SUPREME COURT OF CANADA

Citation: R. v. Singh, [2007] 3 S.C.R. 405, 2007 SCC 48

Date: 20071101 Docket: 31558

Between:

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 Interveners

Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

Reasons for Judgment: (paras. 1 to 54)

Dissenting Reasons: (paras. 55 to 100)

Charron J. (McLachlin C.J. and Bastarache, Deschamps and Rothstein JJ. concurring) Fish J. (Binnie, LeBel and Abella JJ. concurring)

R. v. Singh, [2007] 3 S.C.R. 405, 2007 SCC 48

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 Interveners

Indexed as: R. v. Singh

Neutral citation: 2007 SCC 48.

File No.: 31558.

2007: May 23; 2007: November 1.

Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

on appeal from the court of appeal for british columbia

Constitutional law — Charter of Rights — Right to silence — Scope of pre‑trial right to silence — Interplay between confessions rule and right to silence — Accused charged with second degree murder detained by police — Accused making statements to police during interviews after he had asserted his constitutional right to silence many times — Whether police breached accused’s right to silence — Whether police should have stopped trying to obtain admissions once accused asserted his right to silence — Canadian Charter of Rights and Freedoms, s. 7.

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. [8] [21] [32] [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. [8] [37] [39]

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] [43] [45]

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. [47] [52]

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] [62] [66] [71] [81] [88] [95] [97] [99]

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. [73] [75] [77] [79] [99]

Cases Cited

By Charron J.

Applied: R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38; approved: R. v. C.G., [2004] O.J. No. 229 (QL); referred to: R. v. Jones, [1994] 2 S.C.R. 229; R. v. White, [1999] 2 S.C.R. 417; R. v. Whittle, [1994] 2 S.C.R. 914; R. v. Turcotte, [2005] 2 S.C.R. 519, 2005 SCC 50; Rothman v. The Queen, [1981] 1 S.C.R. 640; Blackburn v. Alabama, 361 U.S. 199 (1960); Boudreau v. The King, [1949] S.C.R. 262; R. v. Fitton, [1956] S.C.R. 958; R. v. Esposito (1985), 24 C.C.C. (3d) 88; R. v. Grandinetti, [2005] 1 S.C.R. 27, 2005 SCC 5; R. v. Otis (2000), 151 C.C.C. (3d) 416.

By Fish J. (dissenting)

R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38; Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157; R. v. Otis (2000), 151 C.C.C. (3d) 416; R. v. McKay (2003), 16 C.R. (6th) 347, 2003 MBQB 141; R. v. Manninen, [1987] 1 S.C.R. 1233; Miranda v. Arizona, 384 U.S. 436 (1966); Michigan v. Mosley, 423 U.S. 96 (1975); Dickerson v. United States, 530 U.S. 428 (2000); R. v. Timm (1998), 131 C.C.C. (3d) 306; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Stillman, [1997] 1 S.C.R. 607.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 7, 10(b), 24.

Authors Cited

Delisle, Ronald Joseph, Don Stuart and David M. Tanovich. Evidence: Principles and Problems, 8th ed. Scarborough, Ont.: Thomson/Carswell, 2007.

Marin, Ren— J. Admissibility of Statements, 9th ed. Aurora: Canada Law Book, 1996 (loose-leaf updated 2006, release 11).

Paciocco, David M., and Lee Stuesser. The Law of Evidence, 4th ed. Concord, Ont.: Irwin Law, 2005.

Wharton, Francis. Wharton’s Criminal Procedure, 14th ed. by N. Hollander et al. Eagan, Minn.: Thomson/West, 2002 (loose-leaf updated 2007).

Wigmore, John Henry. A Treatise on the Anglo‑American System of Evidence in Trials at Common Law, 2nd ed. Boston: Little, Brown and Co., 1923.

APPEAL from a judgment of the British Columbia Court of Appeal (Hall, Mackenzie and Thackray JJ.A.) (2006), 227 B.C.A.C. 241, 374 W.A.C. 241, 38 C.R. (6th) 217, 142 C.R.R. (2d) 68, [2006] B.C.J. No. 1274 (QL), 2006 BCCA 281, upholding the accused’s conviction for second degree murder. Appeal dismissed, Binnie, LeBel, Fish and Abella JJ. dissenting.

Gil D. McKinnon, Q.C., for the appellant.

Wendy L. Rubin and Kate Ker, for the respondent.

Jamie C. Klukach, for the intervener the Attorney General of Ontario.

Ronald C. Reimer and Nicholas E. Devlin, for the intervener the Director of Public Prosecutions of Canada.

Timothy E. Breen, for the intervener the Criminal Lawyers’ Association of Ontario.

David Migicovsky and Margaret Truesdale, for the intervener the Canadian Association of Chiefs of Police.

The judgment of McLachlin C.J. and Bastarache, Deschamps, Charron and Rothstein JJ. was delivered by

Charron J. —

1. Overview

1This appeal concerns the scope of a detainee’s pre-trial right to silence under s. 7 of the Canadian Charter of Rights and Freedoms and, in particular, the intersection between this Charter right as defined in R. v. Hebert, [1990] 2 S.C.R. 151, and the common law voluntary confessions rule as restated in R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38. As in those cases, the discussion in this appeal focusses on the tension between the rights of the accused and society’s interest in the effective investigation and resolution of crimes.

2The appellant Jagrup Singh was arrested for second degree murder in respect of the death of an innocent bystander who was killed by a stray bullet while standing just inside the doorway of a pub. Mr. Singh was advised of his right to counsel under s. 10(b) of the Charter and privately consulted with counsel. During the course of two subsequent interviews with Sgt. Attew, Mr. Singh stated on numerous occasions that he did not want to talk about the incident, that he did not know anything about it, or that he wanted to return to his cell. On each occasion, Sgt. Attew would either affirm that Mr. Singh did not have to say anything and state that it was nonetheless his duty or his desire to place the evidence before Mr. Singh, or he would deflect Mr. Singh’s assertion and eventually engage him again in at least limited conversation. During the course of the first interview, Mr. Singh did not confess to the crime but made incriminating statements by identifying himself in pictures taken from the video surveillance inside the pub in question and in another pub.

3At the conclusion of the voir dire on the admissibility of Mr. Singh’s statements, the trial judge was satisfied beyond a reasonable doubt that the statements were voluntary: [2003] B.C.J. No. 3174 (QL), 2003 BCSC 2013. He also concluded that Mr. Singh had not proven a breach of his right to silence under s. 7 of the Charter on a balance of probabilities. Finally, he considered the exercise of his residual discretion and concluded that the probative value of the statements, once edited, outweighed any prejudicial effect. The statements were therefore admitted in evidence and, following his trial by judge and jury, Mr. Singh was convicted as charged. The British Columbia Court of Appeal upheld the trial judge’s ruling and affirmed the conviction: (2006), 38 C.R. (6th) 217, 2006 BCCA 281.

4Both in the British Columbia Court of Appeal and in this Court, Mr. Singh 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 right to silence.

5Mr. Singh contends that trial and appellate courts, including the courts below, have generally misinterpreted the holding in Hebert as an authoritative statement which permits the police to ignore a detainee’s expressed wish to remain silent and to use “legitimate means of persuasion” to break that silence (p. 177). He contends that the British Columbia Court of Appeal in the case at bar went even further and effectively extinguished the s. 7 right to silence when it questioned the utility of conducting “a double-barrelled test of admissibility”, stating that “[i]n the context of an investigatory interview with an obvious person in authority” the expansive view of the common law confessions rule adopted in Oickle “may leave little additional room” for a separate s. 7 Charter inquiry (para. 19). Mr. Singh therefore submits that the Court of Appeal proceeded on the basis of erroneous legal principles when it affirmed the trial judge’s dismissal of his s. 7 Charter application.

