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Catching the fox : restricting the right to pre-trial silence in Canada Mackenzie, Ian Alan 2013

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Catching the Fox: Restricting the Right to Pre-trial Silence in Canada  by Ian Alan Mackenzie LL.B., The University of British Columbia, 1978  A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES (Law)  THE UNIVERISTY OF BRITISH COLUMBIA (Vancouver)  April 2013  © Ian Alan Mackenzie, 2013  ABSTRACT This thesis studies the right to silence and proposes restricting the right to pre-trial silence in Canadian criminal law in a manner similar to the way it has been curtailed in the United Kingdom, where the trier of fact may draw an adverse inference from an accused’s pre-trial silence in certain statutorily defined circumstances. The thesis is a comparative review of the historical development and current state of the law governing the right to pre-trial silence in Canada and the United Kingdom, and includes a discussion and analysis of the major philosophical and pragmatic arguments for and against the right to silence found in the academic and jurisprudential discourse. I argue that the right to pre-trial silence is contrary to the moral duty to respond to a well-founded accusation, as well as to simple common sense. Furthermore, I submit that the right to silence interferes with the truth-seeking function of the courts, is irrationally and arbitrarily applied, does not strike an appropriate balance between individual rights and the societal importance of effective law enforcement and the successful prosecution of the guilty, and is in reality quite ineffective in its goal of protecting an accused because of recent Supreme Court of Canada decisions that have essentially eviscerated the practical utility of the right to pre-trial silence for anyone facing police interrogation other than the most sophisticated or hardened criminal. Based on these suppositions, I propose that the Canada Evidence Act be amended to allow the trier of fact to draw an adverse inference, including an inference of guilt, when an accused remains silent during police questioning but later advances a defence that he or she could have reasonably mentioned when questioned.  ii  TABLE OF CONTENTS ABSTRACT…………………………………………………………………………….… ……...……. TABLE OF CONTENTS…………………………………………………………………  iii  ACKNOWLEDGEMENTS………………………………………………………….….  vi  QUOTATIONS……..…………..……………………………………….………………… ………... CHAPTER I: INTRODUCTION AND METHODOLOGY…………………………  ii  viii 1  A.  Introduction………………………………………………………………………...  1  B.  Caveats…………………………………………………………………………….  6  C.  Methodology and Theoretical Framework…………………………………………  9  CHAPTER II: ARGUMENTS FOR AND AGAINST THE RIGHT TO SILENCE..  14  A.  Introduction………………………………………………………………………...  14  B.  The Philosophical Debate………………………………………………………….  17  C.  1. Introduction……………………………………………………………………. 2. Privilege Against Self-Incrimination………………………………………….. 3. Absolute or Qualified Right…………………………………………………… 4. Moral Responsibility to Respond……………………………………………… 5. Common Sense and Rectitude of Decision……………………………………. 6. Privacy…………………………………………………………………………. 7. Presumption of Innocence and Burden of Proof………………………………. The Pragmatic Debate……………………………………………………………...  17 18 20 27 30 38 44 48  D.  1. Introduction……………………………………………………………………. 2. Balancing Due Process and Crime Control……………………………………. 3. Controlling Police Interrogations……………………………………………… 4. False Confessions and Protecting the Innocent………………………………... 5. Encouraging Other Investigative Strategies…………………………………… 6. Innocent Reasons for Silence………………………………………………….. 7. Cruel Choices………………………………………………………………….. 8. Professional Criminals Take Advantage of the Right to Silence……………… 9. Ambush Defences……………………………………………………………... 10. Denying the Trier of Fact Relevant and Probative Evidence……………….…. 11. Judges and Juries Draw an Adverse Inference Anyway………………………. Conclusion………………………………………………………………………….  48 49 51 58 62 63 65 68 70 72 74 76  iii  CHAPTER III: THE RIGHT TO SILENCE IN THE UNITED KINGDOM……….  78  A.  Introduction………………………………………………………………………...  78  B.  The Development of the Right to Silence………………………………………….  78  C.  1. The Origin of the Right to Silence…………………………………………….. 2. Development of the Common Law……………………………………………. 3. Summary………………………………………………………………………. The Move to Restrict the Right to Silence…………………………………………  78 82 98 99  D.  1. Introduction……………………………………………………………………. 2. Criminal Law Revision Committee……………………………………………. 3. Royal Commission on Criminal Procedure……………………………………. 4. Police and Criminal Evidence Act…………………………………………….. 5. Home Office Working Group…………………………………………………. 6. Criminal Evidence (Northern Ireland) Order………………………………… 7. Royal Commission on Criminal Justice……………………………………….. Justice………………………………………... 8. Criminal Justice and Public Order Act……………………………………….. 9. Criminal Procedure and Investigations Act…………………………………… 10. Other Legislation………………………………………………………………. 11. European Convention of Human Rights………………………………………. 12. Summary………………………………………………………………………. Judicial Response to the Legislative Restrictions on the Right to Silence…………  99 100 103 105 121 124 128 135 140 143 144 146 148  E.  1. Introduction……………………………………………………………………. 2. Domestic Courts……………………………………………………………….. a. Criminal Evidence (Northern Ireland Order)……………………………... b. Criminal Justice and Public Order Act……………………………………. 3. European Court of Human Rights……………………………………………... Conclusion………………………………………………………………………….  148 149 149 153 163 169  CHAPTER IV: THE RIGHT TO SILENCE IN CANADA…………………………..  171  A.  Introduction………………………………………………………………………...  171  B.  Development of the Right to Silence in Canada……………………………….…..  173  1. Introduction……………………………………………………………………. 2. Privilege Against Self-Incrimination………………………………………….. 3. Voluntary Confessions Rule…………………………………………………… a. Development of the Common Law Rule in Canada.…………………….... b. Updating the Confessions Rule: R. v. Oickle………………….………….. 4. Common Law Exceptions to the Right to Pre-trial Silence…………………… a. Introduction………………………………………………………………... b. Adopted Admissions………………………………………………………. c. Consciousness of Guilt……………………………………………………..  173 174 181 181 193 198 198 199 203 iv  d. Recent Fabrication…………………………………………………………. 5. Summary………………………………………………………………………. Charter of Rights and Freedoms………………………………………………….. 1. Introduction……………………………………………………………………. 2. Early Appellate Cases…………………………………………………………. 3. R. v. Hebert…………………………………………………………………….. 4. The Aftermath of Hebert: Clarifying the Confusion…………………………... a. Confirming the Right to Pre-trial Silence is Not Absolute………………... b. Statements to Undercover Officers and Police Agents……………………. c. Silence Prior to a Formal Police Investigation…………………………….. 5. Right to Counsel……………………………………………………………….. 6. The Exclusionary Rule and the Right to Silence………………………………. 7. Summary………………………………………………………………………. Retreating from Hebert: Waiver and Police Persuasion……………………...…... 1. Introduction……………………………………………………………………. 2. Waiver…………………………………………………………………………. 3. Police Persuasion………………………………………………………………. Conclusion………………………………………………………………………….  208 213 214 214 216 221 227 227 240 249 254 264 272 273 273 273 288 310  THE PROPOSITION………………………………………………….  314  A.  Introduction………………………………………………………………………...  314  B.  The Rationale for the Proposition………………………………………………….  318  C.  1. The Right to Silence is Not Absolute………………………………………….. 2. The Need for an Appropriate Balance…………………………………………. 3. The Right to Silence Interferes with Rectitude of Decision…………………… 4. The Right to Silence is Contrary to Common Sense…………………………... 5. The Right to Silence is Arbitrarily and Irrationally Applied………………….. 6. The Moral Responsibility to Respond…………………………………………. 7. Mitigating the Unintended Consequences of Hebert………………………….. 8. Adequate Safeguards Exist to Prevent Wrongful Convictions………………... Conclusion………………………………………………………………………….  318 321 328 330 332 334 336 339 343  CHAPTER VI: RECOMMENDATIONS AND CONCLUSION……………………..  344  A.  Introduction………………………………………………………………………...  344  B.  Recommendations………………………………………………………………….  346  C.  Conclusion………………………………………………………………………….  350  BIBLIOGRAPHY………………………………………………………………………….  352  APPENDIX…………………………………………………………………………………  367  C.  D.  E.  CHAPTER V:  v  ACKNOWLEDGEMENTS There are three important groups of people who deserve recognition and appreciation for their support and assistance. The first group consists of all those at the Faculty of Law who helped me throughout the several years it took to complete this thesis. Joanne Chung’s advice and positive encouragement were very much appreciated, as was the assistance provided by the always pleasant and available staff at the law library.  The considerable academic and practical  knowledge and experience of Professor Michael Jackson Q.C., who was my thesis supervisor, was of course very helpful as he provided insightful feedback and many suggestions that were incorporated into the final document. Professor Jackson`s willingness to take on the supervision of a thesis, the proposition of which is contrary to his view of the right to silence, is an excellent example of the integrity and values of the legal academy. As long as I constructed a properly researched and reasonably logical argument, Professor Jackson was always willing to respectfully consider my position, although of course not without rigorous challenge and debate. I feel very honoured to have been able to work under his supervision and guidance. The second reader, Professor Nikos Harris, was willing to take on the reading and critique of a very lengthy document, and his suggestions and advice were also extremely helpful and resulted in some important additions to the thesis. I am very grateful and deeply indebted to Professors Jackson and Harris. The second group of people whose support was instrumental to the successful completion of this thesis were my colleagues at the University of the Fraser Valley. Dr. Darryl Plecas helped me develop the initial proposition and provided ongoing support and encouragement. Dr. Martin Silverstein and Dr. Irwin Cohen, who as Directors of the School of Criminology and Criminal Justice were extremely patient and supportive while the project went on for much longer than vi  initially expected, ensured there was an environment in which I was able to balance my work within the School with the research and writing requirements of the thesis. Their support and understanding, as well as that of the Dean and management of the University, is very much appreciated. Finally, the ongoing love and support of my wife Judy and daughters Megan and Rebecca was without doubt the most important contribution to the successful completion of this thesis. There were many times when I struggled with balancing the obligations to research and write the thesis with other work and family commitments. Yet, my family, as they have always been, were unhesitatingly supportive and patient.  To them, I express my enduring love and  admiration.  vii  One of the most pernicious and irrational rules that ever found its way into the human mind …If all criminals of every class had assembled and framed a system after their own wishes, is not this rule the very first they would have established for their security? Innocence never takes advantage of it; innocence claims the right of speaking as guilt invokes the privilege of silence. Jeremy Bentham 19th century*  ______________________________________________________________________________ As cited in Don Stuart, Ronald J Delisle & Tom Quigley, Learning Canadian Criminal Procedure, 10th ed (Toronto: Carswell, 2010) at 374.  viii  The essential and inherent cruelty of compelling a man to expose his own guilt is obvious to everyone, and needs no illustration. It is plain to every person who gives the subject a moment’s thought. A sense of personal degradation in being compelled to incriminate one’s self must create a feeling of abhorrence in the community at its attempted enforcement. Justice S.J. Field Brown v. Walker 1896*  ______________________________________________________________________________ * As cited in Ed Ratushny, Self-Incrimination in the Canadian Criminal Process (Toronto: Carswell, 1979) at 3.  ix  CHAPTER I INTRODUCTION AND METHODOLOGY A.  