Section 7 of the Canadian Charter of Rights and Freedoms provides:
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.
Keeping silent
To speak or not to speak? Section 7 of the Charter recognizes the right of every accused person to remain silent from the moment of detention. Indeed, the accused should not be forced to speak in order not to incriminate themselves. The state must not use its coercive power to compel the accused to speak. The choice to speak or not to speak is up to the accused. The implementation of this right presupposes the fulfilment of two conditions.
First, there is the intervention of an agent of the state. This intervention presupposes that the individual is aware that they are speaking to an agent of the State. Thus, if a police officer disguises himself in civilian clothes and plays the role of a fellow prisoner to question the suspect, even though the suspect had expressed a clear desire to remain silent, the statements that would be obtained from the accused by the disguised officer would be subject to the application of section 7 of the Charter. Indeed, the state cannot use stratagems to elicit statements from the individual if the individual chooses to remain silent.
It is important to note, however, that the right to silence under section 7 is not absolute. In addition, a distinction must be made between the active role and passive role that an agent of the state can play against an individual who makes statements. Generally, if the police officer was actively engaged in obtaining information so that the exchange could be considered an interrogation, the courts will consider the statement to have been actively obtained.
Confessions
Will everything the accused say be held against them? Who were they talking to? Did they know the status of the person they were talking to? Was the interlocutor mandated by the state?
These are some questions to ask in order to determine whether the accused’s statements were obtained in violation of his rights.
The confessions rule applies whenever an accused believes they are speaking to a person in authority. Such statements can only be used if the prosecution establishes beyond a reasonable doubt that the statements were free and voluntary. So there are two factors to consider. The first is the presence of a person in authority and the second is the free and voluntary nature of the statements.
Person in authority
If it is clear that a uniformed police officer is arresting the individual, they will easily be considered a person in authority. However, in some cases, it is difficult to determine the status of the person to whom statements have been made. Obviously, each case must be considered in its entirety to determine whether the person meets this definition.
The test used to determine whether a person is in a position of authority is both subjective and objective.
First, it is subjective, as the accused’s perception must be taken into consideration. They must believe that they were speaking to a person in authority at the time of their statement and that that person could have an influence on the judicial process. Second, it is objective, because the individual must have sincere motives, in the circumstances, to believe that they were speaking to a person in authority. The accused’s belief must therefore be honest and reasonable in the circumstances to meet this test.
Let’s take the example of a double agent. In this case, the confessions rule cannot apply, as the subjective test cannot be met. In this case, the individual is unaware that the person to whom they were speaking was acting on behalf of the state. The same applies in the case of a person who addresses the family or relatives of the victim. In this case, the statements made cannot be subject to the confessions rule.
However, there is a nuance that needs to be made. Indeed, in certain circumstances, these individuals may be considered to be in a position of authority. Consider the example of a family member who, after speaking to the authorities, decided to set a trap for the individual to obtain a confession.
The free and voluntary nature of declarations
Once the status of the person to whom the statements were made has been determined, the question now arises as to whether the statements were free and voluntary.
In some cases, in the presence of threats or promises, we can say with certainty that the statements were not free and voluntary.
However, this is not the case in certain circumstances. There are several criteria to consider in determining whether the declarations were free and voluntary:
- Statements made as a result of promises or threats that give rise to fears of harm or benefit;
- Minimizing the seriousness of the facts in order to get the accused to speak;
- The climate of oppression created by the circumstances surrounding the interrogation of the accused;
- The state of consciousness of the accused;
- The use of trickery by the police.
It should be noted that each case is unique and that all facts must be scrutinized to determine whether the accused’s statements can be excluded under the confessions rule. If you have been placed under arrest and believe you have made an incriminating statement, contact our team of criminal lawyers without delay.