RIGHT TO SILENCE - SCC LET’S POLICE PERSIST
R. v. Singh, 2007 SCC 48,  3 SCR 405
The accused was arrested for second degree murder in respect of the shooting death of an innocent bystander who was killed by a stray bullet while standing just inside the doorway of a pub. The accused was advised of his right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms and privately consulted with counsel. During the course of two subsequent interviews with police, the accused stated on numerous occasions that he did not want to talk about the incident. The interviewing officer persisted in trying to get him to make a statement. While the accused never confessed to the crime, he made a number of admissions which, when taken together with other evidence, later became probative of the issue of identification at trial.
On the voir dire to determine the admissibility of the statements made by the accused, the trial judge held, after reviewing all of the circumstances surrounding the interrogation and the making of the incriminating admission, that the admission came freely and did not result from the police systematically breaking down his operating mind or undermining his right to silence. The probative value of the statements was held to outweigh their prejudicial effect and the trial judge thus ruled them admissible. The accused was subsequently convicted by a jury. The Court of Appeal upheld the trial judge’s ruling and affirmed the conviction. Both in the Court of Appeal and in this Court the accused did not contest the trial judge’s findings of fact nor his conclusion that the statements were voluntary; his appeal solely concerns the s. 7 Charter right to silence.
Held (Binnie, LeBel, Fish and Abella JJ. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and Bastarache, Deschamps, Charron and Rothstein JJ.: There was no error in law in the approach adopted by the courts below. Although historically the confessions rule was more concerned with the reliability of confessions than the protection against self-incrimination, this no longer holds true in the post-Charter era. The modern expansive view of the confessions rule clearly includes the right of the detained person to make a meaningful choice whether or not to speak to state authorities.
On the question of voluntariness, as under any distinct s. 7 review based on an alleged breach of the right to silence, the focus is on the conduct of the police and its effect on the accused’s ability to exercise his or her free will.
The test is an objective one, but the individual characteristics of the accused are obviously relevant considerations in applying this objective test. Although the confessions rule applies whether or not the suspect is in detention, the common law recognized, long before the advent of the Charter, that the suspect’s situation is much different after detention. After detention, the state authorities are in control and the detainee, who cannot simply walk away, is in a more vulnerable position. There is a greater risk of abuse of power by the police.    [35-36]
In the context of an interrogation of a detainee by an obvious person in authority, a finding of voluntariness will be determinative of the s. 7 issue since voluntariness, as it is understood today, requires that the court scrutinize whether the detainee was denied his or her right to silence. In such circumstances, the confessions rule effectively subsumes the constitutional right to silence because the two tests are functionally equivalent.
It follows that, where a statement has survived a thorough 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. Conversely, if circumstances are such that the accused can show on a balance of probabilities that the statement was obtained in violation of his or her constitutional right to remain silent, the Crown will be unable to prove voluntariness beyond a reasonable doubt. However, this does not mean that the residual protection afforded to the right to silence under s. 7 of the Charter cannot supplement the common law in other contexts.   
It is not appropriate to impose a rigid requirement that police refrain from questioning a detainee who states that he or she does not wish to speak to police. Such an approach would overshoot the protection afforded to the individual’s freedom of choice both at common law and under the Charter. More importantly, this approach ignores the state interest in the effective investigation of crime. The critical balancing of state and individual interests lies at the heart of this Court’s decision in Hebert and in subsequent s. 7 decisions. There is no reason to depart from these established principles. [6-7]  
Under both 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 well raise a strong argument that the subsequently obtained statement was not the product of a free will to speak to authorities. The trial judge in this case was very much alive to this risk. His ultimate judgment call on this issue is supported by the record and is entitled to deference. There is thus no reason to interfere with his ruling on admissibility.  
Per Binnie, LeBel, Fish, and Abella JJ. (dissenting): The impugned statements were obtained in violation of the accused’s s. 7 right to silence. The interrogator understood very well that the accused had chosen not to speak with the police but nonetheless disregarded the accused’s repeated assertions of his right to silence. In his relentless pursuit of a confession “no matter what”, the interrogator urged the accused, subtly but unmistakably, to forsake his counsel’s advice. The accused was thus deprived not only of his right to silence, but also, collaterally, of the intended benefit of his right to counsel. Detainees left alone to face interrogators who persistently ignore their assertions of the right to silence and their pleas for respite are bound to feel that their constitutional right to silence has no practical effect and that they in fact 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 it was in this case, ultimate submission proves neither true consent nor valid waiver. Furthermore, nothing in this Court’s jurisprudence permits the police to press detainees to waive the Charter rights they have firmly and unequivocally asserted, or to deliberately frustrate their effective exercise. This is true of the right to counsel and true as well of the right to silence. While detainees who have asserted their right to silence are entitled to change their minds, they cannot be compelled to do so by the persistent disregard of that asserted choice. The right to silence, like the right to counsel, is a constitutional promise that must be kept. There is no evidence to support the proposition that requiring the police to respect a detainee’s right of silence, once it has been unequivocally asserted, would have a “devastating impact” on criminal investigations anywhere in this country. [59-60]        
The rationale of the enhanced confessions rule adopted in Oickle is distinct from the purposes served by the Charter. A confession may be “voluntary” under the common law rule and yet be obtained by state action that infringes s. 7 of the Charter. And s. 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. Thus, while it is true that there is considerable overlap between the Charter protection of the right to silence and the common law confessions rule, given their different purposes, they should remain distinct doctrines. A purposive approach makes plain that the right to pre-trial silence under s. 7 of the Charter is not eclipsed by the common law confessions rule under Oickle. 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. Clearly, however, 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. In the present appeal, the impugned statements were obtained in violation of s. 7 and should have been excluded under s. 24(2) of the Charter.