5. Pre-trial Rights To Silence

Author:David M. Paciocco - Lee Stuesser
Profession:Justice of the Ontario Court of Justice - Professor of Law, Bond University

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The central animating "right to silence" principle is that the accused is entitled to choose whether to speak to persons in authority. Adverse inferences cannot generally be drawn against an accused person because of his pre-trial silence for if they were allowed, those adverse inferences would deprive the accused of any meaningful choice to refrain from speaking.

Where the accused does speak there are a series of rules for determining whether those statements, or the evidence those statements lead to, can be admitted. The function of these rules is to protect the principle of choice by distinguishing those cases where the accused makes an integral choice to speak from those cases where that choice is not integral or truly voluntary.

The Common Law

The rule that is most often implicated is the common law "voluntariness rule." It applies generally to statements made by the accused to persons he knows or reasonably believes to be in authority. To satisfy the voluntariness rule and have such statements admitted against the accused, the Crown must establish beyond a reasonable doubt, in all of the circumstances, that the will of the accused to remain silent was not overborne by inducements, oppressive circumstances, the lack of an operating mind, or a combination of such things. In short, a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to its voluntariness.

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Not all efforts to persuade the accused to speak are improper. As a result, not all inducements will cause a confession to become inadmissible. What are problematic are "quid pro quo" promises or threats that by their nature raise a doubt about whether they caused the accused to speak against his will.

Even in the absence of "quid pro quo" promises or threats, voluntariness can be undermined by "oppressive circumstances," things such as depriving the accused of food, clothing, water, sleep, or medical attention, denying the accused access to counsel, or engaging in intimidating or prolonged questioning. The concern is that mistreatment like this can sap the will of the accused to resist requests for information.

The voluntariness of a statement will also be undermined where there is a reasonable doubt about whether the speaker had an "operating mind" sufficient to enable the accused to make a meaningful choice whether to speak. Unlike "inducements" and "oppression," "operating mind" considerations do not ordinarily relate to police conduct. An accused will fail to have an operating mind if he or she does not, because of intoxication, mental illness, injury or other cause, possess the limited degree of cognitive ability necessary to understand what he or she is saying, or to comprehend that his or her statements may be used in proceedings against him or her. Even if an accused suffering some diminished mental ability has an operating mind in this narrow sense, his subjective mental condition will nonetheless be relevant in determining whether any inducements or oppressive circumstances caused by persons in authority caused him to speak involuntarily.

Examining these factors alone or in conjunction, where the circumstances in which a confession has been made raise a reasonable doubt as to whether the will of the accused to choose to speak has been overborne, the voluntariness rule requires that the confession be excluded.

In the interests of protecting the integrity of the administration of justice, and altogether apart from the foregoing factors, a confession may also be considered "involuntary" and inadmissible if it is obtained by police trickery that, while "neither violating the right to silence nor undermining voluntariness per se, is so appalling as to shock the community."

Section 7

Section 7 of the Charter supplements the common law protections described above by giving constitutional recognition to the right of

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accused persons to choose whether to speak to persons in authority. This has resulted in several discrete rules that can cause the exclusion of evidence that would have been admissible at common law under the voluntariness rule.

Undercover/Detained Statements

Section 7 can cause the exclusion, for example, of statements surreptitiously and actively elicited from detained suspects by state agents. The Charter rejects such statements because active elicitation by undercover state agents will deprive detained suspects of the ability to make an effective choice whether to speak to the authorities.

Statutorily Compelled Statements

Section 7 will also require the exclusion, in proceedings that incriminate the accused, of some statements that the accused has been obliged by law to make. Not all statutorily compelled statements are excluded. Courts will make context-based decisions. They will look for (1) the existence of real coercion in making the statement, (2) the existence of an adversarial relationship at the time the statement is made, (3) any risk that the statement will be unreliable, and (4) the risk that the statutory authority to compel statements may lead to abuse of power. The presence or absence of these factors will be evaluated together to decide whether admission of the statement would compromise the purposes underlying the principle against self-incrimination. Those purposes include the protection of persons against making unreliable confessions, and the protection of personal autonomy and dignity.

Derivative Evidence

Prior to the Charter, the common law would have permitted real evidence discovered as a result of an involuntary confession to be admitted along with so much of the confession that the discovery of the real evidence confirmed to be true. It is likely that this rule has now been changed to conform to Charter principles, causing the exclusion of the entire involuntary statement as well as all otherwise undiscoverable evidence found as a result of the confession. Whether the common law has changed in this way or not, it is settled that section 7 of the Charter can produce this same effect by supplementing the common law and causing the exclusion of both the entire involuntary statement as well as evidence derived from it.

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The Redundant General Constitutional Right to Silence

Apart from these discrete rules, section 7 of the Charter has not caused wholesale modification to the common law. This is because the general constitutional right to silence will be satisfied in any case where the accused makes the choice to speak to authorities, or in other words, makes a voluntary statement. As a result, in cases other than detained/undercover statements and statutorily compelled statements, the Charter right to silence is redundant to the common law voluntariness rule. Since the Crown carries the heavy burden of proving voluntariness under the common law voluntariness rule and the accused bears the burden of establishing a Charter violation, the accused will generally be better off relying on the common law rule than attempting to invoke this general section 7 right to pre-trial silence.

Remedial Exclusion of Statements for the Breach of Other Charter Rights

There are other more general Charter rights distinct from the section 7 right to pre-trial silence that can result in the exclusion of statements made by the accused. Violations of the right to counsel represent the most common basis under the Charter for excluding statements. Where the accused establishes on the balance of probabilities that her statement was obtained in violation of a Charter right such as the right to counsel, or as the result of arbitrary detention, the statement is apt to be excluded under section 24(2) of the Charter, even if that statement was voluntary. Real evidence derived from statements obtained in violation of the Charter may, in some cases, be excluded as well.

5. 1) General

Recently the Supreme Court of Canada observed "that the common law right to silence simply reflects the general principle that absent statutory or legal compulsion, no one is obliged to provide information to the police or respond to questioning."116This observation is reminiscent of the theory that was used prior to the Charter to explain that the sole self-incrimination protections recognized in Canadian law at the time were the protection (as opposed to privilege) of witnesses against self-incrimination and the non-compellability of accused persons at their own trials, and to support the view that the involuntary confessions

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were excluded because of concern for their reliability, and not because their admission would violate any affirmative right to silence. While the underlying notion that the right to silence reflects...

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