R. v. Singh (J.) (2007), 249 B.C.A.C. 1 (SCC);
414 W.A.C. 1
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2007] B.C.A.C. TBEd. NO.053
Jagrup Singh (appellant) v. Her Majesty The Queen (respondent) and Attorney General of Ontario, Director of Public Prosecutions of Canada, Criminal Lawyers’ Association of Ontario and Canadian Association of Chiefs of Police (intervenors)
(31558; 2007 SCC 48; 2007 CSC 48)
Indexed As: R. v. Singh (J.)
Supreme Court of Canada
McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
November 1, 2007.
Summary:
An accused charged with second degree murder sought to exclude an inculpatory statement that he made to the police on the ground that it was taken in breach of his s. 7 Charter right to remain silent.
The British Columbia Supreme Court, in a decision reported at [2003] B.C.T.C. 2013, admitted the statement. The accused appealed his subsequent conviction, asserting that the court erred in admitting the statement.
The British Columbia Court of Appeal, in a decision reported 227 B.C.A.C. 241; 374 W.A.C. 241, dismissed the appeal. The accused appealed.
The Supreme Court of Canada, Fish, Binnie, LeBel and Abella, JJ., dissenting, dismissed the appeal.
Civil Rights – Topic 3160
Trials – Due process, fundamental justice and fair hearings – Criminal proceedings – Right to remain silent – An accused arrested for murder exercised his right to counsel – A police interview followed – The accused attempted to end the interview 18 times – The officer continued to talk, outlining their case in an effort to get a confession – The accused made an important admission – The accused sought to exclude the statement, asserting that it was taken in breach of his s. 7 Charter right to remain silent – The trial judge admitted the evidence and convicted the accused – The accused appealed, asserting that once a detainee stated that he did not wish to make a statement, he had exercised his choice to remain silent under s. 7 and any further police conduct, such as persistent questioning, constituted an infringement of that right – Voluntariness was conceded – The Supreme Court of Canada affirmed the dismissal of the appeal – The assertion was based upon an expanded and erroneous notion of the scope of the right to silence – The trial judge paid particular attention to the inherent danger in the officer’s stratagem and concluded that the accused’s right to choose to talk or remain silent was not undermined or overborne by the officer’s admitted dedication to his agenda – A finding of voluntariness was essentially a factual one – There was no palpable and overriding error which affected the trial judge’s assessment of the facts – The trial judge’s decision was supported by the record and entitled to deference – See paragraphs 49 to 52.
Civil Rights – Topic 3160
Trials – Due process, fundamental justice and fair hearings – Criminal proceedings – Right to remain silent – An accused arrested for murder exercised his right to counsel – A police interview followed – The accused attempted to end the interview 18 times – The officer continued to talk, outlining their case in an effort to get a confession – The accused made an important admission – The accused sought to exclude the statement, asserting that it was taken in breach of his s. 7 Charter right to remain silent – The trial judge admitted the evidence and convicted the accused – The accused appealed, asserting that once a detainee stated that he did not wish to make a statement, he had exercised his choice to remain silent under s. 7 and any further police conduct, such as persistent questioning, constituted an infringement of that right – The Supreme Court of Canada stated that “… such situations are highly fact-specific and trial judges must take into account all the relevant factors in determining whether or not the Crown has established that the accused’s confession is voluntary. In some circumstances, the evidence will support a finding that continued questioning by the police in the face of the accused’s repeated assertions of the right to silence denied the accused a meaningful choice whether to speak or to remain silent … The number of times the accused asserts his or her right to silence is part of the assessment of all of the circumstances, but is not in itself determinative. The ultimate question is whether the accused exercised free will by choosing to make a statement …” – See paragraph 53.
