R v Singh: Addressing the Divide between the Section 7 Right to Silence and the Common Law Confessions Rule

Today, the Supreme Court of Canada (“SCC”) released its decision in R v Singh, [2007] 3 SCR 405 [Singh]. The SCC further clarified the scope of the right to silence under s. 7 of the Charter, and in particular, focused on the intersection between this Charter right as defined in R v Hebert, [1990] 2 SCR 151 [Hebert] and the common law voluntary confessions rule as restated in R v Oickle, [2000] 2 SCR 3 [Oickle]. These issues, as well as the sharp divide between the majority and the dissent in this case, reveal the tension between the rights of the accused and society’s interest in the effective investigation and resolution of crimes.

Eric Baum has outlined the case in a previous post, but I will briefly summarize the findings at trial and at appeal. Jagrup Singh was arrested in connection with the shooting of an innocent bystander during a fight outside a pub in Surrey, British Columbia. He was given the appropriate Charter warning at the time of his arrest, and subsequently spoke to a lawyer. He was then interviewed twice by the police while in custody, and both interviews were videotaped. During the course of the first interview, the appellant attempted to end the discussion 18 times, either by indicating that he did not want to talk about the incident, or asking to be returned to his cell. The officer conducting the interview deflected the appellant’s wishes by outlining the circumstances of the shooting known to the police at the time, and inviting comment from the appellant. Mr. Singh finally admitted that he had been in the pub that evening, and identified himself in a still photo and a video recording taken at the pub.

At trial, Mr. Singh challenged the admissibility of the statements he made during the investigative interviews on the grounds that they were involuntary and infringed his Charter right to remain silent. The trial judge referred to the ruling in Hebert, and found that Mr. Singh’s admissions were not the result of being broken down by police questioning. The officer’s persuasion during the interview did not deprive Mr. Singh of an operating mind, and the trial judge admitted these edited statements into court. At the British Columbia Court of Appeal, Mr. Singh contended that the proper application of the s. 7 right to silence required the police to stop the effort to obtain admissions once the appellant asserted his right to silence. The appeal court disagreed, indicating that many cases recognize that the police are not precluded from using “reasonable persuasion” to encourage a detained person to break his silence after his right to silence has been asserted, following the exercise of the right to counsel. The appeal court found that such techniques do not normally offend a basic sense of fairness; in addition, the investigative interviews were videotaped and the trial judge was in an excellent position to assess the fairness of the process. The B.C. Court found that this interview technique was a legitimate form of persuasion, and it was not unfair.

The sharply divided SCC has now dismissed Mr. Singh’s current appeal, concurring with both the trial judge and the B.C. Court of Appeal. At the SCC, Mr. Singh argued that the trial and appellate courts misinterpreted the holding in Hebert as permitting the police to ignore a detainee’s expressed wish to remain silent and use “legitimate means of persuasion” to break that silence. He submitted that the B.C. Court of Appeal erroneously extinguished the s. 7 right to silence when it stated that the expansive view of the common law confessions rule adopted in Oickle “may leave little additional room” for a separate s. 7 Charter inquiry; consequently, the Court of Appeal’s affirmation of the trial judge’s dismissal of his s. 7 application was incorrect. Ultimately, the majority disagreed with Mr. Singh in this regard, while the four dissenters would have allowed the appeal and ordered a new trial.

The majority first outlined both the common law confessions rule, as discussed in Oickle, and the right to silence under s. 7 elaborated in Hebert. While the common law recognizes the accused’s right to remain silent, this right does not mean that the person has a right not to be spoken to by authorities. The rule recognizes the importance of police interrogation in the investigation of crime, but is correlatively concerned about the reliability of the confessions gleaned from such interrogations. The parameters of the rule are therefore tailored to counter the dangers created by improper investigative techniques that commonly produce false confessions. This concern is addressed in Oickle, a case in which the confessions rule is spelled out: as the majority explains, proof beyond a reasonable doubt of the voluntariness of any statement obtained from an accused by a person in authority is required before it may be admitted in evidence.

The right to silence, as a facet of the principle against self-incrimination, was a part of the common law confessions rule when the Charter came into force in 1982. The ruling in Hebert, in which the SCC outlined the s. 7 right to silence, confirmed that as long as the police are not posing as undercover officers and the accused chooses to volunteer information, there will be no Charter violation. Police persuasion, as long as it does not deny the suspect the right to choose or deprive him of an operating mind, does not breach the right to silence.

