The Right to Remain Silent

The Toronto Star published an editorial on R v. Singh, where the Supreme Court upheld the conviction of a Jagrup Singh, who was interrogated even after requesting to remain silent as his right under under s. 10(b) of the Canadian Charter of Rights and Freedoms.

The majority decision stated,

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.

The Star editorial raised some valid concerns:

There can be little doubt that some sort of safeguard is necessary in light of the many DNA-exonerated innocent defendants who confessed prior to their trials…

The right to silence is supposed to rectify the disadvantage that a detained suspect is faced with when confronted with the powers at the disposal of the state. On balance, it does not appear to be providing much protection. Given what we know about current interrogation practices, there is much that the suspect needs protection from.

The dissenting opinion per Binnie, LeBel, Fish, and Abella JJ. said,

…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.

Alex from the Criminal Review blog, also did an entry on this case. He asks some interesting questions:

But, even given the greater latitude now given police questioning under Oickle, does “police persuasion” only have to stop short of oppression so great it deprives the accused of an operating mind or overrides his will?

Apparently so. By the Court of Appeal’s reasoning the choice to remain silent is never made once and for all, but has to be continuously exercised in the face of questioning that can be maintained almost indefinitely. One has to wonder what meaning the accused’s “choice” has when it can be so easily ignored. While this case may have been correctly decided, I think some basic limits on questioning are in order once the right to silence has been invoked.

Slippery Slope

Erosion of such civil rights during interrogations have been a concern for many in the advocacy community in recent years.

Similar predictions have been made about popular culture shows such as Fox’s 24, which some claim is softening the publilc to the use of torture.

See Primetime’s seried on torture here, which claims that law enforcement is actually adopting tactics from popular television.

Jon Wiener of The Nation said,

It’s especially unfortunate to see Kiefer Sutherland play the world’s most popular torturer, because his father, Donald Sutherland, has been a prominent antiwar activist since Vietnam days and starred in some great films critiquing fascist politics, including “MASH” and Bertolucci’s “1900.” It’s unfortunate also because Kiefer’s grandfather, Tommy Douglas, was Canada’s first socialist premier, and was recently voted “the greatest Canadian of all time” — because he introduced universal public health care to Canada.

Enough Brutes Already

The concern here is not just with the erosion of the rule of law, but also of poor intelligence resulting wrongful convictions and excessive brutality.

And as Joe Navarro of the F.B.I. has said,

Only a psychopath can torture and be unaffected. You don’t want people like that in your organization. They are untrustworthy, and tend to have grotesque other problems.

With the recent tasering death of a Polish immigrant in a Vancouver airport this month, Canadian law enforcement organizations appear to have enough challenges as it is.