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| Patrick Ducharme |
Continued from a series on Searches and Confessions…
The Court Must Decide
Basic to all of this is the concept that before a Crown may offer evidence of a statement made by the accused to a person in authority, the Crown must have the court rule on the admissibility of that statement in accordance with the common law confessions rule. If there is any issue about the status of the recipient of the statement being “a person in authority” the burden falls to the accused to at least establish that the recipient was, in fact, a person in authority.
In most cases in criminal law a police officer or someone who fits the conventional definition of a person in authority will have received the statement. In those circumstances, the issue amounts to a non-issue.
The only exception to the requirement of proof of voluntariness on a voir dire is a valid waiver by the accused. The proof of waiver of the right to silence requires a clear and unequivocal understanding by the accused of the procedural safeguard that he or she is surrendering with full knowledge of the rights the procedure was enacted to protect.
Singh considered the right to silence after the accused is detained. In Singh, while the accused was with the police he stated multiple times that he did not want to talk to them about the incident and that he did not know anything about it (referring to the alleged crime), or, that he wanted to return to his prison cell.
The police, however, ignored his comments and continued to engage him in conversation, and somewhat predictably, Singh eventually made incriminating statements. The Supreme Court found that in determining whether the accused’s section 7 rights to silence had been infringed, the court had to consider two tests:
1. The common-law voluntary confessions rule; and,
2. The right to silence protected by section 7 of the Charter.
The court found that the police are entitled to use legitimate means of persuasion even after the accused asserts his desire to remain silent. The court also acknowledged Mr. Singh’s assertion that the police are not permitted to ignore his desire to remain silent because that would pose a risk that any statements obtained after he has stated such a desire may not be voluntary. A failure by the police to adhere to his request might result in the statements being found involuntary. The court concluded, that every case is fact-specific. The fact of ignoring his requests not to speak to them alone will not necessarily mean a breach of the Charter or that any resulting statement was necessarily involuntary. The circumstances of what occurred has to be decided on a case-by-case basis.
To be continued…
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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