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R. v. Hebert, [1990] 2 S.C.R. 151

 

Neil Gerald Hebert        Appellant

 

v.

 

Her Majesty The Queen    Respondent

 

indexed as:  r. v. hebert

 

File No.:  21161.

 

1989:  November 8; 1990:  June 21.

 

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

 

on appeal for the court of appeal for the yukon territory

 

    Constitutional law -- Charter of Rights -- Fundamental justice ‑‑ Right to silence -- Scope of right to silence -- Accused refusing to make statements to police after consulting counsel -- Accused later making inculpatory statements to undercover police officer placed in his cell -- Whether accused's right to remain silent infringed -- If so, whether statements admissible -- Canadian Charter of Rights and Freedoms, ss. 7, 24(2).

 

    Constitutional law -- Charter of Rights -- Waiver -- Right to silence -- Whether doctrine of waiver applies to right to silence -- Canadian Charter of Rights and Freedoms, s. 7.

 

    Constitutional law -- Charter of Rights -- Reasonable limits ‑‑ Accused refusing to make statements to police after consulting counsel ‑‑ Accused later making inculpatory statements to undercover police officer placed in his cell -- Violation of accused's right to remain silent -- Whether limit imposed on accused's right to remain silent "prescribed by law" within the meaning of s. 1 of the Canadian Charter of Rights and Freedoms.

 

    Constitutional law -- Charter of Rights -- Admissibility of evidence ‑‑ Bringing administration of justice into disrepute -- Accused refusing to make statements to police after consulting counsel -- Accused later making inculpatory statements to undercover police officer placed in his cell ‑‑ Violation of accused's right to remain silent -- Whether statements should be excluded pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms.

 

    Evidence -- Confessions -- Admissibility -- Accused refusing to make statements to police after consulting counsel -- Accused later making inculpatory statements to undercover police officer placed in his cell ‑‑ Violation of accused's right to remain silent -- Whether statements admissible -- Canadian Charter of Rights and Freedoms, s. 24(2).

 

    The accused was arrested on a charge of robbery and informed upon arrest of his right to counsel.  At the police station, after consulting counsel, he advised the police that he did not wish to make a statement.  The accused was then placed in a cell with an undercover police officer posing as a suspect under arrest by police.  The officer engaged the accused in conversation, during which the accused made various incriminating statements implicating him in the robbery.  Prior to trial, there was a voir dire to determine the admissibility of these statements.  The judge held that the accused's right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms and his right to remain silent asserted under s. 7 of the Charter had been violated and excluded the statements pursuant to s. 24(2) of the Charter.  The Crown offered no evidence, and the accused was later acquitted.  The Court of Appeal set aside the accused's acquittal and ordered a new trial.  The Court found that the police conduct did not violate the accused's right to counsel or his right to remain silent.

 

    Held:  The appeal should be allowed.

 

    Per Dickson C.J. and Lamer, La Forest, L'Heureux‑Dubé, Gonthier, Cory and McLachlin JJ.:  Section 7 of the Charter accords a detained person a pre‑trial right to remain silent, and the scope of that right extends beyond the narrow formulation of the confessions rule.  The rules relating to the right to remain silent adopted by our legal system, such as the common law confessions rule and the privilege against self‑incrimination, suggest that the scope of the right in the pre‑trial detention period must be based on the fundamental concept of the suspect's right to freely choose whether to speak to the authorities or remain silent.  This concept, which is accompanied by a correlative concern with the repute and integrity of the judicial process, is consistent with the right to counsel and the right against self‑incrimination affirmed by the Charter.  It is also consistent with the Charter's approach to the question of improperly obtained evidence under s. 24(2) and with the underlying philosophy and purpose of the procedural guarantees the Charter enshrines -- in particular in s. 7.  That section imposes limits on the power of the state over the detained person and seeks to effect a balance between their respective interests.  Under s. 7, the state is not entitled to use its superior power to override the suspect's will and negate his choice to speak to the authority or to remain silent.  The courts, therefore, must adopt an approach to pre-trial interrogation which emphasizes the right of a detained person to make a meaningful choice and which permits the rejection of statements which have been obtained unfairly in circumstances that violate that right of choice.  The test to determine whether the suspect's choice has been violated is essentially objective.  The focus of the inquiry under the Charter will be on the conduct of the authorities vis-à-vis the suspect.  Further, since the right to remain silent under s. 7 is not an absolute right but must be qualified by considerations of the state interest and the repute of the judicial system, the Clarkson standard relating to waiver of a Charter right does not apply to the right to silence.

 

    The scope of the right to silence, however, does not go as far as to prohibit police from obtaining confessions in all circumstances.  The proposed approach to the s. 7 right to silence retains the objective approach to the confessions rule and would permit the rule to be subject to the following limits.  First, there is nothing that prohibits the police from questioning an accused or a suspect in the absence of counsel after he has retained counsel.  Police persuasion, short of denying the suspect the right to choose or of depriving him of an operating mind, does not breach the right to silence.  Second, the right applies only after detention.  Third, the right does not affect voluntary statements made to fellow cell mates.  The violation of the suspect's rights occurs only when the Crown acts to subvert the suspect's constitutional right to choose not to make a statement to the authorities.  Fourth, a distinction must be made between the use of undercover agents to observe the suspect, and the use of undercover agents to actively elicit information in violation of the suspect's choice to remain silent.  Finally, even where a violation of the suspect's right is established, the evidence may, where appropriate, be admitted.  Only if the court is satisfied that its reception would be likely to bring the administration of justice into disrepute can the evidence be rejected under s. 24(2) of the Charter.  Where the police have acted with due care for the suspect's rights, it is unlikely that the statements they obtain will be held inadmissible.

 

    Here, the accused exercised his choice not to speak to the police and the police violated his right to remain silent under s. 7 of the Charter by using a trick to negate his decision.  Section 1 of the Charter was inapplicable because the police conduct was not a limit "prescribed by law" within the meaning of that section.

 

    The evidence obtained in breach of the accused's right under s. 7 should be excluded pursuant to s. 24(2) of the Charter.  Where an accused is conscripted to give evidence against himself after clearly electing not to do so by use of an unfair trick practised by the authorities, and where the resultant statement is the only evidence against him, the reception of the evidence would render the trial unfair.  The accused would be deprived of his presumption of innocence and would be placed in the position of having to take the stand if he wished to counter the damaging effect of the confession.  Further, the Charter violation was a serious one as the conduct of the police was wilful and deliberate.  Finally, while the exclusion of the evidence would result in an acquittal, since virtually the only evidence against the accused was his statement to the undercover policeman, it is clear in balancing the three factors set out in Collins that, under the present circumstances, it is the admission of the evidence, not its exclusion, that would bring the administration of justice into disrepute.  It is contrary to the notions of fundamental justice to require an accused to secure his own conviction.

 

    Per Wilson and Sopinka JJ.:  The right to remain silent is an integral element of our system of criminal justice and has the status of a principle of fundamental justice within the meaning of s. 7 of the Charter.  This right is distinct from the privilege against self‑incrimination, which applies only in the course of proceedings.  The content of the residual right to remain silent protected by s. 7 extends at least as far as the common law right.  The content of the right at common law, however, should not be confused with the efficacy of its enforcement.  The enforcement mechanisms available to judges at common law do not compare to those granted by s. 24 of the Charter, particularly the power to exclude evidence under s. 24(2).  To define Charter rights only in accordance with the ultimate effectiveness of their common law and statutory antecedents would be to deny the supremacy of the Constitution.

 

    The right to remain silent, which is designed to shield an accused from the unequal power of the prosecution, arises when the coercive power of the state is brought to bear against the individual, either formally (by arrest or charge) or informally (by detention or accusation).  It is at this point that an adversary relationship comes to exist between the state and the individual.  The right, however, does not avail against private individuals.  Once the right to remain silent attaches, any communication between an accused and an agent of the state (including a suborned informer) is subject to the right and may proceed only if the accused waives the right; but communication between an accused and another private individual is not subject to the right.

 

    In this case, the accused's right to remain silent under s. 7 of the Charter was violated.  The undercover police officer "engaged the accused in conversation" after the latter was charged and while he was in custody.  In light of the Clarkson standard relating to waiver of a Charter rights, the accused did not waive his right to remain silent by speaking to the undercover officers.  The limiting effect on the accused's right to remain silent was not "prescribed by law", and it is therefore unnecessary to consider the application of s. 1 of the Charter.

 

    The evidence of the incriminating statements elicited by the undercover police officer should be excluded pursuant to s. 24(2) of the Charter.  The self‑incriminating evidence sought to be adduced in this case, if admitted, would render the trial unfair and would bring the administration of justice into disrepute.  It would strip the accused of the presumption of innocence and would place him in the invidious position of having to take the stand, contrary to the privilege against self‑incrimination, in order to disclaim the confession.  The good faith of the police officers, who arranged for the deception of the accused relying on the authority of Rothman, is not a significant factor in favour of receiving the evidence.  Where impugned evidence falls afoul of the first set of factors set out in Collins (trial fairness), the admissibility of such evidence cannot be saved by resort to the second set of factors (the seriousness of the violation).  These two sets of factors are alternative grounds for the exclusion of evidence, and not alternative grounds for the admission of evidence.

 

    Per Wilson J.:  The right to remain silent is a principle of fundamental justice within the meaning of s. 7 of the Charter.  This right, which arises whenever the coercive power of the state is brought to bear upon the citizen, must be given a generous interpretation to fulfill its purpose.  It is accordingly inappropriate to qualify it by balancing the interests of the state against it or by applying to it the considerations relevant to the admissibility of evidence set out in s. 24(2) of the Charter.  In deciding whether or not the authorities have offended fundamental justice, it is essential to focus on the treatment of the accused and not on the objective of the state.  It would be contrary to a purposive approach to the s. 7 right to inject justificatory considerations for putting limits upon it into the ascertainment of its scope or content.  For the same reasons, it is inappropriate to merge the question whether statements elicited in violation of the s. 7 right should be admitted into evidence with the question whether the right has in fact been violated.  The repute of the justice system has no bearing on whether the right to silence has been violated contrary to the principles of fundamental justice.  Finally, the doctrine of waiver applies to the right to remain silent under s. 7 as it does to other rights in the Charter.

 

Cases Cited

 

By McLachlin J.

 

    Distinguished:  Rothman v. The Queen, [1981] 1 S.C.R. 640; R. v. Wray, [1971] S.C.R. 272; referred to:  R. v. Woolley (1988), 40 C.C.C. (3d) 531; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Therens, [1985] 1 S.C.R. 613; Commissioners of Customs & Excise v. Harz, [1967] 1 All E.R. 177; Ibrahim v. The King, [1914] A.C. 599; Horvath v. The Queen, [1979] 2 S.C.R. 376; Ward v. The Queen, [1979] 2 S.C.R. 30; Gach v. The King, [1943] S.C.R. 250; Boudreau v. The King, [1949] S.C.R. 262; R. v. Fitton, [1956] S.C.R. 958; R. v. McLeod (1968), 5 C.R.N.S. 101; R. v. McCorkell (1964-65), 7 Crim. L.Q. 395; R. v. Collins, [1987] 1 S.C.R. 265; Marcoux v. The Queen, [1976] 1 S.C.R. 763; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Clarkson v. The Queen, [1986] 1 S.C.R. 383; Kuhlmann v. Wilson, 477 U.S. 436 (1986); R. v. Logan (1988), 46 C.C.C. (3d) 354; R. v. Thomsen, [1988] 1 S.C.R. 640; R. v. Clot (No. 1) (1982), 69 C.C.C. (2d) 349.

 

By Sopinka J.