6Further, Mr. Singh invites this Court to enhance the protection afforded to detainees under s. 7 by adopting a new approach that would require police officers to inform the detainee of his or her right to silence and, absent a signed waiver, to refrain from questioning any detainee who states that he or she does not wish to speak to the police.

7First, I reject the appellant’s contention that this Court should change the law relating to the pre-trial Charter right to silence. The new approach advocated by the appellant ignores the critical balancing of state and individual interests which lies at the heart of this Court’s decision in Hebert and of subsequent s. 7 decisions. I see no reason to depart from these established principles.

8Second, I find no error in law in the approach adopted by the courts below. The Court of Appeal’s impugned comment on the interplay between the confessions rule and s. 7 of the Charter merely reflects 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. 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. As I will explain, however, this does not mean that the residual protection afforded to the right to silence under s. 7 of the Charter does not supplement the common law in other contexts.

9Finally, I see no basis for interfering with the trial judge’s factual determinations concerning Sgt. Attew’s conduct and its effect on the appellant’s freedom to choose whether to speak to the police. I would therefore dismiss the appeal.

2. The Facts and Proceedings Below

10Richard Lof was killed by a stray bullet in April 2002 while standing just inside the doorway of a pub. An argument had erupted in the pub between three Indo‑Canadian men and the employees of the club. Lof had nothing to do with the argument. The group took the argument outside into the parking lot. One of the Indo‑Canadian men pulled out a gun and fired several shots, one of which struck Lof.

11The weapon was never found and no forensic evidence linked Mr. Singh to the shooting. Identification was the central issue at trial. A doorman, who had been four feet from the shooter, identified Mr. Singh as the shooter in a photo line-up. A witness viewed videotape footage of the three Indo-Canadian men inside the pub and identified a man with a baseball cap on backwards as the person who had the gun. The day after the fatal shooting, a police officer photographed Mr. Singh in another pub. That officer reviewed a photo taken from the videotape of the three Indo-Canadian men inside the pub and she identified Mr. Singh as the man wearing his cap backwards.

12During the course of the first of two police interviews at the police station after his arrest, Mr. Singh admitted that he had been in the pub on the night of the shooting but he stated that he left before the shooting occurred. He admitted to being in the second pub on the day after the shooting, where he was photographed, and he identified himself in that photograph. He then identified himself as the man with the cap on backwards in the photo from the videotape taken inside the pub on the night of the shooting. These admissions, when taken together with other evidence, later became probative of the issue of identification at trial. Their admissibility is what is at issue on this appeal.

13Before the interviews, Mr. Singh was given proper Charter and official police warnings and spoke to counsel by phone and in person. During the interviews, Mr. Singh spoke with the interviewing officer about his family, his background, his religious beliefs and his employment. He also discussed injuries he sustained when he was shot at a party. Whenever the discussion turned to the incident in question, however, Mr. Singh was less forthcoming. Although he provided some information regarding his presence at the pub on the night of the shooting, he repeatedly denied his involvement and asserted his right to silence. He indicated that he did not want to talk to the police, that he had nothing to say, that he knew nothing about the shooting, or that he wanted to return to his cell. Before Mr. Singh was shown the photographs in question and made the impugned admissions, he asserted his right to silence 18 times. Each time, the interviewing officer would either affirm that Mr. Singh did not have to say anything, or would explain to Mr. Singh that he had a duty or desire to place the evidence before him and he continued the interview.

14On the voir dire to determine the admissibility of the two statements made by Mr. Singh, Bauman J. instructed himself that the central issues were whether the Crown had proven beyond a reasonable doubt that the statements were made voluntarily and, alternatively, whether Mr. Singh had proven on a balance of probabilities that there was a breach of his right to silence under s. 7 of the Charter. Mr. Singh did not testify and called no evidence on the voir dire.

15Bauman J. held that nothing in the police officer’s conduct was so oppressive as to overbear Mr. Singh’s will. He noted that the stratagem of placing evidence before an accused to extract a confession, no matter what the suspect says, runs the risk of being construed by the reviewing court as depriving the suspect of the right to make a meaningful choice whether to speak to the authorities or not, stating that “it is all a matter of degree” (para. 35). After reviewing all of the circumstances surrounding the interrogation and the making of the incriminating admission, he held that Mr. Singh’s admission that he was in the still photograph came freely and did not result from the police systematically breaking down his operating mind or undermining his right to silence. He concluded that Mr. Singh was well aware of his right to silence and that he had successfully exercised it repeatedly. Finally, Bauman J. held that the probative value of the statements outweighed their prejudicial effect and ruled that the statements, with some editing as agreed to by counsel, were admissible.

16Mr. Singh did not testify and did not call evidence at trial. He was convicted of second degree murder by a jury.

17Mr. Singh appealed from his conviction to the British Columbia Court of Appeal (Hall, Mackenzie and Thackray JJ.A.). He did not contest that the statements were voluntary and confined his appeal to the s. 7 Charter issue. Much as he did in this Court, Mr. Singh argued that the proper application of the s. 7 right to silence required the police to stop trying to obtain admissions once the detainee asserted his right to silence. He argued further that the trial judge’s approach erroneously subsumed the Charter right to silence under the common law confessions rule, leaving s. 7 with virtually no significance.

18The Court of Appeal held that Mr. Singh’s broad proposition on the limits of police interrogation could not be supported by a fair reading of Hebert and was inconsistent with the weight of authority. Rather, the case law recognizes 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” (para. 15). The court concluded that the trial judge properly relied on the holding in Hebert that “[p]olice persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence” (Hebert, at p. 184).

19The Court of Appeal found no error in the trial judge’s approach to the intersection between the confessions rule and the s. 7 Charter right to silence. The court explained that Oickle is the definitive exposition of the confessions rule and that, apart from the confessions rule, the Charter proscribes conduct that is unfair and brings the process of police investigation into disrepute. The police deception in Hebert was an illustration of conduct that did not breach the common law rule but did offend the Charter. The court commented further that “[i]n the context of an investigatory interview with an obvious person in authority, the expansive view of the confession rule in Oickle may leave little additional room for s. 7 but there is no particular utility in a double-barrelled test of admissibility” (para. 19).

20The court found no error in the trial judge’s conclusion that the police stratagem used in this case was a legitimate technique of persuasion and that it did not deny the appellant the choice to remain silent. Both interviews were videotaped and the trial judge was in an excellent position to assess the fairness of the process. Accordingly, the court held that there was no reason to disturb his findings of fact and the appeal was dismissed.

3. Analysis

3.1 Self-incrimination: The Overarching Principle from Which Both the Confessions Rule and the Right to Silence are Derived

21Although 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. Both the confessions rule and the constitutional right to silence are manifestations of the principle against self-incrimination. The principle against self-incrimination is a broad concept which has been usefully described by Lamer C.J. as a “general organizing principle of criminal law” from which a number of rules can be derived: R. v. Jones, [1994] 2 S.C.R. 229, at p. 249. Similarly, Iacobucci J. in R. v. White, [1999] 2 S.C.R. 417, described the principle against self-incrimination in these words:

The jurisprudence of this Court is clear that the principle against self-incrimination is an overarching principle within our criminal justice system, from which a number of specific common law and Charter rules emanate, such as the confessions rule, and the right to silence, among many others. The principle can also be the source of new rules in appropriate circumstances. Within the Charter, the principle against self-incrimination is embodied in several of the more specific procedural protections such as, for example, the right to counsel in s. 10(b), the right to non-compellability in s. 11(c), and the right to use immunity set out in s. 13. The Charter also provides residual protection to the principle through s. 7. [Emphasis added; para. 44.]

