R. v. Hebert, (1990) 110 N.R. 1 (SCC)

• Judge: Dickson, C.J.C., Lamer, Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 21, 1990
• Jurisdiction: Canada (Federal)
• Citations: (1990), 110 N.R. 1 (SCC);49 CRR 114;[1990] SCJ No 64 (QL);[1990] ACS no 64;[1990] 5 WWR 1;57 CCC (3d) 1;AZ-90111056;[1990] 2 SCR 151;110 NR 1;1990 CanLII 118 (SCC);47 BCLR (2d) 1;10 WCB (2d) 435;77 CR (3d) 145;JE 90-990

R. v. Hebert (1990), 110 N.R. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Neil Gerald Hebert (appellant) v. Her Majesty The Queen (respondent)

(21161)

Indexed As: R. v. Hebert

Supreme Court of Canada

Dickson, C.J.C., Lamer, Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin, JJ.

June 21, 1990.

Summary:

An accused charged with robbery was arrested and advised of his right to counsel under s. 10(b) of the Charter of Rights and Freedoms. After consulting with counsel, the accused was questioned and refused to give a statement. The accused was then placed in a cell with an undercover officer. The officer engaged the accused in conversation and the accused made incriminating statements implicating himself in the robbery.

The Yukon Supreme Court, in a judgment reported 3 Y.R. 88, held that the fraudulent subversion of the solicitor-client relationship violated the accused's rights under ss. 7 and 10(b) of the Charter. The court excluded the statement from evidence under s. 24(2). The accused was acquitted after the Crown elected to call no further evidence. The Crown appealed.

The Yukon Court of Appeal, in a judgment reported 3 Y.R. 81, allowed the appeal and ordered a new trial. The court held that the accused's Charter rights were not denied and the statement, if voluntary, was admissible in evidence. The accused appealed.

The Supreme Court of Canada allowed the appeal and restored the acquittal. The court held that the accused's right to silence, as guaranteed by s. 7, was violated by the use of police trickery to negate the accused's decision not to speak. The court held that the violation was not a reasonable limit prescribed by law under s. 1 of the Charter and the statement obtained must be excluded under s. 24(2) of the Charter to avoid bringing the administration of justice into disrepute.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right to remain silent - The Supreme Court of Canada stated that the right to life, liberty and security of the person under s. 7 of the Charter included the right of a detained person to remain silent - The court rejected the Crown's claim that the right to remain silent was limited to the pre-Charter confessions rule - The right to silence was rooted in two common law concepts: (1) the confessions rule and (2) privilege against self-incrimination - The court stated that the scope of the right to remain silent prior to trial under s. 7 must extend beyond the narrow view of the confessions rule.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right to remain silent - The Supreme Court of Canada stated that the right to remain silent did not prohibit police from questioning a suspect in the absence of counsel after the suspect retained counsel - If the police were not posing as undercover officers and the accused chose to volunteer information, there was no violation of the Charter - Police persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, did not breach the right to silence - See paragraph 72.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right to remain silent - The Supreme Court of Canada stated that the right to remain silent applied only after detention and not to pre-detention undercover operations - The right did not extend protection against police tricks before detection; nor did the Charter extend the right to counsel to pre-detention investigations - See paragraph 73.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right to remain silent - The Supreme Court of Canada stated that the right to silence predicated on the suspect's right to choose freely whether to speak to police or to remain silent did not affect voluntary statements made to fellow cell-mates - The violation of the suspect's rights occurred only when the Crown acted to subvert the suspect's constitutional right to choose not to make a statement to the authorities - This would be the case regardless of whether the agent used to subvert the accused's right was a cell-mate, acting at the time as a police informant, or an undercover police officer - See paragraph 74.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right to remain silent - The Supreme Court of Canada stated that in determining whether an accused's right to remain silent was violated a distinction must be made between using undercover agents to observe the suspect and using undercover agents to actively elicit information contrary to a suspect's choice to remain silent - When police use subterfuge to interrogate an accused after advising him of his right to silence, they are improperly eliciting information that they were unable to obtain by respecting his rights - However, absent eliciting behaviour, there is no violation of the accused's rights - If an accused speaks by his own choice he accepts the risk that the recipient will inform the police - See paragraph 75.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right to remain silent - An accused charged with robbery exercised his right to consult counsel and, in response to interrogation, chose to remain silent - The accused was placed in a cell with an undercover officer - The undercover officer elicited a statement from the accused, whereby the accused implicated himself in the robbery - The Supreme Court of Canada held that the police trickery violated the accused's right to remain silent, as protected by s. 7 of the Charter, because they did indirectly what they could not do directly - The court held that the violation was not a reasonable limit prescribed by law under s. 1 and the statement was to be excluded under s. 24(2) to avoid bringing the administration of justice into disrepute - See paragraph 80.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right to remain silent - The Supreme Court of Canada stated that the scope of the right to silence must be defined broadly enough to preserve a detained person's right to choose to speak or remain silent - The right to silence excludes tricks effectively depriving an accused of his choice - To permit authorities to trick an accused into confessing after declining to give a statement would be to permit the authorities to do indirectly what the Charter did not permit them to do directly - See paragraph 65.