 

    Referred to:  Rothman v. The Queen, [1981] 1 S.C.R. 640; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; Curr v. The Queen, [1972] S.C.R. 889; Marcoux v. The Queen, [1976] 1 S.C.R. 763; R. v. Woolley (1988), 40 C.C.C. (3d) 531; R. v. Hansen (1988), 46 C.C.C. (3d) 504; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Eden, [1970] 3 C.C.C. 280; R. v. Clarke (1979), 33 N.S.R. (2d) 636; R. v. Engel (1981), 9 Man. R. (2d) 279; R. v. Symonds (1983), 9 C.C.C. (3d) 225; R. v. Minhas (1986), 53 C.R. (3d) 128; R. v. Christie, [1914] A.C. 545; Stein v. The King, [1928] S.C.R. 553; Chapdelaine v. The King, [1935] S.C.R. 53; Hall v. The Queen, [1971] 1 All E.R. 322; Bessela v. Stern (1877), 2 C.P.D. 265; MacKenzie v. Commer (1973), 44 D.L.R. (3d) 473; R. v. Esposito (1985), 24 C.C.C. (3d) 88; R. v. St. Lawrence, [1949] O.R. 215; R. v. Wray, [1971] S.C.R. 272; Ibrahim v. The King, [1914] A.C. 599; Dubois v. The Queen, [1985] 2 S.C.R. 350; Taggart v. R. (1980), 13 C.R. (3d) 179; Miranda v. Arizona, 384 U.S. 436 (1966); Massiah v. United States, 377 U.S. 201 (1964); United States v. Henry, 447 U.S. 264 (1980); Kuhlmann v. Wilson, 477 U.S. 436 (1986); Hoffa v. United States, 385 U.S. 293 (1966); Parkes v. The Queen, [1976] 1 W.L.R. 1251; RWDSU v. Dolphin Delivery Inc., [1986] 2 S.C.R. 573; R. v. Hicks (1988), 42 C.C.C. (3d) 394 (Ont. C.A.), aff'd [1990] 1 S.C.R. 120; R. v. Thatcher, [1987] 1 S.C.R. 652; R. v. Smith, Wilson and Quesnelle, Ont. S.C., November 5, 1987; R. v. Duarte, [1990] 1 S.C.R. 30; Clarkson v. The Queen, [1986] 1 S.C.R. 383; R. v. Manninen, [1987] 1 S.C.R. 1233; R. v. Conway, [1989] 1 S.C.R. 1659; R. v. Turpin, [1989] 1 S.C.R. 1296; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Thomsen, [1988] 1 S.C.R. 640; R. v. Ross, [1989] 1 S.C.R. 3; R. v. Black, [1989] 2 S.C.R. 138.

 

By Wilson J.

 

    Referred to:  R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms, ss. 7, 10(b), 24(2).

 

Criminal Code, R.S.C. 1970, c. C‑34, s. 303 [am. 1972, c. 13, s. 70].

 

Authors Cited

 

Cross, Sir Rupert.  Cross on Evidence, 6th ed.  By Sir Rupert Cross and Colin Tapper.  London:  Butterworths, 1985.

 

Freedman, Samuel.  "Admissions and Confessions". In Roger E. Salhany and Robert J. Carter, eds., Studies in Canadian Criminal Evidence.  Toronto:  Butterworths, 1972.

 

Galligan, D. J.  "The Right to Silence Reconsidered" (1988), 41 C.L.P. 69.

 

Harris, M. H.  "Concerning Statements to Police Officers" (1964-65), 7 Crim. L.Q. 395.

 

Kaufman, Fred.  The Admissibility of Confessions, 3rd ed.  Toronto:  Carswells, 1979.

 

Kaufman, Fred.  The Admissibility of Confessions. Third supplement (cumulative) to the third edition.  Toronto:  Carswells, 1986.

 

Ratushny, Ed.  "Is There a Right Against Self‑Incrimination in Canada?" (1973), 19 McGill L.J. 1.

 

Ratushny, Ed.  Self‑Incrimination in the Canadian Criminal Process.  Toronto:  Carswells, 1979.

 

    APPEAL from a judgment of the Yukon Court of Appeal (1988), 3 Y.R. 81, 29 B.C.L.R. (2d) 296, 43 C.C.C. (3d) 56, allowing the Crown's appeal from the accused's acquittal on a charge of robbery contrary to s. 303 of the Criminal Code.  Appeal allowed.

 

    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.

 

//McLachlin J.//

 

    The judgment of Dickson C.J. and Lamer, La Forest, L'Heureux-Dubé, Gonthier, Cory and McLachlin JJ. was delivered by

 

    MCLACHLIN J. -- This case raises the issue of whether a statement made by a detained person to an undercover police officer violates the rights of the accused under the Canadian Charter of Rights and Freedoms.

 

The Facts

 

    The accused, after consulting counsel and advising the police that he did not wish to make a statement to them, was tricked into making a statement by the ruse of an undercover police officer placed in the cell to which he was taken.  The question is whether this violates his rights under the Charter and if so, whether the trial judge was right in refusing to admit the statement in evidence.

 

    The agreed statement of facts reads as follows:

 

1.On January 11, 1987 at approximately 6:00 a.m., a male person wearing a ski mask entered the Klondike Inn and approached the front desk clerk, and told the clerk to give him the money.  He then raised a claw hammer in the air in a threatening motion and again demanded the money.  The clerk complied, and passed over to the culprit the sum of $180.00, the contents of the till.  The culprit then told the clerk to wait ten minutes before calling the police, and fled the scene on foot.  He was last seen heading in the direction of 4th Avenue.

 

2.In the course of the investigation over the next several months, police received confident [sic] information from three informants that the person responsible for the robbery was the accused, Neil Gerald HEBERT.

 

3.On April 15, 1987, at 8:42 p.m., the accused was located by the police in the lounge area of the Taku Hotel in Whitehorse.  He was placed under arrest, advised of his right to retain and instruct counsel without delay, and taken to the R.C.M.P. Detachment.

 

4.Once at the Detachment, HEBERT contacted counsel and obtained advice from counsel regarding his right to refuse to give a statement.

 

5.The police were aware that HEBERT had contacted counsel and of the identity of that counsel.

 

6.After exercising his right to contact counsel, HEBERT was taken into an interview room by Constable Mike Stewart.  He was given the usual police caution, and then told that the police wanted to know why he had done it.  He indicated that he did not wish to make a statement.

 

7.He was then placed in a cell with Corporal Daun Miller, disguised in plainclothes, and posing as a suspect under arrest by police.  While in the cell, Corporal Miller engaged the accused in conversation, during which the accused made various incriminating statements which implicated himself in the robbery of January 11, 1987.

 

The Legislation

 

Canadian Charter of Rights and Freedoms

 

    7.  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.

 

    10.  Everyone has the right on arrest or detention

 

                                                                          . . .

 

(b) to retain and instruct counsel without delay and to be informed of that right; and

 

    24.  . . .

 

    (2)  Where, in proceedings under subsection (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, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

 

The Judgments

 

    The trial judge, Maddison J., held that the accused's right to counsel and right to remain silent had been violated: (1987), 3 Y.R. 88.  He distinguished Rothman v. The Queen, [1981] 1 S.C.R. 640, where this Court ruled admissible a statement to an undercover police officer, on the grounds that: (1) in Rothman the accused had not retained counsel at the time of the statement; and (2) Rothman was decided before the advent of the Charter.

 

    On the right to counsel, the trial judge said, at p. 91:

 

    I am of the opinion that to subvert the lawyer‑client relationship by means of fraud on the client effectively destroys the retainer and thus destroys one of the legal rights guaranteed by the Charter.

 

    The trial judge also held that the accused's right to remain silent had been violated.  He concluded, at p. 91:

 

    The [appellant] exercised his right to remain silent and at no time thereafter waived his right to remain silent by agreeing to speak to a person in authority.  He was then, by trickery, induced to make incriminating statements.  That is a wilful and deliberate breach of the [appellant's] right to silence, which by itself, in the view of the majority of the Supreme Court of Canada in Rothman is an acceptable means to an end.  Done in the context of his having retained counsel and the knowledge of the police to that effect it is unfair and the admission of the evidence in the proceedings could bring the administration of justice into disrepute.

 

    The Court of Appeal for the Yukon Territories held that the trial judge erred in rejecting the accused's statement to the undercover officer: (1988), 3 Y.R. 81, 29 B.C.L.R. (2d) 96, 43 C.C.C. (3d) 56.  In its view, neither the accused's right to counsel nor his right to remain silent had been breached.  The Court rejected the view that the right to counsel under s. 10(b) of the Charter precluded questioning in the absence of counsel after counsel had been contacted.  As for the right to remain silent asserted under s. 7 of the Charter, the Court of Appeal found the principles of fundamental justice upon which the right must rest must be interpreted in the context of Rothman, where interrogation by a police officer posing as a fellow prisoner was held not to violate the principles of fundamental justice.

 

The Issues

 

    There are two main issues:

 

    1. Were the appellant's rights under the Charter infringed?

 

    (a) Was his right to remain silent infringed?

 

                            (b) Was his right to counsel infringed?

 

2.If the appellant's rights were infringed, was the statement admissible under s. 24(2) of the Charter?

 

    The parties agree that s. 7 of the Charter accords a right to silence to a detained person.  As Cory J.A. (as he then was) stated in R. v. Woolley (1988), 40 C.C.C. (3d) 531 (Ont. C.A.), at p. 539: "The right to remain silent is a well‑settled principle that has for generations been part of the basic tenets of our law."  The parties disagree, however, over the extent of the right to silence of a detained person accorded by s. 7 of the Charter.

 

    The Crown submits that the right to silence is defined by the ambit of the confessions rule as it stood at the time the Charter was adopted.  It would follow from this that statements obtained by tricks such as the one practised here would be admissible:  Rothman, supra.

 

    The accused submits that the right to silence guaranteed by s. 7 of the Charter is broader than the confessions rule as it stood in 1982, and that the use of tricks to obtain a confession after the suspect has chosen not to give a statement violates the Charter.

 

    The parties also agree that s. 10(b) of the Charter creates a right to counsel.  The disagreement, once again, is as to the extent of that right.  Is it confined to s. 10(b)?  Or is there a broader right to counsel under s. 7?

 

    I see the issues of the right of a detained person to remain silent and the right to counsel as intertwined.  The question, as I view it, is whether, bearing in mind the Charter guarantee of the right to counsel and other provisions of the Charter, the accused's right to remain silent has been infringed.

 

Analysis

 

I.  Have the Appellant's Charter Rights Been Violated?

 

    (a) General Considerations

 

    The appellant's liberty is at stake.  Under section 7 of the Charter, he can only be deprived of that liberty in accordance with the principles of fundamental justice.  The question is whether the manner in which the police obtained a statement from him violates that right.  The answer to this question lies in an exploration of the underlying legal principles of our system of justice relevant to a detained person's right to silence.  As Lamer J. stated in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 503:

 

. . . the principles of fundamental justice are to be found in the basic tenets of our legal system.

 

    How do we discover the "basic tenets of our legal system" in a case such as this?  Initially, it must be by reference to the legal rules relating to the right which our legal system has adopted.  As D. J. Galligan points out in "The Right to Silence Reconsidered" (1988), 41 C.L.P. 69, at pp. 76‑77: "The right . . . is general and abstract, concealing a bundle of more specific legal relationships.  It is only by an analysis of the surrounding legal rules that those more precise elements of the right can be identified."  Thus rules such as the common law confessions rule, the privilege against self‑incrimination and the right to counsel may assist in determining the scope of a detained person's right to silence under s. 7.

 

    At the same time, existing common law rules may not be conclusive.  It would be wrong to assume that the fundamental rights guaranteed by the Charter are cast forever in the straight‑jacket of the law as it stood in 1982.  The reference in s. 7 of the Charter is broadly to "principles of fundamental justice", not to this rule or that.  Thus Le Dain J. wrote in R. v. Therens, [1985] 1 S.C.R. 613, at p. 638:

 

    In my opinion the premise that the framers of the Charter must be presumed to have intended that the words used by it should be given the meaning which had been given to them by judicial decisions at the time the Charter was enacted is not a reliable guide to its interpretation and application.  By its very nature a consitutional charter of rights and freedoms must use general language which is capable of development and adaptation by the courts.