22Mr. Singh concedes that his statements were obtained in conformity with the common law confessions rule — in other words, that they were voluntary. His application to exclude his statements from the evidence is grounded, rather, in the residual protection afforded to the right to silence under ss. 7 and 24 of the Charter. These provisions read as follows:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

8. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

It is clear that Mr. Singh’s liberty interest, protected under s. 7 of the Charter, is engaged by the potential admission of his incriminating statements in evidence at his trial for second degree murder.

23Since voluntariness is conceded, the scope of the common law confessions rule and its application to the facts of this case are not strictly in issue on this appeal. However, a question is raised concerning the interplay between the confessions rule and the Charter right to silence. More specifically, Mr. Singh takes the position that the Court of Appeal erred in law in stating at para. 19 that “[i]n the context of an investigatory interview with an obvious person in authority, the expansive view of the confession rule in Oickle may leave little additional room for s. 7 but there is no particular utility in a double-barrelled test of admissibility.” It therefore becomes necessary to examine the various components of the confessions rule to determine how they relate to the right to silence.

24As we shall see, there is considerable overlap between the inquiry into voluntariness and the review under s. 7 of the Charter in respect of an alleged breach of the right to silence. This should come as no surprise. First, the right to silence is not a concept that was newly born with the advent of the Charter. The right long pre-dated the Charter and was embraced in the common law confessions rule. Second, in Hebert, this Court’s recognition of the residual protection afforded to the pre-trial right to silence under s. 7 of the Charter was largely informed by the confessions rule and the scope of the protection it provides to an individual’s right to choose whether or not to speak to the authorities. Third, this Court’s expansive restatement of the confessions rule in Oickle, in turn, was largely informed by a consideration of Charter principles, including the right to silence as defined in Hebert.

25I therefore read the Court of Appeal’s comment on the interplay between the confessions rule and the s. 7 right to silence as a recognition of this considerable overlap. Indeed, as I will explain, 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 for determining whether the suspect’s right to silence was respected are functionally equivalent. (The symmetry between the confessions rule and related Charter rights in so far as the requisite mental capacity is concerned was previously recognized in R. v. Whittle, [1994] 2 S.C.R. 914, where the Court held that the operating mind test at common law fully answers the mental capacity requirement for an effective waiver of the right to counsel and the mental capacity necessary to make an active choice with respect to the right to silence.) Therefore, in the context of an interrogation of a detainee by an obvious person in authority, the Court of Appeal was correct to question the utility of a “double-barrelled test of admissibility”. In addition, because the Crown bears the burden of establishing voluntariness beyond a reasonable doubt and exclusion is automatic if the test is not met, the common law affords greater protection to the accused and there is no point in conducting a distinct s. 7 inquiry. However, as I will explain, the residual protection afforded to the right to silence under s. 7 of the Charter will be of added value to the accused in other contexts.

26I will now examine the nature and scope of the confessions rule, particularly in respect of its commonality with the right to silence.

3.2 The Confessions Rule

27As stated earlier, the right to silence, although now constitutionally entrenched, long pre-dates the Charter. The right to silence as a common law principle was recently affirmed by this Court in R. v. Turcotte, [2005] 2 S.C.R. 519, 2005 SCC 50. Stated broadly, the common law right to silence simply reflects the general principle that, absent statutory or other legal compulsion, no one is obligated to provide information to the police or respond to questioning. At para. 41, Abella J., writing for the Court, reiterated Lamer J.’s defining statement of the right in Rothman v. The Queen, [1981] 1 S.C.R. 640:

In Canada the right of a suspect not to say anything to the police . . . is merely the exercise by him of the general right enjoyed in this country by anyone to do whatever one pleases, saying what one pleases or choosing not to say certain things, unless obliged to do otherwise by law. It is because no law says that a suspect, save in certain circumstances, must say anything to the police that we say that he has the right to remain silent, which is a positive way of explaining that there is on his part no legal obligation to do otherwise. [Footnotes omitted; p. 683.]

28What the common law recognizes is the individual’s right to remain silent. This does not mean, however, that a person has the right not to be spoken to by state authorities. The importance of police questioning in the fulfilment of their investigative role cannot be doubted. One can readily appreciate that the police could hardly investigate crime without putting questions to persons from whom it is thought that useful information may be obtained. The person suspected of having committed the crime being investigated is no exception. Indeed, if the suspect in fact committed the crime, he or she is likely the person who has the most information to offer about the incident. Therefore, the common law also recognizes the importance of police interrogation in the investigation of crime.

29Of course, the information obtained from a suspect is only useful in the elucidation of crime if it can be relied upon for its truth — hence the primary reason for the confessions rule, the concern about the reliability of confessions. The common law confessions rule is largely informed by the problem of false confessions. As noted in Oickle, “[t]he history of police interrogations is not without its unsavoury chapters” (para. 34). The parameters of the rule are very much tailored to counter the dangers created by improper interrogation techniques that commonly produce false confessions: see Oickle, at paras. 32-46. Further, a confession is a very powerful item of evidence against an accused which, in and of itself, can ground a conviction. One of the overriding concerns of the criminal justice system is that the innocent must not be convicted. Because it is recognized that involuntary confessions are more likely to be unreliable, the confessions rule requires proof beyond a reasonable doubt of the voluntariness of any statement obtained from an accused by a person in authority before it may be admitted in evidence, so as to avoid miscarriages of justice.

30Of course, not every involuntary confession is false. While the confession rule’s primary concern is with reliability, it is well established that voluntariness is a broader concept. As this Court stated in Oickle (at para. 70): “Wigmore perhaps summed up the point best when he said that voluntariness is ‘shorthand for a complex of values’: Wigmore on Evidence (Chadbourn rev. 1970), vol. 3, § 826, at p. 351.” These values include respect for the individual’s freedom of will, the need for law enforcement officers themselves to obey the law, and the overall fairness of the criminal justice system: see Oickle, at paras. 69-70, citing Blackburn v. Alabama, 361 U.S. 199 (1960), at p. 207.

31Therefore, the notion of voluntariness is broad-based and has long included the common law principle that a person is not obliged to give information to the police or to answer questions. This component of the voluntariness rule is reflected in the usual police caution given to a suspect and the importance attached (even before the advent of the Charter) 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 Boudreau v. The King, [1949] S.C.R. 262; R. v. Fitton, [1956] S.C.R. 958; R. v. Esposito (1985), 24 C.C.C. (3d) 88 (Ont. C.A.). A common form of the police caution given to a person who has been charged with an offence is the following: “You are charged with . . . Do you wish to say anything in answer to the charge? You are not obliged to say anything but whatever you do say may be given in evidence.” Therefore, the police caution, in plain language, informs the suspect of his right to remain silent. Its importance as a factor on the question of voluntariness was noted by this Court as early as 1949 in Boudreau:

The fundamental question is whether a confession of an accused offered in evidence is voluntary. The mere fact that a warning was given is not necessarily decisive in favour of admissibility but, on the other hand, the absence of a warning should not bind the hands of the Court so as to compel it to rule out a statement. All the surrounding circumstances must be investigated and, if upon their review the Court is not satisfied of the voluntary nature of the admission, the statement will be rejected. Accordingly, the presence or absence of a warning will be a factor and, in many cases, an important one. [Emphasis added; p. 267.]

32Although 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. (As we shall see, the residual protection afforded to the right to silence under s. 7 of the Charter is only triggered upon 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. Ren— Marin, in his text Admissibility of Statements (9th ed. (loose-leaf)), at pp. 2-24.2 and 2-24.3, provides 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.

