The most important right offered to Canadian citizens is found in section 7 of the Charter. It promises every Canadian, “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The reason this is the most important right under the Charter is that all the specific rights outlined in sections 8 to 14 of the Charter, are supported by this overall right to fairness under the Charter.
Every knowledgeable criminal defence lawyer raising any Charter issue or complaint, of any type, always includes an allegation of breach of section 7, alleging its support in protecting the overall fairness principles outlined specifically in section 7. Section 7 protects the right to remain silent. The right to remain silent is based on the notion that a person whose liberty is placed in jeopardy by the criminal process cannot be required to give evidence against himself. He has the right to choose whether to speak or to remain silent.
A person who is detained by the police and subjectively possesses an operating mind, may still choose to speak to the police authorities. The issue in most cases of police interrogation comes down to a determination of whether the conduct of the police, considered on an objective basis, effectively and unfairly, deprived the accused of the right to choose whether to speak to them or not.
If the police use trickery or subterfuge in interrogating an accused person, after he has advised them that he chooses not to speak to them, it will usually be determined that the actions of the police are improper and any information they elicit through their impropriety will be a breach of the accused’s right to silence. Our courts have also determined, that while this right protects an accused person who is detained by the police, and he knows his interrogators are police officers, the right does not protect an accused who unwittingly or unknowingly speaks to an undercover police officer and admits wrongdoing even before his detention. The right to silence does not protect an accused who speaks freely and openly to a person that he does not know is an investigator in disguise.
One significant limitation of section 7 of the Charter is that a Corporation cannot avail itself of its protection. Corporations are not included in the term “everyone.” Corporations do not have the right to life, liberty, and security of the person.
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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