 

For this reason, a fundamental principle of justice under s. 7 of the Charter may be broader and more general than the particular rules which exemplify it.

 

    A second reason why a fundamental principle of justice under s. 7 may be broader in scope than a particular legal rule, such as the confessions rule, is that it must be capable of embracing more than one rule and reconciling diverse but related principles.  Thus the right of a detained person to silence should be philosophically compatible with related rights, such as the right against self‑incrimination at trial and the right to counsel.

 

    The final reason why a principle of fundamental justice under s. 7 may be broader than a particular rule exemplifying it lies in considerations relating to the philosophy of the Charter and the purpose of the fundamental right in question in that context.  The Charter has fundamentally changed our legal landscape.  A legal rule relevant to a fundamental right may be too narrow to be reconciled with the philosophy and approach of the Charter and the purpose of the Charter guarantee.

 

    These considerations suggest that the task of defining the scope of the right of a detained person to silence under s. 7 of the Charter must focus initially on the related rules which our legal system has developed -- in this case the confessions rule and the privilege against self‑incrimination.  However, that is not the end of the inquiry.  The scope of a fundamental principle of justice will also depend on the general philosophy and purpose of the Charter, the purpose of the right in question, and the need to reconcile that right with others guaranteed by the Charter.

 

(b)The Scope of the Pre‑Trial Right To Silence Suggested by Related Rules

 

    A detained person's right to silence under s. 7 of the Charter is general and abstract, subsuming a bundle of more specific legal relationships.  The first step in defining the ambit of the right to silence is to consider these specific relationships and the rules which arise from them, with a view to identifying a common substratum of principle.

 

    The right to silence conferred by s. 7 of the Charter is rooted in two common law concepts.  The first is the confessions rule, which makes a confession which the authorities improperly obtain from a detained person inadmissible in evidence.  The second is the privilege against self‑incrimination which precludes a person from being required to testify against himself at trial.  While the exact scope of the confessions rule has been the subject of debate over the past century, a common theme can be said to unite these two quite separate rules -- the idea that a person in the power of the state in the course of the criminal process has the right to choose whether to speak to the police or remain silent.

 

    (i) The Confessions Rule

 

    The exact nature and definition of the confessions rule has long bedeviled our courts.  One can, however, discern two distinct approaches.  Lord Reid identified them in Commissioners of Customs & Excise v. Harz, [1967] 1 All E.R. 177 (H.L.), at p. 184:

 

I do not think that it is possible to reconcile all the very numerous judicial statements on rejection of confessions, but two lines of thought appear to underlie them: first, that a statement made in response to a threat or promise may be untrue or at least untrustworthy; and secondly, that nemo tenetur seipsum prodere.

 

    Both versions of the confessions rule focus on voluntariness as the basic requirement for the admission of a statement made to the authorities by a detained person.  The requirement of voluntariness, in turn, comports the idea that the detained person is entitled to choose whether to make a statement to the authorities or not.  The difference between the two approaches to the confessions rule lies in the way they define voluntariness and choice.

 

    The traditional confessions rule set out in Ibrahim v. The King, [1914] A.C. 599, defines the choice negatively, in terms of the absence of threats or promises by the authorities inducing the statement, and objectively, in terms of the physical acts and words of the parties.  The awareness of the detained person of his alternatives is irrelevant. He need not be told that he has the right to remain silent. He need not be told that he has the right to consult counsel to determine what his options are.  The only right he has is a negative right -- the right not to be tortured or coerced into making a statement by threats or promises held out by a person who is and whom he subjectively believes to be a person in authority.  The act of choosing is viewed objectively, and the mental state of the suspect, apart from his belief that he is speaking to a person in authority, is irrelevant.  Were it not for the insistence in the cases that the absence of threats and promises establishes the voluntariness of the statement and that voluntariness is the ultimate requirement for an admissible confession, one would be tempted to say that choice in the usual sense of deciding between alternatives plays little role in the traditional narrow formulation of the confessions rule.

 

    Allied with this narrow concept of choice in the traditional confessions rule, is the view that the rationale for the rule is the rejection of unreliable statements.  The questions of the suspect's actual state of mind and whether, given that state of mind, it is unfair to use the statement against him, do not arise.

 

    The second approach to choice in the confessions rule is much broader.  It starts from the proposition that choice involves not only an act, but a mental element. On this view, the act of choosing whether to remain silent or speak to the police necessarily comprehends the mental act of selecting one alternative over another.  The absence of violence, threats and promises by the authorities does not necessarily mean that the resulting statement is voluntary, if the necessary mental element of deciding between alternatives is absent.  On this view, the fact that the accused may not have realized he had a right to remain silent (e.g. where he has not been given the standard warning) or has been tricked into making the statement, are relevant to the question of whether the statement is voluntary.

 

    The modern Canadian confessions rule accepts some aspects of this approach.  Thus a voluntary choice to confess presupposes an "operating mind":  Horvath v. The Queen, [1979] 2 S.C.R. 376; and Ward v. The Queen, [1979] 2 S.C.R. 30.  Beyond this basic requirement, however, the mainstream of contemporary Canadian confessions law has not, by and large, acknowledged the mental element involved in choice.  Nevertheless, the second, broader concept of choice persists as part of our fundamental notion of procedural fairness. Older Canadian cases acknowledge it, as does the law in other jurisdictions.  And it recurs like a leitmotif through the dissenting judgments of distinguished Canadian jurists and in the work of scholars.

 

    Allied with this second, broader approach to voluntariness or choice under the confessions rule is the view that the rule's rationale goes beyond the exclusion of unreliable statements and extends to considerations of whether reception of the statement will be unfair or tend to bring the administration of justice into disrepute.

 

    Until the case of R. v. Wray, [1971] S.C.R. 272, the confessions rule in Canada, as in England and elsewhere in the Commonwealth, may be characterized as an uneasy and to some extent illogical amalgam of these two quite different views of choice.  It was said that the test for admissibility was whether the confession was voluntary, which carries with it the idea of an active choice between alternatives.  At the same time, voluntariness was said to be established objectively by the simple absence of threats and promises: Ibrahim.

 

    The law in England went (and continues to go) some way toward the reconciliation of the notion of voluntariness with the narrow legal test, by recognizing a discretion in judges to refuse to admit a statement which meets the Ibrahim test, on the ground that admission of the statement would be unfair to the accused and bring the administration of justice into disrepute.  Violation of the Judges' Rules -- guidelines laid down by the judges for the conduct of interrogations -- frequently results in rejection of statements which meet the "threat‑promise" test.  Statements made where the police have not advised the suspect of his right to remain silent (required by the Judges' Rules) may be rejected on this basis, as may statements obtained by tricks.  The practical result is that judges may reject confessions obtained where the mental factor relevant to true voluntariness is absent.  Moreover, this discretion, not being tied to the traditional confessions rule, may be exercised where, because of police deception, the accused is unaware of the fact he is speaking to the authorities.

 

    In Canada we have never had Judges' Rules.  Yet one can discern in some of the earlier cases a willingness to go beyond the strict confines of the Ibrahim rule and to accord to the trial judge a discretion as to the admission of a statement taken in circumstances the judge deems unfair.  In Gach v. The King, [1943] S.C.R. 250, it was suggested that failure to give the accused the standard warning might render a statement inadmissible.  In Boudreau v. The King, [1949] S.C.R. 262, this Court, while stating that the absence of a warning would not necessarily render a statement involuntary, suggested that it might be considered with all the other circumstances in determining whether a confession was voluntary (per Kerwin J., at p. 267).  In the same case Rand J. suggested at p. 270 that the decision was very much one for the trial judge:

 

The underlying and controlling question then remains: is the statement freely and voluntarily made?  Here the trial judge found that it was.  It would be a serious error to place the ordinary modes of investigation of crime in a strait jacket of artificial rules; and the true protection against improper interrogation or any kind of pressure or inducement is to leave the broad question to the court.  Rigid formulas can be both meaningless to the weakling and absurd to the sophisticated or hardened criminal . . . .

 

    At the same time, other cases continued to emphasize the threat‑promise formulation: see R. v. Fitton, [1956] S.C.R. 958.

 

    Nevertheless, until the decision in Wray, supra, generally thought to be open to judges in Canada to reject statements which met the Ibrahim test, but which had been obtained unfairly.  As Kaufman J.A. puts it (F. Kaufman, The Admissibility of Confessions (3rd ed. 1979), at p. 236):

 

    It was generally believed, and not without reason, that a judge was entitled to exercise his discretion in cases such as these, and that appellate courts would not lightly interfere.

 

Examples are not difficult to find.  Laskin J.A. (as he then was) took the view in delivering the judgment of the Ontario Court of Appeal in R. v. McLeod (1968), 5 C.R.N.S. 101, at p. 104, that confessions could be excluded where the stratagems of police put in doubt whether the ensuing statement had been properly elicited.  Similarly, Gale J. (as he then was) stated in rejecting a confession in R. v. McCorkell (1964‑65), 7 Crim. L.Q. 395, at p. 397:

 

    It is my opinion that once an accused person has retained counsel to the knowledge of the police or other persons in authority, the latter ought not to endeavour to interview and question that accused person without first seeking and obtaining the concurrence of his solicitor.  So strong is my view in this respect that I am therefore exercising my discretion in the way I have indicated, perhaps wrongly, because, strictly speaking, the statement thus procured was probably admissible.  I decline, however, to give any encouragement in the future to persons in authority to circumvent the position of an accused's solicitor by going directly to speak to the accused.

 

To this point, the law in Canada was not significantly different from that elsewhere in the Commonwealth.

 

    Wray changed this.  The issue in that case was the admissibility, not of a confession but rather of real evidence obtained as a result of a statement.  Nevertheless, the principle enunciated had a profound effect on the power of a trial judge to exclude a confession which was, strictly speaking, admissible on the Ibrahim test.  The ruling was simple: a court did not have the power to exclude admissible and relevant evidence merely because its admission would bring the administration of justice into disrepute.  This represented a divergence from the approach to confessions elsewhere in the Commonwealth.  Instead of a two‑pronged approach to confessions -- the basic rule supplemented by a residual discretion to exclude on grounds of unfairness or the repute of the administration of justice -- Canada was left with the narrow Ibrahim rule.  Reliability was the only concern.  All statements were admissible unless induced by threats, promises or violence.

 

    It was in this context that the majority of this Court ruled in Rothman that a statement obtained by a trick after the accused had indicated his wish not to speak to the authorities was admissible.  As Martland J., speaking for five of the nine judges, succinctly put it at p. 666:

 

    It was not, in my opinion, a sufficient basis for the refusal of the trial judge to receive the confession in evidence solely because he disapproved of the method by which it was obtained.

 

    Not all judges found it easy to accept the strictures of Wray and the departure it represented from a more liberal jurisprudence elsewhere in the Commonwealth.  In Rothman, Lamer J., after an extensive review of the authorities, concluded that the rule governing the reception of confessions was two‑fold; such statements might be excluded either where the conduct of the persons in authority to whom they were made might have rendered them untrue, or where the conduct of the authorities in obtaining the statement would tend to bring the administration of justice into disrepute.  Lamer J. (who agreed with the majority in the result) also affirmed that the suspect's right of silence -- the right to choose whether to make a statement to the authorities or to remain silent -- was fundamental to the confessions rule.

 

    Estey J., dissenting (Laskin C.J. concurring), similarly emphasized the connection between the confessions rule and the fairness and repute of the judicial process, basing his dissent on his conclusion that the use of an undercover agent to obtain a statement would bring into disrepute the administration of justice.