33These words of advice are sound. Even if the suspect has not formally been arrested and is not obviously under detention, police officers are well advised to give the police caution in the circumstances described by Marin. Of course, with the advent of the Charter, the s. 10 right to counsel is triggered upon arrest or detention. The right to counsel has both an informational and an implementational component. It seeks to ensure that persons who become subject to the coercive power of the state will know about their right to counsel and will be given the opportunity to exercise it so they can make an informed choice whether to participate in the investigation against them. Therefore, if the detainee has exercised his s. 10 Charter right to counsel, he will presumably have been informed of his right to remain silent, and the overall significance of the caution may be somewhat diminished. Where the suspect has not consulted with counsel, however, the police caution becomes all the more important as a factor in answering the ultimate question of voluntariness.

34As we can see from the foregoing discussion, the right to silence, as a facet of the principle against self-incrimination, was already very much a part of the common law confessions rule when the Charter came into force in 1982. Any remaining uncertainty as to whether the confessions rule embraced the right to silence was clearly dispelled by this Court in Hebert. The Court recognized that the right to silence formed part of the “basic tenets of our legal system” and hence became constitutionalized under s. 7 (pp. 162-63). In defining the scope of the Charter right to silence, McLachlin J. (as she then was) focussed in large part on related rules at common law, including the confessions rule. In reviewing the scope of the common law confessions rule, she explained (at pp. 166-67) that the jurisprudence on confessions revealed two persistent themes. The first related to the exercise of free will in choosing whether to speak to police or remain silent and the second to ensuring that reception of the impugned statement would not result in unfairness or bring the administration of justice into disrepute. She further explained how, in turn, this broader concept of the rule forms part of our fundamental notion of procedural fairness and how it also reflects the view that the rationale for the confessions rule “goes beyond the exclusion of unreliable statements and extends to considerations of whether reception of the statement will be unfair or tend to bring the administration of justice into disrepute” (p. 167). The question posed by McLachlin J. following this historical review of the confessions rule was whether this broader notion of voluntariness “should prevail in the post-Charter era” (p. 173). She concluded that it should.

35Ten years later, this Court in Oickle made express reference to the analysis in Hebert and embraced this modern expansive view of the confessions rule which, significantly for our purposes, clearly includes the right of the detained person to make a meaningful choice whether or not to speak to state authorities: see paras. 24-26. Iacobucci J. then reviewed the various components of the contemporary confessions rule, stressing, of course, that “[t]he application of the rule will by necessity be contextual” and that “all the relevant factors” must be considered (para. 47). He went on to describe the more common circumstances that vitiate the voluntariness of a confession using the well-known headings: (a) threats or promises, (b) oppression, and (c) operating mind. In keeping with the broader modern approach to the confessions rule, he also added a final consideration in determining whether a confession is voluntary or not — the police use of trickery to obtain a confession that would “shock the community” (para. 66). He explained that: “Unlike the previous three headings, this doctrine is a distinct inquiry. While it is still related to voluntariness, its more specific objective is maintaining the integrity of the criminal justice system” (para. 65). Finally, it is noteworthy that, in summarizing the parameters of the confessions rule, Iacobucci J. made express reference to the right to silence as a relevant facet of the rule:

The doctrines of oppression and inducements are primarily concerned with reliability. However, as the operating mind doctrine and Lamer J.’s concurrence in Rothman, supra, both demonstrate, the confessions rule also extends to protect a broader conception of voluntariness “that focuses on the protection of the accused’s rights and fairness in the criminal process”: J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 339. Voluntariness is the touchstone of the confessions rule. Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused’s right to silence, this Court’s jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons, it is inadmissible. [Emphasis added; para. 69.]

36On 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 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.

37Therefore, 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. It is important to understand, however, the proper scope of the constitutionalized right to silence, a question that I will address in a moment. As I will explain, Mr. Singh’s real bone of contention lies in the scope of the right to silence now constitutionally entrenched under s. 7 of the Charter. However, before I do so, more needs to be said on the interrelation between the confessions rule and the residual protection afforded under s. 7 of the Charter.

38Much concern was expressed on this appeal about this overlap between the confessions rule and s. 7 of the Charter. However, Mr. Singh’s argument that his Charter right to silence is somehow rendered meaningless by an approach that recognizes the full breadth of the contemporary confessions rule is misguided. First, there is nothing unusual in the fact that common law rules develop along Charter lines. The common law confessions rule is no exception. Second, the expanded approach adopted in Oickle does not negate, but rather enhances, the protection of Mr. Singh’s right to silence. As stated already, under the common law rule, the onus is on the Crown to prove voluntariness beyond a reasonable doubt. The mere presence of a doubt as to the exercise of the detainee’s free will in making the statement will suffice to ground a remedy. And, by contrast to remedies under the Charter, which are subject to the court’s discretion under s. 24(2), a violation of the confessions rule always warrants exclusion. In Oickle, Iacobucci J. noted the wider protection afforded under the confessions rule in explaining why he rejected the suggestion that the Charter should be regarded as subsuming the common law rules. His words bear repeating:

One possible view is that the Charter subsumes the common law rules.

But I do not believe that this view is correct, for several reasons. First, the confessions rule has a broader scope than the Charter. For example, the protections of s. 10 only apply “on arrest or detention”. By contrast, the confessions rule applies whenever a person in authority questions a suspect. Second, the Charter applies a different burden and standard of proof from that under the confessions rule. Under the former, the burden is on the accused to show, on a balance of probabilities, a violation of constitutional rights. Under the latter, the burden is on the prosecution to show beyond a reasonable doubt that the confession was voluntary. Finally, the remedies are different. The Charter excludes evidence obtained in violation of its provisions under s. 24(2) only if admitting the evidence would bring the administration of justice into disrepute: see R. v. Stillman, [1997] 1 S.C.R. 607, R. v. Collins, [1987] 1 S.C.R. 265, and the related jurisprudence. By contrast, a violation of the confessions rule always warrants exclusion.

These various differences illustrate that the Charter is not an exhaustive catalogue of rights. Instead, it represents a bare minimum below which the law must not fall. A necessary corollary of this statement is that the law, whether by statute or common law, can offer protections beyond those guaranteed by the Charter. The common law confessions rule is one such doctrine, and it would be a mistake to confuse it with the protections given by the Charter. While obviously it may be appropriate, as in Hebert, supra, to interpret one in light of the other, it would be a mistake to assume one subsumes the other entirely. [Emphasis added; paras. 29-31.]

39Further elaboration is required here on the warning that it would be “a mistake to assume one subsumes the other entirely”. For the reasons I have already expressed, 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. Professors Paciocco and Stuesser explain this interrelationship between the common law rule and s. 7 succinctly as follows:

Section 7 of the Charter can supplement the common law. It has been recognized, for example, that the voluntariness rule has acquired constitutional status as a principle of fundamental justice. This particular development has little practical significance, however. With respect to statements themselves, accused persons will be better off relying on the common law rule where the Crown bears the onus of establishing voluntariness, and where exclusion of the statement is automatic. If the Charter principle is relied upon, the accused bears the burden of establishing a violation on the balance of probabilities, and if the Crown can demonstrate that the accused would have spoken without the breach, the statement made might still be admissible.

