The Right to Pre-trial Silence: Where Does It Stand and What’s Next after Singh?

The Supreme Court’s judgment in R. v. Singh, released in 2007, settled the controversy regarding the scope of the Charter-enshrined section 7 right to silence in the context of custodial police questioning. The Court’s earlier decisions in R. v. Hebert (1990) and R. v. Oickle (2000) combined to raise questions about the interplay between the common law confessions rule and the Charter right to silence. Singh’s response was to cast the m as functional equivalents. Although the Court’s earlier jurisprudence may have seemed to suggest otherwise, Singh declared that there is no scope to argue that police conduct, in “persuading” a detainee to speak, can violate section 7 principles if it is found that such conduct did not overcome the choice of the detainee to speak under the confessions rule. Singh affords a high degree of tolerance to police conduct directed at persuading or influencing a detainee to speak. an extraordinary premium has been placed on state investigative interests in the context of post-arrest interrogation. In different contexts considered by the Court in past cases, the accused’s interest against self-conscription has prevailed in recognition of the central importance of the principle against self-incrimination to the criminal law. The current strictures of the section 24(2) analysis — which effectively provides for an automatic rule of exclusion for conscriptive evidence obtained pursuant to a Charter breach — may account for the Court’s relatively narrow construction of the section 7 right to silence in relation to detained statements. Since Singh has eliminated any elbow room for section 7 once the voluntariness of a statement has been determined, we can expect to see changes in the focus of arguments for exclusion. For instance, greater attention will likely be paid to the personal circumstances and characteristics of individual accused in appraising the effect of persistent police interrogation. Another likely trend will be arguments for the exclusion of self-incriminating statements that are framed under the right to counsel