1. Singh and Spencer What is “Voluntary” about these Statements?

2. R. v. Singh (SCC)  Second degree murder conviction.  Accused alleges s. 7 breach of right to silence.  Facts: shooting death, bystander hit by stray bullet.

3. R. v. Singh  Facts continued: accused properly advised of right to counsel, consults with counsel, continues to assert he does not wish to speak of the matter, doesn’t confess but essentially provides the necessary identification of himself.  Trial judge determined that the admissions were not the result of the police systematically breaking down the operating mind of the accused, and the right to silence was not violated. Upheld at the appellate level.

4. SCC  Appeal dismissed.  It is not appropriate to prevent police questioning of detainee despite their assertion of right to silence.  The trial judge was well aware of the risk that the persistence of the police raised a strong argument that the subsequently obtained admissions were not the product of a free will.

5. SCC  While historically the Confessions Rule was focused on reliability, moreso than the right against self-incrimination, that is no longer true.  The modern, expansive, version of the Confessions Rule, includes the right of the detainee to make a meaningful choice whether or not to speak to the authorities.

6. SCC  On the issue of voluntariness, as well as any analysis of a breach of the right to silence under s. 7, the focus has to be on the conduct of the police, and its effect on the accused’s ability to exercise free will.  The test is an objective one, but one where the individual characteristics of the accused are taken into account.

7. SCC  In the context of an interrogation of a detainee by an obvious person in authority, a finding of voluntariness will be determinative of any alleged s. 7 breach, since Voluntariness, as it is understood today, includes consideration of whether the detainee’s right to silence was respected.

8. SCC  The Confessions Rule essentially subsumes the right to silence, because the two tests are functionally equivalent.  Conversely, if there is a violation of the right to silence, voluntariness cannot be proven beyond a reasonable doubt.

9. SCC  To ask that the police refrain from questioning a detainee once the right to silence is asserted would unduly restrict their ability to investigate crime.  Under both Charter and Common Law rules, persistent police questioning, despite repeated assertions of the right to remain silent, may well raise a strong argument that the resulting statement was not the product of the detainee’s free will. The trial judge was alive to this risk.

10. Dissent: Singh SCC  The statements were taken in violation of the right to silence.  The interrogator well understood that the detainee did not wish to speak to police, but nevertheless persisted in his efforts to obtain a statement. He relentlessly pursued a statement “no matter what.”

11. Dissent  Detainees left alone with their interrogators who persistently ignore their requests to be silent are undoubtedly justifiably confused about what their rights are – that their right to silence must have no practical effect and that they are bound to answer the questions so directed.

12. Dissent  Where continued resistance has been made to appear futile to one in the dominance and control of another, ultimate submission provides neither valid consent nor waiver.  Nothing in this Court’s jurisprudence allows the police to continue to press detainees for waiver of a Charter right firmly asserted, or to deliberately frustrate their exercise.

13. Dissent  While detainees are entitled to change their minds and speak to authorities, they cannot be compelled to do so by the persistent disregard of their asserted choice.  There is no evidence that demanding that the police adhere to the stated choice of the accused would have the suggested devastating impact on criminal investigations.

14. Dissent  The Confessions Rule and the right to silence are different. A statement can be involuntary yet be taken in breach of the right to silence.  Where the freedom to choose whether to give a statement is taken away from a detainee, s. 7 will be violated.

15. Dissent  Where a statement is given by one with an operating mind, without inducement, oppression, and where there is no police trickery that shocks the community, it is voluntary. However, this does not necessarily represent a “free and meaningful choice” under the Charter.  A choice that has been disregarded and unfairly frustrated by repeated interrogation is neither free nor meaningful.

16. In Singh  The detainee continued to assert his right to silence, including the request to return to his cell.  The police would reaffirm his right to remain silent, but would continue to reassert their duty and desire to put certain information to him, or would deflect his request, or would engage him in limited conversation.  During the interview, Singh spoke to the officer about his background, his family, his religious beliefs, and his employment. His right to silence was asserted 18 times.

17. In Singh  The trial judge found that the accused knew the content of his right to silence, and had successfully invoked it on multiple occasions.  Sgt. Attew’s admitted intention was to put his case to the accused for response “no matter what.”

18. Singh: Majority  The number of times the right to silence is asserted is only one factor to consider.  Ultimately the question is: whether the accused exercised free will in making a statement.

19. Dissent: Singh  Cites Miranda v. U.S.: once the detainee asserts his right to silence, the interrogation must cease.  Dissent: no proof that Miranda has ceased all effective criminal investigation in US.  Delisle and Stuart: once asserted, the police cannot act as if there has been a waiver.

20. Spencer: SCC 2007  S was arrested for multiple robberies, and his girlfriend for one. S expressed concern for his girlfriend, and wanted her kept out of it. The police told S that his girlfriend would be charged with crimes arising out of one of the robberies. S offered to confess if the girlfriend was treated leniently.

21.  The officer denied being able to make a deal with S. S also asked to see his girlfriend, and after confessing to some of the offences, was allowed a visit. He then confessed to others.  At trial, the statements were admitted as voluntary, and the accused convicted. On appeal, the appellate court disagreed with the trial judge. The SCC restored the convictions.

22. SCC: Majority  A promise renders a statement involuntary only if the quid pro quo is strong enough inducement to raise a reasonable doubt as to whether the will of the suspect was overborne.  Therefore, the existence of the quid pro quo is not determinative of the issue. Rather, it is the strength of the inducements, having regard to the particular individual and his circumstances, that is to be considered in the overall contextual analysis.

23. Majority  No offer was made to treat the girlfriend leniently, and withholding a visit until a partial confession was made was not a strong enough inducement to render the confessions inadmissble.  S did not lose control of the interview to the point he was not on a level playing field with the police.

24. Dissent  The trial judge invoked the wrong test: Paternak.  There is no requirement that the inducement be so strong so as to deprive the detainee of any meaningful independent ability to choose to remain silent. Inducements are a question separate and apart from whether the detainee had an operating mind.

25. Dissent  Statements may be involuntary if made as a result of an improper inducement that caused a fear of prejudice or hope of advantage. The threat or promise need not relate directly to the detainee. Offers of lenient treatment of those close to the detainee may render the statement involuntary. Threats or promises will be fatal if the Court has a reasonable doubt that they, alone or in combination with other factors, resulted in the impugned statement.

26. Dissent  The evidence discloses an implicit but unmistakable threat: the police threatened to lay charges against the girlfriend and referred to the evidence against her. The interrogator also indicated that he would recommend to the Crown that she not be charged if he confessed. There is a real likelihood he was induced to confess (say whatever was needed, true or false) because of his feelings for his girlfriend. The relationship was strong enough to induce a false confession.

27. Dissent: Paternak

28. Dissent  This is not the right test. It confuses the Ibrahim rule with the test for an operating mind.  In other words, exchanging a confession for a quid pro quo is a calculated and rational decision by an operating mind. It still violates the Confessions Rule.