Right to Silence

It is not explicitly stated in the Charter. It is a principle of fundamental justice and covered under s. 7 of the Charter. However, the right to silence is not absolute.

R. v. Hebert

Hebert was arrested for armed robbery. He was put in a cell with an undercover agent posing as another arrested suspect. The undercover agent chatted with Hebert and managed to elicit several incriminating statements from him.

The court found that his right to remain silent was violated. The court determined that an accused’s right to silence cannot be undermined by police trickery (i.e. they cannot fool you into making incriminating statements.)

Right to Counsel

10. Everyone has the right on arrest or detention a) to be informed promptly of the reasons therefore; (b)  to  retain and instruct counsel without delay and to be informed of that right;

In Canada your right to counsel is engaged when you are detained by police. Detention can be physical or psychological. (Refer to R. v. Grant)

The purpose of s. 10(b) Right to Counsel:

  • To protect individuals from prejudicing his/her legal position by saying or doing something without the benefit of legal advice.
  • Police must tell you whether you are being detained or arrested, that you have the right to consult a lawyer and that you must be given the opportunity to do so.
  • There is no rule that limits the accused to a single phone call.
  • Successive calls are permitted if the detainee needs to do so in order to have a reasonable opportunity to have meaningful contact with a lawyer.
  • The police are to refrain from questioning the accused person until that person has an opportunity to contact a lawyer.
  • Persons receiving legal advice while detained or arrested are entitled to do so in private.

R. v. Ross

Supreme Court of Canada excluded information evidence obtained during participation in a police line-up. Police conducted the line-up at 3 a.m. after the accused made 1 unsuccessful attempt to contact counsel. The accused was not advised that he had no obligation to participate in the line-up.

R. v. Evans

An individual was arrested and informed of his right to contact counsel. The individual had an IQ of between 60 and 80. His mental capacity was known to police. When asked if he understood his rights he replied that he did not. Police took him to the station, conducted interviews without a lawyer that ended with his confession to 2 murders. The evidence was excluded.

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