Civil Rights – Topic 3160
Trials – Due process, fundamental justice and fair hearings – Criminal proceedings – Right to remain silent – The Supreme Court of Canada stated that “On the question of voluntariness, as under any distinct s. 7 [Charter] 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 suspect’s ability to exercise his or her free will. The test is an objective one. However, the individual characteristics of the accused are obviously relevant considerations in applying this objective test. … Therefore, voluntariness, as it is understood today, requires that the court scrutinize whether the accused was denied his or her right to silence. The right to silence is defined in accordance with constitutional principles. A finding of voluntariness will therefore be determinative of the s. 7 issue. In other words, if the Crown proves voluntariness beyond a reasonable doubt, there can be no finding of a Charter violation of the right to silence in respect of the same statement. The converse holds true as well. If the circumstances are such that an accused is able to show on a balance of probabilities a breach of his or her right to silence, the Crown will not be in a position to meet the voluntariness test.” – See paragraph 37.
Civil Rights – Topic 3160
Trials – Due process, fundamental justice and fair hearings – Criminal proceedings – Right to remain silent – The Supreme Court of Canada stated that “… the confessions rule effectively subsumes the constitutional right to silence in circumstances where an obvious person in authority is interrogating a person who is in detention because, in such circumstances the two tests are functionally equivalent. 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.” – See paragraph 39.
Civil Rights – Topic 3160
Trials – Due process, fundamental justice and fair hearings – Criminal proceedings – Right to remain silent – An accused asserted that the protection afforded to detainees under s. 7 of the Charter should require that police officers inform a detainee of his or her right to silence and, absent a signed waiver, to refrain from questioning any detainee who stated that he or she did not wish to speak to the police – The Supreme Court of Canada rejected the assertion – The suggested approach ignored the state interests in effective investigation of crime and overshot the protection afforded to the individual’s freedom of choice – Unlike the right to counsel, the Charter right to silence did not expressly include an informational and implementational component – At common law, the protection afforded by the confessions rule was intended to guard against potential abuse by the state – However, under the suggested approach, any statement obtained after a suspect asserted his right to silence would be of questionable admissibility, regardless of whether there was a causal nexus between police conduct and the making of the statement – While detention triggered the need for additional checks on interrogation techniques, it did not reduce the suspect’s value as an important source of information – Provided that the detainee’s rights were adequately protected, including the freedom to choose whether to speak or not, it was in society’s interest that the police attempt to tap that valuable source – The use of legitimate means of persuasion was permitted – However, the law did not permit the police to ignore the detainee’s freedom to choose whether to speak or not – Under both common law and Charter rules, police persistence in continuing an interview, despite repeated assertions by the detainee that he wished to remain silent, might well raise a strong argument that any subsequently obtained statement was not the product of a free will to speak to the authorities – See paragraphs 42 to 48.
Criminal Law – Topic 53
General principles – Protection against self-incrimination – Right to remain silent – [See third
Civil Rights – Topic 3160
].
Criminal Law – Topic 53
General principles – Protection against self-incrimination – Right to remain silent – The Supreme Court of Canada stated that the common law right to silence reflected the general principle that, absent statutory or other legal compulsion, no one was obligated to provide information to the police or respond to questioning – However, the right to remain silent, did not mean that a person had the right not to be spoken to by state authorities – The importance of police questioning in the fulfilment of their investigative role could not be doubted – The police could hardly investigate crime without questioning persons from whom it was thought that useful information might be obtained – The person suspected of having committed the crime was no exception – Indeed, if the suspect committed the crime, he or she was likely the person who had the most information to offer – Therefore, the common law also recognized the importance of police interrogation in the investigation of crime – See paragraphs 27 and 28.
Criminal Law – Topic 136
General principles – Rights of accused – Right to silence – [See third
Civil Rights – Topic 3160
and second
Criminal Law – Topic 53
].
Criminal Law – Topic 5350
Evidence and witnesses – Confessions and voluntary statements – Circumstances when warning required – The Supreme Court of Canada stated that “Although the confessions rule applies whether or not the suspect is in detention, the common law recognized, also 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. The fact of detention alone can have a significant impact on the suspect and cause him or her to feel compelled to give a statement. The importance of reaffirming the individual’s right to choose whether to speak to the authorities after he or she is detained is reflected in the jurisprudence concerning the timing of the police caution.” – See paragraph 32.
