The Supreme Court of Canada needs to set limits on interrogating a suspect in custody once he asserts his right to silence because of the way police have interpreted a previous ruling on this issue, say many defence counsel.
The Supreme Court found in its 1990 ruling in R. v. Hébert, that the state is open to "use legitimate means of persuasion" to encourage someone to make a statement even after he asserts his right to silence.
The scope of this power has not been settled by the Supreme Court, and police across Canada routinely use Hébert to continue to interrogate suspects in custody, even if the right to silence has been asserted dozens of times.
As a result, defence counsel say they must sometimes employ unusual strategies to counteract the police tactics, as they tell clients they have the right to silence but that it also will not be respected.
The right to silence is the "next battleground," said Toronto defence lawyer Anil Kapoor. "The Supreme Court of Canada has to set a limit. It is unconscionable that the assertion of the right to silence is not respected. Right now, it's open season."
The interpretation of Hébert by police in the past 15 years is "perverse," argued lawyer Heather McArthur. "If it is correct then you have the right to assert the right to silence, but you don't actually have the right to silence," she said.
The Quebec and British Columbia Courts of Appeal have both addressed this issue as have numerous lower courts.
The Quebec Court of Appeal found in R. v. Otis, a decision released in 2000, that the rights of a suspect charged with second-degree murder were breached when he asserted his right to silence four times within the first 35 minutes of a videotaped interview.
The British Columbia Court of Appeal dismissed a Crown appeal in 2003 from an acquittal in a second-degree murder trial where Justice Sunni Stromberg-Stein excluded statements by the defendant because of the conduct of police.
"How many times must a suspect say no? Can a suspect simply be ignored until his or her will is broken down or overridden," wrote Stromberg-Stein in a trial ruling.
The Ontario Court of Appeal suggested there may be limits on police in its November 2003 ruling in R. v. Roy. The appellant, Francis Roy, was convicted in 1999 of a notorious kidnapping, sexual assault, and murder of an 11-year-old girl in 1986. Roy was interrogated for eight hours and asserted his right to silence about 70 times.
Kapoor represented Roy at the Court of Appeal and argued that Justice David Watt erred in allowing a statement by the defendant to be entered at trial. Watt ruled that Roy had not been deprived of an "operating mind." Kapoor suggested the courts must also consider the constitutionality of a police strategy "designed to undermine the detainee's desire to remain silent."
The Court of Appeal described Kapoor's arguments as an "attractive presentation," yet ultimately upheld his client's conviction. The ruling, written by Justice David Doherty, said that while there are limits once the right to silence is asserted, it is a "factual decision to be decided on a case-by-case basis."
McArthur indicated that in less widely publicized cases than Roy, lower courts in Ontario have excluded statements if the right to silence is repeatedly ignored by police.
This year in Hamilton, she filed an application to exclude a statement by a client charged with second-degree murder who invoked his right to silence nearly 120 times in a four-hour videotaped interview.
The defendant pleaded guilty to a lesser charge of manslaughter before the trial judge could rule on the application, but McArthur said the testimony of the Hamilton police detectives during the voir dire was not out of the ordinary.
"One detective said a defendant could say it 1,000 times and he would not stop," said McArthur.
Another detective conceded that he could not torture a suspect, but would continue the interrogation as long as the detainee was physically capable of answering questions, she said.
"They saw no limits to their right [to interrogate]."
As a result, McArthur said she instructs clients to invoke their right to silence, "over and over," once a videotaped interview begins. "It has come to the point where you have to suggest bizarre ways," to try to thwart an interrogation. She also sends a fax to the police station to provide a record of her client's desire not to make a statement.
Toronto lawyer Edward Sapiano has come up with unique instructions for any client he surrenders to police.
"I tell them to eat a can of brown beans and a Whopper before surrendering."
On one police videotape Sapiano received as part of disclosure, he says the detectives can be heard remarking on the odour and leaving the interrogation room.
The defence lawyer, who has handled several murder trials in his career, also instructs his clients to turn directly to the video camera in the interrogation room and say "what does a man have to do to have his right to silence respected?"
While his instructions may be unusual and appear humorous, Sapiano said his experience has left him pessimistic that courts will exclude statements made after defendants have asserted the right to silence.
"I have more faith in the constitutional protections afforded by a can of beans than I do in the courts to uphold a defendant's rights under the Charter," said Sapiano.