Oh Canada!

Canada High Court Disregards Canadian Charter of Rights and Freedoms' Right To Remain Silent

A sharply divided Canadian Supreme Court affirmed in a 5-4 decision the murder conviction of a British Columbia man widely seen as a test of the right to remain silent guaranteed in the Canadian Charter of Rights and Freedoms.

Jagrup Singh established that the police continued to question him after arrest and while in custody in relation to a murder investigation, even after repeatedly asserting his right to remain silent and not be questioned further about the murder. Until Mr. Singh's case suspects in Canada, like custodial suspects in the United States who have this right under the Fifth Amendment, were thought to have the right to remain silent in the face of custodial interrogation and not to be compelled to be a witness against themselves in criminal proceedings.

That is until the Canadian Court held that the trial judge had been aware of the dangers of coercion in Mr. Singh's case but had made the right decision in allowing the confession into evidence.

Dissenting Justice Morris Fish wrote that:

The interrogator understood very well that the accused had chosen not to speak with the police but nonetheless disregarded the accused’s repeated assertions of his right to silence. In his relentless pursuit of a confession “no matter what”, the interrogator urged the accused, subtly but unmistakably, to forsake his counsel’s advice. The accused was thus deprived not only of his right to silence, but also, collaterally, of the intended benefit of his right to counsel. Detainees left alone to face interrogators who persistently ignore their assertions of the right to silence and their pleas for respite are bound to feel that their constitutional right to silence has no practical effect and that they in fact have no choice but to answer.

During the past decade Justices Scalia and Thomas have decried their liberal brethern's reference to foreign Courts and law to support modern socially developing constitutional principles not found in the words and text of the Constitution. Let us hope in that in regards to the Fifth Amendment, at least, the conservative wing of the Court harken to their own words.