Criminal Law – Topic 5350
Evidence and witnesses – Confessions and voluntary statements – Circumstances when warning required – The Supreme Court of Canada stated that the importance of reaffirming an individual’s right to choose whether to speak to the authorities after being detained was reflected in the jurisprudence concerning the timing of the police caution – The court referred to the following statement in Admissibility of Statements as a useful yardstick for the police on when they should caution a suspect: “The warning should be given when there are reasonable grounds to suspect that the person being interviewed has committed an offence. An easy yardstick to determine when the warning should be given is for a police officer to consider the question of what he or she would do if the person attempted to leave the questioning room or leave the presence of the officer where a communication or exchange is taking place. If the answer is arrest (or detain) the person, then the warning should be given.” – The court stated that even if a suspect has not formally been arrested and was not obviously under detention, police officers were well advised to give the police caution in the above circumstances – See paragraphs 32 and 33.
Criminal Law – Topic 5355
Evidence and witnesses – Confessions and voluntary statements – Whether statement was made freely and voluntarily – [See all
Civil Rights – Topic 3160
and first
Criminal Law – Topic 5350
].
Criminal Law – Topic 5355
Evidence and witnesses – Confessions and voluntary statements – Whether statement was made freely and voluntarily – The Supreme Court of Canada stated that the information obtained by state authorities from a suspect was only useful if it could be relied upon for its truth, hence the primary reason for the voluntary confessions rule (the concern about reliability) – The rule was largely informed by the problem of false confessions – Its parameters were tailored to counter the dangers created by improper interrogation techniques that commonly produce false confessions – Further, a confession was powerful evidence which, in and of itself, could ground a conviction – One of the overriding concerns was that the innocent must not be convicted – Because it was recognized that involuntary confessions were more likely to be unreliable, the confessions rule required proof beyond a reasonable doubt of the voluntariness of any statement obtained from an accused by a person in authority before it could be admitted in evidence, so to avoid miscarriages of justice – See paragraph 29.
Criminal Law – Topic 5355
Evidence and witnesses – Confessions and voluntary statements – Whether statement was made freely and voluntarily – The Supreme Court of Canada stated that not every involuntary confession was false – While the confession rule’s primary concern was with reliability, it was well established that voluntariness was a broader concept – This was perhaps best summed up in Wigmore on Evidence where it was stated that voluntariness was “shorthand for a complex of values” – These values included respect for the individual’s freedom of will, the need for law enforcement officers to obey the law, and the overall fairness of the criminal justice system – Therefore, the notion of voluntariness was broad-based and had long included the common law principle that a person was not obliged to give information to the police or to answer questions – This component of the voluntariness rule was reflected in the usual police caution given to a suspect and the importance attached to the presence of a caution as a factor in determining the voluntariness of a statement made by a person under arrest or detention – See paragraphs 30 and 31.
Criminal Law – Topic 5359.1
Evidence and witnesses – Confessions and voluntary statements – Evidence and proof – [See second
Criminal Law – Topic 5355
].
Police – Topic 2241
Duties – Duty to inform persons under investigation – General principles – [See second
Criminal Law – Topic 5350
].
Police – Topic 3107
Powers – Investigation – Questioning of suspects and witnesses – [See second
Criminal Law – Topic 53
].
Police – Topic 3121
Powers – Interrogation – General – [See second
Criminal Law – Topic 53
].
Cases Noticed:
R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1, refd to. [paras. 1, 62].
R. v. Oickle (R.F.), [2000] 2 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201; 2000 SCC 38, refd to. [paras. 1, 73].
R. v. Jones (S.), [1994] 2 S.C.R. 229; 166 N.R. 321; 43 B.C.A.C. 241; 69 W.A.C. 241, refd to. [para. 21].
R. v. White (J.K.), [1999] 2 S.C.R. 417; 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161, refd to. [para. 21].
R. v. Whittle (D.J.), [1994] 2 S.C.R. 914; 170 N.R. 16; 73 O.A.C. 201, refd to. [para. 25].
R. v. Turcotte (T.), [2005] 2 S.C.R. 519; 339 N.R. 32; 216 B.C.A.C. 1; 356 W.A.C. 1; 2005 SCC 50, refd to. [para. 27].
R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485, refd to. [para. 27].
