Singh: Defining Silence under Section 7?
Yesterday (May 23) the Supreme Court of Canada (“SCC”) heard and reserved judgment on Jagrup Singh v. Her Majesty the Queen, 2007 SCC 48 [Singh], a significant case contemplating a criminally accused’s right to silence under section 7 of the Canadian Charter of Rights and Freedoms. On appeal from British Columbia, the outcome of this case will likely help to define the contours of this rather generalized and abstract right as it applies to police detainees.
Singh begins with the death of an innocent bystander felled by a stray bullet on April 5, 2002 as he stood in the doorway of a Surrey, B.C. pub. This tragic event was the culmination of an argument between a group of pub patrons and staff that took place in a parking lot just outside the establishment. Although the fatal shot was fired at one of the above-mentioned employees, the bullet missed its mark, instead passing through the pub’s door and hitting the victim in the head.
Singh was arrested in connection with the shooting three days later and subsequently interviewed by police while in their custody. At the time of arrest he was given a Charter warning and was permitted to speak with a lawyer. During the course of one of two investigative interviews, Singh repeatedly indicated that he did not wish to talk about the incident and wanted to be returned to his cell. At each instance, the attending officer ignored the appellant’s desires and continued to outline the circumstances of the event while prompting for information from Singh.
Although he did not offer an outright confession, Singh was nevertheless persuaded by the officer to make an admission regarding his presence in the pub on the night of the shooting. Owing to a lack of forensic evidence, the key issue before the trial court was the identity of the shooter. Singh contended that any inculpatory statement made by him to police should have been excluded on the ground that it was taken in breach of his right to silence. At trial, the judge reviewed the police’s conduct and ruled that Singh’s right to silence had not been infringed.
Both the trial and appellate courts spent much time considering the important SCC precedent set in R. v. Hebert,  2 SCR 151 [Hebert], as well as the common law confession rule. The Hebert case revolved around an appellant arrested and charged with robbery. After consulting with his lawyer, Hebert informed police that he did not wish to make a statement. The accused was subsequently placed in a cell with an undercover officer posing as a prisoner. The officer engaged the accused in conversation and was able to elicit a number of incriminating statements implicating Hebert in the robbery. The SCC was unanimous that section 7 of the Charter not only includes the right to silence, but that Hebert’s right had been violated by the police ruse. The SCC was divided, however, as to the exact contours of the right to silence, resulting in a number of concurring opinions and leaving the case somewhat susceptible to divergent interpretation.
The B.C. Court of Appeal, like the trial court, found that Singh needed to be distinguished from Hebert on the basis that the latter involved police trickery aimed at deception. In Singh the accused had been fully aware of both the interviewing officer’s identity and intent. As such, Mackenzie J. declared at para. 15 that the police should not be “precluded from using reasonable persuasion to encourage a detained person to break his silence after his right to silence has been asserted…” Speaking on behalf of a unanimous Court of Appeal he firmly concluded at para. 20:
In my view there was no error of law or principle in the trial judge’s approach to the issue, and there are no grounds to disturb his factual conclusion that the interview technique employed by [the officer] was a legitimate technique of persuasion. It was not unfair.
It seems unlikely that the SCC will disagree.