Neil Hebert was suspected of having robbed the Klondike Inn. After the police located Hebert, they placed him under arrest and informed him of his rights, and took him to the R. C. M. P detachment in Whitehorse. Hebert contacted counsel and obtained legal advice regarding his right to refuse to give a statement. After exercising his right to contact counsel, Hebert was interrogated by the police. During the interrogation, Hebert indicated that he did not desire to make a statement. In attempt to get information out of Hebert, the police placed him in a cell with an undercover officer.
The officer was dressed in plain clothes and was posing as a suspect under arrest by the police. The undercover office proceeded to engage Hebert in a conversation, during which Hebert made several incriminating statements. This action violated ss. 7 and 10(b) of the Canadian Charter of Rights and Freedoms. The judge excluded the statements made by Hebert to the undercover officer, and he was later acquitted of the charges. However, the Court of Appeal set aside the acquittal and ordered a new trial, concluding that the police had not violated ss. 7 and/or 10(b) of the Charter.
The Court of Appeal allowed the appeal, concluding that the police had violated neither Hebert’s right to counsel. For the court, the right to counsel did not disqualify the police from questioning the accused in the absence of counsel after counsel had been contacted. Furthermore, the court asserted that the right to remain silent, as a fundamental principle of justice, did not prohibit the accused being questioned by undercover police officers. As such, the court set aside Hebert’s acquittal and ordered a new trial. Hebert appealed the decision to the Supreme Court of Canada. Issues involved in the Appeal
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The Supreme Court of Canada considered two issues: First, whether the police had violated the accused Charter of Rights when obtaining the statements. Secondly, if in fact they did violate his rights, whether they should be excluded under s. 24(2) of the Charter. Under section 7, the state is not allowed to use its power to overrule the suspect’s will and reverse his choice to speak to the authority or remain silent. Therefore, the courts must adopt an approach to interrogation which emphasizes the right of the person detained to make a meaningful choice and which permits the rejection of statements, which have been obtained unfairly.
There is nothing that prohibits the police from questioning an accused after they have retained counsel. Police persuasion does not breach the right to silence. In addition, the right only applies after detention. Thirdly, the right does not affect voluntary statements made to cell mates. Fourth, a distinction needs to be made between using undercover police to observe the accused and using undercover police to elicit information in violation to the accused right to remain silent. Last, even where there is violation of the suspects rights, the evidence, where permitted, may be admitted.
Only when the court is satisfied with the possibility that its reception would be likely to bring the administration of justice into disrepute can the evidence be rejected under s. 24(2) of the Charter. Decision McLachlin writing for majority. Majority held that the evidence was inadmissible and upheld the trial judge’s ruling. Majority found that the right to silence was a principle of fundamental justice and as such was protected under section 7. An accused right cannot be undermined through acts of police trickery when being held
in custody by police. However, if the accused were to reveal information to an informer or undercover agent of their own free will then the statements could be used against them. Majority concluded that: 1. Police violated the rights of the accused when obtaining the statements under section 7 of the Charter 2. The evidence should be excluded under s. 24(2) of the Charter. Ratio Decidendi Constitutional issue was whether the police had violated Hebert’s right to remain silent in process of obtaining information.
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Basic doctrines from the principals of fundamental justice were examined which involved (1) investigating common law rules (2) examining the Charter (3) examining the purpose of the right to remain silent. 1. Common Law Rules McLachlin concluded that there was a person whose right was at risk by the processes that occurred. Hebert had the right to choose whether to make a statement to the police or to remain silent. 2. The Charter of Rights and Freedoms The primary viewpoint of the Charter was the dominance of the rights and the fairness of the judicial system.
Two related Charter rights complimented this case: the right to counsel under s. 10(b) and the right against self-incrimination under s. 11(c).
In addition, as mentioned earlier, the right remain silent was an issue. Majority found that these rights granted Hebert right to be free of coercion by the police, but also the right to choose whether or not to give a statement. 3. Right to Remain Silent In this case, the court held that the right to silence was a principle of fundamental justice (core values within the justice system that must triumph over these rights for the good of society).
Statements cannot be achieved through police deception and silence cannot be used to make facilitate any presumption of guilt; therefore, Hebert’s right was violated. Majority concluded that right to remain silent under s. 7 of the Charter guaranteed Hebert the right to decide whether to give a statement or not to the police. The right to decide whether to give a statement or not depended on the accused presence of an operating mind. It prohibits unfair conduct on behalf of the police.
Lastly, the right to remain silent disqualified the statements that the police have obtained unjustly and in violation. Majority states that Heberts right to remain silent had been violated. Hebert had exercised his decision not to speak to the police. When he later spoke to the undercover officer, Hebert had not reversed this decision therefore being tricked by the police violated his rights. However, Majority said this right to silence was subject to limitations: i. Nothing that states that the police are prohibited from questioning Hebert in the absence of his lawyer after contacting his lawyer ii.
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Persuasion from the police was permissible up to the point of infringing upon Heberts’ rights or denying him of an “operating mind” (deception using undercover).
iii. Right applies only after custody and does not allow undercover operations prior to detention. iv. The right does not affect statements made voluntarily by the accused to other cellmates. v. The right covers only deceptive activities by police where they attempt to get statements from the accused. It allows monitoring of the accused by the police or informants incase they overhear any voluntary statements made by the accused. vi.
