DOCSLIB.ORG

Restricting the Right to Pre-Trial Silence in Canada

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Restricting the Right to Pre-Trial Silence in Canada Catching the Fox: Restricting the Right to Pre-trial Silence in Canada by Ian Alan Mackenzie LL.B., The University of British Columbia, 1978 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES (Law) THE UNIVERISTY OF BRITISH COLUMBIA (Vancouver) April 2013 © Ian Alan Mackenzie, 2013 ABSTRACT This thesis studies the right to silence and proposes restricting the right to pre-trial silence in Canadian criminal law in a manner similar to the way it has been curtailed in the United Kingdom, where the trier of fact may draw an adverse inference from an accused’s pre-trial silence in certain statutorily defined circumstances. The thesis is a comparative review of the historical development and current state of the law governing the right to pre-trial silence in Canada and the United Kingdom, and includes a discussion and analysis of the major philosophical and pragmatic arguments for and against the right to silence found in the academic and jurisprudential discourse. I argue that the right to pre-trial silence is contrary to the moral duty to respond to a well-founded accusation, as well as to simple common sense. Furthermore, I submit that the right to silence interferes with the truth-seeking function of the courts, is irrationally and arbitrarily applied, does not strike an appropriate balance between individual rights and the societal importance of effective law enforcement and the successful prosecution of the guilty, and is in reality quite ineffective in its goal of protecting an accused because of recent Supreme Court of Canada decisions that have essentially eviscerated the practical utility of the right to pre-trial silence for anyone facing police interrogation other than the most sophisticated or hardened criminal. Based on these suppositions, I propose that the Canada Evidence Act be amended to allow the trier of fact to draw an adverse inference, including an inference of guilt, when an accused remains silent during police questioning but later advances a defence that he or she could have reasonably mentioned when questioned. ii TABLE OF CONTENTS ABSTRACT…………………………………………………………………………….… ii T……...…….ABLE OF CONTENTS………………………………………………………………… iii ACKNOWLEDGEMENTS………………………………………………………….…. vi QUOTATIONS……..…………..……………………………………….………………… viii ………... CHAPTER I: INTRODUCTION AND METHODOLOGY………………………… 1 A. Introduction ………………………………………………………………………... 1 B. Caveats……………………………………………………………………………. 6 C. Methodology and Theoretical Framework………………………………………… 9 CHAPTER II: ARGUMENTS FOR AND AGAINST THE RIGHT TO SILENCE.. 14 A. Introduction ………………………………………………………………………... 14 B. The Philosophical Debate…………………………………………………………. 17 1. Introduction……………………………………………………………………. 17 2. Privilege Against Self-Incrimination………………………………………….. 18 3. Absolute or Qualified Right…………………………………………………… 20 4. Moral Responsibility to Respond……………………………………………… 27 5. Common Sense and Rectitude of Decision……………………………………. 30 6. Privacy…………………………………………………………………………. 38 7. Presumption of Innocence and Burden of Proof………………………………. 44 C. The Pragmatic Debate……………………………………………………………... 48 1. Introduction……………………………………………………………………. 48 2. Balancing Due Process and Crime Control……………………………………. 49 3. Controlling Police Interrogations……………………………………………… 51 4. False Confessions and Protecting the Innocent………………………………... 58 5. Encouraging Other Investigative Strategies…………………………………… 62 6. Innocent Reasons for Silence………………………………………………….. 63 7. Cruel Choices………………………………………………………………….. 65 8. Professional Criminals Take Advantage of the Right to Silence……………… 68 9. Ambush Defences……………………………………………………………... 70 10. Denying the Trier of Fact Relevant and Probative Evidence……………….