Decision creates concern

A narrow Supreme Court of Canada majority decision affirming police have the right to speak to those who have asserted their right to silence has left some lawyers concerned about the respect for the solicitor/client relationship and the incentive for officers to keep questioning detainees until they get a statement.

In a sharply divided 5-4 majority earlier this month in the case of R v. Singh, the court dismissed the appeal of Jagrup Singh, who was arrested and later convicted of the second-degree murder of an innocent bystander in 2002 after an argument outside a pub in Surrey, B.C.

Singh appealed that statements he had made to police while being interviewed were a violation of his Charter rights, as he asserted his right to silence several times. He also submitted the law in Canada provides inadequate protection during custodial interrogations and police officers should be required to inform the detainee of his or her right to silence and stop questioning any detainee who says that he or she does not want to speak to the police.

Writing on behalf of the majority, Justice Louise Charron noted that this proposition “ignores the state interest in the effective investigation of crime” and overshoots the protection given to a person’s freedom of choice under the common law and the Charter.

“What the common law recognizes is the individual’s right to remain silent. This does not mean, however, that a person has the right not to be spoken to by state authorities,” she said.

The protection provided by common law confessions rules, she noted, has always been intended to guard against the “potential abuse by the state of its superior powers over a detained suspect.” However, under Singh’s suggested approach, “any statement obtained after the suspect asserts his right to silence would be of questionable admissibility,” wrote Charron.

Before being interviewed twice by police, Singh spoke to counsel by phone and in person. During the interviews, while he spoke about his family, his background, his religious beliefs, and his employment, he asserted his right to silence about the incident 18 times, according to the decision.

Each time, the officer continued the interview, either affirming that Singh did not have to say anything, or explaining he had a duty or desire to place the evidence before him. No weapon or forensic evidence was found linking Singh to the shooting. But a doorman identified Singh as the shooter in a photo lineup.

During the police interviews, Singh admitted that he had been in the pub on the night of the shooting but said that he left before the shooting occurred. He also identified himself in a photo from the videotape taken inside the pub on the night of the shooting. According to the decision, it was the interviewing officer’s admitted intention to put parts of the police case against Singh before him in an effort to get him to confess, “no matter what.”

“The importance of police questioning in the fulfilment of their investigative role cannot be doubted. One can readily appreciate that the police could hardly investigate crime without putting questions to persons from whom it is thought that useful information may be obtained . . . indeed, if the suspect in fact committed the crime, he or she is likely the person who has the most information to offer about the incident,” said Charron.

However, writing on behalf of the dissenting opinion, Justice Morris Fish noted that, in his view, the issue in this case could not be characterized this way. “No one has challenged the right of the police to put ‘questions to persons from whom it is thought that useful information may be obtained.’ While it is true, of course, that the common law recognizes the right of police to ask questions, it is no less true that the constitution recognizes the right of a detainee’s to refuse to answer.” 

While witnesses are expected to assist the police by answering questions but can also refuse to answer and go home, notes Fish, “prisoners and detainees, on the other hand, are by definition not free to leave as they please. They are powerless to end their interrogation . . . this is why they have been given the right to counsel and its close relative, the right to silence.”

Timothy Breen, lawyer for the Criminal Lawyers’ Association who intervened in the case, tells Law Times that the effect of the majority opinion, in the CLA’s view, is that “because there are no limits on what police can do in the face of an assertion of a right to silence by a detainee, there is effectively a suspension of the right in that situation,” he says.

The majority’s approach gives the police “no disincentive at all from over-reaching and engaging in potentially oppressive tactics,” adds James Stribopoulos, assistant professor at Osgoode Hall law school.
“The incentive structure that’s created because of this case is all about giving the police reason to keep trying until they get the statement,” he says.

Charron said that situations are fact-specific and trial judges must take into account all the relevant factors in determining whether or not the Crown has established that the accused’s confession is voluntary.
“In some circumstances, the evidence will support a finding that continued questioning by the police in the face of the accused’s repeated assertions of the right to silence denied the accused a meaningful choice whether to speak or to remain silent.”

“The ultimate question is whether the accused exercised free will by choosing to make a statement,” she wrote.
However, Fish noted that “In his relentless pursuit of a confession ‘no matter what,’ the interrogator urged the accused, subtly but unmistakably, to forsake his counsel’s advice. The accused was thus deprived not only of his right to silence, but also, collaterally, of the intended benefit of his right to counsel.”

“I much prefer a system of justice that permits the effective exercise by detainees of the constitutional and procedural rights guaranteed to them by the law of the land. The right to silence, like the right to counsel, is in my view a constitutional promise that must be kept,” he wrote.

As Singh had retained counsel, says William Trudell, chair of the Canadian Council of Criminal Defence Lawyers, he adds that there is a concern that no longer “can you expect that a police officer will respect the relationship between a solicitor and client.”

“It’s a shock in terms of how we should operate in relation to whether the police will respect the fact that there’s a solicitor-client relationship. That, on a practice level, is a real concern to me,” he says. Trudell adds that he hopes the issue will be revisited as it creates practical problems for counsel advising clients in this situation and changes the way everybody has to practise.

Another concern, says Trudell, is that there does not seem to be any room for consideration of vulnerability in the decision.

“I’d be concerned, very much concerned, about those people who have challenges in terms of immaturity, mental-health issues, language issues, and this case really kind of opens the door to wrongful admissions, which will lead the way to wrongful convictions,” he says.

Stribopoulos adds that he is also worried about those who are facing their first encounter with the criminal justice system, who are most in need of the Charter’s protection, but are “most likely not to receive it because they don’t know what’s required.”

“It’s hard not to conclude that most reasonable people, if they’re in police custody, and they say to the police, ‘I don’t want to speak,’ and . . . the assertion of the right has no practical effect, are ultimately going to conclude that the right is really a hollow one,” he says.

Counsel for the interveners the Canadian Association of Chiefs of Police was not available for comment, and counsel for the Director of Public Prosecutions of Canada, who also intervened in the case, could not be reached for comment.

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