Interlude, Part II


From the Right to Retain Counsel, to the Right to Remain Silent.  I’m sure glad that our Supreme Overlords are on the job, looking out for our best interests…


Citation: R. v. Singh, [2007] 3 S.C.R. 405, 2007 SCC 48

Date:  2007-11-01

Docket:  31558


Jagrup Singh



Her Majesty The Queen



Attorney General of Ontario,

Director of Public Prosecutions of Canada,

Criminal Lawyers’ Association of Ontario and

Canadian Association of Chiefs of Police



Take note of that last Intervener…what did I say in my last post?


The accused was arrested for second degree murder in respect of the shooting death of an innocent bystander who was killed by a stray bullet while standing just inside the doorway of a pub.  The accused was advised of his right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms and privately consulted with counsel.  During the course of two subsequent interviews with police, the accused stated on numerous occasions that he did not want to talk about the incident.  The interviewing officer persisted in trying to get him to make a statement.  While the accused never confessed to the crime, he made a number of admissions which, when taken together with other evidence, later became probative of the issue of identification at trial.  On the voir dire to determine the admissibility of the statements made by the accused, the trial judge held, after reviewing all of the circumstances surrounding the interrogation and the making of the incriminating admission, that the admission came freely and did not result from the police systematically breaking down his operating mind or undermining his right to silence.  The probative value of the statements was held to outweigh their prejudicial effect and the trial judge thus ruled them admissible.  The accused was subsequently convicted by a jury.  The Court of Appeal upheld the trial judge’s ruling and affirmed the conviction.  Both in the Court of Appeal and in this Court the accused did not contest the trial judge’s findings of fact nor his conclusion that the statements were voluntary; his appeal solely concerns the s. 7 Charter right to silence.

Held (Binnie, LeBel, Fish and Abella JJ. dissenting):  The appeal should be dismissed.


That means the guy lost his case

The judgment of McLachlin C.J. and Bastarache, Deschamps, Charron and Rothstein JJ. was delivered by

Charron J.  —

1.  Overview

1                                   This appeal concerns the scope of a detainee’s pre-trial right to silence under s. 7 of the Canadian Charter of Rights and Freedoms and, in particular, the intersection between this Charter right as defined in R. v. Hebert, 1990 CanLII 118 (S.C.C.), [1990] 2 S.C.R. 151, and the common law voluntary confessions rule as restated in R. v. Oickle, 2000 SCC 38 (CanLII), [2000] 2 S.C.R. 3, 2000 SCC 38. As in those cases, the discussion in this appeal focusses on the tension between the rights of the accused and society’s interest in the effective investigation and resolution of crimes.

7                                   First, I reject the appellant’s contention that this Court should change the law relating to the pre-trial Charter right to silence.  The new approach advocated by the appellant ignores the critical balancing of state and individual interests which lies at the heart of this Court’s decision in Hebert and of subsequent s. 7 decisions. I see no reason to depart from these established principles.

Of course not…heaven forbid that the Overlords support and defend our rights – or even expand on them!


18                              The Court of Appeal held that Mr. Singh’s broad proposition on the limits of police interrogation could not be supported by a fair reading of Hebert and was inconsistent with the weight of authority.  Rather, the case law recognizes that “the police are not precluded from using reasonable persuasion to encourage a detained person to break his silence after his right to silence has been asserted following the exercise of the right to counsel” (para. 15).  The court concluded that the trial judge properly relied on the holding in Hebert that “[p]olice persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence” (Hebert, at p. 184).


3.  Analysis

3.1   Self-incrimination: The Overarching Principle from Which Both the Confessions Rule and the Right to Silence are Derived

21                              Although historically the confessions rule was more concerned with the reliability of confessions than the protection against self-incrimination, this no longer holds true in the post-Charter era.  Both the confessions rule and the constitutional right to silence are manifestations of the principle against self-incrimination.  The principle against self-incrimination is a broad concept which has been usefully described by Lamer C.J. as a “general organizing principle of criminal law” from which a number of rules can be derived:  R. v. Jones, 1994 CanLII 85 (S.C.C.), [1994] 2 S.C.R. 229, at p. 249.  Similarly, Iacobucci J. in R. v. White, 1999 CanLII 689 (S.C.C.), [1999] 2 S.C.R.  417, described the principle against self-incrimination in these words:

The jurisprudence of this Court is clear that the principle against self-incrimination is an overarching principle within our criminal justice system, from which a number of specific common law and Charter rules emanate, such as the confessions rule, and the right to silence, among many others. The principle can also be the source of new rules in appropriate circumstances. Within the Charter, the principle against self-incrimination is embodied in several of the more specific procedural protections such as, for example, the right to counsel in s. 10(b), the right to non-compellability in s. 11(c), and the right to use immunity set out in s. 13.  The Charter also provides residual protection to the principle through s. 7. [Emphasis added; para. 44.]


