4. Confessions Rule, Right to Silence, and Right to Counsel

Confessions Summary #

Preliminary Considerations: #

Was the accused’s statement a confession or ‘res gestae’?

Res gestae statements are those made spontaneously, during or soon after an offence takes place.

At common law, they are admissible and an exception to the voluntariness rule.

Where police obtain a statement from the accused that is not res gestae, the accused may challenge its admissibility on the basis that it was obtained contrary to

(a) the common law Confessions Rule,

(b) the Charter: s. 7 (silence), 10(a/b), 11(c)(compulsion), 13 (incrimination); or

(c) if the accused were aged 12 to 17, section 146 of the Youth Criminal Justice Act.

1. The Common Law Confessions Rule: #

At common law, a confession or statement made to a person in authority is inadmissible unless the Crown can prove beyond a reasonable doubt that it was made voluntarily. (Boudreau)

R v Oickle (SCC 2000) is now the leading authority on voluntariness of confessions, consolidating earlier law into a two-stage test.1 The court should ask:

i. Where a statement was obtained involving the use of police trickery–regardless of whether the statement was made to a Person in Authority (PIA)–would the police conduct “shock the community”? If yes, the statement is involuntary; if not:

ii. Apply a “general voluntariness analysis,” asking whether the Crown has proved, BARD, that a statement made to a PIA was voluntary, in the sense that:

a. the accused’s will was not overborne by one or more strong inducements, or a significant degree of oppression (or a combination thereof), and

b. the accused did not lack an operating mind.

-the emphasis at the first stage of the test (community shock) is less on voluntariness than on maintaining the integrity of the criminal justice system. Trickery can raise a doubt about voluntariness, but it may not and can still “shock the community,” resulting in the exclusion of the confession. (Oickle)

-at the second stage of the test, the court should consider all of the factors together to assess whether the statement was made voluntarily beyond a reasonable doubt. (Oickle)

-one or more strong threats or inducements alone or in combination with other factors could raise a reasonable doubt about voluntariness. (Oickle)

-in assessing whether the ‘operating mind’ test (defined below) has been met, the court should consider all the circumstances, including oppression, inducements, and trickery. (Oickle)

-a failure for the Crown at either stage of the test results in the exclusion of evidence (i.e., no 24(2)).

-a threat or inducement need not be overt; the question of whether an inducement has been made turns on whether there has been a quid pro quo. (Oickle)

-by virtue of requiring a strong inducement or a significant degree of oppression, the CL rule permits some degree of trickery, oppression and/or inducements (i.e., up to the point at which a reasonable doubt about voluntariness is raised). (Oickle)

-oppressive circumstances include: being deprived of food, water, sleep; being denied access to counsel; being presented with fabricated evidence; or being questioned aggressively at length. (Oickle)

-the standard for “operating mind” is low: the accused must have “known what she is saying and that it may be used by the police to her detriment.” (Oickle, Whittle)

-to be clear: under the ‘general voluntariness analysis’ in Oickle, to find a statement involuntary, the trier of fact need not conclude that the accused’s will was overborne (by one or more strong inducements, etc…), but only that there was a reasonable possibility that it was.

“[A] trial judge’s application of the voluntariness framework is a question of fact or of mixed fact and law attracting appellate deference” (Beaver, Tessier, Oickle)

Absence of a police caution #

Where police obtain a statement from a suspect who is not detained and has not been cautioned, the absence of a caution is prima facie evidence of “an unfair denial of choice” but is not determinative of voluntariness on its own. The Crown must show that “the absence of a caution did not undermine the suspect’s free choice to speak to police”. Whether a statement was given voluntarily (beyond a reasonable doubt) depends on the totality of the circumstances. (Tessier)

Who is a ‘person in authority’? #

In Grandinetti, the SCC held: “The operative question is whether the accused, based on his or her [reasonable] perception of the recipient’s ability to influence the prosecution, believed either that refusing to make a statement to the person would result in prejudice, or that making one would result in favourable treatment”.