INTRODUCTION Depending on one’s perspective, the right to silence is either an anachronistic remnant of a  criminal justice system that long ago disappeared or an inalienable human right based on individual liberty, dignity and autonomy which is integral to any legitimate criminal justice system. I subscribe to the former view and concur with the indictment attributed to Jeremy Bentham1 that the right to silence is an irrational legal rule which does little for the innocent but a lot for the guilty. This thesis will propose a fundamental change to Canadian law governing the right to silence by recommending that Canada adopt a law similar to that of Great Britain,2 where the right to silence is restricted and an adverse inference based on an accused’s silence is allowed in certain prescribed situations. The right to silence3 is a fundamental tenet of Canadian law.4 It is generally believed to have originated as a response to the forced interrogations and other inhumane tactics of the Court  1  Bentham scholar ADE Lewis asserts that Bentham did not write the quote set out at the beginning of this thesis even though it is often attributed to him. Lewis asserts the statement is from an English translation of Dumont’s Treatise on Judicial Evidence of 1524/25. However, while the quotation may not have actually been the words of Bentham, Lewis acknowledges that Bentham would have agreed with it. According to Lewis: “It needs very little urging to see that Bentham would agree to the abolition of the right to silence as he understood it, and there is no suggestion that his views have been essentially misrepresented in the modern debate.” Lewis also points out that various commissions and committees that have studied the right to silence in the United Kingdom, such as the Criminal Law Revision Committee, Philips Commission and Home Office Working Group (see Chapter III.C, below) have cited the quotation and attributed it to Bentham. See ADE Lewis, “Bentham’s View of the Right to Silence” (1990) 43 Curr Legal Probs 135 at 139 [Lewis]. 2 Excluding Scotland, which has its own criminal law. 3 The terms “right to silence” and “right to remain silent” will be used interchangeably. 4 R v Wooley (1988), 40 CCC (3d) 531 (Ont CA) [Wooley]. 1  of Star Chamber and ecclesiastical courts in seventeenth century England. 5 The right to silence became part of Canadian law through colonization and the adoption of English common law as the basis of Canadian law.6 However, while the right to silence has long been considered an important principle of law in Canada and most other common law countries, its legitimacy has by no means been universally accepted. In some jurisdictions the debate over the philosophical justification for, and instrumental utility of, the right to silence has often been loud, emotional and divisive.7 And in some of those jurisdictions the debate has foreshadowed legislative change that has significantly restricted the right to silence. Singapore, for example, abolished the right to silence in 1976.8 In Australia, the right to silence has been restricted in some circumstances9 and it is currently the subject of public debate in New Zealand, where the government recently tabled a plan to restrict it.10 But the most notable jurisdiction where the right to silence has been restricted is its very birthplace – England (or more specifically, England, Wales and Northern  5  Ed Ratushny, Self-Incrimination in the Canadian Criminal Process (Toronto: Carswell, 1979) at 4 [Ratushny, SelfIncrimination]. See discussion in Chapter III.B, below. 6 Ibid at 155. 7 Ibid at 4. 8 Gregory W O’Reilly, “England Limits the Right to Silence and Moves Towards an Inquisitorial System of Justice” (1994) 85 J Crim L & Criminology 402 at 424 (Lexis) [O’Reilly, “England Limits the Right to Silence”]; see also, Chan Sek Keong, “Singapore Law Review Lecture 1996: The Criminal Process – The Singaporean Model” (1996) 17 Sing L Rev 433 at 444. 9 For example, the Queensland High Court held in Weissensteiner v The Queen (1993), 178 CLR 17 that an adverse inference of guilt may be drawn when the accused declines to give evidence about facts of which he or she had special knowledge or fails to testify after the prosecution presents a prima facie case; see Law Commission of India, 180th Report on Article 20(3) of the Constitution of India and the Right to Silence (May, 2002) at 21, online: <http://lawcommissionofindia.nic.in> [180th Report] [cited to online source]. See also, Barbara Hocking & Laura Manville, “What of the Right to Silence: Still Supporting the Presumption of Innocence, or a Growing Legal Fiction?” (2001) 3 Mq LJ, online: MacQuarrie Law <http://www.austlii.edu.au/au/ journals/MqLJ/2001/3.html>; Shannon Brincat, “For the Right to Silence” (2008) 6:1 Dialogue, online: University of Queensland <http://www. polsis. uq.edu.au/dialogue/Vol6/Brincat_silence.pdf>; Eileen Skinnider & Frances Gordon, “The Right to Silence – International Norms and Domestic Realities” (Paper delivered at the Sinor Canadian International Conference on the Ratification and Implementation of Human Rights Covenants, Beijing, 16-25 October 2001) [unpublished]. 10 See e.g. Derek Chang, “Govt concedes right to silence in law reforms” New Zealand Herald (16 May 2012), online: NZherald <http://www.nzherald.co.nz/politics/news/article.cfm?>. 2  Ireland),11 where the debate over the right to silence has been raging for at least four decades and where it has been significantly restricted since the late 1980s. On the other hand, the right to silence is constitutionally protected under the Fifth Amendment to the United States Constitution,12 and the United States Supreme Court has robustly defended it as a fundamental legal principle woven into the fabric of American democracy.13 In India, the right to silence is implied in the constitutional protection of the privilege against self-incrimination,14 while in South Africa it is expressly listed as a right that attaches to anyone who is arrested.15 In Canada, the law governing the right to silence appears to be somewhat of a compromise, as the Canadian judiciary has developed what Supreme Court of Canada Justice Iacobucci once called, “a uniquely Canadian approach to the right to silence”.16 In R. v. Hebert,17 the Supreme Court of Canada unanimously held that the right to silence is a principle of fundamental justice constitutionally protected under section 7 of the Canadian  11  The terms “England”, “Britain”, “Great Britain” and the “United Kingdom” will be used interchangeably, as will the terms “English” and “British”; although, the most common nomenclature will be “Britain” and “British” to reflect the reality that most of the right to silence issues discussed in the thesis apply to England, Wales and Northern Ireland. The use of any of these terms is, of course, problematic because Scotland is part of the United Kingdom, but as it has its own criminal law it is not included in this thesis. 12 US Const amend V, online: Cornell University < http://www.law.cornell.edu/wex_fifthamendment>. The Fifth Amendment reads: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” 13 Jeffrey Bellin, “Improving the Reliability of Criminal Trials Through Legal Rules that Encourage Defendants to Testify” (2008) 76 U Cin L Rev 851 at 862 (Lexis). 14 Malimath, VS, The Recommendations of the Committee on Reforms of the Criminal Justice System, April 2003, at s 3, online: People’s Union for Civil Liberties <http://www/pucl.org/Topics/Law/2003/malimathrecommendations.html>. 15 PJ Schwikkard & SE van der Merwe, “South Africa” [Schwikkard, “South Africa”] in Craig M Bradley, ed, Criminal Procedure: A Worldwide Study 2d ed (Durham, North Carolina: Carolina Academic Press, 2007) 471 at 472 [Bradley, Worldwide Study]. 16 R v Broyles (1992), 68 CCC (3d) 308 at 320 (SCC) [Broyles]. 17 (1991), 57 CCC (3d) 1 (SCC) [Hebert]. 3  Charter of Rights and Freedoms18 (“Charter of Rights” or “Charter”). However, the majority decision in Hebert also created several important restrictions to the right to silence at the investigative stage of the criminal process and later decisions of the same Court, most notably R. v. Singh19 and R. v. Sinclair,20 have applied some of those restrictions in a manner that has substantially impaired the practical utility of the right to silence for a person undergoing a custodial police interrogation. Many advocates of the right to silence claim it is a self-evident and universal human right,21 although such a view is by no means unanimous. Some critics of the right to silence have referred to it as the “so-called” or “alleged” right to silence,22 suggesting a certain degree of scepticism about its legitimacy as either a human rights norm or a valid principle of law. Jeremy Bentham, who was one of the first opponents of the right to silence, once analogized it to a fox hunt where the concept of fairness requires the fox to be given a head start.23 And Sir Rupert Cross once called the right to silence a “sacred cow.”24 Whether the right to silence is a “hunted fox” or a “sacred cow”, I suggest it should go the way of the dinosaur and the dodo bird because it has both outlived its time and defies common sense. In this thesis, I will argue that the right to silence is an anachronistic rule that owes its ongoing survival to dogmatic deference to ancient history which is no longer relevant in the social, political and legal environment of contemporary Canada. Moreover, from a pragmatic 18  Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. 19 2007 SCC 48, [2007] 3 SCR 405 (available on lexUM) [Singh] [cited to online source]. 20 2010 SCC 35, [2010] 2 SCR 310 (available on lexUM) [Sinclair] [cited to online source]. 21 See Susan Easton, The Case for the Right to Silence 2d ed (Hants, England: Ashgate, 1998); Keir Starmer & Mitchell Woolf, “The Right to Silence” in Clive Walker & Keir Starmer, eds, Miscarriages of Justice: A Review of Justice in Error (London: Blackstone Press, 1999) 100 [Starmer & Woolf, “The Right to Silence”]. 22 See Glanville Williams, “The Tactic of Silence” (1987) 137 New LJ 1107; DJ Galligan, “The Right to Silence Reconsidered” (1988) 41 Curr Legal Probs 69 at 69. 23 Cited in John Bowring, The Works of Jeremy Bentham, vol. 7 (New York: Russell & Russell, 1962). 24 Galligan, supra note 22 at 70. 4  perspective, I will argue that recent Supreme Court of Canada decisions have effectively placed the right to silence on life support anyway. Based on these suppositions, I will submit that the right to silence in Canada should be limited in a manner similar to the way it has been in Britain. More specifically, I will submit that the trier of fact should be allowed to draw an adverse inference when a person invokes his or her right to silence in circumstances where “common sense” calls for a response. In support of this proposition, the thesis will review the law governing the right to silence in the United Kingdom and compare it to Canadian law. I will then present my argument why the British right to silence model should be considered superior to the Canadian model. The remainder of this chapter will identify four important caveats regarding the scope of the thesis, as well as briefly describe the methodological and theoretical framework upon which my proposition will be constructed.  Chapter II will then review the major philosophical and  pragmatic theories posited by those who support and those who oppose the right to silence. Chapter III will review the right to silence in Britain and Chapter IV will do the same for Canada. In Chapter V, the rationale underlying my proposition will be presented and, in Chapter VI, I will set out specific recommendations to introduce an adverse inference rule for pre-trial silence in Canada. The Appendix will set out the recommended adverse inference rule in statutory language as a possible amendment to the Canada Evidence Act.  5  B.  CAVEATS Before outlining the methodological and theoretical framework of the thesis, four caveats  need to be stated. First, it is important to emphasize that I am not suggesting that a person suspected of having committed a crime who is being questioned by the police or other state agent should be forced to speak to the authorities.25 I agree that such a person should have the right to decide whether or not to speak or answer questions; in other words, he or she should have the right to remain silent.  What I am suggesting, however, is that in certain circumstances  prescribed by law, which will be identified in Chapter VI, a person who chooses to remain silent should pay a price for that silence, and that price should be a possible, although not mandatory, adverse inference. More specifically, when a person suspected of having committed a crime remains silent when confronted with a well-founded accusation or when asked reasonable questions regarding the suspected crime, an adverse inference up to and including an inference of guilt should be available to the trier of fact. Second, while it is clear that the right to silence arises at both the pre-trial (investigative) and trial stages of the criminal process,26 this thesis will only deal with pre-trial silence. While I recognize that the two stages are intimately linked27 and that the normative and pragmatic issues relating to the right to silence before and at trial are similar, including a discussion of the right to silence at trial would clearly put this paper far beyond the mandate and scope of a Master of Laws thesis. Having said this, though, occasional reference will be made to the right to silence at  25  The terms “suspect”, “offender”, “defendant” and “accused” will be used interchangeably to describe a person who is the subject of the criminal process. 