So, the Overlords were not legally precluded from expanding this right, they just chose not to!

To me, there didn’t seem to be anything much in the way of extra-ordinary legal justification for their ruling, other than simply maintaining the status quo.

Let’s take a look at the minority (dissenting) opinion:


The reasons of Binnie, LeBel, Fish and Abella JJ. were delivered by

Fish J. (dissenting)  —


55                              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. As a matter of constitutional principle, I would answer that question in the negative, allow the appeal and order a new trial.


58                              The appellant, Jagrup Singh, asserted his right to silence unequivocally —  not once, but 18 times.  Throughout his interrogation, Mr. Singh was imprisoned in a police lock-up.  In the trial judge’s words, he was “totally under the control of the police authorities”, “[did] not have freedom of unescorted movement” and “relie[d] totally on his jailers for the necessities of life” (Ruling on the voir dire, 2003 BCSC 2013 (CanLII), [2003] B.C.J. No. 3174 (QL), 2003 BCSC 2013, at para. 8).  Powerless to end his interrogation, Mr. Singh asked, repeatedly, to be returned to his cell.  Yet he was not permitted to do so until he capitulated and made the incriminating statements impugned on this appeal.

59                              Mr. Singh’s interrogator understood very well that Mr. Singh had chosen not to speak with the police.  The interrogator nonetheless disregarded Mr. Singh’s repeated assertions of his right to silence.  It is undisputed that he did so “in an effort to get [Mr. Singh] to confess, no matter what” (Ruling on the voir dire, at para. 34 (emphasis added)).

60                              In his relentless pursuit of this objective, the interrogator urged Mr. Singh, subtly but unmistakeably, to forsake his counsel’s advice.  I find this aspect of the interrogation particularly disturbing.


Seems to me that there was a little more going on than the po-leece asking him to “pretty please talk to us”…

70                              Before leaving this branch of the matter, I take care not to be understood to have held that 18 (a significant number in other contexts) is of any importance at all in determining whether a detainee’s right of silence has been effectively undermined.  On the contrary, I favour a purposive approach and find it unnecessary to decide whether 18 times is too many or once is too few.  Constitutional rights do not have to be asserted or invoked a pre-determined number of times before the state and its agents are bound to permit them to be exercised freely and effectively.  A right that need not be respected after it has been firmly and unequivocally asserted any number of times is a constitutional promise that has not been kept.

71                              Nothing in Hebert, or in any other decision of this Court, permits the police to press detainees to waive the Charter rights they have firmly and unequivocally asserted, or to deliberately frustrate their effective exercise. This is true of the right to counsel and true as well of the right to silence.


That sounds about right – I’m sure the majority of Canadians would agree with these sentiments.


87                              Neither of these rights has been given constitutional protection on the condition that it not be exercised, lest the investigation of crime be brought to a standstill.  On the contrary, the policy of the law is to facilitate, and not to frustrate, the effective exercise of both rights by those whom they are intended to protect. They are Charter rights, not constitutional placebos.


Exactly – a right is a right is a right, and must be treated as such.

88                              Moreover, we have no evidence to support the proposition that requiring the police to respect a detainee’s right of silence, once it has been unequivocally asserted, would have  a “devastating impact” on criminal investigations anywhere in this country.


96                              Finally, even in the absence of the required evidentiary foundation, I am prepared for present purposes to recognize that the work of the police would be made easier (and less challenging) if police interrogators were permitted to undermine the constitutionally protected rights of detainees, including the right to counsel and the right to silence — either by pressing detainees to waive them, or by “unfairly frustrat[ing]” their exercise (Hebert, at p. 186).  More draconian initiatives might prove more effective still.


At least someone on the Top Bench seems to “get it”…

97                              Nonetheless and without hesitation, 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.  The right to silence, like the right to counsel, is in my view a constitutional promise that must be kept.


Amen to that, brother man!  Sadly, this is just the Minority Report, so it seems that we have neither the Right to Retain or Remain, just Do As We Say!

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