…. 72 11. Judges and Juries Draw an Adverse Inference Anyway………………………. 74 D. Conclusion…………………………………………………………………………. 76 iii CHAPTER III: THE RIGHT TO SILENCE IN THE UNITED KINGDOM………. 78 A. Introduction………………………………………………………………………... 78 B. The Development of the Right to Silence…………………………………………. 78 1. The Origin of the Right to Silence…………………………………………….. 78 2. Development of the Common Law……………………………………………. 82 3. Summary………………………………………………………………………. 98 C. The Move to Restrict the Right to Silence………………………………………… 99 1. Introduction……………………………………………………………………. 99 2. Criminal Law Revision Committee……………………………………………. 100 3. Royal Commission on Criminal Procedure……………………………………. 103 4. Police and Criminal Evidence Act…………………………………………….. 105 5. Home Office Working Group…………………………………………………. 121 6. Criminal Evidence (Northern Ireland) Order………………………………… 124 7. Royal Commission on Criminal Justice……………………………………….. 128 8.Justice Criminal………………………………………... Justice and Public Order Act……………………………………….. 135 9. Criminal Procedure and Investigations Act…………………………………… 140 10. Other Legislation………………………………………………………………. 143 11. European Convention of Human Rights………………………………………. 144 12. Summary………………………………………………………………………. 146 D. Judicial Response to the Legislative Restrictions on the Right to Silence………… 148 1. Introduction……………………………………………………………………. 148 2. Domestic Courts……………………………………………………………….. 149 a. Criminal Evidence (Northern Ireland Order)……………………………... 149 b. Criminal Justice and Public Order Act……………………………………. 153 3. European Court of Human Rights……………………………………………... 163 E. Conclusion…………………………………………………………………………. 169 CHAPTER IV: THE RIGHT TO SILENCE IN CANADA………………………….. 171 A. Introduction………………………………………………………………………... 171 B. Development of the Right to Silence in Canada……………………………….….. 173 1. Introduction……………………………………………………………………. 173 2. Privilege Against Self-Incrimination………………………………………….. 174 3. Voluntary Confessions Rule…………………………………………………… 181 a. Development of the Common Law Rule in Canada.…………………….... 181 b. Updating the Confessions Rule: R. v. Oickle………………….………….. 193 4. Common Law Exceptions to the Right to Pre-trial Silence…………………… 198 a. Introduction………………………………………………………………... 198 b. Adopted Admissions………………………………………………………. 199 c. Consciousness of Guilt…………………………………………………….. 203 iv d. Recent Fabrication…………………………………………………………. 208 5. Summary………………………………………………………………………. 213 C. Charter of Rights and Freedoms………………………………………………….. 214 1. Introduction……………………………………………………………………. 214 2. Early Appellate Cases…………………………………………………………. 216 3. R. v. Hebert…………………………………………………………………….. 221 4. The Aftermath of Hebert: Clarifying the Confusion…………………………... 227 a. Confirming the Right to Pre-trial Silence is Not Absolute………………... 227 b. Statements to Undercover Officers and Police Agents……………………. 240 c. Silence Prior to a Formal Police Investigation…………………………….. 249 5. Right to Counsel……………………………………………………………….. 254 6. The Exclusionary Rule and the Right to Silence………………………………. 264 7. Summary………………………………………………………………………. 272 D. Retreating from Hebert: Waiver and Police Persuasion……………………...…... 273 1. Introduction……………………………………………………………………. 273 2. Waiver…………………………………………………………………………. 273 3. Police Persuasion………………………………………………………………. 288 E. Conclusion…………………………………………………………………………. 310 CHAPTER V: THE PROPOSITION…………………………………………………. 314 A. Introduction………………………………………………………………………... 314 B. The Rationale for the Proposition…………………………………………………. 318 1. The Right to Silence is Not Absolute………………………………………….. 318 2. The Need for an Appropriate Balance…………………………………………. 321 3. The Right to Silence Interferes with Rectitude of Decision…………………… 328 4. The Right to Silence is Contrary to Common Sense…………………………... 330 5. The Right to Silence is Arbitrarily and Irrationally Applied………………….. 