 

    The reasons of Estey J., and Lamer J. disclose an array of distinguished Canadian jurists who recognized the importance of the suspect's freedom to choose whether to give a statement to the police or not, and emphasized the fairness and repute of the administration of justice as an underlying rationale for the confessions rule, both before and after Wray.  Among them is Chief Justice Freedman, "Admissions and Confessions", reproduced in R. E. Salhany and R. J. Carter, eds., Studies in Canadian Criminal Evidence (1972), at p. 99, who emphasized the centrality to the confessions rule of individual freedom and the integrity of the judicial system:

 

    It is justice then that we seek, and within its broad framework we may find the true reasons for the rule excluding induced confessions. Undoubtedly . . . the main reason for excluding them is the danger that they may be untrue. But there are other reasons, stoutly disclaimed by some judges, openly professed by others, and silently acknowledged by still others -- the last perhaps being an instance of an "inarticulate major premise" playing its role in decision‑making.  These reasons, all of them, are rooted in history.  They are touched with memories of torture and the rack, they are bound up with the cause of individual freedom, and they reflect a deep concern for the integrity of the judicial process.

 

    Some judges put the matter in terms of the accused's subjective and informed decision to remain silent or to speak.  Thus Beetz J. wrote in Horvath, supra, at p. 433:

 

    Apart from the untrustworthiness of confessions extorted by threats or promises, other policy reasons have also been advanced to explain the rejection of confessions improperly obtained.  But the basic reason is the accused's absolute right to remain silent either completely or partially and not to incriminate himself unless he wants to. This is why it is important that the accused understand what is at stake in the procedure. [Emphasis added.]

 

    As Estey J. observed in Rothman, this Court in the post‑Wray cases of Horvath and Ward in fact departed from the objective threat‑promise formulation and the exclusive concern with the reliability of the statement, when it affirmed that to be admissible a statement must be truly voluntary in the sense of being the product of the accused's operating mind.  Where the accused, because of hypnosis in the one case and drunkenness in the other, was not possessed of the requisite mental capacity to make a voluntary decision about whether to speak to the authorities or not, his statement could not be considered voluntary and hence was inadmissible.  These decisions clearly affirmed the relevance of the mental element in the choice at issue in the confessions rule, at least in the minimal sense that the suspect must possess the mental capacity to make an active choice.

 

    This then was the situation when the Charter was introduced in 1982.  Notwithstanding a strong and continuing undercurrent of dissent, the narrow Wray principle continued to prevent the courts from considering the nature of the suspect's choice and the conduct of the authorities apart from threats, promises and violence, causing one trial judge, on being required to admit statements which he considered to have been taken in shocking circumstances, to comment:

 

    As it was torture in times past that led the courts to establish rules for the admissibility of extra‑judicial statements, it would appear that situations like those described here might constitute an invitation for the courts to control their proceedings by adopting any rules necessary for the protection of the integrity of the judicial system and the fundamental rights of the citizen.

 

(R. v. Clot (No. 1) (1982), 69 C.C.C. (2d) 349 (Que. S.C.), at p. 365, per Landry J.)

 

At the same time, other judges were suggesting that the adoption of the Charter justified a broadening of the rule.  As Kaufman J.A. put it:

 

    The views of Estey and Lamer JJ. (in Rothman) show the trend. So does the judgment in Clot.  Now, with the Charter, the scope has increased, and while the parameters will not be known for some time, the foundation are ready.

 

(The Admissibility of Confessions, Third supplement (cumulative) to the third edition (1986), at p. 119.)

 

    Lamer J. alluded to this possibility in R. v. Collins, [1987] 1 S.C.R. 265, at pp. 286‑87, where he stated with reference to Rothman:

 

    I still am of the view that the resort to tricks that are not in the least unlawful let alone in violation of the Charter to obtain a statement should not result in the exclusion of a free and voluntary statement unless the trick resorted to is a dirty trick, one that shocks the community. [Emphasis added.]

 

I return to the question of what the confessions rule suggests as to the scope of the right to pre‑trial silence under s. 7 of the Charter.  The foregoing review suggests that one of the themes running through the jurisprudence on confessions is the idea that a person in the power of the state's criminal process has the right to freely choose whether or not to make a statement to the police. This idea is accompanied by a correlative concern with the repute and integrity of the judicial process.  This theme has not always been ascendant.  Yet, its importance cannot be denied.  It persists, both in Canadian jurisprudence and in the rules governing the rights of suspects in other countries.  The question is whether, as Kaufman J.A. suggests, it should prevail in the post‑Charter era.

 

(ii) The Privilege Against Self‑Incrimination

 

    The second rule which is closely concerned with the right to silence of a person in jeopardy in the criminal process is the privilege against self‑incrimination.  It is distinct from the confessions rule, applying at trial rather than at the investigatorial phase of the criminal process: see Marcoux v. The Queen, [1976] 1 S.C.R. 763, at pp. 768‑69.  Yet it is related to the confessions rule, both philosophically and practically.

 

    Philosophically, courts have frequently justified both the confessions rule and the privilege against self‑incrimination by reference to the right of every person not to be required to produce evidence against himself -- nemo tenetur seipsum accusare.  The privilege against self‑incrimination, like the confessions rule, is rooted in an abhorrence of the interrogation practised by the old ecclesiastical courts and the Star Chamber and the notion which grew out of that abhorrence that the citizen involved in the criminal process must be given procedural protections against the overweening power of the state.  While the privilege against self‑incrimination relies in part on a notion which does not find place in the confessions rule -- the obligation of the Crown to prove its case -- it shares with that rule the notion that an accused person has no obligation to give evidence against himself, that he or she has the right to choose. This, it may be postulated, is the shared conceptual core of the two rules fundamental to the more general right to silence.

 

    From a practical point of view, the relationship between the privilege against self‑incrimination and the right to silence at the investigatorial phase is equally clear.  The protection conferred by a legal system which grants the accused immunity from incriminating himself at trial but offers no protection with respect to pre‑trial statements would be illusory.  As Ratushny writes (Self‑Incrimination in the Canadian Criminal Process (1979), at p. 253):

 

    Furthermore, our system meticulously provides for a public trial only after a specific accusation and where the accused is protected by detailed procedures and strict evidentiary rules.  Ordinarily he is represented by a lawyer to ensure that he in fact receives all of the protections to which he is entitled.  The accused is under no legal or practical obligation to respond to the accusation until there is an evidentiary case to meet.  There is a hypocrisy to a system which provides such protections but allows them all to be ignored at the pre‑trial stage where interrogation frequently occurs in secret, after counsel has been denied, with no rules at all and often where the suspect or accused is deliberately misled about the evidence against him.

 

    The privilege against self‑incrimination clearly imports the right to choose whether to testify or to remain silent.  The accused is usually advised by counsel.  The presence of the presiding judge precludes undue pressure by the Crown. The consequences of testifying or not are clear.  The philosophic and practical relationship between the privilege against self‑incrimination and the right of the suspect to silence prior to trial suggests that the same right of choice should prevail at the earlier phase of the criminal process.

 

(iii)Summary of Implications to be Drawn From the Rules Relating to the Right to Silence

 

    Despite their differences, the common law confessions rule and the privilege against self‑incrimination share a common theme -- the right of the individual to choose whether to make a statement to the authorities or to remain silent, coupled with concern with the repute and integrity of the judicial process.  If the measure of a fundamental principle of justice under s. 7 is to be found, at least in part, in the underlying themes common to the various rules related to it, then the measure of the right to silence may be postulated to reside in the notion that a person whose liberty is placed in jeopardy by the criminal process cannot be required to give evidence against himself or herself, but rather has the right to choose whether to speak or to remain silent.  This suggests that the scope of the right of a detained person to silence prior to trial under s. 7 of the Charter must extend beyond the narrow view of the confessions rule which formed the basis of the decision of the majority of this Court in Rothman.

 

(c)The Scope of the Right of a Detained Person to Silence Suggested by Other Provisions of the Charter

 

    The common law rules relating to the right to silence suggest that the essence of the right is notion that the person whose freedom is placed in question by the judicial process must be given the choice of whether to speak to the authorities or not.  The next question is whether this hypothesis is confirmed by consideration of the right to silence in the context of other Charter provisions.

 

    The rights of a person involved in the criminal process are governed by ss. 7 to 14 of the Charter.  They are interrelated:  Re B.C. Motor Vehicle Act, supra.  It must be assumed that the framers of the Charter intended that they should be interpreted in such a manner that they form a cohesive and internally consistent framework for a fair and effective criminal process.  For this reason, the scope of a fundamental principle of justice under s. 7 cannot be defined without reference to the other rights enunciated in this portion of the Charter as well as the more general philosophical thrusts of the Charter.

 

    (i)                     Related Rights

 

    The first Charter right of importance in defining the scope of the right to silence under s. 7 of the Charter at the pre‑trial stage is the right to counsel under s. 10(b) of the Charter.

 

    The scheme under the Charter to protect the accused's pre‑trial right to silence may be described as follows.  Section 7 confers on the detained person the right to choose whether to speak to the authorities or to remain silent.  Section 10(b) requires that he be advised of his right to consult counsel and permitted to do so without delay.

 

    The most important function of legal advice upon detention is to ensure that the accused understands his rights, chief among which is his right to silence.  The detained suspect, potentially at a disadvantage in relation to the informed and sophisticated powers at the disposal of the state, is entitled to rectify the disadvantage by speaking to legal counsel at the outset, so that he is aware of his right not to speak to the police and obtains appropriate advice with respect to the choice he faces.  Read together, ss. 7 and 10(b) confirm the right to silence in s. 7 and shed light on its nature.

 

    The guarantee of the right to consult counsel confirms that the essence of the right is the accused's freedom to choose whether to make a statement or not.  The state is not obliged to protect the suspect against making a statement; indeed it is open to the state to use legitimate means of persuasion to encourage the suspect to do so.  The state is, however, obliged to allow the suspect to make an informed choice about whether or not he will speak to the authorities.  To assist in that choice, the suspect is given the right to counsel.

 

    This suggests that the drafters of the Charter viewed the ambit of the right to silence embodied in s. 7 as extending beyond the narrow formulation of the confessions rule, comprehending not only the negative right to be free of coercion induced by threats, promises or violence, but a positive right to make a free choice as to whether to remain silent or speak to the authorities.

 

    I should not be taken as suggesting that the right to make an informed choice whether to speak to the authorities or to remain silent necessitates a particular state of knowledge on the suspect's part over and above the basic requirement that he possess an operating mind.  The Charter does not place on the authorities and the courts the impossible task of subjectively gauging whether the suspect appreciates the situation and the alternatives.  Rather, it seeks to ensure that the suspect is in a position to make an informed choice by giving him the right to counsel.  The guarantee of the right to counsel in the Charter suggests that the suspect must have the right to choose whether to speak to the police or not, but it equally suggests that the test for whether that choice has been violated is essentially objective.  Was the suspect accorded his or her right to consult counsel?  By extension, was there other police conduct which effectively deprived the suspect of the right to choose to remain silent, thus negating the purpose of the right to counsel?

 

    The second Charter right relevant to the ambit of the right to silence conferred by s. 7 is the privilege against self‑incrimination.  This right has been enshrined in s. 11(c) of the Charter, which provides that no one can be required to give evidence against himself, and echoed in s. 13 of the Charter, which prevents evidence given by a witness being used against the witness in a subsequent proceeding.  I have earlier suggested that these rights may be diminished to the extent that a person may be compelled to make statements at the pre‑trial stage.  It follows that if the Charter guarantees against self‑incrimination at trial are to be given their full effect, an effective right of choice as to whether to make a statement must exist at the pre‑trial stage.

 

    I conclude that the consideration of other rights under the Charter suggests that the right to silence of a detained person under s. 7 of the Charter must be broad enough to accord to the detained person a free choice on the matter of whether to speak to the authorities or to remain silent.

 

(ii)The Philosophy of the Charter With Respect to Improperly Obtained Evidence

 

    The narrow view of the confessions rule adopted in Canada in recent years stems primarily from the Wray approach which emphasized reliability of evidence and virtually removed the discretion of the courts to reject statements on the ground they had been obtained unfairly.