Civil Rights - Topic 8309

Canadian Charter of Rights and Freedoms - Waiver of rights - A majority of the Supreme Court of Canada stated that there is no absolute right to silence capable of being discharged only by waiver - Sopinka and Wilson, JJ., dissenting on this point, stated that the doctrine of waiver should apply to the right to remain silent as it did to other Charter rights - See paragraphs 71, 135.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - Police obtained a statement implicating the accused in a robbery - The statement was elicited by an undercover officer placed in the accused's cell after the accused chose not to give a statement - The Supreme Court of Canada held that the accused's right to remain silent, as protected by s. 7 of the Charter, was violated - The court held that the violation was not saved by s. 1 of the Charter, because the police conduct was not a limit "prescribed by law" - See paragraphs 81 to 83.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Supreme Court of Canada stated that the three broad factors to consider in determining whether to exclude evidence under s. 24(2) were (1) the effect of admission on the fairness of the trial; (2) the seriousness of the Charter violation; and (3) the effect of exclusion on the repute of the administration of justice - See paragraph 86.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Police obtained a statement implicating the accused in a robbery - The statement was elicited by an undercover officer placed in the accused's cell after the accused chose not to give a statement - The accused's right to remain silent was violated - The Supreme Court of Canada excluded the statement from evidence under s. 24(2) of the Charter to avoid bringing the administration of justice into disrepute - The court stated that admission of the statement would render the trial unfair, where the accused was conscripted to give evidence against himself by trickery after clearly electing not to do so - See paragraphs 84 to 90.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Life, liberty and security of the person - [See first Civil Rights - Topic 3160].

Criminal Law - Topic 5338

Evidence - Witnesses - Confessions and voluntary statements - Admissibility - Where accused's rights violated - [See sixth Civil Rights - Topic 3160].

Cases Noticed:

R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485, dist. [para. 4].

R. v. Woolley (1988), 25 O.A.C. 390; 40 C.C.C.(3d) 531 (C.A.), refd to. [para. 9].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; 48 C.R.(3d) 289; 18 C.R.R. 30; [1986] 1 W.W.R. 481; 24 D.L.R.(4th) 536, refd to. [para. 14].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; [1985] 4 W.W.R. 286; 18 C.C.C.(3d) 481; 32 M.V.R. 153; 18 D.L.R.(4th) 655; 45 C.R.(3d) 97, refd to. [para. 16].

Commissioners of Customs & Excise v. Hartz, [1967] 1 All E.R. 177 (H.L.), refd to. [para. 21].

Ibrahim v. The King, [1914] A.C. 599, refd to. [para. 23].

R. v. Horvath, [1979] 2 S.C.R. 376; 25 N.R. 537, refd to. [para. 26].

R. v. Ward, [1979] 2 S.C.R. 30; 25 N.R. 514, refd to. [para. 26].

R. v. Wray, [1971] S.C.R. 272, dist. [para. 28].

Gach v. The King, [1943] S.C.R. 250, refd to. [para. 30].

Boudreau v. The King, [1949] S.C.R. 262, refd to. [para. 30].

R. v. Fitton, [1956] S.C.R. 958, refd to. [para. 31].

R. v. McLeod (1968), 5 C.R.N.S. 101, refd to. [para. 32].

R. v. McCorkell (1964-65), 7 Crim. L.Q. 395, refd to. [para. 32].

R. v. Clot (No. 1) (1982), 69 C.C.C.(2d) 349; 27 C.R.(3d) 324 (Que. S.C.), refd to. [para. 40].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; 33 C.C.C.(3d) 1; [1987] 3 W.W.R. 699, refd to. [para. 41].

R. v. Marcoux, [1976] 1 S.C.R. 763; 4 N.R. 64, refd to. [para. 42].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 27 B.L.R. 297; 33 Alta. L.R.(2d) 193; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 11 D.L.R.(4th) 641; 2 C.P.R.(3d) 1; [1984] 6 W.W.R. 577; 41 C.R.(3d) 97; 84 D.T.C. 6467, refd to. [para. 60].

R. v. Clarkson, [1986] 1 S.C.R. 383; 66 N.R. 114; 69 N.B.R.(2d) 40; 177 A.P.R. 40; 25 C.C.C.(3d) 207; 50 C.R.(3d) 289, refd to. [para. 71].

Kuhlmann v. Wilson (1986), 477 U.S. 436, refd to. [para. 76].

R. v. Logan and Dunbar (1988), 27 O.A.C. 154; 46 C.C.C.(3d) 354 (C.A.), refd to. [para. 77].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 82].

Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161, refd to. [para. 99].

Curr v. The Queen, [1972] S.C.R. 889, refd to. [para. 99].