Although in most cases the common law will therefore provide greater protection, there will be cases where section 7 gives added value to the accused. As has already been seen, section 7 is violated if the accused is cross-examined about why he did not give a statement to the police. Moreover, as described below, section 7 protects the right to silence, and although it is contentious, [note that it is this area of contention that is resolved in this appeal] it may be that a breach of that constitutional right can result in the exclusion of otherwise admissible statements; without question, section 7 goes beyond the voluntariness rule in cases of “detained statements,” excluding many that would otherwise meet the voluntariness rule. Similarly, in cases of “statutory compulsion” statements made in compliance with statutory obligations to speak may be excluded, even though they would have been admissible at common law. Section 7 also supports the exclusion of derivative evidence that the common law would have received. As Justice Iacobucci warned in R. v. Oickle with respect to the common law and Charter regimes, “[i]t would be a mistake to assume that one subsumes the other entirely.” [Footnotes omitted.]

(The Law of Evidence (4th ed. 2005), at pp. 304-5)

40As noted by Professors Paciocco and Stuesser, the residual protection afforded to the right to silence under s. 7 has been recognized in a number of circumstances. Section 7 may be found to have a role to play in yet other contexts not mentioned in the passage excerpted above. Cases of “detained statements”, as one example where s. 7 goes beyond the voluntariness rule, is the most relevant on this appeal. What the authors are alluding to here is the principle in Hebert whereby, as they explain it, “the right to silence of a detained person is contravened where an undercover state agent (either a police officer or an informant planted by the police) actively elicits a statement from the accused” (p. 307). This is an example where s. 7 offers protection beyond the confessions rule because the latter is not triggered in circumstances such as Hebert. The confessions rule only applies in respect of statements made to a person in authority. The undercover agent, who is unknown to the accused to be acting as a state authority, does not fall in that category. It is well established that the test for determining who is a “person in authority” is not categorical; rather, it is contextual. It depends largely on the reasonable perception of the accused. The test was reiterated recently in R. v. Grandinetti, [2005] 1 S.C.R. 27, 2005 SCC 5: “The operative question is whether the accused, based on his or her [reasonable] perception of the recipient’s ability to influence the prosecution, believed either that refusing to make a statement to the person would result in prejudice, or that making one would result in favourable treatment” (para. 38). This approach is rooted in the rule’s traditional concern about the reliability of confessions, the rationale being that there is a greater risk that an accused may be influenced to give a false confession to a person perceived to have the authority to influence the course of the investigation or the proceedings.

3.3. The Section 7 Right to Silence

41I now turn to the scope of the s. 7 Charter right to silence.

42As stated earlier, Mr. Singh submits that the law in Canada provides inadequate protection during custodial interrogations. Police officers, he states, should be required to inform the detainee of his or her right to silence and, absent a signed waiver, to refrain from questioning any detainee who states that he or she does not wish to speak to the police. In effect, Mr. Singh asks that the Court impose on the police a correlative obligation, comparable to s. 10(b) of the Charter, to stop questioning a suspect whenever he or she clearly asserts the right to silence. Such a bright-line rule would undoubtedly have the advantage of certainty. However, for reasons that follow, I cannot accede to this suggestion.

43The approach advocated by Mr. Singh not only ignores the state interests at stake, a matter upon which I will elaborate, it overshoots the protection afforded to the individual’s freedom of choice both at common law and under the Charter. Under the Charter, the right to counsel, including an informational and implementational component, is provided for expressly. No such provision appears in respect of the right to silence. Hackett J. explained the reason for the difference quite well as follows:

Although the right to counsel and right to silence are equally important rights, it does not follow that they will be protected in the same way as suggested in Guimond. The right to silence, by its very nature, is exercised differently than the right to counsel and in this respect, the right to silence and right to counsel are not the same. The exercise of the right to silence is within the control of an accused who has an operating mind and is fully informed of his or her rights, provided the conduct of the authorities do not take away his or her ability to choose. In contrast, the exercise of the right to counsel is not within the control of an accused in detention. Rather, it is dependant upon the police facilitating the exercise of that right. Consequently, it is clear that the police cannot continue to question an accused who asserts his or her right to counsel until they have helped him or her exercise that right. The “holding off” requirement in the case of the right to counsel is therefore not necessary in the case of the right to silence because the law recognizes an accused’s free will and the ability of an accused to change his or her mind about whether or not to speak to the police. This change of mind can occur either as a result of personal reasons, or police persuasion that does not violate principles of fundamental justice or deprive the accused of choice.

(R. v. C.G., [2004] O.J. No. 229 (QL) (C.J.), at para. 93)

44At common law, the protection afforded by the confessions rule has always been intended to guard against the potential abuse by the state of its superior powers over a detained suspect. However, under Mr. Singh’s suggested approach, any statement obtained after the suspect asserts his right to silence would be of questionable admissibility, regardless of whether there is a causal nexus between the conduct of the police and the making of the statement.

45More importantly, Mr. Singh’s proposition ignores the state interest in the effective investigation of crime. The Court in Hebert stressed the importance of achieving a proper balance between the individual’s right to choose whether to speak to the authorities and society’s interest in uncovering the truth in crime investigations. As I stated earlier, the suspect may be the most fruitful source of information. While the fact of detention unquestionably triggers the need for additional checks on police interrogation techniques because of the greater vulnerability of the detainee, the moment of detention does nothing to reduce the suspect’s value as an important source of information. Provided that the detainee’s rights are adequately protected, including the freedom to choose whether to speak or not, it is in society’s interest that the police attempt to tap this valuable source. The Court in Hebert said the following on the critical importance of achieving a balance between individual and societal interests:

The Charter through s. 7 seeks to impose limits on the power of the state over the detained person. It thus seeks to effect a balance between the interests of the detained individual and those of the state. On the one hand s. 7 seeks to provide to a person involved in the judicial process protection against the unfair use by the state of its superior resources. On the other, it maintains to the state the power to deprive a person of life, liberty or security of person provided that it respects fundamental principles of justice. The balance is critical. Too much emphasis on either of these purposes may bring the administration of justice into disrepute — in the first case because the state has improperly used its superior power against the individual, in the second because the state’s legitimate interest in law enforcement has been frustrated without proper justification. [Emphasis added; p. 180.]

46Hebert therefore set out the parameters of the s. 7 Charter right to silence to achieve this balance. Some of the limits set out by the Court were responsive to the particular facts in Hebert and, consequently, are only relevant to the situation where a detainee is interrogated by an undercover officer. They need not be repeated here. Of relevance in this case are the first two limits. I reproduce the relevant excerpts here:

First, there is nothing in the rule to prohibit the police from questioning the accused in the absence of counsel after the accused has retained counsel. Presumably, counsel will inform the accused of the right to remain silent. If the police are not posing as undercover officers and the accused chooses to volunteer information, there will be no violation of the Charter. Police persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence.

Second, it applies only after detention. Undercover operations prior to detention do not raise the same considerations. The jurisprudence relating to the right to silence has never extended protection against police tricks to the pre-detention period. Nor does the Charter extend the right to counsel to pre-detention investigations. The two circumstances are quite different. In an undercover operation prior to detention, the individual from whom information is sought is not in the control of the state. There is no need to protect him from the greater power of the state. After detention, the situation is quite different; the state takes control and assumes the responsibility of ensuring that the detainee’s rights are respected. [Emphasis added; p. 184.]

47Mr. Singh takes particular issue with the leeway afforded to the police in questioning the detainee, even after he has retained counsel and has asserted his choice to remain silent. He submits that courts have erroneously interpreted the underlined passage above as permitting the police to ignore a detainee’s expressed wish to remain silent and to use “legitimate means of persuasion”. I say two things in response to this argument. First, the use of legitimate means of persuasion is indeed permitted under the present rule — it was expressly endorsed by this Court in Hebert. This approach is part of the critical balance that must be maintained between individual and societal interests. Second, the law as it stands does not permit the police to ignore the detainee’s freedom to choose whether to speak or not, as contended. Under both common law and Charter rules, police persistence in continuing the interview, despite repeated assertions by the detainee that he wishes to remain silent, may well raise a strong argument that any subsequently obtained statement was not the product of a free will to speak to the authorities. As we shall see, the trial judge in this case was very much alive to the risk that the statement may be involuntary when a police officer engages in such conduct.