 

    The Charter introduced a marked change in philosophy with respect to the reception of improperly or illegally obtained evidence.  Section 24(2) stipulates that evidence obtained in violation of rights may be excluded if it would tend to bring the administration of justice into disrepute, regardless of how probative it may be.  No longer is reliability determinative.  The Charter has made the rights of the individual and the fairness and integrity of the judicial system paramount.  The logic upon which Wray was based, and 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.  To say there is no discretion to exclude a statement on grounds of unfairness to the suspect and the integrity of the judicial system, as did the majority in Rothman, runs counter to the fundamental philosophy of the Charter.

 

    This suggests that the right of a detained person to silence under s. 7 of the Charter should be viewed as broader in scope than the confessions rule as it stood in Canada at the time of the adoption of the Charter.  The right must reflect the Charter's concerns with individual freedom and the integrity of the judicial process, and permit the exclusion of evidence which offends these values.

 

(iii)The Purpose of the Right to Silence Under the Charter

 

    An investigation of the ambit of a right or principle of fundamental justice under the Charter necessarily involves consideration of the underlying value which the right was designed to protect.  This is the "purposive approach" set out by Dickson J. (as he then was) in Hunter v. Southam Inc., [1984] 2 S.C.R. 145.

 

    Section 7 and the more specific procedural guarantees which follow it are generally concerned with the proper balance between the respective rights of the individual and the state in judicial proceedings where the accused's life, liberty or security of person is at stake. It guarantees the individual's life, liberty and security of person.  But it recognizes that these rights are not absolute.  In certain circumstances, the state may properly deprive a person of these interests.  But it must do so in conformity with the principles of fundamental justice.

 

    In a broad sense, the purpose of ss. 7‑14 is two‑fold to preserve the rights of the detained individual, and to maintain the repute and integrity of our system of justice.  More particularly, it is to the control of the superior power of the state vis‑à‑vis the individual who has been detained by the state, and thus placed in its power, that s. 7 and the related provisions that follow are primarily directed.  The state has the power to intrude on the individual's physical freedom by detaining him or her.  The individual cannot walk away.  This physical intrusion on the individual's mental liberty in turn may enable the state to infringe the individual's mental liberty by techniques made possible by its superior resources and power.

 

    The Charter through s. 7 seeks to impose limits on the power of the state over the detained person.  It thus seeks to effect a balance between the interests of the detained individual and those of the state.  On the one hand s. 7 seeks to provide to a person involved in the judicial process protection against the unfair use by the state of its superior resources.  On the other, it maintains to the state the power to deprive a person of life, liberty or security of person provided that it respects fundamental principles of justice.  The balance is critical.  Too much emphasis on either of these purposes may bring the administration of justice into disrepute -- in the first case because the state has improperly used its superior power against the individual, in the second because the state's legitimate interest in law enforcement has been frustrated without proper justification.

 

    The right to silence conferred by s. 7 reflects these values.  The suspect, although placed in the superior power of the state upon detention, retains the right to choose whether or not he will make a statement to the police.  To this end, the Charter requires that the suspect be informed of his or her right to counsel and be permitted to consult counsel without delay.  If the suspect chooses to make a statement, the suspect may do so.  But if the suspect chooses not to, the state is not entitled to use its superior power to override the suspect's will and negate his or her choice.

 

    The scope of the right to silence must be defined broadly enough to preserve for the detained person the right to choose whether to speak to the authorities or to remain silent, notwithstanding the fact that he or she is in the superior power of the state.  On this view, the scope of the right must extend to exclude tricks which would effectively deprive the suspect of this choice.  To permit the authorities to trick the suspect into making a confession to them after he or she has exercised the right of conferring with counsel and declined to make a statement, is to permit the authorities to do indirectly what the Charter does not permit them to do directly.  This cannot be in accordance with the purpose of the Charter.

 

(iv)Summary of Implications to be Drawn from Related Charter Provisions

 

    Charter provisions related to the right to silence of a detained person under s. 7 suggest that the right must be interpreted in a manner which secures to the detained person the right to make a free and meaningful choice as to whether to speak to the authorities or to remain silent.  A lesser protection would be inconsistent not only with the implications of the right to counsel and the right against self‑incrimination affirmed by the Charter, but with the underlying philosophy and purpose of the procedural guarantees the Charter enshrines.

 

    (d)Conclusion on the Scope of the Right to Silence

 

    The common law rules related to the right to silence suggest that the scope of the right in the pre-trial detention period must be based on the fundamental concept of the suspect's right to choose whether to speak to the authorities or remain silent. Any doubt on the question is resolved by consideration of related rights protected by the Charter, by the Charter's approach to the question of improperly obtained evidence, and by the fundamental purpose of the right to silence and related procedural guarantees.  In keeping with the approach inaugurated by the Charter, our courts must adopt an approach to pre‑trial interrogation which emphasizes the right of the detained person to make a meaningful choice and permits the rejection of statements which have been obtained unfairly in circumstances that violate that right of choice.

 

    The right to choose whether or not to speak to the authorities is defined objectively rather than subjectively.  The basic requirement that the suspect possess an operating mind has a subjective element.  But this established, the focus under the Charter shifts to the conduct of the authorities vis‑à‑vis the suspect.  Was the suspect accorded the right to consult counsel?  Was there other police conduct which effectively and unfairly deprived the suspect of the right to choose whether to speak to the authorities or not?

 

    Such a change, while important, is far from radical.  It retains the essentially objective approach of the traditional confessions rule, while increasing the range of police conduct which may be considered in determining the admissibility of a suspect's statement, and it conforms to current trends in the law.  Even before the Charter, this Court had taken a step away from the traditional "threat‑promise" formula by recognizing that the decision to speak to the police must be the product of an operating mind.  Moreover, experience in other jurisdictions -- and in ours, I venture to suggest -- has proven the traditional Ibrahim formulation of the confessions rule too narrow.  The idea that judges can reject confessions on grounds of unfairness and concerns for the repute and integrity of the judicial process has long been accepted in other democratic countries without apparent adverse consequences.  Thus in England, Australia and New Zealand the traditional confessions rule has been supplemented by judicial discretion.  In the United States it has been abandoned.  In Canada, its retention has been marked by continual tension between minority and majority viewpoints, between what trial judges feel they should do in justice and what they find they are compelled to do.  To those tensions has now been added an evident tension with the philosophy underlying the Charter.  The jurisprudence on the rights of detained persons can only benefit, in my view, from rejection of the narrow confessions formula and adoption of a rule which permits consideration of the accused's informed choice, as well as fairness to the accused and the repute of the administration of justice.

 

    Finally, the change proposed arguably strikes a proper and justifiable balance between the interest of the state in law enforcement and the interest of the suspect.  The alternative -- the strict post‑Wray application of the confessions rule -- leaves courts powerless to correct abuses of power by the state against the individual, so long as the objective formalities of the "threat‑promise" formula are filled and the statement is reliable.  Drawing the balance where I have suggested the Charter draws it permits the courts to correct abuses of power against the individual, while allowing them to nevertheless admit evidence under s. 24(2) where, despite a Charter violation, the admission would not bring the administration of justice into disrepute.

 

    This approach may be distinguished from an approach which assumes an absolute right to silence in the accused, capable of being discharged only by waiver.  On that approach, all statements made by a suspect to the authorities after detention would be excluded unless the accused waived his right to silence.  Waiver, as defined in Clarkson v. The Queen, [1986] 1 S.C.R. 383, is a subjective concept dependent, among other things, on the accused's knowing that he is speaking to the authorities.  On this approach, all statements made by a person in detention which were not knowingly made to a police officer would be excluded because, absent knowledge that the suspect is speaking to a police officer, the Crown cannot establish waiver.  This would include statements made to undercover agents (regardless of whether the officer is merely passive or has elicited the statement) as well as conversations with fellow prisoners overheard by the police and statements overheard through mechanical listening devices on the wall.  There is nothing in the rules underpinning the s. 7 right to silence or other provisions of the Charter that suggests that the scope of the right to silence should be extended this far.  By contrast, the approach I advocate retains the objective approach to confessions which has always prevailed in our law and would permit the rule to be subject to the following limits.

 

    First, there is nothing in the rule to prohibit the police from questioning the accused in the absence of counsel after the accused has retained counsel.  Presumably, counsel will inform the accused of the right to remain silent.  If the police are not posing as undercover officers and the accused chooses to volunteer information, there will be no violation of the Charter.  Police persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence.

 

    Second, it applies only after detention.  Undercover operations prior to detention do not raise the same considerations.  The jurisprudence relating to the right to silence has never extended protection against police tricks to the pre‑detention period.  Nor does the Charter extend the right to counsel to pre‑detention investigations.  The two circumstances are quite different.  In an undercover operation prior to detention, the individual from whom information is sought is not in the control of the state.  There is no need to protect him from the greater power of the state.  After detention, the situation is quite different; the state takes control and assumes the responsibility of ensuring that the detainee's rights are respected.

 

    Third, the right to silence predicated on the suspect's right to choose freely whether to speak to the police or to remain silent does not affect voluntary statements made to fellow cell mates.  The violation of the suspect's rights occurs only when the Crown acts 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.

 

    Fourth, a distinction must be made between the use of undercover agents to observe the suspect, and the use of undercover agents to actively elicit information in violation of the suspect's choice to remain silent.  When the police use subterfuge to interrogate an accused after he has advised them that he does not wish to speak to them, they are improperly eliciting information that they were unable to obtain by respecting the suspect's constitutional right to silence:  the suspect's rights are breached because he has been deprived of his choice.  However, in the absence of eliciting behaviour on the part of the police, there is no violation of the accused's right to choose whether or not to speak to the police.  If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police.

 

    It may be noted that a similar distinction has been made in the United States under the Sixth Amendment, which provides that "In all criminal prosecutions the accused shall . . . have the assistance of counsel for his defence".  American courts have consistently held that the use of undercover police to question an accused in prison violates this amendment as the accused has the right to have his lawyer present when being questioned.  The leading case is Kuhlmann v. Wilson, 477 U.S. 436 (1986).  There, the police paid an informer to listen to and report the accused's incriminating evidence but gave the informer explicit instructions not to elicit any information.  The Supreme Court of the United States held that the evidence was admissible, concluding that "the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks" (p. 459).  Thus, even under the arguably more stringent American constitutional protection, the law permits the use of a police informant after detention, provided he or she does not take active and intentional steps to elicit a confession.

 

    Some Canadian police forces appear to already be following the rules implicit in this approach.  Thus in R. v. Logan (1988), 46 C.C.C. (3d) 354 (Ont. C.A.), it is stated at p. 365:

 

    In his evidence, P.C. Grant (testifying under the pseudonym used by him in the undercover operation) said:

 

(P)art of my instructions entailed -- and it was made quite clear to me that I was not to initiate any conversation, if possible, with the accused persons and in the event that we did or were able to get in conversations with these persons, that we would not ask leading questions or lead them on to the area in which I was attempting to gather information for.

 

(W)e were to act as normal as possible and of course from further instructions from the official we had a very good idea of what would be an acceptable line of conversation, what questions woud [sic] be acceptable, what wouldn't be acceptable. [Emphasis added in original.]

 

    Moreover, even where a violation of the detainee's rights is established the evidence may, where appropriate, be admitted.  Only if the court is satisfied that its reception would be likely to bring the administration of justice into disrepute can the evidence be rejected: s. 24(2).  Where the police have acted with due care for the accused's rights, it is unlikely that the statements they obtain will be held inadmissible.

 

(e)Application of the Right to Silence in this Case

 

    The essence of the right to silence is that the suspect be given a choice; the right is quite simply 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.  This right of choice comprehends the notion that the suspect has been accorded the right to consult counsel and thus to be informed of the alternatives and their consequences, and that the actions of the authorities have not unfairly frustrated his or her decision on the question of whether to make a statement to the authorities.

 

    In this case, the accused exercised his choice not to speak to the police when he advised them that he did not wish to make a statement.  When he later spoke to the undercover policeman, he was not reversing that decision and choosing to speak to the police.  He was choosing to speak to a fellow prisoner, which is quite a different matter.  The Crown, in using a trick to negate his decision not to speak, violated his rights.

