"The limits on the right to remain silent
BY SOLOMON FRIEDMAN, OTTAWA CITIZEN
"You have the right to remain silent."
Most are familiar with this phrase, usually uttered triumphantly by the hero detective as he handcuffs the elusive suspect, caught at last. Canadians
Similarly, many people probably believe that the right to silence extends beyond the confines of television programs like Law & Order orCriminal Minds. Canadians, they assume, are entitled to remain silent in the face of a police interrogation. And they're right. Sort of.
In Canada, while the police have a general obligation to inform a detained person of his or her rights - including the right to remain silent - there is no requirement that the police actually respect the assertion of that right.
Put another way, although you may have the right to remain silent, the police have the power to continue to question you, no matter how many times you forcefully insist on exercising your right to silence.
While you cannot be overtly coerced into speaking to police, interrogators are entitled to convince a detainee, by honest means or otherwise, to make a statement.
This is in stark contrast to the more robust American "Miranda" rule which requires that police immediately cease all interrogations once a detainee has asserted his right to silence.
The constitutional right to silence is also threatened by other police practices.
Many people may not be aware that police officers, in conducting interrogations, are permitted to lie, trick or deceive a detainee.
In fact, it is relatively common practice for officers to confront a suspect with nonexistent evidence.
"You might as well confess," the officer insists. "We found your fingerprints and your DNA at the scene."
Another widespread technique is to inform the suspect that his accomplice, who is being questioned in a nearby room, is about to incriminate him. "Tell us the truth before he rolls on you," the detective states. Meanwhile, the accomplice has yet to be asked even a single question by police.
Both of these approaches are not only common, they have been repeatedly condoned by the courts.
Viewed objectively, the power imbalance between interrogator and detainee becomes quite apparent.
When the police officer lies to the detainee, it is considered perfectly appropriate. Any confession obtained as a result of such deception will be admissible. It is a legitimate investigative technique.
Of course, if a detainee misleads the police during an interrogation, not only will it reflect negatively on the accused's credibility, it may, in some circumstances, be grounds for an additional criminal charge - obstructing justice or obstructing a peace officer in the execution of his duties.
What then are the limits, if any, on the ability of police investigators to deceive a detainee, in the hopes of extracting a confession?
Canadian courts have given some guidance in this area, outlining what type of conduct would fall outside the bounds of otherwise permissible deception and trickery.
The Supreme Court has said that police cannot engage in trickery that would "shock the community." If the deception indeed reaches that level, any confession subsequently obtained will be inadmissible at trial.
For example, the court has ruled that if a police officer poses as a priest and offers to take confession from the detainee, any incriminating statements made in the course of that "confession" will be excluded.
Similarly, when a diabetic detainee was injected with truth serum by a police officer, under the guise of a doctor dispensing insulin, the court found that such trickery went too far.
These examples, while almost comical on their face, demonstrate just how egregious police conduct will have to be before it "shocks the community" and is considered illegitimate and unconstitutional.
If those cases serve as the high-water mark for police misconduct, anything less shocking than the false priest or the insulin substitute may well fall short of this standard and result in admissible confessions. A frightening prospect indeed.
At the very least, Canadians should be aware that the right to silence, a right which is almost taken for granted, is not the protection that they might perceive it to be. And, upon reflection, it might be time for Canadians to ask themselves: is a right to silence that can be ignored by police really a right at all?
Solomon Friedman is a criminal defence lawyer with Edelson Clifford D'Angelo LLP. He can be reached at solomon@ edelsonlaw.ca or 613-237-2290. Follow Solomon on Twitter at twitter.com/firearmslaw."
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