48It is clear that Mr. Singh’s argument on his s. 7 application is based on an expanded notion of the right to silence that does not form part of Canadian law. With respect, my colleague Justice Fish effectively endorses this expanded notion of the right to silence when he poses the question on this appeal as being “whether ‘no’ means ‘yes’ where a police interrogator refuses to take ‘no’ for an answer from a detainee under his total control” (para. 55).

3.4 Application to This Case

49As stated earlier, Mr. Singh only takes issue with the trial judge’s inquiry on whether the police respected his constitutional right to remain silent. Although he makes his argument within the confines of his s. 7 Charter application, it matters not because, as I have explained, the functional test under the confessions rule is the same. The fallacy in Mr. Singh’s argument is that it is entirely based upon an expanded and erroneous notion of the scope of the right to silence protected by the Charter which, for reasons I have already given, finds no support in Canadian law. The courts below did not err in their interpretation of Hebert as contended.

50Mr. Singh alleges no other error in principle and, in my view, understandably so. The trial judge correctly instructed himself in accordance with the law in Oickle and Hebert and conducted a thorough review of all relevant circumstances. Indeed, his analysis of the applicable jurisprudence and review of the relevant facts are impeccable, particularly with respect to the right to silence. The trial judge reviewed all relevant statements of principle pertaining to the right to silence in Oickle and Hebert and he considered a number of similar cases where the police had continued their questioning of a suspect despite repeated assertions that the suspect wished to remain silent or end the interview, including Proulx J.A.’s judgment in R. v. Otis (2000), 151 C.C.C. (3d) 416 (Que. C.A.), which is particularly instructive on this question. In applying the law to the facts, the trial judge paid particular attention to the inherent danger in the stratagem used by Sgt. Attew which troubles my colleague, stating as follows:

I must say that this aspect of the matter has caused me some concern. Sergeant Attew was refreshingly frank in saying that he intended to put parts of the police case against Mr. Singh before him in an effort to get him to confess, no matter what. That approach can lead to an undermining of an accused person’s right to choose between silence and talking to the police authorities. [para. 34]

After citing the instructive passage in Hebert quoted above on where the line should be drawn, the trial judge continued as follows:

It appears to me that in the case where an interviewer approaches his or her task with a view to the effect that “I will use the stratagem of insisting on presenting the police case to the suspect to encourage the suspect to talk, no matter what the suspect says”, that interviewer runs the risk of having his or her conduct construed by the reviewing court as depriving the suspect of the right to make a meaningful choice whether to speak to the authorities or not. But, as Mr. McMurray says quite correctly, it is all a matter of degree. Was Mr. Singh’s right to choose to talk or to remain silent undermined or overborne by Sergeant Attew’s admitted dedication to his agenda? [para. 35]

51The trial judge concluded that “it was not” (para. 36). Justice Fish comes to the opposite conclusion. With respect, the applicable standard of review bears repeating. As reiterated in Oickle:

If a trial court properly considers all the relevant circumstances, then a finding regarding voluntariness is essentially a factual one, and should only be overturned for “some palpable and overriding error which affected [the trial judge’s] assessment of the facts”: Schwartz v. Canada, [1996] 1 S.C.R. 254, at p. 279 (quoting Stein v. The Ship "Kathy K", [1976] 2 S.C.R. 802, at p. 808) (emphasis in Schwartz). [para. 71]

52Mr. Singh has not pointed to any such error. Nor, in my view, is any such error apparent from a review of the videotape of the interviews and the transcript of the voir dire. Despite Sgt. Attew’s admitted intention to put parts of the police case against Mr. Singh before him in an effort to get him to confess, “no matter what”, his conduct of the interview as evidenced on the videotape shows that in so describing his method his bark is much worse than his bite. In my respectful view, the trial judge’s ultimate judgment call on this issue is supported by the record and is entitled to deference. Therefore, I see no reason to interfere with his ruling on admissibility.

53It must again be emphasized 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: see Otis. 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: Otis, at paras. 50 and 54.

4. Disposition

54For these reasons, I would dismiss the appeal.

The reasons of Binnie, LeBel, Fish and Abella JJ. were delivered by

Fish J. (dissenting) —

I

55The 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. As a matter of constitutional principle, I would answer that question in the negative, allow the appeal and order a new trial.

II

56I emphasize from the outset that we are not asked in this case to break new constitutional ground. More specifically, we are not urged to grant detainees a pre-trial right of silence. They already have that right under s. 7 of the Canadian Charter of Rights and Freedoms. And it is a right that extends beyond the confessions rule of the common law which rests, as we shall see, on a different foundation of principle.

57What is at stake, rather, is the Court’s duty to ensure that a detainee’s right to silence will be respected by interrogators once it has been unequivocally asserted, and not disregarded or insidiously undermined as an investigative “stratagem” (the trial judge’s own word in this case).

58The appellant, Jagrup Singh, asserted his right to silence unequivocally — not once, but 18 times. Throughout his interrogation, Mr. Singh was imprisoned in a police lock-up. In the trial judge’s words, he was “totally under the control of the police authorities”, “[did] not have freedom of unescorted movement” and “relie[d] totally on his jailers for the necessities of life” (Ruling on the voir dire, [2003] B.C.J. No. 3174 (QL), 2003 BCSC 2013, at para. 8). Powerless to end his interrogation, Mr. Singh asked, repeatedly, to be returned to his cell. Yet he was not permitted to do so until he capitulated and made the incriminating statements impugned on this appeal.

59Mr. Singh’s interrogator understood very well that Mr. Singh had chosen not to speak with the police. The interrogator nonetheless disregarded Mr. Singh’s repeated assertions of his right to silence. It is undisputed that he did so “in an effort to get [Mr. Singh] to confess, no matter what” (Ruling on the voir dire, at para. 34 (emphasis added)).

60In his relentless pursuit of this objective, the interrogator urged Mr. Singh, subtly but unmistakeably, to forsake his counsel’s advice. I find this aspect of the interrogation particularly disturbing.

61To the officer’s knowledge, Mr. Singh had been advised by his lawyer to exercise his right to silence. The officer, with irony if not cynicism, discounted this “absolutely great advice” (his words) as something he too would say if he were Mr. Singh’s lawyer. And he then pressed Mr. Singh to instead answer his questions — “to confess, no matter what”.

62Mr. Singh was thus deprived not only of his right to silence, but also, collaterally, of the intended benefit of his right to counsel. These rights are close companions, like glove and hand. As McLachlin J. (now C.J.C.) explained in R. v. Hebert, [1990] 2 S.C.R. 151, at pp. 176-77:

The most important function of legal advice upon detention is to ensure that the accused understands his rights, chief among which is his right to silence. The detained suspect, potentially at a disadvantage in relation to the informed and sophisticated powers at the disposal of the state, is entitled to rectify the disadvantage by speaking to legal counsel at the outset, so that he is aware of his right not to speak to the police and obtains appropriate advice with respect to the choice he faces. Read together, ss. 7 and 10(b) confirm the right to silence in s. 7 and shed light on its nature..

This suggests that the drafters of the Charter viewed the ambit of the right to silence embodied in s. 7 as extending beyond the narrow formulation of the confessions rule, comprehending not only the negative right to be free of coercion induced by threats, promises or violence, but a positive right to make a free choice as to whether to remain silent or speak to the authorities. [Emphasis added.]

