whereas society values individual rights and freedoms, society also places high value on resolving crime and discovering the truth. It has been argued that, in seeking the truth, police tend to work from a presumption of guilt and attempt to extract evidence that supports their theories. This phenomenon poses a risk to individual rights and freedoms by threatening the individual’s presumption of innocence. It also influences the state’s attempts to work around section 7 and the right to silence. As society places great pressure on the state to find the truth, police are coerced to persuade and trick detainees in hopes of affirming theories and providing society with the truth.

However, as the scope of allowable persuasion widens, it is apparent that criminal procedure law regarding the Charter trends toward a securitized state that prioritizes police powers over the rights and freedoms of accused individuals. The shielding effects of section 7 and the right to silence will diminish as the state and police find ways to justify persuasion and trickery during attempts to coerce confessions from suspects. Although it may seem beneficial to get confessions from suspects, it should be noted that these attempts are also performed on innocent individuals. In addition to posing a risk to the individuals themselves, these attempts at working around the right to silence strain the judicial system by resulting in wasted time and resources throughout the interrogation process. In order to maintain reasonable civil liberties of individuals, courts must respect the interests of detainees regarding the right to silence and the protection section 7 gives individuals against the unfair use of state resources.