 

II.  Section 1 of the Charter

 

    Having found a violation of s. 7, the question arises of whether s. 1 of the Charter has application.  In my view, it does not, since the conduct here in question is not a limit "prescribed by law" within s. 1.

 

    In R. v. Thomsen, [1988] 1 S.C.R. 640, at pp. 650‑51, Le Dain J. stated for the Court:

 

The limit will be prescribed by law within the meaning of s. 1 if it is expressly provided for by statute or regulation, or results by necessary implication from the terms of a statute or regulation or from its operating requirements.  The limit may also result from the application of a common law rule.

 

    The police conduct here at issue does not meet this test.  It was not done in execution of or by necessary implication from a statutory or regulatory duty, and it was not the result of application of a common law rule.  In short, it was not "prescribed by law" within s. 1 of the Charter.

 

III.  Section 24(2) of the Charter

 

    Section 24(2) provides:

 

    (2)  Where, in proceedings under subsection (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, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

 

The question is whether, given that the evidence was obtained in breach of the accused's rights under s. 7 of the Charter, it should be excluded under s. 24(2).

 

    The threshold required to satisfy the requirement of bringing the administration of justice into disrepute under s. 24(2) of the Charter is lower than the "community shock" test proposed by Lamer J. in the context of the confessions rule in Rothman:  Collins, supra, at p. 287.  Thus the conclusion of Lamer J. in Rothman that a police trick similar to that involved here is not necessarily inconsistent with a conclusion that such a trick should result in exclusion under s. 24(2).

 

    In Collins, this Court identified three broad categories of factors bearing on a s. 24(2) determination:

 

(a)the effect of the admission of the evidence on the fairness of the trial;

 

(b)                        the seriousness of the Charter violation; and

 

(c)the effect of exclusion on the repute of the administration of justice.

 

    Dealing with the effect of the admission on the fairness of the trial, Lamer J. distinguished between real evidence obtained in violation of the Charter and a confession conscripted from an accused person contrary to the Charter.  He stated at p. 284:

 

However, the situation is very different with respect to cases where, after a violation of the Charter, the accused is conscripted against himself through a confession or other evidence emanating from him.  The use of such evidence would render the trial unfair, for it did not exist prior to the violation and it strikes at one of the fundamental tenets of a fair trial, the right against self‑incrimination.

 

I am of the view that the evidence sought to be adduced in this case would render the trial unfair.  I should not be taken as suggesting that violation of an accused's right to silence under s. 7 automatically means that the evidence must be excluded under s. 24(2).  I would not wish to rule out the possibility that there may be circumstances in which a statement might be received where the suspect has not been accorded a full choice in the sense of having decided, after full observance of all rights, to make a statement voluntarily.  But where, as here, an accused is conscripted to give evidence against himself after clearly electing not to do so by use of an unfair trick practised by the authorities, and where the resultant statement is the only evidence against him, one must surely conclude that reception of the evidence would render the trial unfair.  The accused would be deprived of his presumption of innocence and would be placed in the position of having to take the stand if he wished to counter the damaging effect of the confession.  The accused's conviction if obtained would rest almost entirely on his own evidence against himself, obtained by a trick in violation of the Charter.

 

    I am also satisfied that the Charter violation was a serious one.  The conduct of the police was wilful and deliberate.  They intentionally set out on a course to undermine the appellant's right to silence notwithstanding his express assertion of that right, by having the undercover police officer engage the appellant in conversation.  It is said that the police acted in good faith, relying on Rothman as authority to proceed as they did.  However, ignorance of the effect of the Charter does not preclude application of s. 24(2) of the Charter:  Therens, supra, nor does it cure an unfair trial.

 

    The effect of the exclusion in this case is serious. It would result in an acquittal, since virtually the only evidence against the accused was his statement to the undercover policeman.

 

    Balancing these factors, I arrive at the conclusion that the test in s. 24(2) is met.  As the authorities to which I earlier referred amply demonstrate, it has long been felt inappropriate that an accused should be required to betray himself.  Where virtually the only evidence against him is such a betrayal, the effect is that the accused is required to secure his own conviction.  That is contrary to the notions of justice fundamental to our system of law and calculated, in my opinion, to bring the administration of justice into disrepute.

 

Conclusion

 

    I would allow the appeal and restore the acquittal.

 

//Wilson//

 

    The following are the reasons delivered by

 

    WILSON J. -- I have had the benefit of the reasons of my colleagues, Justices McLachlin and Sopinka, and wish only to address very briefly the issues on which their reasons disclose a significant difference of view.  There are three of them, namely:

 

    (1)When does the right to silence arise?

 

    (2)What is the scope of the right to silence?

 

    (3)Does the doctrine of waiver apply to the right of silence?

 

1.  When Does the Right to Silence Arise?

 

    I would respectfully agree with my colleague, Sopinka J., that the right to silence, if it is to achieve the purpose that it was clearly intended to achieve, must arise whenever the coercive power of the state is brought to bear upon the citizen.  I think that this could well predate detention and extend to the police interrogation of a suspect.  It will, of course, be a question of fact in each case whether or not the coercive power of the state has been brought to bear upon the citizen.  This is not an issue in the present case.

 

2.  What Is the Scope of the Right to Silence?

 

    I agree with my colleagues that the right to silence is a principle of fundamental justice within the meaning of s. 7 of the Canadian Charter of Rights and Freedoms and that a person cannot therefore be deprived of his or her right to life, liberty or security of the person by violating that right.

 

    I believe that the right must be given "a generous rather than a legalistic [interpretation] aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection": see R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, per Dickson J. (as he then was), at p. 344.  It is accordingly inappropriate to qualify it by balancing the interests of the state against it or by applying to it the considerations relevant to the admissibility of evidence set out in s. 24(2) of the Charter.

 

    Section 7 confers on an accused the right to life, liberty and security of the person.  It then provides that the accused may not be deprived of that right except in accordance with the principles of fundamental justice.  In other words, he or she may be deprived of the s. 7 right provided the deprivation is effected without offending fundamental justice.  In deciding whether or not the authorities have offended fundamental justice or not it is, in my view, essential to focus on the treatment of the accused and not on the objective of the state.  It would, in my view, be quite contrary to a purposive approach to the s. 7 right to inject justificatory considerations for putting limits upon it into the ascertainment of its scope or content.

 

    I believe for the same reasons that it is inappropriate to merge the question whether statements elicited in violation of the s. 7 right should be admitted into evidence with the question whether the right has in fact been violated.  The repute of the justice system is, in my view, relevant only to the former.  It has no bearing on whether the right to silence has been violated contrary to the principles of fundamental justice.

 

3.  Does the Doctrine of Waiver Apply to the Right to Silence?

 

    McLachlin J. finds the doctrine of waiver inapplicable to the right to silence on the basis, as I understand it, that it is not an absolute right but must be qualified by considerations of the state interest and the repute of the justice system.  It seems to me, however, that once it is determined that an individual has a choice, as my colleague states, to either remain silent or to speak to the authorities and he or she decides voluntarily and with full knowledge and appreciation of the consequences to speak to the authorities, then he or she must be taken to have waived (or given up) the right to silence.  I see no reason why the doctrine of waiver should not apply to the right to silence as it does to other rights in the Charter.

 

    For these reasons and for the reasons given by my colleague Sopinka J., I agree with his proposed disposition of the appeal.

 

//Sopinka J.//

 

    The following are the reasons delivered by

 

    SOPINKA J. -- This appeal raises the vexing question whether jailhouse confessions induced by deception can withstand Charter scrutiny.  For the reasons that follow, I am of the view that they cannot.

 

    Hebert was charged with robbery contrary to s. 303 of the Criminal Code, R.S.C. 1970, c. C‑34 (now s. 344).  Prior to the commencement of trial, an application was made to the Supreme Court of the Yukon Territory in the nature of a voir dire to determine the admissibility of statements made by the accused while in custody:  (1987), 3 Y.R. 88.  Maddison J. determined the application on the basis of an agreed statement of facts, which reads as follows:

 

1.On January 11, 1987 at approximately 6:00 a.m., a male person wearing a ski mask entered the Klondike Inn and approached the front desk clerk, and told the clerk to give him the money.  He then raised a claw hammer in the air in a threatening motion and again demanded the money.  The clerk complied, and passed over to the culprit the sum of $180.00, the contents of the till.  The culprit then told the clerk to wait ten minutes before calling the police, and fled the scene on foot.  He was last seen heading in the direction of 4th Avenue.

 

2.In the course of the investigation over the next several months, police received confident [sic] information from three informants that the person responsible for the robbery was the accused, Neil Gerald HEBERT.

 

3.On April 15, 1987, at 8:42 p.m., the accused was located by the police in the lounge area of the Taku Hotel in Whitehorse.  He was placed under arrest, advised of his right to retain and instruct counsel without delay, and taken to the R.C.M.P. Detachment.

 

4.Once at the Detachment, HEBERT contacted counsel and obtained advice from counsel regarding his right to refuse to give a statement.

 

5.The police were aware that HEBERT had contacted counsel and of the identity of that counsel.

 

6.After exercising his right to contact counsel, HEBERT was taken into an interview room by Constable Mike Stewart.  He was given the usual police caution, and then told that the police wanted to know why he had done it.  He indicated that he did not wish to make a statement.

 

7.He was then placed in a cell with Corporal Daun Miller, disguised in plainclothes, and posing as a suspect under arrest by police.  While in the cell, Corporal Miller engaged the accused in conversation, during which the accused made various incriminating statements which implicated himself in the robbery of January 11, 1987.

 

    Maddison J. held that the deceit perpetrated by the police upon the accused "made a mockery of the accused's right to counsel" (p. 91), contrary to s. 10(b) of the Canadian Charter of Rights and Freedoms; and, furthermore, that the police conduct breached the accused's right to remain silent, presumably (though not explicitly) on the footing that that right is now a component of the s. 7 Charter right not to be deprived of the right to life, liberty and security of the person except in accordance with the principles of fundamental justice.  Maddison J. held that the admission into evidence of the statements made by the accused to Corporal Miller could bring the administration of justice into disrepute, and the statements were therefore excluded pursuant to s. 24(2) of the Charter.  The Crown offered no evidence, and the accused was acquitted.

 

    The Crown appealed to the Court of Appeal for the Yukon Territory:  (1988), 3 Y.R. 81, 29 B.C.L.R. (2d) 296, 43 C.C.C. (3d) 56.  Anderson J.A., speaking for the court, held that the police conduct at issue violated neither the accused's right to counsel under s. 10(b) nor his rights under s. 7.  Concerning s. 10(b) of the Charter, Anderson J.A. stated (at p. 62 C.C.C.):

 

    The fact that by deceiving the accused the police are able to obtain admissions from the accused does not, in my opinion, constitute a breach of the solicitor‑client relationship.  No authority has been advanced for such a proposition and to so hold would be to extend the reach of the solicitor‑client relationship beyond all reasonable limits.  There is no correlation between the ethical rules governing the conduct of opposing counsel in civil litigation and police investigations.  It cannot be that if a lawyer advises the accused not to speak to anyone about his case, voluntary admission made by the client after the advice has been given are inadmissible in evidence.

 

    The court below did not deal directly with the right to remain silent as a component of s. 7 of the Charter.  Anderson J.A. took the view, however, that the deception employed by the police here was not so unfair as to be contrary to the "principles of fundamental justice", and, therefore, that there had been no violation of s. 7.  Anderson J.A. expressly adopted the comments of Lamer J. in Rothman v. The Queen, [1981] 1 S.C.R. 640, at pp. 696‑97, to the effect that this sort of police conduct was reasonably necessary to the pursuit of shrewd and sophisticated criminals.  The Crown's appeal was consequently allowed and a new trial ordered.

