Right To Remain Silent Not A Given, Court Says

"What the common law recognizes is the individual's right to remain silent," said Justice Louise Charron, who wrote the majority decision. "This does not mean, however, that a person has the right not to be spoken to by state authorities." William Trudell, chair of the Canadian Council of Criminal Defence Lawyers, calls the ruling "an extraordinary and regressive decision for a Canadian court." The court was sharply divided over an appeal by Jagrup Singh, who asserted his wish to remain silent no fewer than 18 times while under interrogation by the Royal Canadian Mounted Police in 2002 in connection with a shooting that killed an innocent bystander at a bar in Surrey, B.C. His questioner, Cpl. David Attew, admitted his objective was to get a confession "no matter what." Singh eventually admitted being in the bar and identified himself in a photograph, incriminating revelations in a case where no forensic evidence linked him to the crime. He was convicted of murder in 2003. Singh argued his statements were obtained in violation of his right to silence under Section 7 of the Charter and asked the court to adopt a rule that would require police, unless they have a signed waiver, to refrain from questioning any person who invokes that right. But imposing such a rigid requirement would ignore the state's important interest in solving crime and goes well beyond provisions in the Charter and common law that protect a person's freedom to choose whether to speak with police, Charron said. "One can readily appreciate that the police could hardly investigate crime without putting questions to persons from whom it is thought that useful information can be obtained," she wrote on behalf of Chief Justice Beverley McLachlin and Justices Michel Bastarache, Marie Deschamps and Marshall Rothstein. But in a dissenting opinion, Justice Morris Fish accused the majority of treating constitutional rights as "constitutional placebos." There's simply no evidence that respecting the rights of detained persons – or the Miranda rule, in place for more than 40 years – has paralyzed police investigations on either side of the border, he said. "The question on this appeal is whether `no' means `yes,' where a police interrogator refuses to take `no' for an answer from a detainee under his total control," Fish said on behalf of a minority that included Justices Ian Binnie, Louis LeBel and Rosalie Abella. "I much prefer a system of justice that permits the effective exercise by detainees of the constitutional and procedural rights guaranteed to them by the law of the land," Fish wrote. "The right to silence, like the right to counsel, is in my view a constitutional promise that must be kept." What's "particularly disturbing," said Fish, is that Attew "subtly but unmistakably" urged Singh to forsake his lawyer's advice. "`No' – especially after legal advice – must mean `no,'" said Trudell, who suggested the decision could well usher in an era of "wrongful admissions," in which police find it easier to get questionable evidence, obtained under duress, placed before a judge. http://www.thestar.com/News/article/272929

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