Blackburn v. Alabama (1960), 361 U.S. 199 (S.C.), refd to. [para. 30].
Boudreau v. R., [1949] S.C.R. 262, refd to. [para. 31].
R. v. Fitton, [1956] S.C.R. 958, refd to. [para. 31].
R. v. Esposito (1985), 12 O.A.C. 350; 24 C.C.C.(3d) 88 (C.A.), refd to. [para. 31].
R. v. Grandinetti (C.H.), [2005] 1 S.C.R. 27; 329 N.R. 28; 363 A.R. 1; 343 W.A.C. 1; 2005 SCC 5, refd to. [para. 40].
R. v. C.G., [2004] O.J. No. 229 (C.J.), refd to. [para. 43].
R. v. Otis (2000), 151 C.C.C.(3d) 416 (Que. C.A.), refd to. [paras. 50, 78].
Canadian Egg Marketing Agency v. Pineview Poultry Products Ltd. et al., [1998] 3 S.C.R. 157; 231 N.R. 201; 223 A.R. 201; 183 W.A.C. 201, refd to. [para. 76].
R. v. McKay (S.A.) (2003), 175 Man.R.(2d) 121; 16 C.R.(6th) 347; 2003 MBQB 141, refd to. [para. 80].
R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192, refd to. [para. 81].
Miranda v. Arizona (1966), 384 U.S. 436 (S.C.), refd to. [para. 89].
Michigan v. Mosley (1975), 423 U.S. 96 (S.C.), refd to. [para. 90].
Dickerson v. United States of America (2000), 530 U.S. 428 (S.C.), refd to. [para. 92].
R. v. Timm (1998), 131 C.C.C.(3d) 306 (Que. C.A.), refd to. [para. 95].
R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 99].
R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 99].
Authors and Works Noticed:
Delisle, Ronald Joseph, Stuart, Don, and Tanovich, David, Evidence: Principles and Problems (8th Ed. 2007), p. 489 [para. 94].
Marin, René J., Admissibility of Statements (9th Ed. 1996) (2006 Looseleaf Update, Release 11), pp. 2-24.2, 2-24.3 [para. 32].
Paciocco, David M., and Stuesser, Lee, The Law of Evidence (4th Ed. 2005), pp. 304, 305 [para. 39]; 307 [para. 40].
Wharton, Francis, Criminal Procedure (14th Ed.) (2007 Looseleaf Update), p. 19-9 [para. 89].
Wigmore, John Henry, A Treatise on the Anglo-American System of Evidence in Trials at Common Law (2nd Ed. 1923), p. 824, § 2251 [para. 85].
Counsel:
Gil D. McKinnon, Q.C., for the appellant;
Wendy L. Rubin and Kate Ker, for the respondent;
Jamie C. Klukach, for the intervenor, The Attorney General of Ontario;
Ronald C. Reimer and Nicholas E. Devlin, for the intervenor, The Director of Public Prosecutions of Canada;
Timothy E. Breen, for the intervenor, The Criminal Lawyers’ Association of Ontario;
David Migicovsky and Margaret Truesdale, for the intervenor, The Canadian Association of Chiefs of Police.
Solicitors of Record:
Gil D. McKinnon, Q.C., Vancouver, British Columbia, for the appellant;
Attorney General of British Columbia, Vancouver, British Columbia, for the respondent;
Attorney General of Ontario, Toronto, Ontario, for the intervenor, The Attorney General of Ontario;
Public Prosecution Service of Canada, Edmonton, Alberta, for the intervenor, The Director of Public Prosecutions of Canada;
Fleming, Breen, Toronto, Ontario, for the intervenor, The Criminal Lawyers’ Association of Ontario;
Perley-Robertson, Hill & McDougall, Ottawa, Ontario, for the intervenor, The Canadian Association of Chiefs of Police.
This appeal was heard on May 23, 2007, by McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada. On November 1, 2007, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:
Charron, J. (McLachlin, C.J.C., Bastarache, Deschamps and Rothstein, JJ., concurring) – see paragraphs 1 to 54;
Fish, J., dissenting (Binnie, LeBel and Abella, JJ., concurring) – see paragraphs 55 to 100.