A PIA is someone “formally engaged in the arrest, detention, examination or prosecution of the accused” and would include police officers and prison officials or guards. (Hodgson)

A PIA may also include “persons whom the accused reasonably believes are acting on behalf of the state and could therefore influence or control the proceedings against him or her.” (Hodgson)

Whether someone is a PIA is assessed both subjectively and objectively: what did the accused believe or perceive, and was that belief or perception reasonable? (Rothman, Grandinetti)

Undercover officers are generally not PIA’s. (Rothman, Grandinetti)

2. The Right to Counsel under Section 10(b) of the Charter: #

Section 10(b) of the Charter states that “[e]veryone has the right on arrest or detention […] to retain and instruct counsel without delay and to informed of that right”.

The purpose of this right is to provide a person the information necessary to make an informed choice as to whether to speak to or cooperate with authorities. The interests it is meant to protect are dignity and personal autonomy. (Clarkson, Brydges, and Sinclair)

Where a person may have been subject to a form of non-legal psychological compulsion amounting to detention, the court would apply the test for detention in Grant. (Put another way: to decide whether a person was detained when they gave a statement that should have been preceded by 10(a) and (b), a court would apply the test in Grant, which defines detention for both sections 9 and 10.)

Information and implementation components #

To validly discharge their duty under section 10(b), police, on arrest or detention, have a duty to fulfill an information and implementation component, with each comprising a set of subsidiary duties:2

  1. To fulfill the information component, police must:

a. advise the person that they have a right to “retain and instruct” (consult) counsel without delay;

b. advise of the availability of legal aid or free duty counsel and provide numbers; (Brydges, Bartle, Prosper)

[then, if the person expresses a will to exercise the right—or does not explicitly or impliedly waive the right (and the waiver is valid, see below), police must aid in implementing 10(b)]

  1. To fulfill the implementation component, police must:

a. provide a suspect with a reasonable opportunity to speak to either counsel of choice or duty counsel, in private (this includes providing them with access to a phone in a private space);

b. do so without delay (unless there are urgent circumstances);


c. hold off on questioning or eliciting evidence until the suspect has had a reasonable opportunity to speak to a lawyer. (Manninen, Brydges, Prosper; Smith, Ross)

Delay, Search, and Questioning

Police are not obligated to suspend the search incident to arrest until the detainee has the opportunity to retain counsel. (Debot)

The burden is on the Crown to show that a delay in implementing 10(b) was reasonable in the circumstances. (Taylor)

The state has no obligation under 10(b) to make duty counsel available after business hours, but where an accused expresses a desire to exercise 10(b) and duty counsel is not available (and no other counsel is made available to them), police must hold off on questioning or eliciting evidence from the person until they have had a reasonable opportunity to consult counsel. (Prosper)


A valid waiver of 10(b) is one that is (a) “clear and unequivocal” and (b) made when the person is “fully aware of the consequences of waiving the right.” (Clarkson; Brydges)

A person may impliedly waive 10(b), but the waiver must be clear and unequivocal, and it must be informed—i.e., the person must be clear about the availability of free duty counsel, and the waiver may not be premised on a misapprehension that a desire to exercise 10(b) is itself incriminating. (Brydges)

The waiver of 10(b) by an extremely drunk suspect may be challenged as equivocal; he or she must be given time to sober up and warned about 10(b) again. While waiting, police must abstain from questioning. (Clarkson)

Obligation on detainee to be diligent

An accused must be “reasonably diligent” in their exercise of 10(b) or it lapses. An accused cannot use the opportunity to contact counsel to stall. If they cannot reach counsel of choice after reasonable efforts are made over a reasonable period of time, they must settle with duty counsel (if available). (Smith, Ross)

Prosper warning

Where a person expresses a desire to exercise 10(b) and is diligent in the exercise of the right but cannot reach counsel (of choice or duty counsel), a waiver of 10(b) at that time will not be valid unless police provide a ‘Prosper warning':

Police in this case must, once again, advise the detainee of “her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until she has had that reasonable opportunity.” (Prosper)

Obligation to confirm adequacy

Where an accused person’s consultation with counsel is brief, or otherwise raises concerns, the accused has the onus of promptly and/or diligently raising this with police. Police do not have a duty to inquire into the adequacy of advice provided to an accused. (Willier)

Limited right to re-consult

A person does not have a right to consult counsel again unless there is a material change in circumstances (e.g., a change in investigative procedure or jeopardy), or unless there is reason to believe the first opportunity to consult was inadequate. (Sinclair)

If the reason for the arrest or detention itself changes, a person must also be given their 10(a) and (b) warnings again. (Borden; Sinclair)

No right to counsel present

Suspects do not have a right under 10(b) of the Charter to have counsel present throughout an in-custody police interrogation.3 (Sinclair)

3. The Right to Silence under the Charter: #

Section 7 of the Charter states:

“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

The SCC in Hebert held that section 7 protects the right to silence by virtue of the Court’s recognition in that case that it is a ‘principle of fundamental justice’ that a person will not be deprived of their liberty in violation of the right to silence.

