When can the Police ask if the Accused Wishes to say Anything in Answer to the Charge?
Among other things, the right to retain and instruct counsel
under section 10 (b) of the
Charter obliges police to “‘hold off’
from attempting to elicit incriminatory evidence from the detainee until he or
she has had a reasonable opportunity to reach counsel.
R. v. Prosper,
[1994] 3 S.C.R. 236, at p. 269.
This helps ensure that detainees understand their
legal rights and obligations, and most importantly, that they understand their
right to remain silent, so they can make an informed decision about whether to
waive their right to silence after receiving legal advice relevant to their
situation.
The standard police caution, customarily read to the
accused upon arrest, informs the suspect in plain language of his/her right to
remain silent.
For instance, it may be as brief as:
“You are not obliged to
say anything but whatever you do say may be given in evidence. Do you
understand?”
For more see What Must the Police Tell Me Upon Arrest,
O’Connell Law Group Blog, www.stuartoconnell.blogspot.ca/search?q=what+must+the+police
The question, “Do you wish to say anything in answer
to the charge?” has also been a common feature of the standard police caution.
See for instance R. v. Singh, 2007 SCC 48 (CanLII),
at para. 31.
While a police caution is not mandatory, courts
quickly recognized that the presence of a caution helps prove that a suspect
made a voluntary statement.
R v Boudreau,
1949 CanLII 26 (SCC), [1949]
SCR 262, 7 CR
427;
R v KF,
2010 NSCA 45 (CanLII)
at paras 21-38, 290 NSR (2d) 387.
Where the accused has invoked his right to counsel, the
question, “Do you wish to say anything?” violates the constitutional duty of
police to hold off under section
10(b) of the Charter if that question
elicits an incriminatory response from the accused.
R.
v. G.T.D., 2018 SCC 7.
Postscript: If
you have enjoyed this blog, please keep an eye out for upcoming publications
from me in 2018/19.
Stuart O’Connell, O’Connell
Law Group, www.leadersinlaw.ca
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