Understanding Canadian Law Four-Book Bundle. Daniel J. Baum

Justice McLachlin (now chief justice) spoke for the Court majority. She stated:

      The Charter, through section 7, seeks to impose limits on the power of the state over the detained person. It thus seeks to effect a balance between the interests of the detained individual and those of the state. On the one hand, section 7 seeks to provide to a person involved in the judicial process protection against unfair use by the state of its superior resources. On the other hand, it maintains to the state the power to deprive a person of life, liberty or security of the person provided it respects fundamental principles of justice.

      The balance is critical. Too much emphasis on either of these purposes may bring the administration of justice into disrepute — in the first case because the state has used its superior power against the individual, in the second because the state’s legitimate interest in law enforcement has been frustrated without proper justification.

      The right to silence conferred by section 7 reflects these values. The suspect, although placed in the superior power of the state upon detention, retains the right to choose whether or not he will make a statement to the police. To this end, the Charter requires that the suspect be informed of his or her right to counsel without delay. If the suspect chooses to make a statement, the suspect may do so. But, if the suspect chooses not to, the state is not entitled to use its superior power to override the suspect’s will and negate his or her choice.

      The scope of the right to silence must be defined broadly enough to preserve for the detained person the right to choose whether to speak to the authorities or to remain silent, notwithstanding the fact that he or she is in the superior power of the state. On this view, the scope of the [Charter] right must extend to exclude tricks that would effectively deprive the suspect of his choice. To permit the authorities to trick the suspect into making a confession to them after he or she has exercised the right of conferring with counsel and declined to make a statement, is to permit the authorities to do indirectly what the Charter does not permit them to do directly. This cannot be in accordance with the purpose of the Charter.

      Charter provisions related to the right to silence of a detained person under section 7 suggest that the right must be interpreted in a manner which secures to the detained person the right to make a free and meaningful choice as to whether to speak with authorities or to remain silent. A lesser protection would be inconsistent not only with the implications of the right to counsel and the right against self-incrimination affirmed by the Charter, but with the underlying philosophy and purpose of the procedural guarantees the Charter enshrines.

      The Remedy

      What remedy should the Court impose for the Crown’s violation of the accused’s right to be silent? (Bear in mind, if there were a violation of the YCJA as to the improper taking of a young person’s statement by a person in authority — such as the police — the Act clearly allows the youth court judge to refuse its use in the criminal proceeding.)

      Section 24(2) of the Charter allows a court to deny the use of the police officer’s testimony where there has been a violation of the Charter right to silence and where receiving such evidence would bring the administration of justice into disrepute. Justice McLachlin, again speaking for the Court majority, ruled that it would be highly prejudicial to the accused to allow the police officer’s narration of what was said to be used in evidence. She stated:

      I am of the view that the evidence sought to be adduced in this case would render the trial unfair. I should not be taken as suggesting that violation of the accused’s right to silence under section 7 automatically means that the evidence must be excluded under section 24(2). I would not wish to rule out the possibility that there may be circumstances in which a statement might be received where the suspect has not been accorded a full choice in the sense of having decided, after full observance of all rights, to make a statement voluntarily.

      But where, as here, an accused is conscripted to give evidence against himself after clearly electing not to do so by use of an unfair trick [emphasis added] practised by the authorities, and where the resultant statement is the only evidence against him, one must surely conclude that reception of such evidence would render the trial unfair. The accused would be deprived of his/her presumption of innocence and would be placed in a position of having to take the stand if he/she wished to counter the damaging effect of the confession. The accused’s conviction if obtained would rest almost entirely on his own evidence against himself, obtained by a trick in violation of the Charter.

      I am also satisfied that the Charter violation was a serious one. The conduct of the police was willful and deliberate. They intentionally set out on a course to undermine the [accused’s] right to silence notwithstanding his expressed assertion of that right, by having the undercover police officer engage him in conversation. It is said the police acted in good faith.… However, ignorance of the effect of the Charter does not preclude application of section 24(2) of the Charter.…

      The effect of the exclusion [of the undercover officer’s testimony] in this case is serious. It would result in an acquittal, since virtually the only evidence was his statement to the undercover policeman.

      Balancing these factors, I arrive at the conclusion that the test of section 24(2) is met. As the [case] authorities … amply demonstrate, it has long been felt inappropriate that an accused should be required to betray himself. Where virtually the only evidence against him is such betrayal, the effect is that the accused is required to secure his own conviction. That is contrary to the notions of justice fundamental to our system of law and calculated, in my opinion, to bring the administration of justice into disrepute.

      CHALLENGE QUESTION

      The Jailhouse Stool Pigeon

      Q: Will the court receive the evidence of the “jailhouse” informant over a defendant’s objection as to her Charter right to remain silent?

      Suppose we have the same facts as in “You Be the Judge: The Case of the ‘Trick’, ” but with this difference: The police place the accused in a detention room with another person charged with a serious offence. That person has a long criminal record, and she thinks there is a way to get the Crown to “go easy” on her. Unknown to the police and the Crown, she gets information from Sally — enough information so that if her testimony were accepted, there is little doubt that Sally would be convicted. In the parlance of the criminal world, this person is known as a “jailhouse stool pigeon.”