332 6. The Moral Responsibility to Respond…………………………………………. 334 7. Mitigating the Unintended Consequences of Hebert………………………….. 336 8. Adequate Safeguards Exist to Prevent Wrongful Convictions………………... 339 C. Conclusion…………………………………………………………………………. 343 CHAPTER VI: RECOMMENDATIONS AND CONCLUSION…………………….. 344 A. Introduction………………………………………………………………………... 344 B. Recommendations…………………………………………………………………. 346 C. Conclusion…………………………………………………………………………. 350 BIBLIOGRAPHY…………………………………………………………………………. 352 APPENDIX………………………………………………………………………………… 367 v ACKNOWLEDGEMENTS There are three important groups of people who deserve recognition and appreciation for their support and assistance. The first group consists of all those at the Faculty of Law who helped me throughout the several years it took to complete this thesis. Joanne Chung’s advice and positive encouragement were very much appreciated, as was the assistance provided by the always pleasant and available staff at the law library. The considerable academic and practical knowledge and experience of Professor Michael Jackson Q.C., who was my thesis supervisor, was of course very helpful as he provided insightful feedback and many suggestions that were incorporated into the final document. Professor Jackson`s willingness to take on the supervision of a thesis, the proposition of which is contrary to his view of the right to silence, is an excellent example of the integrity and values of the legal academy. As long as I constructed a properly researched and reasonably logical argument, Professor Jackson was always willing to respectfully consider my position, although of course not without rigorous challenge and debate. I feel very honoured to have been able to work under his supervision and guidance. The second reader, Professor Nikos Harris, was willing to take on the reading and critique of a very lengthy document, and his suggestions and advice were also extremely helpful and resulted in some important additions to the thesis. I am very
Load more

Recommended publications
  • An Empirical Analysis of “Judicial Activism” in Canada
    Making Numbers Count: An Empirical Analysis of “Judicial Activism” in Canada MELANIE MURCHISON * ABSTRACT This paper empirically examines the decision making of the justices on the Supreme Court of Canada after the enactment of the Charter and before and after the events of September 11, 2001 (9/11) to determine if the levels of judicial activism on the Court have changed. The term judicial activism is used by academics, journalists, and citizens alike but the phenomenon is ill defined and often used as a pejorative term. The field of law, particularly in traditional doctrinal analysis, has been reluctant to adopt this approach, as few legal scholars have attempted to understand the phenomenon using empirical methodology. This paper adopts a hybrid content analysis empirical approach to depict the elusive, but widely cited, occurrence of “judicial activism” in Canada. Drawing upon an adapted and critiqued version of Cohn and Kremnitzer’s “multidimensional model of judicial activism”, this paper argues that there have been statistically significant shifts in judicial behaviour since 9/11. The Cohn and Kremnitzer model measures activism across multiple dimensions and this paper argues that empirical measurements of the phenomenon of “judicial activism” can contribute to broader understandings of the Canadian Supreme Court’s approaches to justice. In doing so, this paper projects two significant findings: firstly, that using a hybrid content analysis to analyse activism complements and challenges the existing methods for critiquing judicial * Melanie Murchison is an Associate Lecturer in the Department of Sociology and the Legal Studies Program at the University of Wisconsin-Madison. She received her Ph.D from Queen’s University Belfast.