26 John DR Craig, “The Alibi Exception to the Right to Silence” [1996] 39 Crim LQ 227 at 227. 27 See John H Langbein, “The Historical Origins of the Privilege Against Self Incrimination at Common Law” (1994) 92 Mich L Rev 1047 at 1059 (Lexis). 6  trial when the principle or issue to which such reference is made is relevant to the right to silence at the investigative stage of the criminal process.28 The third caveat is not so much a limitation as a clarification. It is important to recognize that the right to silence is a difficult concept to deal with in isolation because it is not necessarily a stand-alone right.  Some academics have suggested that the right to silence is more of a  manifestation of the privilege against self-incrimination than its own particularized right.29 Moreover, the Supreme Court of Canada and several legal scholars have emphasized the close connection between the right to silence and the presumption of innocence and right to counsel.30 Because these legal principles are so intertwined, this thesis will by necessity also discuss the privilege against self-incrimination and the right to counsel, and to a lesser extent the presumption of innocence, as well as other complimentary legal principles and rules. Having said this, though, the focus of the thesis will be on the right to silence at the pre-trial stage of the criminal process. Finally, it is important to clarify that the thesis will be discussing the right to pre-trial silence as it relates to what might be described as ordinary criminal law; that is, the criminal law that applies to everyday life such as the law dealing with violent, property and public order offences. One area of special interest – and certainly one of significant importance to the right to silence  28  It should also be noted that, in my view, enacting an adverse inference rule for pre-trial silence in Canada is only part of the solution. I suggest a more comprehensive overhaul of the right to silence is required. Other recommended changes to the law would be to clarify the confusion surrounding when and by whom an adverse inference may be drawn from the accused’s silence at trial after the Crown presents a “case to meet”. In this regard, I submit that Chief Justice Lamer’s dissenting judgement in R v Noble, [1997] 1 SCR 874 [Noble] is preferable to the majority decision written by Sopinka J. Another change to the law that I would propose would be to implement mandatory pre-trial disclosure by the defence similar to the model used in the United Kingdom, see discussion in Chapter III, C.9, below. However, justification for these propositions will have to wait for another day. 29 See e.g. David Paciocco, Charter Principles and Proof in Criminal Cases (Toronto: Carswell, 1987) at 542 [Paciocco, Charter Principles]; Ed Ratushny, “Self-Incrimination: Nailing the Coffin Shut” (1977-78) 20 Crim LQ 312 at 313 [Ratushny, “Nailing the Coffin Shut”]. 30 Ibid; Paciocco, Charter Principles, supra note 29; Hebert, supra note 17 at 33- 35, per McLachlin J. 7  debate in contemporary western society – is the relationship between the right to silence and terrorism. Some unique and challenging social and political dynamics very likely arise when the right to silence is considered in relation to terrorism, and the right is probably viewed in a less sympathetic light by many when a suspected terrorist claims it (although, the same underlying principles should apply whenever the right to silence is at issue). Furthermore, history has demonstrated that restricting the right to silence as a strategy to combat terrorism can lead to a more general restriction of the right to silence within the ordinary criminal law, as happened in the United Kingdom where the initial restriction on the right to silence in response to domestic terrorism associated to Northern Ireland expanded to other areas of the criminal law in England and Wales.31 It is yet to be seen if a similar progression might occur in Canada, but the possibility certainly exists given some of the laws enacted after the September 11 th attacks, such as the investigative hearing process.32 The United States and Australia are two jurisdictions where advocates for the right to silence fear for its well-being due to the government’s response to terrorism.33 However, while the issue of the right to silence in the context of terrorism is  31  See Chapter III.C, below, for a discussion of the relationship between the restriction of the right to silence and the British government’s response to the domestic terrorism and violence associated to the secular and civil disorder in Northern Ireland in the 1970s and 1980s. See also, KA Cavanaugh, “Emergency Rule, Normalcy Expectation: The Erosion of the Right to Silence in the United Kingdom” (2002) 35 Cornell Int’l LJ 491 (Lexis). 32 Part II.I of the Criminal Code, RSC 1985, c C-46 was enacted after the September 11, 2001 attacks on the United States. Part II.I includes section 83.28, which establishes the “investigative hearing” process. If there are reasonable grounds to believe that a terrorism offence has been or will be committed and a person has information regarding the terrorism offence, a judge may order a warrant for the arrest of the person in order to compel the person to be examined by a judge. Subsection (8) states, in part, that during the investigative hearing: “a person… shall answer questions put to the person by the Attorney General or the Attorney General’s agent, and shall produce to the presiding judge things that the person was ordered to bring, but may refuse if answering a question or producing a thing would disclose information that is protected by any law relating to non-disclosure of information or to privilege. “ Subsection (10) states, in part: “No person shall be excused from answering a question or producing a thing under subsection (8) on the ground that the answer or thing may tend to incriminate the person or subject the person to any proceeding or penalty.” Subsection (10), however, also provides subsequent use immunity, including immunity from the use of any derivative evidence discovered through the compelled testimony, other than for perjury or giving contradictory evidence. A person who is the subject of an investigative hearing has the right to counsel at any stage of the hearing. Section 83.28 expired in February 2007 under a sunset clause provision, but was reinstated in 2011. 33 See e.g. Amos N Guiora, Creating an Exception to an Exception – Too Dangerous and Too Unwarranted, JURIST – Forum (2 April 2011), online: <http://jurist.org/forum/2011/ April/article_url.php.> (discussing 8  important, it is beyond the scope of this thesis and therefore will not be discussed. Having set out these caveats, a brief discussion of the methodology and theoretical framework upon which my proposition is based is necessary. C.  METHODOLOGY AND THEORETICAL FRAMEWORK The primary research methodology for this paper will be comparative and descriptive  analysis. Through reviewing the history and evolution of the right to silence in Britain and Canada and comparing the current state of the law in the two jurisdictions, a platform will be built upon which the proposition will be constructed. In addition, the theoretical approach to the right to silence employed in the paper will be a combination of utilitarianism and legal pragmatism. Utilitarianism has been defined as “the view that the morally right action is the action that produces the most good.”34 Utilitarianism is consequential and concerned with the maximization of the “overall good” by bringing about “the greatest amount of good for the greatest number”. 35 In my view, introducing an adverse inference rule for pre-trial silence would achieve the utilitarian goal of achieving the maximum benefit for the maximum number of people. It is important, however, to stress that a utilitarian perspective of criminal justice does not dismiss the importance of placing reasonable constraints on government or police power; the government and its agents must be constrained in order to maximize utility. Furthermore, utilitarianism appreciates and respects individual liberty and human rights because they are imperative in achieving the greatest good for the greatest number. H.L.A. Hart has stated: “No one has ever restrictions on the right to silence in terrorism cases in the United States); Brincat, supra note 9 (discussing restrictions on the right to silence in Australia implemented after September 11, 2001). 34 Stanford Encyclopedia of Philosophy, “The History of Utilitarianism” (27 March 2009), online: Stanford University <http://plato.stanford.edu/entries/utilitarianism-history>. 35 Ibid. 9  combined, with such even-minded sanity as the Utilitarians, the passion for reform with respect for law together with a due recognition of the need to control the abuse of power even when power is in the hands of the reformers.”36 Hart has also asserted that while utilitarianism incorporates an “insistence on the separation of laws and morals”, it also includes an appreciation of, and respect for, individual rights and freedoms and moral standards. 37 As Hart points out, utilitarians “never denied that, as a matter of historical fact, the development of legal systems had been powerfully influenced by moral opinion”,38 but they do emphasize “communal worth and net happiness”.39  As utilitarianism, in my view, is a reasonable and balanced  orthodoxy in a democracy such as Canada, I suggest it is an appropriate philosophical foundation upon which to base my proposal to restrict the right to silence through an adverse inference rule. Much of my argument will be founded on the contention that the balance between the societal interest in effective law enforcement and prevention of crime versus the importance of individual rights and liberties needs to be re-calibrated, especially in the area of pre-trial silence, as the current state of Canadian law does not achieve the utilitarian goal of “the greatest amount of good for the greatest number”.40 Bentham, of course, was an early classical utilitarian.41  According to Lewis, Bentham  considered technical exclusionary rules, such as the right to silence, to be problematic because they interfere with the primary function of the law, which is rectitude of decision. Bentham thought such rules should be used sparingly, if at all, and he objected to the law that prohibited  36  HLA Hart, “Positivism and the Separation of Law and Morals” in Keith C Culver, ed, Readings in the Philosophy of Law, 2d ed. (Peterborough, Ontario: Broadview Press, 2008) 97 at 98. 37 Ibid at 102. 38 Ibid at 100. 39 C Theophilopoulos, “The So-Called Right to Silence and Privilege Against Self-Incrimination: A Constitutional Principle in Search of Cogent Reasons” (2002) 18 SAJHR 505 at 511, online: HeinOnline <http://heinonline.org>. 40 Supra note 34. 41 Lewis, supra note 1 at 144. 10  an accused from testifying because, “justice is served not by such spurious balances but by rectitude of decision and this requires above all else the fullest possible disclosure compatible with minimising delay, vexation and expense.”42 According to Lewis, Bentham was aware of the danger of false confessions and “false deductions from silence”43 and “was sensitive to the issue of oppression”,44 but believed such concerns “would not by [themselves] be a sufficient reason for excluding such self-related evidence though it would give grounds for treating it at least that degree of caution used in connection with evidence derived from sources hostile to the accused.”45 Bentham’s solution was to “provide legislative guidelines, the Instructions to the Judges, which will assist decision makers in the task of making an accurate assessment of the truth of all admitted evidence, including confessional evidence.”46 As Lewis states: “Having in this way provided against any risk of misdecision arising, Bentham can see no further objection to requiring accused persons to account for their conduct or, failing such an account, having their silence assessed by the adjudicator as relevant to a decision on their guilt.”47 As will be discussed in Chapters II and III, Bentham’s utilitarian critique of the right to silence was a common feature of the right to silence debate in Britain in the 1970s and 1980s,48 and I will be leaning heavily on Bentham’s arguments to support my proposition that an adverse inference rule is needed in Canada.  42  Ibid at 147-48. Ibid at 149. 44 Ibid at 152. It is important to remember that Bentham was writing before the advent of modern policing. 45 Ibid at 148. 46 Ibid at 151. 47 Ibid. 48 Ratushny, Self-Incrimination, supra note 5 at 5. 43  11  A second theoretical methodology upon which I will rest my argument is legal pragmatism. Citing Richard Posner, Susan Haack has defined pragmatism as, "a disposition to base action on facts and consequences rather than on conceptualisms, generalities, pieties, and slogans".49 According to Haack, pragmatism is concerned “with expediency rather than principle, with matters of fact often to the exclusion of intellectual or artistic matters; practical as opposed to idealistic”.50  Like utilitarianism, legal pragmatism is consequential.  