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Criminal - Right to Silence

. R. v. Heath

In R. v. Heath (Ont CA, 2024) the Ontario Court of Appeal considers the 'right to silence':
[43] It is helpful to commence with the impugned instruction. The trial judge told the jury that the appellant had a right to silence that was triggered upon arrest:
[O]nce a person is detained that person has the right to make a free and meaningful choice about whether to speak or remain silent, and this right only becomes engaged after a person is detained.
[44] Standing on its own, I agree with the appellant that this would be an incorrect statement of law. There is clearly a right to silence before detention: R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 27. The right triggered upon detention is the right to counsel, and that right is essential so that detainees understand that their pre-existing right to silence continues post detention.

[45] Importantly, though, the trial judge’s instruction did not end there. He went on to contrast the post-detention environment with the pre-detention environment, within a border setting. Specifically, the trial judge told the jury that after detention, a person “does not have to speak to the CBSA or police officers. That person does not have to answer any questions.”

[46] Read in context, what the trial judge was doing here was informing the jury that in the special circumstances of border crossings, there is only a modified right to silence. Section 11(1) of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), makes clear that an individual arriving in Canada “shall” present themselves to a border officer and “answer truthfully any questions asked by the officer in the performance of his or her duties”.

[47] The trial judge went on to contrast what happened after arrest in this case with what came before. The jury was reminded that immediately upon arrest, the appellant was cautioned by the arresting officer and then later by the RCMP officers when they arrived. The trial judge contrasted the post-arrest environment with what had come before and told the jury that “[p]rior to the time he was detained” anything the appellant said or did not say was evidence that could be used in considering the defence of duress.

[48] In the circumstances of this case, there was nothing wrong with this legal instruction. The appellant was entering Canada from abroad. Section 11(1) of the Customs Act applied and so the appellant was under a statutory duty to answer questions truthfully. Once he was arrested, that duty ended. Although the trial judge did not specifically frame his instruction in this way, in my view, all he was doing was informing the jury of the difference, in the airport context, between pre- and post-detention rights.
. R. v. Daponte

In R. v. Daponte (Ont CA, 2023) the Court of Appeal considered whether the trial judge's treatment of evidence amounted to a negative inference from the accused exercising their right to silence:
(3) The trial judge did not improperly use the fact that the appellants did not testify

[20] Although not pressed in oral argument, the appellants attack the trial judge’s observations that “[a]lthough the failure of the defendants to testify does not justify an inference of guilt, it does create an absence of an innocent explanation of inculpatory facts.” The appellants submit that the trial judge in effect used their failure to testify as a makeweight for the Crown in proving its case, contrary to the principles in R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874, at paras. 77-81. Specifically, the appellants argue it was wrong for the trial judge to consider their failure to testify as negating innocent explanations for inculpatory facts. There were other reasonable inferences available from the evidence and the lack of evidence, regardless of whether the appellants had testified.

[21] We see no merit to this submission. The trial judge did not use the appellants’ silence to draw an inference of guilt, or as a piece of inculpatory evidence. Rather, the trial judge found on the circumstantial evidence, viewed in totality, that he could reach no reasonable conclusion other than that the appellants had knowledge and control over the drugs and money in the drive shed. Trial judges are permitted to find that an accused’s silence “fails to provide any basis for concluding [innocence] once the uncontradicted evidence points to guilt beyond a reasonable doubt”: Noble, at para. 82. That is what the trial judge did here.
. R. v. Guillemette

In R. v. Guillemette (Ont CA, 2022) the Court of Appeal considered whether a defendant's silence at trial can be used to infer guilt:
The Cross-Examination: Using Silence as a Sword

[36] The right to silence exists at common law and is conferred by s. 7 of the Canadian Charter of Rights and Freedoms: see R. v. Turcotte, 2005 SCC 50, [2005] 2 S.C.R. 519, at paras. 41-42; R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, at p. 164. With few exceptions, such as where an alibi defence is raised, silence cannot be used to incriminate an accused or to impeach an accused’s credibility: Turcotte, at paras. 48-50. Indeed, to do so would render the right to silence into an “illusory right”, converting the decision not to speak to the police into a sword from which an inference of guilt could be taken: Turcotte, at para. 44. In other words, taking guilt from silence has the effect of transforming the right into both a “snare and a delusion”: R. v. Chambers, 1990 CanLII 47 (SCC), [1990] 2 S.C.R. 1293, at p. 1316.

[37] Accordingly, leaving aside exceptions to the rule, such as an alibi defence, the prosecution cannot suggest that the accused’s silence prior to trial informs the veracity of the accused’s testimony at trial: see R. v. Poirier (2000), 2000 CanLII 3294 (ON CA), 146 C.C.C. (3d) 436 (Ont. C.A.), at para. 18. To do so would clearly turn the right to silence into a snare by placing the accused in an intolerable situation of having asserted a constitutional right to silence, only later to learn that an inference of guilt could be taken from the assertion of that right.
. R. v. Bokhari

In R. v. Bokhari (Ont CA, 2018) the Court of Appeal discussed the implications of silence on a criminal defendant's guilt:
[3] The testimonial silence of an accused cannot give rise to an inference of guilt: R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874, at paras. 79-82. Even so, once “uncontradicted evidence points to guilt beyond a reasonable doubt”, the accused’s silence will sometimes mean that he has failed to “provide any basis for concluding otherwise”: Noble, at para. 82. See also: R. v. Ibrahim, 2014 ONCA 157, 318 O.A.C. 1, at para. 41.


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Last modified: 21-05-24
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