The purpose of the right is to protect a person’s ability to make a free choice about to whether to speak to or cooperate with authorities. The right protects an interest in dignity and autonomy. (Hebert)

(Note that an accused also has a right to silence at common law, pre-dating the Charter. The Supreme Court in Turcotte [2005] held that the common law right to silence applies any time a suspect or accused interacts with a person in authority, whether detained or not. In that case it served to preclude an inference of guilt from the accused’s refusal to answer questions by police.)

Test for breach of right to silence #

In Hebert, the Court held that the right to silence under section 7 applies only to a person detained or in custody and is breached where an accused can establish, on a balance of probabilities, that police obtained a statement when:

i. he or she lacked an operating mind [see test from Whittle noted above]; or

ii. police conduct “effectively and unfairly deprived” him or her from exercising a free choice to speak to authorities. (Most commonly: through persistent, aggressive questioning or the use of UC officer in detention who actively elicits information.)

Where an accused has consulted counsel and expresses the will to remain silent, police may still question him or her. (Hebert, Singh)

When do 7 and 10(b) apply?

Generally speaking, police violate s. 10(b) where they fail to do something (which would help the detainee make an informed choice about whether to provide a statement); by contrast, police violate the right to silence in s. 7 where they do something (i.e., elicit evidence in a way that vitiates a person’s choice).

Continuous questioning #

The fact that police continue to question a suspect despite repeated assertions of the will to remain silent does not – in itself – violate the right to silence under s. 7. (Singh)

However, at some point, continuous questioning in the face of an express will to remain silent, alone or combined with other circumstances, may amount to proof on a balance of probabilities that the right to silence has been violated by virtue of the police having vitiated the suspect’s exercise of free choice about whether to speak.

Note that if an accused were unsuccessful in establishing that being continuously questioned violated their right to silence, they might try to establish that the questioning raises a reasonable doubt about whether the statement was made voluntarily (under the common law confessions rule). They might also try to establish that the questioning raises a reasonable doubt about the veracity of the statement they gave. (Singh)

Statements obtained by undercover officer #

Where an accused exercises the right to counsel, expresses the desire to remain silent, and is held in police custody, police may seek to obtain evidence through the use of an undercover officer or informant acting at the direction of the police. In this case, the UC or informant must not actively elicit evidence through questioning. Active eliciting violates the right to silence under s. 7. (Hebert, Liew)

An undercover agent or informer “elicits” information where he or she directs the conversation to a material issue, rather than allowing the conversation to unfold naturally. (Broyles)

4. Mr Big scenarios #

A special test applies to the admissibility of statements obtained by undercover officers in a ‘Mr Big’ scenario (i.e., statements made out of custody).

The Supreme Court in Hart held these to be presumptively inadmissible unless the Crown establishes on a balance of probabilities that the probative value of the confession outweighs its prejudicial effect and that the statement was not the product of an abuse of process. Determining probative value involves an assessment of indicia of reliability. A statement obtained involuntarily is one possible form of an abuse of process.

  1. In the case of a confession given in a “Mr. Big” scenario, the relevant test for admissibility is set out in R v Hart (SCC 2014). ↩︎

  2. There are some contexts in which a person may be detained but is not entitled to be informed of, or to exercise, 10(b) rights immediately: e.g., when asked to provide a breath sample at roadside in an impaired driving investigation (Thomsen, SCC 1988); when police detain and question drivers for general vehicle offence investigations under the Motor Vehicle Act; or when people are questioned briefly upon entering Canada in ‘primary inspection’ (Simmons, SCC 1988). ↩︎

  3. Under section 146 of the Youth Criminal Justice Act, “young persons” under the act have a right to have counsel present when providing a statement. ↩︎

© Robert Diab 2023