Furthermore, Posner  submits, “[t]he consequences that concern the pragmatist are actual consequences”.51 Posner also argues that “pragmatists are forward-looking, antitraditionalists”52 and that legal pragmatism is closely connected to utilitarianism.53  I will be using legal pragmatism as the other  philosophical pillar for my proposition, based on my argument that the “actual consequences” of the law governing pre-trial silence in Canada has been the contradictory application of the law, less effective law enforcement and the undermining of public confidence in the administration of justice. Moreover, I will submit that the pragmatic (actual) consequence of the majority judgements of the Supreme Court of Canada in Singh and Sinclair has been the effective evisceration of any practical benefit which the right to silence might provide to someone other than a sophisticated or hardened criminal undergoing a custodial interrogation with a skilled and persistent police interrogator. Finally, in the spirit of full disclosure one final comment must be made. The arguments upon which I will construct my proposition will be informed by my practical experience. While this thesis is primarily an academic research paper, scholarly study is not my area of expertise either 49  Susan Haack, “On Legal Pragmatism: Where Does ‘The Path of the Law’ Lead Us?” (2005) 50 Am J Juris 71 at 72 (Lexis). 50 Ibid at 74. 51 Richard A. Posner, Law, Pragmatism and Democracy (Cambridge, Massachusetts: Harvard University Press, 2003) at 6. 52 Ibid. 53 Ibid at 25. 12  by training or experience. While I received an LL.B. degree many decades ago, my career has not been in the practice or study of law, but rather in the field of policing and parole. I spent thirty-two years in policing; seventeen as a street level police officer, detective and supervisor in a large urban police department and fifteen as a Deputy Chief and later Chief of a moderate sized police department. Since retiring from policing, I have continued to work within the practical branch of the criminal justice system through an appointment to the Parole Board of Canada. It is important to acknowledge that my experience will undoubtedly inform my perspective and analysis of the right to silence issue, just as the scholarly reflection of the legal academic will inform his or her perspective on the subject. However, beyond simply informing my argument, I will on occasion also refer to my experience with the practical application of the criminal law and right to silence to provide support for the utilitarian philosophical approach which I suggest justifies the British adverse inference rule. Having identified some important caveats as well as the methodological and theoretical framework of the thesis, the first order of business is to discuss the various normative arguments that have been debated within the right to silence discourse.  13  CHAPTER II ARGUMENTS FOR AND AGAINST THE RIGHT TO SILENCE A.  INTRODUCTION The right to silence has been defined as “a principle of common law and it means that  normally courts or tribunals of fact should not be invited or encouraged to conclude, by parties or prosecutors, that a suspect or an accused is guilty merely because he has refused to respond to questions put to him by the police or by the Court.”54 Within the Canadian context, Martin J.A. of the Ontario Court of Appeal once described the right to silence as follows: The right of a suspect or an accused to remain silent is deeply rooted in our legal tradition. The right operates at both the investigative stage of the criminal process and at the trial stage. In Canada, save in certain circumstances, a suspect is free to answer or not to answer questions by the police. We say he has the right to remain silent because there is no legal obligation on him to speak.55  While these descriptions of the right to silence are quite straightforward, other definitions are more complex. James Michael and Ben Emmerson, for example, have suggested that “[t]he right to silence is not a single right – it consists of a cluster of different procedural rules, each related in one way or another to the protection against self-incrimination.”56 And in R. v. Director of Serious Fraud Office: ex parte Smith57, Lord Mustill described the right to silence as “a disparate group of immunities, which differ in nature, origin, incidence and importance, and also as to the  54  180th Report, supra note 9 at 3. R v Esposito (1985), 49 CR (3d) 193 at 200 (Ont CA) [Esposito]. 56 James Michael & Ben Emmerson, “Current Topic: The Right to Silence” (1996) 1 Eur HRL Rev 4 at 6. 57 [1992] 3 All ER 456 [ex parte Smith]. 55  14  extent to which they have already been encroached upon by statute.”58 Susan Easton has summarized the immunities identified by Lord Mustill as: (i) The immunity from being compelled on pain of punishment, to answer questions posed by other persons or bodies, (ii) the general immunity from being compelled to answer questions to which the answers may be incriminating, (iii) the immunity of persons suspected of criminal responsibility from being compelled to answer questions by police officers, (iv) the immunity from being compelled to answer questions in the dock, (vi) the immunity of persons charged with criminal offences from being asked questions by the police and (vii) the immunity of persons being tried from being subjected to adverse comment on their failure to answer questions before the trial or to give evidence at the trial.59  However, whether the right to silence is a right on its own accord or part of a constellation of several inter-related rights, privileges and immunities, it has historically not only protected a person from being forced to answer questions put to him or her by the police or from having to testify, it has also immunized an accused from having to pay any price for his or her silence. Indeed, it is the prohibition from any use of the accused’s silence that has been one of the defining features of the right to silence debate. As Michael Zander has noted: There is often a misunderstanding as to what is meant by proposals to abolish the right to silence. It has never in fact been suggested that that silence itself should be prohibited. Abolition of the right to silence means rather giving the prosecution and the judge the right to invite the jury to draw adverse inferences from the accused’s silence in the face of questioning by the police and at trial. 60  58  As cited in Easton, supra note 21 at 3. Ibid. 60 Michael Zander, “Abolition of the Right to Silence, 1972 – 1994” in David Morgan & Geoffrey M Stephenson, eds, Suspicion and Silence: The Right to Silence in Criminal Investigations (London: Blackstone Press, 1994) at 141. See also Henry J Friendly, “The Fifth Amendment Tomorrow: The Case for Constitutional Change” (1968) 37:4 U Cin L Rev 671 at 699, where Friendly states: “I doubt that anyone seriously proposes that a defendant should be forced to testify at his own criminal trial.” 59  15  The right to silence discourse encompasses many topics, which may be conveniently divided into two broad categories: philosophical and pragmatic. Within the philosophical category, the right to silence debate often focusses on the question of whether the right to silence is a selfevident and inalienable human right integral to individual autonomy, dignity and privacy, or whether it is a legal principle which, while important, is not innately superior to other legal principles. Within the pragmatic category, the discussion usually revolves around the instrumental function of the right to silence within the criminal process, such as its role in guarding against false confessions, controlling abusive police practices, or enhancing respect for the criminal justice system through re-enforcing due process. Some academics have described the pragmatic debate as being about how best to balance the competing interests of due process and crime control.61 This chapter will discuss the major philosophical and pragmatic arguments falling within the right to silence debate. While the philosophical discourse will be reviewed first, it is important to recognize that there is a good deal of overlap between the various issues as many of them possess both metaphysical and pragmatic characteristics.  61  See e.g. IH Dennis, “Reconstructing the Law of Criminal Evidence” (1989) 42 Curr Legal Probs 21 at 28 [Dennis, “Reconstructing”]. 16  B.  THE PHILOSPHICAL DEBATE  1.  Introduction Easton has defined the right to silence debate as a matter of “rights versus utility”.62  Certainly, one of the most fundamental questions posed in the debate is whether the right to silence it is an absolute right or whether it is a qualified legal privilege which must give way on occasion to competing legal rights or other social values. Many proponents of the right to silence (often referred to as “retentionists”) argue that the right to silence is an inalienable human right essential to human liberty, dignity and privacy.63 On the other hand, those who criticize the right to silence (often referred to as “abolitionists”) argue that other equally important social values, such as the right to be safe from crime, justify limiting the right to silence in certain circumstances. Some abolitionists also argue that the right to silence conflicts with another important moral imperative: the “moral duty of all persons to be accountable for their conduct.”64 Also important to the abolitionists’ argument is the claim, first made by Bentham, that the right to silence is contrary to “common sense” and interferes with the primary role of a criminal trial, which is rectitude of decision or accuracy of outcome.65 In addition, the discourse inevitably includes reference to the relationship, both philosophical and practical, between the right to silence and other historic legal principles, such as the privilege against self-incrimination, presumption of innocence and the burden of proof falling on the prosecution and being beyond a  62  Easton, supra note 21 at 163. See e.g. Easton, supra note 21 at 191-92 and Galligan, supra note 22. 64 Barton L Ingraham, “The Right to Silence, the Presumption of Innocence, the Burden of Proof, and a Modest Proposal: A reply to O’Reilly” (1996) 86 J Crim L & Criminology 559 at 568 (Lexis). 65 Easton, supra note 21 at 164-70. 63  17  reasonable doubt.66  All of these issues will be discussed in this chapter; however, before  embarking on the discussion, a contextual comment regarding the relationship between the right to silence and the privilege against self-incrimination is necessary. 2.  The Privilege Against Self-Incrimination While many legal scholars have emphasized that the right to silence and the privilege against  self-incrimination are not synonymous,67 it is generally acknowledged that the two doctrines are very closely related. Indeed, some academics and jurists seem to consider the right to silence and the privilege against self-incrimination to be almost interchangeable. Ian Dennis, for example, has suggested that, “[i]n its primary form the privilege against self-incrimination defines the scope of legal duties to co-operate in certain legal procedures”68 and, therefore, “[t]he privilege against self-incrimination is of course the principle that there is no legal obligation to answer questions from the police or to testify at trial.”69 Additionally, Hamish Stewart has described the privilege against self-incrimination as an “overarching principle” which covers the right to silence as well as other rights and evidentiary privileges.70 Other scholars, such as Mirfield,71 Zuckerman72 and Berger,73 have also equated the right to silence with the privilege 66  The issue of the relationship between the right to silence and the presumption of innocence and burden of proof can arguably be discussed at either the philosophical or pragmatic level, but for the purposes of this paper it will be discussed within the philosophical category. 67 See e.g. Ed Ratushny, “Is There a Right Against Self-Incrimination in Canada” (1973) 19 McGill LJ 1 at 9, online: HeinOnline <http://heinonline.org> [Ratushny, “Is There a Right Against Self-Incrimination”]. Ratushny argues that the privilege against self-incrimination is fundamentally different than the right to silence and does not apply at the pre-trial stage at all. 68 IH Dennis, “Instrumental Protection, Human Right or Functional Necessity? Reassessing the Privilege Against Self-Incrimination” (1995) 54:1 Cambridge LJ 342 at 345 [Dennis, “Instrumental Protection”]. 69 Dennis, “Reconstructing”, supra note 61 at 41. 70 Hamish Stewart, “Confessions Rule and the Charter” (2009) 54 McGill LJ 517 at 522-23 (Lexis) [Stewart, “Confessions Rule”]. 71 Peter Mirfield, Silence, Confessions and Improperly Obtained Evidence (Oxford: Clarendon Press, 1997). See specifically c 9. 