Speaker's Corner: Canada unlikely to follow U.K. lead on right to silence

While watching Life on Mars, a British TV drama about a police officer who’s struck by a car in 2006 and wakes up in 1973, I became curious about police procedures in England.

One of the running gags in the show is that every time the officer, Sam Tyler, arrests someone, he says,

“You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely upon in court. Anything you do say may be given in evidence.”

The other characters invariably note that that’s not how it goes. I must confess that it sounded a little strange to my ears as well. After all, isn’t there a common law right to remain silent?

It turns out the right to silence was abridged, or some would say abolished, in England by the 1994 Criminal Justice and Public Order Act.

In fact, s. 34-39 of the act provides for a whole host of situations where a negative inference can be drawn against silence.

If people fail to mention any fact that they later rely upon and that, in the circumstances at the time, the accused could reasonably be expected to mention, a negative inference can be drawn.

In addition, if people fail to give evidence at trial or answer any questions, the court can draw a negative inference. The same applies if upon arrest they fail to account for their presence at a place; for objects, substances or marks on them; or for clothing or footwear in their possession or in the place where they were arrested.

Lest you think all civil liberties have been pitched out the window in England, the act has a provision for silence at a police station. That is, the negative inference only flows after the accused has spoken to legal counsel.

Given the state of the law, though, I’m not sure what advice counsel could provide to an accused.
As I read about this shift away from such a key element of justice, I was perplexed. How could such a profound change take place?

What was behind this bizarre new world?
The answer is almost as strange as the change itself to the right to remain silent. Ironically, this change has its origins in the concern for the wrongfully convicted. After a rash of cases of wrongful convictions, the British government introduced the 1984 Police and Criminal Evidence Act.

The act was a comprehensive codification of the rules of procedure police are to follow in a whole host of situations.

One of the areas regulated by the act is interrogation. It had come to light that many wrongful convictions were the result of false confessions. They were thought to have resulted from the tactics police were using at the time to interrogate suspects, the best known of which was the Reid technique.

What’s objectionable about the Reid technique is that it’s designed to elicit confessions. Part of the technique involves building rapport, presenting false evidence, minimizing the offence, and then becoming more aggressive while confronting the person being interviewed in an attempt to get the subject to confess.

DNA evidence subsequently vindicated several individuals convicted in England as a result of giving confessions after being subject to the Reid technique. In accordance with the 1984 law, the British government developed a new interviewing technique called planning, engaging, account, closure, evaluate (PEACE).

Unlike the Reid technique, the officer using PEACE isn’t trying to get the person being interviewed to confess. The officer isn’t allowed to engage in manipulative strategies, such as presenting false evidence, or be confrontational. Instead, the PEACE technique is intended to be a non-confrontational process to collect the facts.

With these changes, law enforcement authorities became concerned that their ability to investigate would be severely limited. After all, if people don’t have to say anything and the police can’t use more aggressive and manipulative techniques to get them to speak, the argument is that investigations will be more difficult.

In response to the implementation of the PEACE technique, the government did away with the right to remain silent. It was a trade-off of sorts. That is, the police behave in a more humane way and the person being interviewed has to be more forthcoming in answering questions.

The British courts have taken readily to the amendments. In R. v. Weber, for example, the House of Lords ruled that s. 34 of the Criminal Justice and Public Order Act applies to facts that are put to witnesses by the defence even if they don’t adopt them.

The result is that cross-examination is fraught with new perils for defence counsel. Any alternative scenario put to a witness by the defence can now attract a negative inference if it hasn’t been disclosed to the prosecution beforehand.

Applying the law in this way means that the defence will be penalized by negative inference if they don’t engage in a type of reciprocal disclosure. While this puts an end to the ambushing of the prosecution, it also takes a significant advantage away from the defence.

As I pondered these developments, I wondered whether such a change in the law could be coming to Canada any time soon. I don’t believe so. Unlike England, Canada has a written constitution.

The courts have found the right to remain silent to be an essential part of the right to life, liberty, and security of the person. It’s not simply a matter of passing legislation amending the right to silence.

The government would have to amend the Constitution or the Supreme Court of Canada would have to significantly reinterpret the meaning of fundamental justice in s. 7 of the Charter of Rights and Freedoms.

Alternatively, the government would have to pass legislation making the change and then invoke the notwithstanding clause. This is a very unlikely course of action, however, for any government either now or in the future.

That said, if in 1973 you predicted that England would abridge the right to silence by statute, people would have thought you were from Mars.

Michael Demczur is an assistant Crown attorney in York Region. His views are his own and not those of the Ministry of the Attorney General.

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