R. v. Hansen (1988), 46 C.C.C.(3d) 504 (B.C.C.A.), refd to. [para. 100].

R. v. Eden, [1970] 3 C.C.C. 280 (Ont. C.A.), refd to. [para. 101].

R. v. Clarke (1979), 33 N.S.R.(2d) 636; 57 A.P.R. 636 (C.A.), refd to. [para. 101].

R. v. Engel (1981), 9 Man.R.(2d) 279 (C.A.), refd to. [para. 101].

R. v. Symonds (1983), 9 C.C.C.(3d) 225 (Ont. C.A.), refd to. [para. 101].

R. v. Minhas (1986), 16 O.A.C. 42; 53 C.R.(3d) 128 (C.A.), refd to. [para. 101].

R. v. Christie, [1914] A.C. 545 (H.L.), refd to. [para. 101].

Stein v. The King, [1928] S.C.R. 553, refd to. [para. 102].

Chapdelaine v. The King, [1935] S.C.R. 53, refd to. [para. 102].

Hall v. The Queen, [1971] 1 All E.R. 322 (P.C.), refd to. [para. 103].

Bessela v. Stern (1877), 2 C.P.D. 265 (C.A.), refd to. [para. 104].

MacKenzie v. Commer (1973), 44 D.L.R.(3d) 473 (N.S.C.A.), refd to. [para. 104].

R. v. Esposito (1985), 12 O.A.C. 350; 24 C.C.C.(3d) 88 (C.A.), refd to. [para. 105].

R. v. St. Lawrence, [1949] O.R. 215 (H.C.), refd to. [para. 106].

R. v. Dubois, [1985] 2 S.C.R. 350; 66 N.R. 289, refd to. [para. 106].

Taggart v. R. (1980), 13 C.R.(3d) 179 (Ont. C.A.), refd to. [para. 107].

Miranda v. Arizona (1966), 384 U.S. 436, refd to. [para. 107].

Massiah v. United States (1964), 377 U.S. 201, refd to. [para. 107].

United States v. Henry (1980), 447 U.S. 264, refd to. [para. 107].

Hoffa v. United States (1966), 385 U.S. 293, refd to. [para. 107].

Parkes v. The Queen, [1976] 1 W.L.R. 1251 (P.C.), refd to. [para. 109].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, [1986] 2 S.C.R. 573; 71 N.R. 83, refd to. [para. 109].

R. v. Hicks (1988), 28 O.A.C. 118; 42 C.C.C.(3d) 394 (C.A.), affd. [1990] 1 S.C.R. 120; 104 N.R. 399, refd to. [para. 110].

R. v. Thatcher, [1987] 1 S.C.R. 652; 75 N.R. 198; 57 Sask.R. 113, refd to. [para. 111].

R. v. Sanelli, Duarte and Fasciano, [1990] 1 S.C.R. 30; 103 N.R. 86; 37 O.A.C. 322, refd to. [para. 111].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192, refd to. [para. 116].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165, refd to. [para. 117].

R. v. Turpin, Siddiqui and Clauzel, [1989] 1 S.C.R. 1296; 96 N.R. 115; 34 O.A.C. 115, refd to. [para. 117].

R. v. Leclair and Ross, [1989] 1 S.C.R. 3; 91 N.R. 81; 31 O.A.C. 321, refd to. [para. 124].

R. v. Black, [1989] 2 S.C.R. 138; 98 N.R. 281; 93 N.S.R.(2d) 35; 242 A.P.R. 35, refd to. [para. 126].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; [1985] 3 W.W.R. 481; 13 C.R.R. 64, refd to. [para. 132].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [paras. 81, 119]; sect. 7 [paras. 3, 98]; sect. 10(b) [para. 3]; sect. 11(b) [para. 117]; sect. 11(c) [para. 55]; sect. 11(f) [para. 117]; sect. 24(2) [paras. 3, 84, 122].

Criminal Code, R.S.C. 1970, c. C-34, sect. 303 [para. 93].

Authors and Works Noticed:

Cross on Evidence (6th Ed. 1985), pp. 189-190 [para. 99].

Freedman, Admissions and Confessions, in Studies in Canadian Criminal Evidence (Salhany and Carter, eds. 1972), p. 99 [para. 37].

Galligan, D.J., The Right to Silence Reconsidered (1988), 41 C.L.P. 69, pp. 76-77 [para. 15].

Kaufman, F., The Admissibility of Confessions (3rd Ed. 1979), p. 236 [para. 32].

Kaufman, F., The Admissibility of Confessions (3rd Supp. 1986), p. 119 [para. 40].

Ratushny, Is There a Right Against Self-Incrimination in Canada? (1973), 19 McGill L.J. 1, p. 13 [para. 103].

Ratushny, Self-Incrimination in the Canadian Criminal Process (1979), p. 253 [para. 44].

Counsel:

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.

Solicitors of Record:

O'Brien & Horembala, Whitehorse, Yukon and Greenspan, Rosemberg, Whitehorse, Yukon, for the appellant;

John C. Tait, Ottawa, Ontario, for the respondent.

This appeal was heard on November 8, 1989, before Dickson, C.J.C., Lamer, Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin, JJ., of the Supreme Court of Canada.

On June 21, 1990, the decision of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

McLachlin, J. (Dickson, C.J.C., Lamer, La Forest, L'Heureux-Dubé, gonthier and Cory, JJ., concurring) - see paragraphs 1 to 91;

Sopinka, J. - see paragraphs 92 to 128;

Wilson, J. - see paragraphs 129 to 136.