And again, at p. 186:

The essence of the right to silence is that the suspect be given a choice; the right is quite simply the freedom to choose — the freedom to speak to the authorities on the one hand, and the freedom to refuse to make a statement to them on the other. This right of choice comprehends the notion that the suspect has been accorded the right to consult counsel and thus to be informed of the alternatives and their consequences, and that the actions of the authorities have not unfairly frustrated his or her decision on the question of whether to make a statement to the authorities. [Emphasis added.]

Nothing in either passage, or elsewhere in Hebert, suggests that McLachlin J. limited the right of silence under s. 7 of the Charter to statements made by a detainee to undercover police officers or to other detainees. On the contrary, in determining its scope on a principled basis, Justice McLachlin dealt with the right to silence in the context of statements made “to the police” or “to the authorities” by detainees under interrogation. And she dealt with it as a constitutional right not subsumed by the common law confessions rule.

63At the very least, the interrogator’s conduct in this case “unfairly frustrated [Mr. Singh’s] decision on the question of whether to make a statement to the authorities” (Hebert, at p. 186). Accordingly, the impugned statements, in the words of s. 24(2) of the Charter, were “obtained in a manner that infringed or denied” Mr. Singh’s constitutional right to silence. And I am satisfied that authorizing their admission in the circumstances of this case would bring the administration of justice into disrepute. They should therefore have been excluded at trial.

III

64In the trial judge’s view, Mr. Singh’s repeated assertions of his right to silence signify that “Mr. Singh successfully invoked his right to silence” (para. 36). Indeed, as we shall later see, this was the first reason given by the trial judge for finding that Mr. Singh’s right to silence had been respected by his police interrogator.

65The judge’s reasoning in this regard is superficially attractive but blind to reality. Mr. Singh’s repeated assertions of his right to silence demonstrate as convincingly as one can that he had chosen not to talk to the police about the incident which led to his arrest. His interrogator systematically disregarded Mr. Singh’s wish to remain silent. The more he did so, the stronger the interrogator’s message to Mr. Singh that continued resistance was futile: any further assertion by Mr. Singh of his right to silence would likewise be frustrated, merely prolonging the agony of his interrogation. And the trial judge found, as I mentioned earlier, that Mr. Singh was throughout this time “totally under the control of the police authorities” and entirely dependent on them “for the necessities of life” (para. 8).

66Where 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. It proves the failure, not the success, of the disregarded assertions of the right of the powerless and the vulnerable to say “no”.

67Justice Charron notes (at para. 50) that in determining whether the right to silence had been infringed, the trial judge asked himself: “Was Mr. Singh’s right to choose to talk or to remain silent undermined or overborne by Sergeant Attew’s admitted dedication to his agenda?”

68In answering this question, the trial judge explained:

In my view, it was not. Mr. Singh was actually quite successful in exercising his right to silence repeatedly. Indeed, as [Crown counsel] says, this is not a confession. Mr. Singh has made an important admission, but he has not made a confession to the crime.

(Ruling on the voir dire, at para. 36)

69With respect, I believe that neither of these reasons withstands appellate scrutiny. I have already dealt with the first and have nothing to add here. As for the second, I am unaware of any distinction, in determining their admissibility, between “a confession” and an “important admission” made or given by an accused to a person in authority, as in this case.

70Before leaving this branch of the matter, I take care not to be understood to have held that 18 (a significant number in other contexts) is of any importance at all in determining whether a detainee’s right of silence has been effectively undermined. On the contrary, I favour a purposive approach and find it unnecessary to decide whether 18 times is too many or once is too few. Constitutional rights do not have to be asserted or invoked a pre-determined number of times before the state and its agents are bound to permit them to be exercised freely and effectively. A right that need not be respected after it has been firmly and unequivocally asserted any number of times is a constitutional promise that has not been kept.

71Nothing in Hebert, or in any other decision of this Court, 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.

IV

72Justice Charron agrees with the British Columbia Court of Appeal that “[i]n the context of an investigatory interview with an obvious person in authority, the expansive view of the confession rule in Oickle may leave little additional room for s. 7” ((2006), 38 C.R. (6th) 217, 2006 BCCA 281, at para. 19). With respect, I am of a different view.

73The rationale of the enhanced confessions rule adopted in R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38, like the rationale of its narrower predecessor, 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 or not” (Hebert, at p. 176). Flagrantly disregarded in this way, the detainee’s “positive right to make a free choice” (Hebert, at p. 177), is neither “positive” nor “free”.

74As Justice Charron notes, the scope of the common law confessions rule is not in issue in this appeal. Applying the standard set out in Oickle, the trial judge found that Mr. Singh had an operating mind, and that his will was not overborne by threats or promises, by oppression, or by police trickery that would shock the community. On these findings of fact, he was entitled to conclude, as he did, that Mr. Singh’s inculpatory statements were voluntary, within the meaning of Oickle. This conclusion was not appealed.

75Justice Charron finds that the expansion of the confessions rule in Oickle leaves no additional room for the operation of s. 7 in the context of an “investigatory interview” (paras. 8 and 25). I agree with her that there is considerable overlap between the Charter protection of the right to silence and the common law confessions rule. Given their different purposes, however, they should remain distinct doctrines: To overlap is not to overtake.

76Even under its broader formulation in Oickle, the common law rule remains principally concerned with the reliability of confessions and the integrity of the criminal justice system. The purpose of the Charter, on the other hand, is “to constrain government action in conformity with certain individual rights and freedoms, the preservation of which are essential to the continuation of a democratic, functioning society in which the basic dignity of all is recognized” (Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157, at para. 57).

77As this case illustrates, 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. This asymmetry should not surprise. The Court has consistently held that the two doctrines are distinct. Lower courts have continued to apply them separately. And even upon expanding the common law rule in Oickle, the Court took care to explain that neither rule “subsumes the other” (para. 31).

78Justice Charron finds the reasons of Proulx J.A. in Otis “particularly instructive” on the issue that concerns us here. I agree. In Justice Proulx’s words: [translation] “The refusal of the investigator to respect the respondent’s specific insistent request to end the interrogation constitutes a violation of the right to remain silent”: R. v. Otis (2000), 151 C.C.C. (3d) 416 (Que. C.A.), at para. 43. And I think it especially instructive that Justice Proulx [translation] “ruled that the confession should be excluded due to the breach of a right guaranteed by the Charter” (para. 57) rather than under the common law confessions rule — even though, in the particular circumstances of Otis (notably the “emotional disintegration” of the accused), he would have excluded the accused’s statement under the confessions rule as well.

V

79The Court held in Hebert, as we have seen, that the s. 7 right to silence “must be interpreted in a manner which secures to the detained person the right to make a free and meaningful choice as to whether to speak to the authorities or to remain silent” (p. 181). Under the Oickle test, as noted earlier, 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” (Hebert, at p. 186) by relentless interrogation “in an effort to get [a detainee] to confess, no matter what”, is, once again, neither “free” nor “meaningful”. And it is a choice not born of “legitimate means of persuasion” within the meaning of Hebert (p. 177).

80Duval J. makes this point well in finding that a confession found to be voluntary for the purposes of the common law was nonetheless obtained in violation of s. 7:

Other than covering his ears and standing mute in response to anything said by the police, how is the detained person to exercise his/her right to remain silent? How long is he to be detained in an interview room after he has stated that he has nothing to say while police persist with an interrogation? At what point in time will the assertion of a right to remain silent be respected by ceasing questioning? Once Mr. McKay clearly and consistently, by four consecutive statements, asserted his right to remain silent, the police could not override it by asserting a right to continue questioning him whether he wished to answer or not.