72 AAS Zuckerman, The Principles of Evidence (Oxford: Clarendon Press, 1989) at 305 [Zuckerman, Principles of Evidence]. Zuckerman states: “In addition to the right of the suspect not to be physically or mentally abused and the right of the innocent not to be convicted the law recognizes a further right in the form of a privilege against self18  against self-incrimination. On the other hand, some academics, such as Ratushny74 and Theophilopolous,75 have emphasized the theoretical and practical differences between the right to silence and the privilege against self-incrimination. While it is certainly important to acknowledge that there are some distinct, albeit nuanced, differences between the right to silence and the privilege against self-incrimination, the two principles have a very similar lineage and purpose. Gordon Wall has asserted that the rationale for both legal principles comes from the same three sources: Wigmore’s “individual is sovereign” doctrine; the Latin maxim, “Nemo tenetur seipsum accusare; nemo tenetur seipsum prodere; nemo tenetur armare adversarium contra se” or, in its English translation, “no one shall be required to accuse or betray or arm his enemy against himself”; and the doctrine of a “case to meet.”76 A purist approach would no doubt constantly and diligently identify the differences between the right to silence and the privilege against self-incrimination. But this is not a purist paper. While every effort will be made not to conflate the two principles inappropriately, there will be some inevitable overlap between the two doctrines and some of the sources and references cited will refer to the privilege against self-incrimination rather than the right to silence specifically. However, in such cases I believe the principle or argument identified through the reference applies equally to the right to silence. Having made this preliminary point, each of the major  incrimination. The privilege may be exercised in the face of police interrogation by a refusal to answer police questions or by a refusal to testify at one’s own trial.” 73 Mark Berger, “Reforming Confession Law British Style: A Decade of Experience with Adverse Inferences from Silence” (2000) 31 Colum HRL Rev 243 (QL) [Berger, “Reforming Confession Law”]. 74 Ratushny, Self-Incrimination, supra note 5. 75 Theophilopolous, supra note 39. 76 Gordon Wall, “Doubts Cast on Hebert Limits on Pre-Trial Right to Silence”, (1995) 36 CR (4th) 134. The “case to meet” doctrine is based on the work of Canadian legal scholar Edward Ratushny. See Ratushny, “Is There a Right Against Self-Incrimination”, supra note 67. 19  issues falling within the philosophical and pragmatic categories of the right to silence debate will now be reviewed. 3.  Absolute or Qualified Right As previously mentioned, one of the most fundamental questions raised in the right to silence  debate is whether the right to silence is a universal and absolute human rights norm from which there can be no derogation, or whether it is a legal rule subject to reasonable restrictions. Both international and domestic law provide some support for the argument that the right to silence is a universal, although not an absolute, human right. Within international law, although the right to silence is not specifically enumerated as a protected right, its cousins are.77 Article 11(1) of the Universal Declaration of Human Rights (UDHR), for example, states: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty in a public trial at which he has had all the guarantees necessary for his defence.”78 Furthermore, Article 14(3) (g) of the International Covenant on Civil and Political Rights (ICCPR) states that, in a criminal case, the accused “cannot be compelled to testify against himself or to confess guilt.”79 While the right to silence is not specifically listed in either document, its close association with the presumption of innocence, which is protected under the UDHR, and the privilege against self-incrimination, which is protected under the ICCPR, supports the conclusion that the right to silence is at least implicitly protected as a human rights norm under international law.80 Further supporting this conclusion is  77  See e.g. Skinnider, supra note 9 at 3; Berger, “Reforming Confession Law”, supra note 73 at 244. Universal Declaration of Human Rights, GA Res 217A (III), 10 December 1948 [UDHR]. 79 International Covenant on Civil and Political Rights, GA Res 2200A (XXI), 16 December 1996 [ICCPR]. 80 Certainly Amnesty International believes the right to silence is protected by international law. See Amnesty International, “India: Report on the Malimath Committee on Reforms of the Criminal Justice System; Some Observations”, online: Amnesty International < http://asiapacific.amnesty.org/library/index/engasa200252003>. 78  20  Article 6 of the European Convention on Human Rights,81 which expressly guarantees the right to a fair trial and implicitly protects the privilege against self-incrimination.82 In Funke v. France,83 the European Court of Human Rights held that Article 6 included “the right of anyone charged with a criminal offence … to remain silent and not to contribute to incriminating himself.”84  Furthermore, in Saunders v. United Kingdom,85 the same court concluded that the  right not to be compelled to incriminate oneself is a “generally recognized international standard.”86 As mentioned in Chapter I, the right to silence is also enshrined in the Fifth Amendment to the United States Constitution87 as part of the privilege against compelled self-incrimination, and the United States Supreme Court has put a good deal of meat on the constitutional bones of the right to silence through its decisions in Miranda v. Arizona,88 Griffin v. California89 and Malloy v. Hogan,90 amongst others.91 Additionally, the Supreme Court of Canada confirmed in 199092 81  European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950 [European Convention]. 82 Starmer & Woolf, “The Right to Silence” in Walker & Starmer, supra note 21 at 109. 83 (1993), 16 EHRR 297 [Funke] (Eur Ct HR). 84 As cited in Starmer & Woolf, “The Right to Silence” in Walker & Starmer, supra note 21 at 109. 85 (1997), 23 EHRR 313 [Saunders] (Eur Ct HR). 86 Starmer & Woolf, “The Right to Silence” in Walker & Starmer, supra note 21 at 110. 87 Supra note 12. 88 384 US 436 (1966) [Miranda]. In Miranda, the United States Supreme Court confirmed the right to silence exists at the investigative stage of the criminal process. The Court set out detailed requirements for the police to warn a detained suspect that he or she “has a right to remain silent, that anything he does say may be used in evidence against him, that he has a right to counsel, and if he cannot afford to hire one, a layer will be appointed to represent him.” See Craig M Bradley, “United States” in Bradley, Worldwide Study, supra note 15, 519 at 533 [Bradley, “United States”]. 89 380 US 609 (1965) [Griffin]. In Griffin, the United States Supreme Court held that the Fifth Amendment protected the accused from any adverse commentary at trial regarding his or her silence during a police interrogation or his or her refusal to testify. See Eben Mogen, “Taking the Fifth: Reconsidering the Origins of the Constitutional Privilege Against Self-Incrimination” (1994) 92 Mich L Rev 1086 at 1086 (Lexis). 90 378 US 1 (1964) [Malloy]. In Malloy, the Supreme Court held that the Fifth Amendment applied to the States. See Bradley, “United States” in Bradley, Worldwide Study, supra note 15 at 519. 91 For a brief review of American law regarding the right to silence, see ibid at 533-38. See also David S Romantz, “You have the Right to Remain Silent: A Case for the Use of Silence as Substantive Proof of the Criminal Defendant’s Guilt” (2005) 38 Ind L Rev 1 (Lexis); Donald P Judges & Stephen J Cribari, “Speaking of Silence: A Reply to Making Defendants Speak” (2009) 93 Minn L Rev 11 (Lexis); Charles D Weisselberg, “Mourning Miranda” (2008) 96 Cal L Rev 1519 (Lexis). 21  that the right to silence in Canada is a constitutionally protected “principle of fundamental justice” under section 7 of the Charter of Rights and, in England, Lord Diplock’s confirmation in R. v. Sang93 that English law recognizes that “no one can be required to be his own betrayer or, in its popular English mistranslation, the right to silence”94 confirmed the fundamental nature of the right to silence as a principle of law in that country.95 Furthermore, Ian Dennis has suggested that the decision in Funke v. France has granted the equivalent of constitutional status to the right to silence in the United Kingdom. According to Dennis, “[i]n one sentence the court gave the privilege the status of an entrenched constitutional right which could not be removed by a legislative enactment in comprehensive terms.”96 However, while the right to silence is generally recognized as an international human rights norm97 and is protected under both the Canadian and American constitutions, as well as being acknowledged as a fundamental principle of law in Britain,98 it does not necessarily follow that the right to silence is an absolute principle impenetrable to any restriction or derogation. Mark Berger, for example, has pointed out that the United States Supreme Court has limited the right to silence in some circumstances,99 such as where public safety requires questioning of a suspect by the police before a Miranda warning can be given100 or by upholding a statutory rule  92  Hebert, supra note 17. [1980] AC 402. 94 As cited in Galligan, supra note 22 at 82. 95 According to Easton, the Latin maxim was actually “nemo debet prodere se ipsum”, which means “no one can be required to be his own betrayer”. Easton asserts that the principle has been broadened over time from its initial restriction to the first allegation against an accused to its current state whereby it “prohibit[s] all questioning of the accused without his agreement to testify.” See Easton, supra note 21 at 2. 96 Dennis, “Instrumental Protection”, supra note 68 at 372. Dennis says the same thing about the impact of Funke v France on the status of the privilege against self-incrimination in England. 97 Starmer & Woolf, “The Right to Silence” in Walker & Starmer, supra note 21 at 110. 98 Dennis suggests that the right to silence may also be constitutionally enshrined in the United Kingdom through the decisions of the European Court of Human Rights. 99 Berger, “Reforming Confession Law”, supra note 73 at 245. 100 New York v Quarles, 467 US 649 (1984) [Quarles]. 93  22  requiring advance notice of an alibi defence.101 In Canada, McLachlin J. (as she then was) suggested in Hebert that her approach to the right to silence needed to “be distinguished from an approach which assumes an absolute right to silence in the accused”.102 And in Britain, as Adrian Zuckerman has observed, “although the general right to silence is very important, it is, as a rule, overridden in the interests of the administration of justice.” 103 Furthermore, as noted previously, while the European Court of Human Rights confirmed in Funke v. France that the right to silence is implicitly protected by section six of the European Convention on Human Rights,104 it also concluded in Murray v. United Kingdom105 that drawing an adverse inference “in situations which clearly call for an explanation” is acceptable because “the question whether the right [to silence] is absolute must be answered in the negative.”106 However, while the judiciary in several jurisdictions has concluded that the right to silence is not absolute or insoluble, some legal scholars have suggested it should be. Mirko Bagaric, for example, has argued that the right to silence is part of the family of human rights which have prevailed since the end of the Second World War. According to Bagaric, such rights “are naturally associated with a deontological view of morality, in which case they are felt to apply with a large degree of absoluteness.”107 Furthermore, Jeffrey Bellin has noted the historic significance of the right to silence in the United States, commenting: “The right to remain silent in the face of accusation has been widely celebrated in American law, representing in the words of the Supreme Court ‘an important advance in the development of our liberty’ and ‘one of the  101  Fisher v United States, 425 US 391 (1976) [Fisher]. Hebert, supra note 17 at 40. 103 Zuckerman, Principles of Evidence, supra note 72 at 305. 104 Funke, supra note 83. 105 (1996), 22 EHRR 297 [Murray v UK]. 106 As cited in Berger, “Reforming Confession Law”, supra note 73 at 272. 107 Mirko Bagaric, “The Diminishing of the Right to Silence” (1977) 19 Sydney L Rev 1, online: Sydney Law <http://www.austlii.edu.au/au/journals/SydLrev/1997/20.html>. 