 

    The accused's appeal, which comes to this Court as of right, raises two distinct issues regarding the introduction of an undercover police officer into an accused's environment after charge and during custody, for the purpose of eliciting a statement.  First, does this ruse violate s. 7 of the Charter, in particular the constitutional right to remain silent embedded in s. 7, if such exists; and, second, given that the accused had been informed of his s. 10(b) right to counsel and had exercised it on arrest, does the police conduct complained of violate either s. 10(b), or a continuing right to counsel found in s. 7, if such exists?  In light of the conclusion I have reached on the former issue, it will be unnecessary in this case to express a view on the latter.

 

The Right to Remain Silent and Section 7

 

    Section 7 of the Charter reads as follows:

 

    7.  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 principal difficulty in any discussion of the right to remain silent, whether at the constitutional or common law level, is the temptation to equate the right with the related privilege against self‑incrimination.  This distinction is discussed in my reasons for judgment in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425.  It has been clear since the judgments of this Court in Curr v. The Queen, [1972] S.C.R. 889; and Marcoux v. The Queen, [1976] 1 S.C.R. 763, that the privilege against self‑incrimination has a very limited scope and applies only in the course of proceedings.  As Dickson J. (as he then was) stated in Marcoux, at p. 768:  "The privilege is the privilege of a witness not to answer a question which may incriminate him."  This circumscription of the privilege accords with both its history and purpose:  see Cross on Evidence (6th ed. 1985), at pp. 189‑90.  A privilege is an exclusionary rule of evidence which is appropriately asserted in court.

 

    However, it cannot be denied that, apart altogether from the privilege, the right to remain silent -- the right not to incriminate oneself with one's words -- is an integral element of our accusatorial and adversarial system of criminal justice.  As Cory J.A. (as he then was) noted in R. v. Woolley (1988), 40 C.C.C. (3d) 531 (Ont. C.A.), at p. 539:  "The right to remain silent is a well‑settled principle that has for generations been part of the basic tenets of our law."  (See also R. v. Hansen (1988), 46 C.C.C. (3d) 504 (B.C.C.A.))  In a different context, Lamer J. pointed out in R. v. Collins, [1987] 1 S.C.R. 265, at p. 284, that the acquisition of a self‑incriminatory admission from an accused following a Charter violation "strikes at one of the fundamental tenets of a fair trial, the right against self‑incrimination".  I take Lamer J.'s words to mean that the full range of an accused's right to stand mute in the face of an accusation by the state is not exhausted by reference to the privilege against self‑incrimination, as that privilege has been defined by this Court.  It follows, it seems to me, that the basic principle underlying the right to remain silent must be a "principle of fundamental justice" within the meaning of s. 7 of the Charter.  In other words, the right to remain silent is truly a right.

 

    I find evidence of the existence of this principle in the courts' historical solicitude for an accused's silence.  It is settled law that silence in the face of an accusation by or in the presence of the police cannot serve as evidence against an accused:  see, e.g., R. v. Eden, [1970] 3 C.C.C. 280 (Ont. C.A.), at p. 283; R. v. Clarke (1979), 33 N.S.R. (2d) 636 (C.A.), at p. 652; R. v. Engel (1981), 9 Man. R. (2d) 279 (C.A.), at p. 283; R. v. Symonds (1983), 9 C.C.C. (3d) 225 (Ont. C.A.), at p. 227; and R. v. Minhas (1986), 53 C.R. (3d) 128 (Ont. C.A.), at p. 143.  This Court has consistently applied the English case of R. v. Christie, [1914] A.C. 545 (H.L.), in which Lord Atkinson stated, at p. 554:

 

. . . the rule of law undoubtedly is that a statement made in the presence of an accused person, even upon an occasion which should be expected reasonably to call for some explanation or denial from him, is not evidence against him of the facts stated save so far as he accepts the statement, so as to make it, in effect, his own.

 

    In Stein v. The King, [1928] S.C.R. 553, at p. 556, this Court held, on the basis of Christie, that a trial judge had erred in failing to direct the jury that, "in the absence of any assent by the accused either by word or conduct to the correctness of the statements made in his presence, they had no evidentiary value whatever as against him and should be entirely disregarded."  (Emphasis added.)  Later, in Chapdelaine v. The King, [1935] S.C.R. 53, at pp. 56‑57, Duff C.J. (Crockett and Cannon JJ. concurring), held that it would be desirable as a rule of practice in cases in which statements made in the accused's presence are sought to be adduced to require evidence of the accused's adoption of the statements to be led before the admission of the statements themselves.

 

    If there is no independent right to remain silent, then it is difficult to imagine upon what foundation these rules, both of law and practice, purport to stand.  Professor Ratushny, in his article entitled "Is There a Right Against Self‑Incrimination in Canada?" (1973), 19 McGill L.J. 1, at p. 13, suggests that what may appear to be the operation of the so‑called right to remain silent is just a peculiar instance of the adoptive admissions rule:  the caution to the accused that he has the "right to remain silent" (which is administered, the argument goes, only to provide evidence of voluntariness for the purposes of the confession rule) vitiates any possible inference that the accused's silence was an acknowledgment of guilt.  I cannot accede to this contention, for two reasons.  First, I reject the premise that the caution is simply a tool to provide evidence of voluntariness in the event that a confession is forthcoming.  Such evidence may be a happy consequence of administering the caution, but it does not follow that that is the purpose of the caution, nor that the right to which the caution refers is illusory.  In Hall v. The Queen, [1971] 1 All E.R. 322 (P.C.), an appeal from the courts of Jamaica to the Judicial Committee of the Privy Council, Lord Diplock, in a passage which I would respectfully adopt, stated at p. 324:

 

    It is a clear and widely‑known principle of the common law in Jamaica, as in England, that a person is entitled to refrain from answering a question put to him for the purpose of discovering whether he has committed a criminal offence.  A fortiori he is under no obligation to comment when he is informed that someone else has accused him of an offence.  It may be that in very exceptional circumstances an inference may be drawn from a failure to give an explanation or a disclaimer, but in their Lordships' view silence alone on being informed by a police officer that someone else has made an accusation against him cannot give rise to an inference that the person to whom this information is communicated accepts the truth of the accusation . . . .  The caution merely serves to remind the accused of a right which he already possesses at common law.  The fact that in a particular case he has not been reminded of it is no ground for inferring that his silence was not in exercise of that right, but was an acknowledgment of the truth of the accusation.  [Emphasis added.]

 

    Second, the inadmissibility of an accused's silence goes well beyond the ordinary civil rule of evidence concerning adoptive admissions:  the silence of a civil party in the face of statements that cry out for an explanation gives rise to an inference of adoption:  Bessela v. Stern (1877), 2 C.P.D. 265 (C.A.), at pp. 271‑72; MacKenzie v. Commer (1973), 44 D.L.R. (3d) 473 (N.S.C.A.)  As the cases referred to earlier indicate, the mere silence of a criminal accused in the presence of a person in authority is not capable in law of supporting an inference of consciousness of guilt.  The essence of the Christie rule is that even if the circumstances of an accusation cry out for an explanation or denial, the accused's silence, without more, is not evidence against him:  there must be "word or conduct, action or demeanour" pointing to an adoption of the statement by the accused.

 

    It is sometimes argued in this connection that an accused's silence in the face of a police accusation is nothing more than a particular example of the liberty we all enjoy to do that which is not prohibited, embodied in the maxim nulla poena sine lege.  Since the law does not positively require a response, silence is allowed:  see R. v. Esposito (1985), 24 C.C.C. (3d) 88 (Ont. C.A.), at p. 94, per Martin J.A., citing Lamer J. in Rothman, supra, at p. 683.  Professor Ratushny put the point colourfully in the following passage in his article, supra, at p. 11, in response to the argument that the absence of a legal sanction for failing to respond to a police officer's accusation indicates a right to remain silent:

 

    It does, perhaps, but only in the same general sense that people are entitled not to do a lot of other things as well.  There is no penalty in Canada for not participating in Dominion Day celebrations, for example, but no one speaks of a general right against compelled celebration.

 

True, but such a point would be interesting only if the failure to celebrate were inadmissible against an accused in circumstances in which it were relevant.  This crucial difference between silence and the panoply of unregulated liberties emphasises the fundamental nature and special status of silence.

 

    What, then, is the content of the residual right to remain silent as protected by s. 7 of the Charter?  I take the view that the right is at least as broad under s. 7 as it is at common law.  However, one must be mindful that certain rules of evidence combine to prevent the right from being fully protected at common law:  namely, the rule in R. v. St. Lawrence, [1949] O.R. 215 (H.C.), that those portions of an inadmissible confession proven true by the acquisition of derivative evidence are rendered admissible; the rule in R. v. Wray, [1971] S.C.R. 272, at p. 293, that there is no discretion to exclude relevant evidence on the basis that it was improperly obtained unless its admissibility is tenuous, and its "probative force in relation to the main issue before the court is trifling"; and the confession rule itself, that a statement by an accused to a person in authority is admissible if it is shown to be voluntary within the meaning of Ibrahim v. The King, [1914] A.C. 599 (P.C.)  It is important, therefore, not to confuse the content of the right to remain silent at common law with the efficacy of its enforcement.  The enforcement mechanisms available to judges at common law do not compare to those granted by s. 24 of the Charter, particularly the power to exclude evidence pursuant to s. 24(2).  Thus, it is no answer to a violation of the right to remain silent to say that the resulting confession, or the derivative evidence, would have been admitted at common law:  we are not here applying the common law.  Admissibility is now governed by s. 24(2) of the Charter.  To define Charter rights only in accordance with the ultimate effectiveness of their common law and statutory antecedents would be to deny the supremacy of the Constitution.  This Court has flatly refused to take such a narrow approach:  see, e.g., the interpretation of the Charter's protection of the privilege against self‑incrimination in Dubois v. The Queen, [1985] 2 S.C.R. 350, at p. 369, per Lamer J.

 

    The threshold question in the present case is when the right arises.  The right to remain silent has uniformly been recognized to arise upon arrest (see Taggart v. R. (1980), 13 C.R. (3d) 179 (Ont. C.A.), at p. 183; and Eden, supra, at p. 283), and upon charge (see Symonds, supra, at p. 227).  Indeed, the gist of the adoptive admissions cases, and particularly the judgment of the Privy Council in Hall, supra, points to a positive right to remain silent during any allegation of criminality in the presence of a person in authority.  There is, too, support for this point of engagement of the right in American jurisprudence.  Miranda v. Arizona, 384 U.S. 436 (1966), held that criminal suspects must be informed of the right to remain silent upon arrest or prior to custodial interrogation.  American authorities are, of course, of limited usefulness in this area, because the American constitutional provisions that have been held relevant to the facts with which we are concerned are significantly different from the comparable Charter provisions.  The leading American cases, which include Massiah v. United States, 377 U.S. 201 (1964); United States v. Henry, 447 U.S. 264 (1980); and Kuhlmann v. Wilson, 477 U.S. 436 (1986), have been decided on the basis of the Sixth Amendment ("In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defence"), which does not correspond directly to s. 10(b) of our Charter, much less to s. 7.  However, I find some of the language in the American cases to be instructive, particularly concerning the element of compulsion that is inherent in any conversation with an accused while under detention.  In Henry, supra, Burger C.J. stated for the majority of the court, at p. 274:

 

. . . the mere fact of custody imposes pressures on the accused; confinement may bring into play subtle influences that will make him particularly susceptible to the ploys of undercover Government agents.

 

Prior to arrest or detention, such pressures do not operate:  see Hoffa v. United States, 385 U.S. 293 (1966).

 

    The right to remain silent, viewed purposively, must arise when the coercive power of the state is brought to bear against the individual -- either formally (by arrest or charge) or informally (by detention or accusation) ‑‑ on the basis that it is at this point that an adversary relationship comes to exist between the state and the individual.  The right, from its earliest recognition, was designed to shield an accused from the unequal power of the prosecution, and it is only once the accused is pitted against the prosecution that the right can serve its purpose.

