INTERROGATION: RIGHT TO SILENCE + CONFESSIONS + HEARSAY AND ITS EXCEPTIONS
R. v. Hebert  2 S.C.R. 151, 77 C.R. (3d) 145, 57 C.C.C. (3d) 1 (S.C.C.)
Court: SCC [Sopinka, J]
Issue: Was s. 7 of CCRF violated?
Area of law: Interrogation, right to silence, armed robbery
Facts: H was arrested for robbery, was instructed of right to counsel + taken to the police station. H contacted counsel + advised not to make statements. H was
placed in cell after refusing to make a statement, an officer posed as a suspect under arrest + engaged in conversation with H. H made incriminating statements
about his involvement with the robbery.
Decision of court: Trial judge held that ss. 7 + 10(b) were violated and acquitted the accused. COA held that there was an error at trial + ordered new trial.
Accused appealed further; SCC allows the appeal and restores acquittal.
Reasons for decision: Adapt Clarkson as standard for the right to remain silent + counsel, predicted on fair treatment of an accused in the criminal process.
Waiver of such rights must pass an “awareness of consequences” test. The deception of the UC to make incriminating statements prevented H from being
aware of the consequences of his actions to otherwise. Thus, s. 7 is violated. However, if they make the statements to an UC or informer out of free will, it is
Dissenting Reasons: [Wilson, J] - Once the accused has determined they have a choice whether to remain silent or speak to authorities, they have decided with
full knowledge and appreciation of consequences to speak to the authorities + they must be taken to have waived (given up) the right to silence
R. v. Turcotte  2 S.C.R. 519, 31, C.R. (6th) 197, 200 C.C.C. (3d) 289 (S.C.C.)
Court: SCC [Abella, J]
Issue: What are the conditions to waive the right to silent?
Area of law: Interrogation, right to silence, murder
Facts: T went to police station + asked a car to be sent to the ranch where he worked + lived. He refused to explain why it was necessary + what would be
found there. T told PO he had a rifle in his truck - when at the ranch, PO found three bodies that had died of axe wounds to the head. He was then charged of
three counts of second degree murder.
Decision of court: At trial, the evidence against T was circumstantial, including his conduct at the station, fingerprints on two items at the farm + small blood
stains from two of the victims found on his clothing. T admitted to finding but not killing the victims. Jury returned a verdict of guilty on each count, BCCA set
aside convictions + ordered new trial. No adverse inferences should have been drawn from the accused’s silence + Crown appealed.
Reasons for decision: Silence could not be a part of “post-offence conduct”. T had not waived his right to silence + the right to choose whether to speak is
retained throughout the interaction. Thus, the right remains even when the accused agrees to answer some of the questions. “Post-offence conduct” must
provide circumstantial evidence of guilt. Accused also has ss. 11(c) + 13 rights.
R. v. Nedelcu  S.C.J. No. 59, 96 C.R. (6th) 391 (S.C.C.)
Court: SCC [Moldaver, J]
Issue: s. 13 violated?
Area of law: Interrogation, right to silence, right against self-incrimination
Facts: N had taken employee, P for a motorcycle ride on company property + crashed. P was not wearing a helmet + suffered permanent brain damage. N
suffered minor brain damage + was hospitalised overnight. N was charged of dangerous driving causing bodily harm; N was to be cross-examined during a civil
suit against him by P’s family, N claims he has no memory of what happened until he woke up the next day. At the criminal trial 14mo later, N gave a detailed
account on how it occurred. At trial, the accused was convicted + appealed. At Ont. COA, applying Henry, the appeal was allowed + quashed the conviction +
ordered a new trial
Decision of court: SCC allowed Crown appeal + substituted a conviction
Reasons for decision: s. 13 was not meant to be applied to a case like this [there is no “quid (incriminating evidence witness has given under compulsion)” for
there to be a “quo (state’s side of bargain - in return for having compelled the witness to testify, to the extent that incriminating evidence has been provided,
the state undertakes that it will not use such evidence in any other proceeding; except in prosecution for perjury, or for the giving of contradictory evidence)”.
Dissenting Reasons: [Lebel, J] - the Crown did not compel the respondent to testify as he freely decided to attend the discovery proceeding, he chose to file a
statement of defence + to put himself “within the grasp of procedural rules … that would, only then compel his evidence”
R. v. Noble  1 S.C.R. 874, 6, C.R. (5th) 1, 114 C.C.C. (3d) 385 (S.C.C.)
Court: SCC [Sopinka, J]
Issue: The silence of an accused cannot be given any independent weight
Area of law: Right to silence, interrogation, B&E
Facts: Building manager found two men in the parking lot; one attempting to break into a car with a screw driver. He asks for identification from N and N shows
him his driver’s licence. The manager held onto it and called the PO. At trial, neither the manager or anyone else could identify N. The trial judge ruled that as
the trial of fact, he could look at the licence given to the manager +see that it was the accused in the picture on the DL. He also ruled that at the time, the manager would have looked carefully. The DL made a tougher case to meet by the accused, yet, the accused remained silent. The judge drew a negative
inference which strengthened the Crown’s case. N was convicted but was set aside on appeal. The Crown then appealed to the SCC.
Decision of court: Crown appeal dismissed, no independent weight can be given to an accused’s silence, the silence is equal to his right against
self-incrimination + giving weight to it violates s. 7 + presumption of innocence under s. 11(d).
Dissenting Reasons: [Lamer, J] - Silence of an accused can only be used by the trier of fact in two limited senses. The accused’s silence may:
1. Confirm prior findings of guilt beyond a reasonable doubt
2. Remind triers of fact that they need not speculate about unstated defences.
● Misinterprets the law - does not understand how a trial verdict that would usually be unreasonable/miscarriage of justice can be cured by an
appellate court pursuant to s. 686(1)(b)(iii) because it is said that certain CCRF rights no longer apply on the appeal because it progressed from one court to
R. v. Prokofiew (2012), 96 C.R. (6th) 57 (S.C.C.)
Court: SCC [Moldaver, J]
Issue: s. 7 rights violated? Whether either or both accused were aware of the fraudulent nature of the scheme?
Area of law: Right to silence + interrogation
Facts: P charged with conspiracy to defraud with S; involved fraudulent scheme with fictitious sale of heavy equipment to generate HST that was then not
remitted to the federal gvt as required. `P did not testify but was incriminated by S’s testimony. S’s counsel invited the jury to infer P’s guilt via the failure to
testify. At trial, judge used Justice Sopinka as reference by concluding that s. 4(6) of the Canada Evidence Act prohibited him from telling the jury that it could
not use the accused’s silence at trial against him. Appeal was dismissed in Ont. COA, held that Sopinka’s comments were obiter and shou