102  23  great landmarks in man’s struggle to make himself civilized.”108 Within the Canadian context, Stewart has contended that “the idea of human dignity provides a normative benchmark for specific Charter rights” and “the principle against self-incrimination is a very basic norm for a system of criminal justice in a constitutional order that is committed to human dignity.”109 D. J. Galligan has also argued that the right to silence is very close to being an absolute right. Galligan refers to Ronald Dworkin’s work and suggests that, if rights are to be taken seriously as Dworkin suggests they should be, they must be able to withstand competing principles even if those principles have some independent legitimacy.110 Easton has also relied on Dworkin to support her contention that the right to silence should be considered a paramount legal principle. Easton asserts: Individual rights are trumps which prevail over practical and majoritarian considerations. The most fundamental right from which other rights and liberties are derived, is the right to equal concern and respect. The right to silence and the presumption of innocence may be construed in terms of this claim to equal respect for all citizens, so the loss of the privilege and the encouragement of inculpatory admissions and confessions would contradict these underlying moral principles. When these rights conflict with practical needs, says Dworkin, these conflicts ‘are not occasions for fair compromise, but rather, if the principle must be dishonoured, for shame and regret.111  Although scholars like Easton and Bagaric argue that the right to silence is an absolute right which should not be expected to bend in the face of competing rights, other academics have argued that a balance is necessary. Indeed, even a strong retentionist like Clive Walker has been willing to allow some latitude for competing interests, acceding: “It does not follow that 108  Bellin, supra note 13 at 862, citing the United States Supreme Court in Ullman v United States, 350 US 422 (1956) at 426-28 [Ullman] and Murphy v Waterfront Commission, 378 US 52 (1964) at 55 [Murphy]. 109 Stewart, “Confessions Rule”, supra note 70 at 520. 110 Galligan, supra note 22 at 73. 111 Easton, supra note 21 at 187. 24  individual, liberal rights must be always treated as absolute, for it is rationally coherent to accept limitations for the sake of preserving the rights of others or competing rights.”112 Berger has also suggested that a balanced approach is necessary, stating: Ultimately, the right to silence involves a sensitive balance of competing interests. The criminal justice system must be equally concerned with not only the state’s need to make use of available evidence, but also the defense objective that state power not be abused.113 ………. One of the main objectives of our system of evidence law is to insure that the factfinder is presented with all relevant and probative evidence and allowed to draw appropriate inferences in evaluating its weight. Because silence may logically be relevant to the issues in a criminal prosecution, the kind of adverse comment authorized by the legislation is, arguably, quite appropriate.114  Dennis has also challenged the position that the right to silence is immutable, arguing that its decline in the United Kingdom can be attributed to “an official conception of the privilege which represents it in purely utilitarian terms.”115 Dennis acknowledges the difficulty in finding the appropriate balance “between the protagonists of crime control and the advocates of due process”, but suggests that “[t]he whole notion of achieving a ‘balance’ between competing claims … seems to me to be suspect” because it is premised on an “artificial opposition between public and private interests in the use of evidence law.”116 In Dennis’ view, the right to silence  112  Clive Walker, “The Agenda of Miscarriages of Justice” in Walker & Starmer, supra note 21, 3 at 32-33 [Walker, “Agenda”]. Although, it is important to note that Walker tempers his position by also stating: “At the same time, it is wise to recognize that the responsibility on the State to treat its citizens justly is awesome. So if ‘the justifications offered for finding of guilt or not-guilt are seriously defective’ and their treatment is unwarranted by, or disproportionate to, the need to protect the rights of others, then serious damage will be inflicted not only on the individual but on society (all citizens) as a whole.” 113 Mark Berger, “Of Policy, Politics and Parliament: The Legislative Rewriting of the British Right to Silence” (1995) 22 Am J Crim L 391 at 429, online: HeinOnline <http://heinonline.org> [Berger, “Policy, Politics & Parliament”]. 114 Ibid at 424-25. 115 Dennis, “Instrumental Protection”, supra note 68 at 343. 116 Dennis, “Reconstructing”, supra note 61 at 27. 25  should not be characterized as a “human right”, but rather “as a functional device required in some contexts by the need of the criminal justice system to retain its internal coherence.”117 Other legal scholars have also countered the claim that the right to silence is an absolute right by suggesting it is not easy to logically defend the right to silence and privilege against selfincrimination. Zuckerman, for example, has stated: “The weak support which has been given to the privilege reflects not only the exigencies of the criminal investigation but also the weakness of the justification for its existence.”118 And David Dolinko has commented that, “neither appeal to the goals of the criminal justice system nor invocation of broad notions of human rights can justify the privilege against self-incrimination.”119 Dolinko rejects the argument that the right to silence and privilege against self-incrimination are essential to individual autonomy because, in his view, individuals are not completely autonomous. According to Dolinko: “It is simply not true that a citizen is absolved of all duty ‘to cooperate with the government’ when his liberty is at stake”.120 Dolinko asserts that to suggest the right to silence is an absolute right because it is inherent to a person’s autonomy is to present a fallacious argument because, “autonomy, like most of the values animating our society and its legal system, is not invariably overriding. We are willing to sacrifice some degree of autonomy in situations in which preserving it unimpaired would exact too great a cost.”121  117  Dennis, “Instrumental Protection”, supra note 68 at 376. Zuckerman, The Principles of Evidence, supra note 72 at 314. 119 David Dolinko, “Is There a Rationale for the Privilege Against Self-Incrimination?” (1986) 33 UCLA L Rev 1068 (Lexis). Dolinko includes the right to silence within the discussion of the privilege against self-incrimination. 120 Ibid at 1139, emphasis in original. Dolinko notes, for example, that a citizen is not free to ignore a summons, flee to a foreign country or commit perjury when facing criminal charges. He also points out that immunity statutes prove the point that there are some occasions when the State can require “disclosure of one’s thoughts” without being “perceived as a threat to the freedom and autonomy of the individual.” 121 Ibid at 1140. 118  26  Therefore, based on a review of the literature, I suggest it is reasonable to conclude that despite some ardent retentionists who assert that the right to silence should be impenetrable to any intrusion, there is a strong contingent of legal scholars who believe the right to silence is not absolutely sacrosanct. 4.  Moral Responsibility to Respond Those who support restricting the right to silence often argue that counterbalancing the  normative principle of respect for personal autonomy is an equally important moral responsibility placed on individuals to account for their actions when challenged with an allegation which has some substance to it. While discussing the English legislative restrictions on the right to silence, Berger has asserted: “Supporters of the legislation also believe that suspects and criminal defendants have at least a moral duty to answer official questions so that the criminal investigation process will not be impeded.”122 Michael Redmayne has also commented that the British curtailment of the right to silence is based on “the general assumption that the innocent will want to signal their innocence to the police”,123 and Glanville Williams has submitted that remaining silent in the face of an accusation is contrary to the normal moral reaction of people.124  122  Berger, “Policy, Politics and Parliament”, supra note 113 at 424. Michael Redmayne, “The Future of Self-Incrimination: Fifth Amendment, Confessions, & Guilty Pleas: English Warnings” (2008) 30 Cardozo L Rev 1047 at 1055 (QL). Although Redmayne, citing Ken Greenawalt, cautions there must be a “well grounded” as opposed to “slender” suspicion, as silence is a morally justifiable response when the accusation is based on slender suspicion. 124 Williams, supra note 22 at 1107. 123  27  Moreover, American scholar Kent Greenawalt has posited that while there is no moral responsibility to respond to an allegation based on “slender suspicion”, there is an obligation when a person is confronted with a “solidly grounded suspicion”.125  Greenawalt asserts:  “Everyone has a strong moral duty not to inflict undeserved harm to fellow members of the community, and to prevent harms others might commit when he can do so easily.”126 Based on this moral imperative, as well as for more pragmatic reasons, Greenawalt argues that “the moral right to silence should not be viewed as a right to be released from all the normal influences to respond to accusations.”127  Consequently, Geenawalt suggests that “adverse inferences are  proper when a person refuses to respond to questions based on substantial evidence of his wrongdoing”.128  Another American, Judge Henry Friendly, has also proffered the moral  responsibility argument, asserting: …while the other privileges accord with notions of decent conduct generally accepted in life outside the court room, the privilege against self-incrimination defies them. No parent would teach such a doctrine to his children; the lesson parents preach is that while a misdeed, even a serious one, will generally be forgiven, a failure to make a clean breast of it will not be. Every hour of the day people are being asked to explain their conduct to parents, employers and teachers. Those who are questioned consider themselves to be morally bound to respond, and the questioners believe it proper to take action if they do not.129  And a third commentator from the United States, Barton Ingraham, has linked the principle of accountability to the right to silence by suggesting:  “If a person is morally or legally  accountable for his conduct, he owes a moral duty to answer questions relevant to that conduct to persons in authority”. However, like Greenawalt, Ingraham limits the moral responsibility to 125  R Kent Greenawalt, “Silence as a Moral and Constitutional Right” (1981) 23 Wm & Mary L Rev 15, online: William & Mary Law Scholarship Repository <http://scholarship.law.wm.edu/wmlr/vol23/iss1/3>. 126 Ibid at 36. 127 Ibid at 40. 128 Ibid at 43. 129 Friendly, supra note 60 at 680. While Friendly is specifically speaking of the privilege against selfincrimination, he includes the right to silence within the ambit of his critique. 28  respond “to situations where there is sufficient basis for suspicion (something less than probable cause but more than idle curiosity).”130 On the other hand, retentionists have rejected the argument that there is a moral duty to respond to an allegation when it is made by an agent of the state.  Easton, for example,  distinguishes the argument advanced by Friendly and Williams that there is a moral obligation in everyday life to answer for one’s conduct by contending there is an important difference between everyday life and the citizen’s relationship with the state. As Easton states: But everyday life is not comparable to the context of the police station and courtroom therefore common sense assumptions which equate silence with guilt, drawn from everyday life, cannot be legitimately applied to the latter contexts. The relationship between citizens is quite distinct from the position of the accused undergoing interrogation in the police station, or subject to examination and cross-examination in the formal structure of the courtroom. Private accusations cannot be compared to accusations by the police, given the inequalities between prosecution and defence.131  Easton also points out that even if there is a moral duty to respond, it does not follow that there is a corresponding legal duty. In support of her position, Easton refers to Rice v. Connolly,132 which declared that “the duty to help the police with their inquiries has been seen as a moral rather than a legal duty.”133 Moreover, O’Reilly has countered the moral responsibility to account argument by refuting such “moral populism” as “a misunderstanding of democracy which still menaces individual liberty.”134  130  Ingraham, supra note 64 at 566. Easton, supra note 21 at 156. 132 [1996] 2 QB 414 [Rice v Connolly]. 133 Easton, supra note 21 at 6. 134 Gregory W. O’Reilly, “Comment on Ingraham’s ‘Moral Duty’ to Talk and the Right to Silence” (1997) 87 J Crim L & Criminology 521 at 530-31(Lexis) [O’Reilly, “Comment on the Right to Silence”]. O’Reilly’s observation incorporates the comments of HLA Hart, to whom Justice Brennan referred in an article he wrote: see William J. Brennan Jr., “Why Have a Bill of Rights?” (1989) 9 Oxford J Legal Stud 425 at 434. 