 

    The right does not, however, avail against private individuals.  This is consistent with the limitation of the right at common law to circumstances in which an accusation is made by or in the presence of a person in authority:  see Parkes v. The Queen, [1976] 1 W.L.R. 1251 (P.C.); and it is, incidentally, also consistent with the inapplicability of the Charter to the relations between private individuals:  see RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573.  For these purposes, however, the term "person in authority" does not bear the same meaning as it does in the context of the confession rule, in which a police officer is a "person in authority" only if the accused subjectively believes him to be:  Rothman, supra.  If the right has engaged, police officers cannot prevent its availability against them by disguising themselves, any more than they can constitutionalize an unreasonable search or an arbitrary detention by disguising themselves.

 

    Consequently, the relationship between when the right arises and against whom it avails is straightforward.  Once the right attaches in accordance with the principles set out above, any communication between an accused and an agent of the state (including a suborned informer) is subject to the right and may proceed only if the accused waives the right; but communication between an accused and another private individual is not subject to the right.  Conversely, before the right attaches, communication between an accused and either an agent of the state or another private individual is not subject to the right:  see, e.g., R. v. Hicks (1988), 42 C.C.C. (3d) 394 (Ont. C.A.), at p. 407; affirmed [1990] 1 S.C.R. 120.

 

    It would be an error to conclude, though the Crown made this submission in terrorem, that the recognition of a constitutional right to remain silent in the present circumstances signals the end of the acquisition of confessions by undercover police officers.  Prior to the time that an adversary relationship exists between the state and the individual, the right to remain silent has not attached and undercover police work may proceed unhindered.  So, for example, the use of a wire on a police informant in a conversation between the informant and an uncharged suspect, as described in R. v. Thatcher, [1987] 1 S.C.R. 652, at pp. 668‑69, would not implicate the constitutional right to remain silent.  Furthermore, even after charge and during detention, the right to remain silent would not be violated by the passive surveillance of a conversation between an accused and another (genuine) prisoner by an undercover officer, or an electronic device:  see R. v. Smith, Wilson and Quesnelle, Ont. S.C., November 5, 1987, unreported, in which Reid J. drew this distinction.  (Though, it should be noted that in cases of electronic "participant surveillance" different constitutional issues arise pursuant to s. 8 of the Charter:  see R. v. Duarte, [1990] 1 S.C.R. 30.)

 

    It is not necessary in the present case, however, to trace out every implication of the constitutional right to remain silent.  For the purposes of the circumstances of this case, it is sufficient to observe that the right extends at least as far as the common law right.  It must be left for subsequent cases to determine whether the constitutional right extends further.  The interchange under consideration in the present case occurred between the appellant and a police officer after the appellant was charged and while he was in custody.  According to the agreed facts, the police officer "engaged the accused in conversation".  If there is any set of circumstances in which the right attaches, this is it.

 

    A question remains whether the appellant, by speaking to the disguised Corporal Miller, waived his right to remain silent.

 

Waiver

 

    This Court has, at every opportunity, taken a stern view of the requirements for waiver of a constitutional right.  The oft‑cited statement of principle on this subject was made by my colleague Wilson J. in her judgment in Clarkson v. The Queen, [1986] 1 S.C.R. 383, at pp. 394‑95, concerning a violation of the right to counsel:

 

    Given the concern for fair treatment of an accused person which underlies such constitutional civil liberties as the right to counsel in s. 10(b) of the Charter, it is evident that any alleged waiver of this right by an accused must be carefully considered and that the accused's awareness of the consequences of what he or she was saying is crucial.  Indeed, this Court stated with respect to the waiver of statutory procedural guarantees in Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41, at p. 49, that any waiver ". . . is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process".  [Emphasis in original.]

 

    The American courts have come to a similar view concerning waiver of the Sixth Amendment right to counsel.  In Henry, supra, a case very near to the facts of the case at bar, the United States Supreme Court held, at p. 273, that "the concept of a knowing and voluntary waiver of Sixth Amendment rights does not apply in the context of communications with an undisclosed undercover informant acting for the Government".  (See also the American cases cited by Wilson J. in Clarkson, supra, at p. 395.)

 

    I would respectfully adopt the Clarkson standard as appropriate in relation to waiver of the right to remain silent.  The right to remain silent is, as much as the right to counsel, predicated on the fair treatment of an accused in the criminal process.  Indeed, in an important respect, the right to remain silent is more fundamental.  The principal effect in many cases of granting the right to counsel is that the accused is informed of the right to remain silent:  R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1242‑43, per Lamer J.  It follows, in my view, that any waiver of the right to remain silent must, similar to a waiver of the right to counsel, pass an "awareness of the consequences" test.

 

    This Court has applied the Clarkson standard in relation to several different Charter rights:  see, e.g., R. v. Conway, [1989] 1 S.C.R. 1659, at p. 1686 (s. 11(b)); and R. v. Turpin, [1989] 1 S.C.R. 1296, at pp. 1315‑16 (s. 11(f)).  In my opinion, to now hold that something less than informed waiver can suffice to deprive an accused of the right to remain silent would be inconsistent with this Court's previous position on waiver of these other equally important Charter rights, and could signal an erosion of the high standard we have required for waiver of the right to counsel itself.  This right is, as pointed out by my colleague, similar to the right to remain silent in that each involves making a choice.  Accordingly, this course does not appeal to me, either in principle or as a matter of policy.

 

    It is patent that the deliberate deception practiced here prevented (indeed, was designed to prevent) the appellant from being aware of the consequences of his actions, and that it operated to vitiate any waiver that might have been forthcoming otherwise.  In the circumstances, there could be no waiver, and the appellant's right to remain silent, as embodied in s. 7 of the Charter, was violated.

 

Section 1

 

    Section 1 of the Charter reads as follows:

 

    1.  The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

 

    In R. v. Therens, [1985] 1 S.C.R. 613, at p. 621, Estey J., speaking for the majority (Beetz, Chouinard, Wilson JJ. concurring, and Lamer J. concurring on this point), stated:  "The limit on the respondent's right to consult counsel was imposed by the conduct of the police officers and not by Parliament".  More recently, in R. v. Thomsen, [1988] 1 S.C.R. 640, at pp. 650‑51, Le Dain J., speaking for the Court, reiterated the view he had expressed previously in Therens, at p. 645 (McIntyre J. concurring, and Dickson C.J. concurring on this point), as follows:

 

The limit will be prescribed by law within the meaning of s. 1 if it is expressly provided for by statute or regulation, or results by necessary implication from the terms of a statute or regulation or from its operating requirements.  The limit may also result from the application of a common law rule.

 

    The police conduct that constituted the Charter violation in the present case was a police initiative, and was not the execution or necessary implication of a statutory or regulatory duty, and was not the result of the application of a common law rule.  The use of undercover officers in these circumstances is certainly legal, in the sense that it is not proscribed by law; but it does not follow that this tactic is prescribed by law.  The word "prescribe" connotes a mandate for specific action, not merely permission for that which is not prohibited.  For these reasons, it cannot be said that the limiting effect on the appellant's s. 7 rights was "prescribed by law", and it is therefore unnecessary to consider the application of s. 1 to the facts of this case.

 

Section 24(2)

 

    The only question remaining is whether the evidence of the incriminating statements made by the appellant to Corporal Miller ought to be excluded pursuant to s. 24(2) of the Charter, which reads as follows:

 

    24.  . . .

 

    (2)  Where, in proceedings under subsection (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, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

 

    This Court's leading precedent on the interpretation and application of s. 24(2) is the judgment of Lamer J., speaking for the majority, in Collins, supra.  In that case, Lamer J. set out three groups of factors to consider in the determination whether the admission of impugned evidence could bring the administration of justice into disrepute.  These were:

 

(1)factors concerning the effect of admission of the evidence on the fairness of the trial;

 

(2)  factors concerning the seriousness of the Charter violation; and

 

(3)factors concerning the effect of exclusion of the evidence on the reputation of the administration of justice.

 

    In respect of the first group of factors, or the "trial fairness" rationale for the exclusion of evidence, Lamer J. said this, at pp. 284‑85:

 

The trial is a key part of the administration of justice, and the fairness of Canadian trials is a major source of the repute of the system and is now a right guaranteed by s. 11(d) of the Charter.  If the admission of the evidence in some way affects the fairness of the trial, then the admission of the evidence would tend to bring the administration of justice into disrepute and, subject to a consideration of the other factors, the evidence generally should be excluded.  [Emphasis in original.]

 

. . . the situation is very different with respect to cases where, after a violation of the Charter, the accused is conscripted against himself through a confession or other evidence emanating from him.  The use of such evidence would render the trial unfair, for it did not exist prior to the violation and it strikes at one of the fundamental tenets of a fair trial, the right against self‑incrimination.  Such evidence will generally arise in the context of an infringement of the right to counsel.  Our decisions in Therens, supra, and Clarkson v. The Queen [supra], are illustrative of this.  The use of self‑incriminating evidence obtained following a denial of the right to counsel will generally go to the very fairness of the trial and should generally be excluded.  [Emphasis added.]

 

Lamer J. reiterated these points, speaking for the Court, in R. v. Ross, [1989] 1 S.C.R. 3, at p. 16.

 

    In my view, the evidence sought to be adduced in the present case falls squarely within that species of evidence referred to by Lamer J. which, if admitted, would render the trial unfair.  In this respect, violations of the right to counsel and the right to remain silent generate an identical sort of evidence:  self‑incriminatory statements that would not have been made but for the violation.  The admission of such evidence is unfair because it is representative of a model of criminal justice fundamentally at odds with that enshrined in the Charter.  The accused is effectively stripped of the presumption of innocence (because he has damned himself in the eyes of the trier of fact), and he has thus relieved the Crown of the burden of proving the case.  Furthermore, the accused is placed in the invidious position of having to take the stand, contrary to the privilege against self‑incrimination, in order to disclaim the confession.  All of these knock‑on effects amply demonstrate the unfairness inherent in the admission of an unconstitutionally acquired confession.

 

    As Lamer J. pointed out in Collins, any impingement on trial fairness strikes at the heart of the reputation of the administration of justice.  But the Crown has submitted in the present case that the good faith of the police officers who arranged for the deception of the appellant, relying on the authority of Rothman, supra, is a significant factor in favour of receiving the evidence.  For myself, I fail to see how the good faith or otherwise of the investigating officers can cure, so to speak, an unfair trial.  This Court's cases on s. 24(2) point clearly, in my opinion, to the conclusion that where impugned evidence falls afoul of the first set of factors set out by Lamer J. in Collins (trial fairness), the admissibility of such evidence cannot be saved by resort to the second set of factors (the seriousness of the violation).  These two sets of factors are alternative grounds for the exclusion of evidence, and not alternative grounds for the admission of evidence.  It seems odd indeed to assert that evidence the admission of which would render a trial unfair ought to be admitted because the police officer thought he was doing his job.  From the accused's perspective (whose trial is ex hypothesi proceeding unfairly), it makes little difference that the police officer has a clean conscience in the execution of his duty.  This, no doubt, accounts for the language of exclusion in this Court's cases on the issue which seems to contemplate a direct progression from (a) the admission of such evidence, to (b) an adverse effect on the fairness of the trial, to (c) the disrepute of the administration of justice.  For example, in R. v. Black, [1989] 2 S.C.R. 138, Wilson J. stated, at p. 160:

 

    In my view, the admission of the appellant's inculpatory statement would adversely affect the fairness of the trial and bring the administration of justice into disrepute.  The fairness of the trial would be adversely affected since the admission of the statement would infringe on the appellant's right against self‑incrimination, a right which could have been protected had the appellant had an opportunity to consult counsel.

 

    I must conclude that the admission of evidence of the statements elicited by Corporal Miller would bring the administration of justice into disrepute, and that the evidence must therefore be excluded pursuant to s. 24(2).

 

    Accordingly, the appeal is allowed, the judgment of the Court of Appeal for the Yukon Territory is reversed, and the appellant's acquittal is restored.

 

    Appeal allowed.

 

    Solicitors for the appellant:  O'Brien & Horembala, Whitehorse; Greenspan, Rosemberg, Toronto.

 

    Solicitor for the respondent:  John C. Tait, Ottawa.

 

 

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