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

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.

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