Comparing the common law confessions rule to the s. 7 right to silence, the majority stated that a finding of voluntariness will be determinative of the s. 7 issue, effectively endorsing the finding of the B.C. Court of Appeal. If the Crown proves voluntariness beyond a reasonable doubt, there can be no Charter violation of the right to silence in respect of the same statement. The majority found that Oickle enhances, rather than subsumes, the s. 7 right to silence; at common law, the protection afforded by the confessions rule also guards against the Charter concern of potential state abuse over a detained suspect.

Therefore, the majority found that the impugned B.C. Court of Appeal decision reflected the fact that, in the context of a police interrogation of a person in detention, where the detainee knows he or she is speaking to a person in authority, the two tests are functionally equivalent. After a statement has survived an inquiry into voluntariness, the accused’s Charter application alleging that the statement was obtained in violation of the pre-trial right to silence under s. 7 cannot succeed. The majority stated that its decision mirrors the balancing of state and individual interests that underscore the SCC’s previous s. 7 decisions.

The majority did acknowledge that under the common law and Charter rules, police persistence in continuing an interview, despite repeated assertions by the detainee that he wishes to remain silent, may indeed raise an argument that the subsequently obtained statement was not the product of a free will to speak to authorities. Looking specifically at the facts of this case, however, the SCC defers to the trial judge’s decision. The majority noted that the trial judge was aware of the risk of involuntariness, and that he made a judgment call that is supported by the record. The majority found that there was not reason to interfere with his ruling on admissibility, and they ultimately dismissed the appeal.

The four dissenters, on the other hand, found that the impugned statements were obtained in violation of the accused’s right to silence. They found that the interrogator understood that the accused had chosen not to speak with the police, but nevertheless disregarded the accused’s repeated assertions of his right to silence. The interrogator urged the accused to forsake his counsel’s advice; thus, the accused was deprived not only of his right to silence, but also of the intended benefit of his right to counsel.

The dissenters came to their finding by considering situations in which detainees are left alone to face such interrogators, and may feel that their constitutional right to silence has no practical effect and that they have no choice but to answer. Where continued resistance has been made to appear futile to one person under the dominance or control of another, as in this case, ultimate submission proves neither true consent nor valid waiver. The dissenters note that nothing in the SCC jurisprudence permits the police to press detainees to waive the Charter rights that they have firmly and unequivocally asserted, or to deliberately frustrate their effective exercise. This is true of both the right to counsel and the right to silence. While detainees are entitled to change their mind after asserting their right to silence, they cannot be compelled to do so by the persistent disregard of that asserted choice.

With this very real possibility in mind, the dissenters disagreed with the majority’s view on the common law confessions rule and the s. 7 right to silence, finding that the rationale of the confessions rule adopted in Oickle is distinct from the purposes of the Charter. The dissenters said that a confession may very well be considered voluntary under the common law rule and yet be obtained by state action that infringes s. 7 of the Charter. Section 7 will be infringed where, as in this case, a police interrogator has undermined a detainee’s freedom to choose whether to make a statement. A statement is admissible at common law where the detainee had an operating mind and the confession did not result from inducements, oppression or police trickery that would shock the community. But a confession that meets these common law standards does not invariably represent a free and meaningful choice for the purposes of the Charter. A choice that has been disregarded and unfairly frustrated by relentless interrogation is neither free nor meaningful. While the dissent recognized that there is considerable overlap between the common law confession rule and the Charter protection of the right to silence, they emphasized that the rules have different purposes and thus should remain distinct doctrines. As such, the dissenters found that the impugned statements were obtained in violation of s. 7, and they would have excluded the statements under s. 24(2) of the Charter.

It appears as though this SCC decision finally clarifies the scope of the s. 7 right to silence. However, the strong dissent casts a pall over the majority’s findings, and reveals that tension still exists between the rights of the accused and the impetus of crime control through investigative techniques. Several questions also remain unanswered, and may arise in future cases. For instance, what amount of police persistence will signal an accused’s descent into involuntary territory? As well, are there possible circumstances arising in the context of detention that may be considered voluntary but not “free and meaningful,” as the dissent contemplates? The SCC’s proclamation that one rule subsumes the other comes as a result of only those facts that have been brought to the SCC’s attention. In our post-9/11 climate, it is certainly possible that new concerns may arise out of state-administered interrogations, and the melding of the two rules may have been prematurely performed. Despite these concerns, it is clear from Singh that the s. 7 right to silence is contained within the common law confessions rule.