The evidence project of the Law Reform Commission of Canada has issued Study Paper Number 5, dealing with the compellability of an accused to testify at trial and comment upon his or her failure to testify. It also deals with the admissibility of pre-trial statements.

The paper proposes substantial changes in the present law that would greatly limit the privilege against self-incrimination and affect the presumption of innocence. Although it provides some new safeguards to an accused, we believe that the proposal’s detriments outweigh its benefits and oppose its enactment.

Existing law

At present, an accused may at his option testify as a witness for the defence. She or he may not be compelled by the prosecution to testify; she or he has the right to remain silent and to require the prosecution to prove the charge. If the charge is not affirmatively and fully proved, she or he is (with a few largely statutory exceptions) presumed innocent. In a jury trial, the judge is forbidden to comment upon the fact that the accused has not testified.

Statements made by an accused before trial are admissible in evidence at the trial if the judge finds that they were not made as a result of a threat or promise from someone who the accused knows is connected with the prosecution. If a statement is involuntary (i.e. such a threat or promise was made), and if the police find a tangible thing (such as a gun), as a result of the statement the object found, and that part of the statement that led them to the object, are admissible. The accused need not make any statement prior to trial, and his or her silence cannot be used directly as evidence of guilt. However, a judge can consider his or her earlier silence when deciding whether defence evidence such as an alibi is true.

The study paper makes a strong case as to the inadequacy of the present law. It argues that the protection given the accused is largely illusory, especially in view of the secrecy of police questioning and the fact that many arrested persons are ignorant of their rights. Thus the law is said to discriminate against the poor and ignorant and in favour of the experienced criminal who has learned his rights. Moreover, judicial decisions have created many exceptions to the rules protecting an accused. These exceptions cannot be explained in light of any coherent set of policies. We agree with the study paper that reform is much needed, although we disagree with the reforms that are proposed.

Proposals in the study paper

1. There would be no change in the rule that an accused is a competent witness for the defence but cannot be compelled by the prosecution to testify. However, the judge is given the power to comment on the accused’s failure to testify when instructing the jury.
2. a. Any person who has been arrested (or issued a summons or appearance notice under the Bail Reform Act) may be required by police to attend a hearing before an independent official. If the police do not require an accused to appear, they must advise him or her of the right to appear before the official to make an explanation. The accused would have the right to obtain counsel for this proceeding, but it is not clear that counsel would be provided to an indigent accused.b. The official will first decide whether the police had reasonable and probable cause to arrest the accused (or issue a summons or appearance notice). If not, the hearing is terminated immediately.

   c. If the accused was properly arrested, the official will inform him or her of the charge and of “the details calling for an explanation” and will ask if the accused wishes to make a statement. If the accused chooses to do so, the police may ask additional questions.

   d. Any statement made by an accused is admissible in evidence at the trial. The prosecution may, of course, use it to help convict him or her. In addition, a change is made in the present law to permit an accused to introduce the statement for the purpose of showing he or she has not concocted a defence just before trial.

   e. An accused may elect to remain silent at this hearing and will not be subject to contempt proceedings for his or her failure to answer. However, his or her earlier silence may be used at the trial not only to weaken any defence raised, but also as affirmative evidence of guilt.

3. No statement which an accused made to the police would be admissible, even if it were “voluntary”. However, the study group has postponed consideration of the admissibility of evidence found as a result of such a statement. We cannot assume that such evidence would be excluded.

The study paper argues that these proposals are consistent with the privilege against self-incrimination guaranteed by the Canadian Bill of Rights since an accused is not directly punished by way of contempt for his silence (although his or her silence may be used against him or her at trial).

The privilege against self-incrimination was, it is said, designed to protect an accused against specific dangers, such as coercive police questioning, and it is argued that the proposal better protects the accused against these dangers than does the existing law. It is also said that the proposal ends the practical bias of the existing law in favour of the experienced criminal.