Statements obtained in violation of the right to remain silent would be excluded under s. 24(2) of the Charter where admittance would bring the justice into disrepute. In addition, three factors where brought into discussion when determining whether the evidence should be excluded. 1. Effect of admission of evidence on the fairness: the admission of these statements would conclude the trial to be unfair. Hebert was tricked into making statements to the police after clearly stating he does not want to make any statements. 2. How serious the Charter violation would be: in this case, it would be quite serious because
the police purposely were deceitful in order to gain knowledge. 3. Effect of the exclusion: exclusion of the evidence would result in an acquittal. Importance of the case for miscarriages of justice In this case the Supreme Court of Canada held that Section 7 of the Charter of Rights and Freedoms gives individuals in custody the right to remain silent. It gives an individual the right to decide whether they would like to make statements to authorities or not. If the individual makes a statement, they should be fully aware that this statement might pose risk.
Making statements without knowledge of future risk, and also after clearly stating that you would not like to make any statements to police, is evidence of procedural unfairness. “The right of silence, which has emerged at both the pre-trial and trial stages, is underpinned by the privilege against self incrimination, and the broader notions of the rule of law espoused by the liberal tradition. The consequence of this right proposes that one cannot be required to answer a question that might tend to expose oneself to criminal conviction” (Hocking and Manville, 2001, p.
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65).
Ensuring that no miscarriages of justice are attempted, such as wrongful convictions, it is necessary to abide by the Charter of Rights and Freedoms for the collective agreement of equality among all. R v Hebert was in importance for miscarriages of justice because it ensures that individuals are not tricked into making incriminatory statements and ensures individuals are not coerced into confession where both may lead to wrongful convictions. Sherrin (2008) writes about the Charter of Rights and Freedoms and its relation to wrongful convictions.
Sherrin (2008) states, “false confessions are a surprisingly frequent contributor to wrongful convictions, so a constitutional right not to speak to the authorities could help the innocent by allowing them to hide behind a protected veil of silence. ” (p. 385).
Often, the innocent will want to waive their right to remain silent because they want to make a clear case to authorities about their innocence. But also, there are those who exercise this right in order to not be a part of a miscarriage of justice which happen more than often in the current justice system.
“False confessions seem to come about as a result of a critical combination of interrogative pressure and suspect vulnerability” (Sherrin, 2008, p. 388).
Police are permitted to use interrogations to attempt to acquire information, and this often results in false confessions depending on the individual being accused. Therefore, it is of importance to understand that the right to remain silent encourages for one to remain silent in order to negate from incriminatory statements, in addition, it does not permit police to use deceitful or “trick” tactics, after your decision to remain silent, in order to attain information.
In R v Hebert, the accused exercised his right to remain silent, yet authorities went forth with deception and tricked the accused into making various incriminatory statements. Using deception violates their right and excludes all statements as evidence. It is important because if these statements are the only evidence that would be used in trial, this can be a clear example of injustice and would lead to disrepute and power bias. “Whether an innate or acquired early in life, the desire to confess – to take responsibility for a perceived misdeed- is no doubt a deep seated impulse in all of us” (Stuart, 2008, preface).
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Stuart (2008) uses Miranda v Arizona as the stem to his discussion on right to remain silent. He goes on to claim that most Americans assume that once a suspect is in custody, they are most likely guilty (preface).
Miranda v Arizona was a very important case that concluded that prosecution may not use statements that came from interrogation unless demonstrated that safe procedures were used to protect against self incrimination (Stuart, 2008).
R v Hebert goes along this case in part due to the fact that the right to remain silent also protects one from self-incrimination.
Ernesto Miranda was a illiterate man that had minimum, if any, knowledge about justice procedures, and therefore, was influenced to confession. Living in a country that accepts various of cultures every day, it is of great importance to ensure procedural fairness in order to limit possibility of false confessions and incriminating statements that can be used. As well, it is of great importance to communicate the rights individuals have when being detained.
Being detained can invoke many different emotions and feelings, and can cause individuals to make statements they otherwise would have not. Even the smallest misstatement can be interpreted a completely different way that does not favor the person accused. In addition to the above, the right to remain silent also promotes the need for proof beyond a reasonable doubt and presumes innocence. Whilst banning torture and deceit, with this right, the prosecution needs to acquire evidence that will prove, beyond reasonable doubt, that this individual is guilty.
Without the right to remain silent, incriminatory statements would be made, interpreted, and used to convict individuals that would in most cases be innocent. The right to remain silent is built on the presumption of innocence, requiring the prosecution to prove guilt. The allowance of various statements obtained by police would illustrate that the prosecution has failed to deliver the burden (Hocking and Manville, 2001).
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The possibility of planned incrimination where one is coerced on the outside to take blame for another also adds to the need for proof beyond a reasonable doubt from the prosecution.
In conclusion, R v Hebert is of significance to miscarriages of justice because it is the stem that protects individuals from the coercive power that may lead to wrongful convictions. It protects individuals from being influences by interrogation tactics by authorities. In addition, it protects individuals from allows prosecution to utilize possibly incriminating statements as sole evidence for conviction – prosecution needs to prove guilt beyond a reasonable doubt. It also protects people that are not knowledgeable or can not communicate in certain languages from incriminating themselves.
Individuals are also protected from the abuse of power by police in the possible use of trickery into obtaining information. Police goals are ones of wanting to lay charges and convictions, which can influence them to abuse their powers in order to achieve those goals. The violation of rights is unjust and can lead to wrongful convictions. Lastly, it protects police from interpreting statements in ways that can be incriminating. The right to remain silent allows for no interpretation, controls police power abuse, and strives for fairness throughout all processes.