(R. v. McKay (2003), 16 C.R. (6th) 347, 2003 MBQB 141, at para. 100)

81In Manninen, a unanimous Court held that “where a detainee has positively asserted his desire to exercise his right to counsel and the police have ignored his request and have proceeded to question him, he is likely to feel that his right has no effect and that he must answer”: R. v. Manninen, [1987] 1 S.C.R. 1233, at p. 1244. The same applies here. Detainees are in the custody of the state and subject to total control by its agents. This heightens the power imbalance between the individual and the state. 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.

VI

82With respect, I am troubled by Justice Charron’s suggestion that the ability of the police to investigate crime in Canada would be unduly impaired by the effective exercise of the pre-trial right to silence. In a similar vein, the respondent warns against its “massive and far-reaching consequences in the arena of police investigations” and the federal Director of Public Prosecutions, an intervener, submits that it would have “a devastating impact on criminal justice in Canada”.

83My colleague writes (at para. 28):

One can readily appreciate that the police could hardly investigate crime without putting questions to persons from whom it is thought that useful information may be obtained. The person suspected of having committed the crime being investigated is no exception. Indeed, if the suspect in fact committed the crime, he or she is likely the person who has the most information to offer about the incident. Therefore, the common law also recognizes the importance of police interrogation in the investigation of crime.

84In my view, the issue in this case cannot be characterized that way. No one has challenged the right of the police to put “questions to persons from whom it is thought that useful information may be obtained”. While it is true, of course, that the common law recognizes the right of police to ask questions, it is no less true that the Constitution recognizes the right of a detainee to refuse to answer.

85This case does not concern the questioning of potential witnesses to elicit information from them. It relates to the right of the police, once a detainee has invoked the right of silence protected by s. 7 of the Charter, to relentlessly press the detainee’s interrogation “in an effort to get [him or her] to confess, no matter what”. That was the interrogator’s avowed purpose here. And as Wigmore points out in a related, but somewhat different context, “[i]f there is a right to an answer, there soon seems to be a right to the expected answer, — that is, to a confession of guilt.” And “[t]he inclination develops to rely mainly upon such evidence, and to be satisfied with an incomplete investigation of the other sources” (J. H. Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law (2nd ed. 1923), at § 2251, p. 824).

86Potential witnesses are rightfully expected, as a matter of civic duty, to assist the police by answering their questions. As a matter of law, however, they may refuse to answer, and go on home. Prisoners and detainees, on the other hand, are by definition not free to leave as they please. They are powerless to end their interrogation. As explained in Hebert, this is why they have been given the right to counsel and its close relative, the right to silence.

87Neither of these rights has been given constitutional protection on the condition that it not be exercised, lest the investigation of crime be brought to a standstill. On the contrary, the policy of the law is to facilitate, and not to frustrate, the effective exercise of both rights by those whom they are intended to protect. They are Charter rights, not constitutional placebos.

88Moreover, we have 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.

89For more than 40 years, it has been the law in the United States that where a suspect “indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease”: Miranda v. Arizona, 384 U.S. 436 (1966), at pp. 473-74. And yet, as Wharton puts it, “[n]umerous studies in the years following this decision have concluded that Miranda had little impact on the ability of the police to obtain statements”: Wharton’s Criminal Procedure (14th ed. (loose-leaf)), at p. 19-9.

90Moreover, after nearly a decade of experience with Miranda, the U.S. Supreme Court reaffirmed its underlying rationale in these terms:

A reasonable and faithful interpretation of the Miranda opinion must rest on the intention of the Court in that case to adopt “fully effective means . . . to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored . . . .” 384 U.S. [436], at 479. The critical safeguard identified in the passage at issue is a person’s “right to cut off questioning.” Id., at 474. Through the exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person’s exercise of that option counteracts the coercive pressures of the custodial setting. We therefore conclude that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his “right to cut off questioning” was “scrupulously honored.”

(Michigan v. Mosley, 423 U.S. 96 (1975), at pp. 103-4)

91In Mosley, upon the detainee’s request, “the police . . . immediately ceased the interrogation, resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation” (p. 106). The Court was therefore satisfied that the detainee’s “right to cut off questioning” had been “scrupulously honored”, within the meaning of Miranda.

92More recently, after an additional quarter-century under this investigatory regime, the U.S. Supreme Court affirmed that “Miranda and its progeny in this Court govern the admissibility of statements made during custodial interrogation in both state and federal courts”. See Dickerson v. United States, 530 U.S. 428 (2000), at p. 432, where the Court held that Congress could not circumvent or override Miranda by making voluntariness the sole criterion of admissibility of a detainee’s statements to the police.

93Not everyone will agree with Wharton that Miranda appears to have had little effect on the ability of the police to obtain statements. There are, of course, conflicting assessments of the evidence as to its impact, but Miranda can hardly be said to have paralysed criminal investigations in the United States. And there is no evidentiary basis for suggesting that it would do so in Canada.

94In any event, the success of this appeal does not depend on the importation of the Miranda rule into Canada. And I take care not to be misunderstood to suggest that Miranda either is now, or ought to be made, the law in Canada. Here, the right to silence, once asserted, is not a barrier to the admissibility of any subsequent pre-trial statement of a detainee or prisoner. Nor is there any requirement that interrogators obtain a signed waiver from detainees, as the appellant suggests there ought to be. On the other hand, in the words of Professors Delisle, Stuart and Tanovich, “[o]nce an accused has clearly stated he wishes to remain silent, the police cannot act as if there has been a waiver” (R. J. Delisle, D. Stuart and D. M. Tanovich, Evidence: Principles and Problems (8th ed. 2007), at p. 489).

95In short, detainees who have asserted their right to silence are entitled to change their minds. As I have stated elsewhere, “[a]n initial refusal can later give way to a crisis of conscience, to an ‘unconscious compulsion to confess’ — or, simply, to a genuine change of heart”: R. v. Timm (1998), 131 C.C.C. (3d) 306 (Que. C.A.), at para. 145. But they cannot be compelled to do so by the persistent disregard of that choice. As mentioned earlier, that is what happened here.

96Finally, even in the absence of the required evidentiary foundation, I am prepared for present purposes to recognize that the work of the police would be made easier (and less challenging) if police interrogators were permitted to undermine the constitutionally protected rights of detainees, including the right to counsel and the right to silence — either by pressing detainees to waive them, or by “unfairly frustrat[ing]” their exercise (Hebert, at p. 186). More draconian initiatives might prove more effective still.

97Nonetheless and without hesitation, 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. The right to silence, like the right to counsel, is in my view a constitutional promise that must be kept.

VII

98The police conduct in issue here “was not done in execution of or by necessary implication from a statutory or regulatory duty, and it was not the result of application of a common law rule” (Hebert, at p. 187). Therefore the violation of s. 7 was not “prescribed by law” and cannot be saved by s. 1.

99I am satisfied that Mr. Singh’s admission should have been excluded in accordance with s. 24(2) of the Charter. His right to silence under s. 7 was violated and he was conscripted to provide evidence against himself. The use of this evidence rendered the trial unfair, “for it did not exist prior to the violation and it strikes at one of the fundamental tenets of a fair trial, the right against self‑incrimination”: R. v. Collins, [1987] 1 S.C.R. 265, at p. 284. There is no claim that this admission could have been obtained through alternative, non-conscriptive means: see R. v. Stillman, [1997] 1 S.C.R. 607, at para. 119. Moreover, it is apparent from my reasons that I consider the breach in this case to be serious. Were it necessary to do so, I would reiterate here my earlier comments in that regard.

VIII

100For all of these reasons, as stated at the outset, I would exclude Mr. Singh’s statements, allow the appeal, and order a new trial.