131  29  However, putting aside whether or not there is a moral obligation to respond to an allegation or questions based on reasonable suspicion, abolitionists have also suggested that, as a matter of the human condition, there is a natural inclination for a person to respond when confronted with a false allegation. Based on this hypothesis, abolitionists argue that the right to silence is contrary to common sense because it flies in the face of human nature. Furthermore, they submit that the right to silence interferes with the main goal of the criminal process, which is to ascertain the truth. 5.  Common Sense and Rectitude of Decision As mentioned briefly in Chapter I, nineteenth century English philosopher Jeremy Bentham  was one of the first critics of the right to silence. Bentham’s criticism was two-fold: first, that the right to silence is contrary to common sense and, second, that it interferes with rectitude of decision. Bentham thought that the right to silence was “nonsense upon stilts” because it “lacks a rational foundation, appealing to emotions rather than logic” and “exaggerates its own selfimportance and is removed from everyday life.”135 Bentham utilized two metaphors to illustrate the irrationality of the right to silence. First, he suggested that advocates for the right to silence use an “old woman’s reason” to support their position. According to Bentham: “The essence of this reason is contained in the word hard: ‘tis hard upon a man to be obliged to criminate himself. Hard it is upon a man, it must be confessed, to be obliged to do anything that he does not like.”136 In Bentham’s view, protecting a person’s right to silence so that he or she does not incriminate him or herself is similar to the old woman who says when a child is hurt, “[o]h the  135 136  Easton, supra note 21 at 184-5. Bowring, supra note 23 at 452. 30  poor dear child! How it will hurt the poor dear child! How hard it will be upon the poor dear child.”137 Bentham also claimed that proponents of the right to silence justified their argument by utilizing a “fox hunter’s reason”, which Bentham described as: The fox is to have a fair chance for his life: he must have (so close is the analogy) what is called law, -- leave to run a certain length of way for the express purpose of giving him a chance for escape. While under pursuit he must not be shot: it would be as unfair as convicting him of burglary on a hen-roost, in five minutes’ time, in a court of conscience.138  Bentham considered the fox hunt to be similar to the criminal process, where “[e]very villain let loose one term, that he may bring custom the next, is a sort of a bag-fox, nursed by the common hunt in Westminster.”139 Bentham asserted that both rationales for the right to silence – the misplaced sympathy of the old-woman and the concern for fairness of the fox-hunter – are fallacious because they both miss the point. The emotional overreaction of the old woman and the misguided sportsmanship of the fox-hunter are both irrelevant considerations because the goal of the law should not be misplaced compassion or fairness, but rather rectitude of decision. Lewis has summed up Bentham’s philosophy as follows:  137  Ibid. Ibid at 454. 139 Ibid. 138  31  Bentham’s principle aim was to achieve the fullest possible disclosure of relevant information consistent with the minimum of unnecessary inconvenience whether of time or money: avoiding in his oft-repeated words, “delay, vexation and expense.” The object in providing the fullest disclosure consistent with these limits was to promote accuracy of decision-making. Bentham believed – and it is difficult to fault him – that a more accurate decision was likely to result from a consideration of all the relevant evidence.140  Steven Greer has suggested that Bentham’s philosophy is the foundation of modern “utilitarian abolitionism”.141 Greer argues that evidence law is based on two founding principles: first, the importance of rectitude of decision; and second, the assertion that rectitude is “best achieved by a system of flexible guidelines rather than fixed rules.”142 According to Greer, utilitarian abolitionists believe that the right to silence has “no contribution to make to either the quest for the accurate outcome, or to the reduction or elimination of these extraneous considerations.”143 Some scholars, judges and British government committees have relied on Bentham to support their criticism of the right to silence.144 For example, Glanville Williams has asserted that the right to silence: …is contrary to common sense. It runs counter to our realization of how we ourselves would behave if we were faced with a criminal charge. If we were innocent, we would not stay mum – except perhaps in the most unusual circumstances. We would vigorously repel the accusation, bringing out any facts inconsistent with the allegation of guilt.145  140  Lewis, supra note 1 at 144. For a critique of Bentham’s rectitude of decision argument see Galligan, supra note 22 at 71-73. 141 Steven Greer, “The Right to Silence: A Review of the Current Debate” (1990) 53:6 Mod L Rev 709 at 719. 142 Ibid. 143 Ibid. Greer notes that utilitarian abolitionists such as the Criminal Law Revision Committee have been criticized on the basis that their “key assumption is dubious at best”, and for their “failing to see the need to offer empirical evidence to support their contentious empirical claims.” The Criminal Law Revision Committee recommended restricting the right to silence in England in 1972. See Chapter III.C.2, below. 144 Mirfield, supra note 71 at 242. 145 Williams, supra note 22 at 1107. 32  Zuckerman has also suggested the right to silence is contrary to human nature because the normal reaction is to offer an explanation; although, he does recognize that “[e]xperience teaches us that it is extremely dangerous to infer guilt from silence on its own.”146 Moreover, Greenawalt has suggested: “Few innocent people would decline to explain away evidence of their wrongdoing, so a refusal to respond is strongly indicative of their guilt.”147 Finally, Dennis has echoed Bentham’s view that right to silence is contrary to common sense,148 stating: …to imply a claim that it is necessarily improper to draw any inferences from a person’s failure to explain away incriminating evidence … is contrary both to common sense and to existing law. Common sense argues that if other evidence yields a prima facie inference of guilt a failure to provide an innocent explanation suggests that one does not exist.”149  The judiciary has also referred to common sense when considering the issue of judicial comment to juries when an accused remains silent at trial.  In the English case of R. v.  Sullivan,150 Lord Justice Salmon observed: “It seems pretty plain that all the members of [the] jury, if they had any common sense at all, must have been saying to themselves precisely what the learned judge said to them.”151 Additionally, Ritchie J. of the Supreme Court of Canada once stated that “it would be ‘most naïve’ to ignore the fact that when an accused fails to testify after some evidence of guilt has been tendered against him by the Crown, there must be at least some  146  AAS Zuckerman, “Reports of Committees: Criminal Law Revision Committee 11 th Report, Right of Silence” (1973) 36 Mod L Rev 509 at 511, online: HeinOnline <http://heinonline.org> [Zuckerman, “Reports of Committees”]. 147 Greenawalt, supra note 125 at 32. 148 Dennis, however, disagrees with Bentham’s position that rectitude of decision is the only legitimate goal of the trial process. See text accompanying note 165, infra. 149 Dennis, “Instrumental Protection”, supra note 68 at 356. 150 (1966), 51 Cr App R 215 [Sullivan]. 151 Mirfield, supra note 71 at 241. Mirfield notes that Lord Salmon did find the specific instruction to the jury by the trial judge to have fallen “clearly on the wrong side of the line”; although, according to Mirfield, Lord Salmon still concluded that he “found no unfairness in that comment.” 33  jurors who say to themselves, ‘If he didn’t do it, why didn’t he say so.’”152 Furthermore, in the United Kingdom, both the Criminal Law Revision Committee and the Home Office Working Group153 referred approvingly to Bentham’s argument when they recommended restricting the right to silence.154 Regarding the second prong of Bentham’s critique (i.e., that the right to silence interferes with rectitude of decision), Dolinko has asserted that, “if our goal is for truth to prevail, our means should be calculated to promote, rather than impede, full development of the facts.”155 Similarly, Greenawalt has submitted that since, “[f]rom society’s broader perspective, the aim of the process is to clear the innocent and convict the guilty”,156 it is important to not “disregard the importance of that goal for the evaluation of rights in the criminal process.”157 However, while Bentham’s claims that the right to silence defies common sense and interferes with rectitude of decision have been endorsed by many abolitionists, several retentionists have challenged Bentham’s assertions. Easton, for example, has refuted Bentham’s “common sense” critique by suggesting there are other valid reasons for a person to remain silent which override any natural inclination to respond to an allegation, such as “[f]ear, anxiety, the desire to protect someone else, embarrassment, outrage and anger”. In Easton’s view, all of these reasons for silence “are compatible with innocence.”158  Furthermore, Easton suggests it is extremely  difficult to define common sense since it is “untested, speculative and highly contentious.”159 152  R v McConnell, [1968] SCR 802, as cited in RJ Delisle, Silence at Trial: Inferences and Comments” (1997) 1 CR (5th) 313 at 315 (WL Can). 153 The Home Office Working Group recommended restricting the right to silence in 1989. See Chapter III.C.5, below for a discussion of the Home Office Working Group. 154 Easton, supra note 21 at 133. 155 Dolinko, supra note 119 at 1077. 156 Greenawalt, supra 125 at 39. 157 Ibid at 19. 158 Easton, supra note 21 at 145. 159 Ibid at 155. 34  Easton therefore argues that, “[g]iven that common sense is unreliable, impressionable and unsystematic, it provides a poor model for the law of evidence to follow.”160 Concerning Bentham’s assertion that the right to silence interferes with rectitude of decision, Easton suggests that the right to silence actually increases rectitude of decision. In her view, the “reliability principle”, which “sees truth finding as the prime goal of the criminal trial” and excludes evidence “only if it is unreliable”, is compatible with the right to silence because the right to silence promotes reliable evidence.161 Easton submits that eliminating the right to silence may lead to the admission of unreliable evidence because, “if the suspect speaks only under pressure, his testimony may be unreliable.”162 Furthermore, Easton suggests that it is futile to force a suspect to speak because “any attempt to encourage the individual to speak against his or her interests will lead to perjury.”163  Based on these suppositions, Easton  concludes that the right to silence actually enhances rectitude of decision by reducing the risk of unreliable confessions and perjured evidence. Dennis has also expressed disagreement with Bentham’s claim that the overriding goal of the criminal process should be rectitude of decision. According to Dennis, the public is not only interested in the “factual outcome of criminal proceedings” but also with “the quality of the proceedings.”164 Dennis posits a theory, which he calls “legitimacy of the verdict”, in which “factual accuracy” and “the moral integrity of the judgement” are both fundamentally important. For Dennis, the purpose of the law of criminal evidence is “not the discovery of some sort of historical truth about what the defendant did or did not do. The goal is rather the legitimacy of 160  Ibid. Ibid at 177. 162 Ibid at 168. 163 Ibid at 168-69. 164 Dennis, “Reconstructing”, supra note 61 at 30. 