Comments

We are not convinced that the proposal would achieve the practical benefits that are claimed for it. If the Commission eventually decides to permit the introduction of evidence gained as a result of coercive police questioning, the police would clearly have an incentive to continue such questioning. Indeed, there would be no incentive for avoiding coercion, for the statement itself would be inadmissible in any event. Also, the proposal does not eliminate the danger of false confessions, for the atmosphere of the hearing would itself be intimidating to a significant proportion of arrested persons. Although the independent official would explain the rights to the arrested person, this danger would not be entirely overcome. Moreover, assuming that the proposal did eliminate the bias of the existing law in favour of experienced criminals, it would merely substitute a new bias in favour of dishonest persons willing to make a false statement at the hearing rather than remain silent. The study paper refers (at p.7) to “the cruelty of placing the accused in a position of having to choose among perjury, contempt proceedings or incriminating himself”. If an accused’s silence can be used as affirmative evidence of guilt, the cruel choice between the first and third of these options is preserved by the proposals.

We do not, however, believe that the proposals can be judged solely in terms of their practical effects. The privilege against self-incrimination reflects not only such pragmatic considerations but also less tangible values. It assumes that privacy is an important right and that the state should be prohibited from intruding upon the inner thoughts of the individual. To require persons to provide evidence of their own guilt is simply abhorrent to us. She or he need not defend this privilege in terms of its measurable effects any more than we need defend freedom of religion or association in such terms. Moreover, if most Canadians feel that the privilege is essential, it is largely irrelevant whether or not this feeling is “justified” since the elimination of the privilege would decrease confidence in the judicial system.

The study paper asserts that the proposals are consistent with the Canadian Bill of Rights as long as silence is not punished directly. However, a person who has no explanation is given the choice of speaking up and admitting the incriminating facts or of remaining silent. Either course of action can be used of evidence of his guilt. We believe that it violated the privilege against self-incrimination to place any person in a situation where that person cannot avoid creating evidence of guilt. The proposals also violate a second right guaranteed by the Bill of Rights—the right to be presumed innocent until proved guilty. This right has been narrowly construed by the Supreme Court of Canada but must be presumed to have some meaning. It would have no meaning whatsoever if an accused’s silence can help supply the “proof” necessary to overcome the presumption of innocence. To use his or her silence in that way is to indirectly require that the accused affirmatively present evidence supporting his or her plea of not guilty.

For all the above reasons, the B.C. Civil Liberties Association opposes the proposals made in the study paper, although we agree the existing law is in need of reform. We also agree that coercive police questioning is encouraged by interrogation in the isolation of the police station. Therefore, we urge that the study group investigate a system in which police questioning after arrest could take place only in the presence of an independent person and which would guarantee the person arrested could consult with counsel which would be provided without cost if necessary. An arrested person should, however, retain the right to remain silent and such silence, either before trial or at the trial, should not be used against the person.

Although we believe that the proposals in the study paper are inherently incompatible with the Canadian Bill of Rights, we add the following comments as to particular defects or omissions in the proposals.

1. The study paper leaves open the question as to who would conduct the hearing. We believe that there will be a tendency for the official to become allied with the enforcement agencies unless a person with sufficient stature is chosen. Therefore, we suggest that the official be a Provincial Court Judge.
2. The official is to advise the arrested person of the right to counsel, but a person who did not receive this advice until the hearing began would feel considerable pressure to waive the right. To be effective, the accused should be advised of the right to a continuance to obtain counsel. Also, legal aid should be provided to any person unable to afford counsel.
3. Although the police questioning is not to be a full cross examination its exact scope is not explained. It should also be noted that the police are not required to present their own witnesses at the time of this hearing. In these circumstances, we believe that the police should not be allowed to question the arrested person directly but should suggest questions to the official, who would conduct all questioning him or herself. Also, the questions should be limited to the matters raised by the accused in his explanation, if any.
4. Although we believe that an accused’s silence should not be used in evidence for any purpose, the proposal places no limits on its use. At the very least, the prosecution should be required to present positive evidence as to each element of the offence before the accused’s silence can be considered.
5. The study paper questions whether the hearing should be public or in private. We believe that the arrested person should be able to elect for a public or private hearing.

We reiterate that even if these suggestions were incorporated into the proposal, we believe that it would constitute an unwarranted infringement on the rights of arrested persons.