Failure of Police to Caution an Individual about Her Right to Silence or the Consequences of Speaking with the Police

Examples of a Secondary Caution

The standard police secondary caution reads as follows:

You must understand that anything said to you previously should not influence you nor make you feel compelled to say anything at this time.  Whatever you felt influenced or compelled to say earlier you are not now obliged to repeat, nor are you obliged to say anything further, but whatever you do say may be given in evidence.  Do you understand?

Another common form of the police caution (a pared down version of the above example) given to a person who has been charged with an offence is the following: 

You are charged with . . .  Do you wish to say anything in answer to the charge?  You are not obliged to say anything but whatever you do say may be given in evidence.

The Function of a Secondary Caution

A secondary caution can serve to insulate subsequent interviews from previous errors or misconduct on the part of other police officers, inform the suspect of his right to remain silent, and attempt to make the person charged understand that she or he should not make a statement because of any hope of advantage or fear of harm from the police

See for instance R. v. Roy, [2002] O.J. No. 5541, at para.114; R. v. Singh, [2007] 3 SCR 405, 2007 SCC 48 (CanLII), at para. 31.

Absence of a Secondary Caution and Voluntariness

Voluntariness implies an awareness about what is at stake in speaking to persons in authority, or declining to assist them.

R. v. Worrall, 2002 CarswellOnt. 5171 (S.C.J.) , at para. 106 (per Watt J., as he then was) [Where the failure of police to caution an individual after he disclosed information to police which criminally implicated himself in the death of his brother rendered his statements involuntary].

Although the absence of a caution is a factor to be considered on the voluntariness inquiry, it is not determinative.

R. v. Singh, 2007 SCC 48 (CanLII), [2007] 2 S.C.R. 405, at para. 31.

This proposition applies regardless of whether the police do or ought to regard the person being questioned as a suspect.

R. v. Pearson, 2017 ONCA 389 (CanLII), at para. 19.

Even where a person is a suspect, the absence of the standard caution is only one factor to be considered in the voluntariness analysis – just as the presence of such a caution does not automatically lead to the conclusion that a statement is voluntary. Hard and fast rules are incapable of accounting for the myriad circumstances that may vitiate voluntariness, and all the circumstances must be scrutinized carefully.

R. v. Bottineau, 2011 ONCA 194 (CanLII).

In sum, a failure to caution a person – even one suspected of a crime – is not a breach of any common law or Charter right of an accused person.  It is, however, one factor that the court may consider in its contextual and purposeful analysis of the voluntariness issue.  It may, in some circumstances, “effectively and unfairly” deny the suspect his free choice about whether to speak to the police: 

R. v. Morrison, 2000 CarswellOnt. 5811 (S.C.J.), at paras. 53-57.


Stuart O'Connell, O'Connell Law Group (leadersinlaw.ca).