    [Show full text]
  • Criminal Evidence and Human Rights
    CRIMINAL EVIDENCE AND HUMAN RIGHTS Criminal procedure in the common law world is being recast in the image of human rights. The cumulative impact of human rights laws, both inter- national and domestic, presages a revolution in common law procedural traditions. Comprising 16 essays plus the editors’ thematic introduction, this volume explores various aspects of the ‘human rights revolution’ in criminal evidence and procedure in Australia, Canada, England and Wales, Hong Kong, Malaysia, New Zealand, Northern Ireland, the Republic of Ireland, Singapore, Scotland, South Africa and the USA. The contributors provide expert evaluations of their own domestic law and practice with frequent reference to comparative experiences in other jurisdictions. Some essays focus on specific topics, such as evidence obtained by torture, the presumption of innocence, hearsay, the privilege against self-incrimination, and ‘rape shield’ laws. Others seek to draw more general lessons about the context of law reform, the epistemic demands of the right to a fair trial, the domestic impact of supra-national legal standards (especially the ECHR), and the scope for reimagining common law procedures through the medium of human rights. This edited collection showcases the latest theoretically informed, meth- odologically astute and doctrinally rigorous scholarship in criminal proce- dure and evidence, human rights and comparative law, and will be a major addition to the literature in all of these fields. Criminal Evidence and Human Rights Reimagining Common Law Procedural
    [Show full text]
  • Making Numbers Count: an Empirical Analysis of “Judicial Activism” in Canada
    Making Numbers Count: An Empirical Analysis of “Judicial Activism” in Canada MELANIE MURCHISON * ABSTRACT This paper empirically examines the decision making of the justices on the Supreme Court of Canada after the enactment of the Charter and before and after the events of September 11, 2001 (9/11) to determine if the levels of judicial activism on the Court have changed. The term judicial activism is used by academics, journalists, and citizens alike but the phenomenon is ill defined and often used as a pejorative term. The field of law, particularly in traditional doctrinal analysis, has been reluctant to adopt this approach, as few legal scholars have attempted to understand the phenomenon using empirical methodology. This paper adopts a hybrid content analysis empirical approach to depict the elusive, but widely cited, occurrence of “judicial activism” in Canada. Drawing upon an adapted and critiqued version of Cohn and Kremnitzer’s “multidimensional model of judicial activism”, this paper argues that there have been statistically significant shifts in judicial behaviour since 9/11. The Cohn and Kremnitzer model measures activism across multiple dimensions and this paper argues that empirical measurements of the phenomenon of “judicial activism” can contribute to broader understandings of the Canadian Supreme Court’s approaches to justice. In doing so, this paper projects two significant findings: firstly, that using a hybrid content analysis to analyse activism complements and challenges the existing methods for critiquing judicial * Melanie Murchison is an Associate Lecturer in the Department of Sociology and the Legal Studies Program at the University of Wisconsin-Madison. She received her Ph.D from Queen’s University Belfast.
    [Show full text]
  • R V Sinclair: Balancing Individual Rights and Societal Interests Outside of Section 1 of the Charter
    R v Sinclair: Balancing Individual Rights and Societal Interests Outside of Section 1 of the Charter Vanessa A MacDonnell* The majority judgment in R v Sinclair reflects what the author sees as a problematic trend in the Supreme Court of Canada's pre-trial legal rights jurisprudence under the Canadian Charter of Rights and Freedoms. In Sinclair, the Court took the novel step of holding that society's interest in "the investigation and solving of crimes" should be taken into account in determining the scope of the right to counsel under section 10(b). The author explains that such interests are usually left to the justificationstage under section 1 ofthe Charter,but that section 1 isfunctionally unavailablein the context of many pre-triallegal rights claims. This is because in cases ofalleged police misconduct, the state action in question is not authorizedeither by statute or by common law, so the section 1 requirement that the limits on rights be prescribed by law cannot be umnet. For this reason, the author argues, courts have sought other ways to incorporate interestbalancing into Charteranalysis. In some cases they have done so under the 'fundamental justice" proviso to section 7, and in others by expanding police authority under the "ancillary powers doctrine". The author situates the Sinclair decision within the overall jurisprudence on section 10(b), andargues that the Court wrongly imposes an internal limit on section 10(b) in a manner that avoids the rigorousconstraints that the Oakes test imposes on the section 1 analysis. The author's overall conclusion is that Sinclair reflects a judicialencroachment on the role of the legislature anda weakening of the role of the courts as defenders offundamuoental rights.
    [Show full text]