161  35  the verdict on whether the charge against him has been proved properly.”165 Dennis suggests that a factually accurate decision may still not be legitimate if it lacks moral authority because of unfairness to the accused, which may “have the effect of devaluing the verdict.”166 Dennis struggles to some extent with how his theory impacts on the right to silence, as he acknowledges that “we all know from our general experience that a person’s silence in argument, or when taxed with some allegation of misconduct, may well be an indication that he concedes the argument or has no answer to the claim.”167 However, at least with regard to silence at the pre-trial stage of the criminal process, Dennis concludes that the “core principle of respect for personal autonomy and dignity” which “underlies the modern conception of the criminal trial”168 and the further fundamental principle of natural justice which includes “equality of treatment at the hands of officials”,169 means that the right to pre-trial silence is important because the “defendant is not able to participate in a free and informed manner, hence he should not be required to do so.”170 Galligan has also criticized Bentham’s preoccupation with rectitude of decision. Galligan submits there are other values which are equal or superior to the right to silence, such as the right of the accused to “not be wrongly convicted and punished [and] to procedures which protect against that outcome”.171 Moreover, Galligan submits that the right to silence is in the category of rules that “regulate the reception or use of evidence which, if freely admitted, would create a special risk of a wrong conviction.”172 Other rules in this category, according to Galligan, are  165  Ibid at 35. Ibid at 39. 167 Ibid at 40. 168 Ibid at 42. 169 Ibid. 170 Ibid at 43. 171 Galligan, supra note 22 at 72. Galligan does acknowledge that Bentham realized that punishing the innocent was wrong and did not advance utility; however, Galligan suggests Bentham did not adequately deal with the safeguards required to avoid such an outcome. 172 Ibid. 166  36  the presumption of innocence, the burden of proof being placed on the prosecution, the requirement that guilt be proven beyond a reasonable doubt and several evidentiary rules, such as: those governing the admissibility of similar fact and character evidence; the need for corroboration; and restrictions placed on the cross examination of an accused in certain circumstances.173 Galligan suggests these rules are as important as rectitude of decision since they support values which “derive from ideas about how people should be treated by the state; such ideas are associated with liberty, autonomy, privacy and respect and they may provide a foundation for rights.”174 Referring to Dworkin, Galligan argues: “If there is a right to silence which can be justified independently of any possible contribution to rectitude, then it may require, in areas of conflict, that marginal benefits in terms of rectitude should be sacrificed in favour of the right.”175 Finally, Stewart has asserted that the issue of rectitude of decision is more pragmatic than philosophical, suggesting that “forcing the accused to provide testimony is unlikely to produce a verdict that is more accurate or just than it would be without his or her forced testimony.”176 It is thus evident that the academic discourse has been divided over the validity of Bentham’s criticism of the right to silence. Another issue upon which legal scholars have not been able to agree is whether the right to silence is justified on the basis of respect for personal privacy.  173  Ibid. Ibid at 72-73. 175 Ibid at 73. 176 Stewart, “Confessions Rule”, supra note 70 at 522. 174  37  6.  Privacy The discussion of the relationship between the right to silence and personal privacy is often  quite opaque since privacy “is a notoriously difficult concept to use with precision and conviction”.177 Retentionists have asserted that individual privacy is an underlying rationale of the right to silence, while abolitionists have argued that privacy is not universal and is commonly overridden in a variety of circumstances. Retentionist D. J. Galligan has suggested that privacy is a value that must be protected “because it protects personal identity and autonomy” and “a zone of privacy is essential to personality.”178  Galligan contends that since an individual has a right to his or her own  personality, there is no duty to provide personal information to another person, especially a stranger, and therefore a person has “immunity from a stranger having access to it.”179 Galligan does acknowledge that there will be times when privacy must accede to competing values or interests, noting that “each of us is daily called on to provide information about ourselves – within our families, to the doctor, within the university and to the state.”180  However, with  regard to the right to silence at the pre-trial stage of the criminal process, Galligan argues that the police are strangers to the accused and therefore the only competing social value to consider is crime control, which, he suggests, is insufficient to override the right to privacy. Galligan uses the metaphor of a mind reading machine that can painlessly and unobtrusively reveal “everything about the suspect – his history, actions, thoughts, and desires.”181 The use of such a machine, according to Galligan, would clearly be a serious intrusion into the individual’s privacy and 177  Galligan, supra note 22 at 88. Ibid. 179 Ibid. 180 Ibid at 89. 181 Ibid. 178  38  liberty, and “requiring the suspect to disclose the same information through speech” is no different.  Galligan does, however, concede that the right to silence is not absolute as he  acknowledges that the “extent of the right to silence would depend on the balance drawn in each case”;182 although, he does not extend this concession to the questioning of a suspect by the police because such questioning is too invasive of the suspect’s “consciousness”.183 Other retentionists have echoed Galligan’s view that privacy underlines the right to silence. Easton, for example, refers to Galligan and submits that “the appeal to privacy is especially pertinent when we consider the suspect who may wish to remain silent to avoid embarrassment to himself or his family, or to avoid giving details of his family life”.184 O’Reilly has also asserted that the right to silence is important for the protection of privacy, stating: “An accusatorial system protects people’s privacy by limiting the government’s power to pry into their thoughts and conscience; it offers ‘respect for the inviolability of the human personality’ and of the right of each individual ‘to a private enclave where they may lead a private life’.”185 And Michael Plaxton has referred to the work of Robert Gerstein in support of his contention that the right to silence is an important aspect of the fundamental right of privacy. Plaxton contends: “Under Gerstein’s theory, a forced confession is a blueprint to a person’s soul. In the confession lies one’s entire system of values, just waiting to be ‘decoded’ by an ambitious state agent.”186  182  Ibid at 90. For example, Galligan suggests that genetic fingerprinting would be a justifiable intrusion into the right to silence. 183 Ibid. 184 Easton, supra note 21 at 192. While Easton agrees with Galligan she worries about his concession that privacy can be limited in some circumstances, stating: “The danger of such concessions is that one enters on a slippery slope in which a constitutional right is reduced to just one factor to take into account when making calculations”. 185 O’Reilly, “England Limits the Right to Silence”, supra note 8 at 422. 186 Michael Plaxton, “An Analysis and Defence of Free Choice Theory: A Response to Professor Penney” (1999) 27 CR (5th) 218 at 219. 39  Finally, Paciocco has advanced a theory similar to that of Galligan’s mind-reading machine analogy. In Paciocco’s opinion, there is a “qualitative difference” between compelling “nontestimonial” evidence from a suspect, such as fingerprints or breath or bodily samples, and compelling “testimonial” evidence in the form of “compelling him to answer an unsubstantiated allegation made against him.”187 The difference, according to Paciocco, is that non-testimonial information is already in existence while testimonial evidence is not. So, while Paciocco admits that compelling a person to provide non-testimonial evidence “may be offensive in its own right”, the suspect or accused is “not being required to ‘produce’ in the sense of bringing into being, new information about his guilt.”188 However, when a suspect is questioned by the police, he or she is “being made to produce, or to bring into existence, or to originate information that was not available before the compulsion.”189 Paciocco argues that, in such a case, the suspect is not simply a “conduit for the delivery or pre-existing information or the physical receptacle from which samples are taken. The privacy of the mind is invaded; the one thing that persons can truly have privacy over is required to be laid bare.”190 Other legal scholars, however, have challenged the argument that individual privacy is a legitimate metaphysical rationale for the right to silence. Galligan’s proposition is “over-inclusive.”191  Dennis, for example, suggests  While Dennis acknowledges that privacy is  important, he argues that Galligan’s analysis raises the “question of scope” and is “counterintuitive.”192 Regarding scope, Dennis states: “If the purpose is to protect privacy, it is hard to see why the privilege does not protect the suspect from having his person and property searched, 187  Paciocco, Charter Principles, supra note 29 at 547. Ibid. 189 Ibid at 548. 190 Ibid. 191 Dennis, “Instrumental Protection”, supra note 68 at 357. 192 Ibid. 188  40  or from having his fingerprints taken, or from having to provide samples of breath or other bodily substances.”193 Moreover, Dennis submits that the suggestion that “mental privacy” is protected by the right to silence and privilege against self-incrimination results in anomalies. For example, he asks: “Is it really true that personal privacy is more deeply or significantly infringed by questions, say, about a person’s movements on a particular day, than by a strip search or the taking of a urine sample?”194 Dennis also notes that the privilege against self-incrimination (and by extension, the right to silence) “protect[s] against compelled disclosures … [b]ut this limitation on the scope of the privilege does not make sense in the context of the protection of privacy.”195 Dennis asserts, if “privacy is a substantive value it should be the nature of the disclosure which is important rather than its consequences.”196 He concludes that the privacy theory should be viewed with suspicion because, “[i]nevitably the principle will protect substantive rights in a partial and somewhat arbitrary fashion”.197 Friendly has also criticized the privacy justification for the right to silence and privilege against self-incrimination. Friendly raises a similar concern to the one stated by Dennis about the inherent anomalies in the privacy theory, commenting: Surely, it is a far greater violation of privacy for a defendant in an annulment suit to be obliged to testify as to his inability or unwillingness to engage in sexual intercourse or insistence on the use of contraceptives, or for a mother to have to reveal her son’s possession of a murder weapon, than for a motorist to be required to admit he exceeded the speed limit.198  193  Ibid. Ibid. 195 Ibid at 357-8. 196 Ibid at 358, emphasis in original. 197 Ibid. 198 Friendly, supra note 60 at 689. 194  41  Friendly goes even further by asserting, “[f]ar from being a moral doctrine, the privacy justification is about as immoral as one could imagine.”199 According to Friendly, taken to its logical conclusion, “the privacy theory would seem to afford much greater basis for the ‘right to silence’ by a man avowedly innocent of crime and thus lead to the absurd conclusion that the state cannot compel evidence from anyone.”200 Dolinko has also questioned the theory that the right to silence is justified by the need to protect privacy.  Dolinko argues that the notion of “mental privacy”, which suggests that  “compelling [a] person to reveal his thoughts, beliefs and feelings – the contents of his mind -… is an especially grievous intrusion into the person’s privacy”, is problematic because “we can get information about a person’s thoughts, beliefs, and feelings by observing him, by examining physical evidence, and by questioning his acquaintances as well as by questioning the person himself.”201 Dolinko also points out that serious crimes contain a required mental element (mens rea), the existence of which the prosecution often proves “wholly by evidence of how defendant behaved and what he said to others.”202 Dolinko then asks the question: “If it is permissible (indeed, commonplace) to obtain information about a person’s state of mind – to intrude upon his ‘mental privacy’ – by questioning others, why should it be impermissible to obtain the same information by questioning the person himself?”203 Dolinko also suggests that privacy should not always outweigh other competing interests. According to Dolinko: “An individual’s interest in privacy is not automatically entitled to override any competing interests … [w]hen the  199  Ibid. Ibid at 690. 201 Dolinko, supra note 119 at 1109. 202 Ibid at 1110. 203 Ibid. 200  42  competing interests are stronger, the privacy claim must yield.”204 In support of this proposition, Dolinko states: Our legal system … assumes that societal interests can be strong enough to warrant compelling an individual to supply information that could expose him to loss of property or reputation, to involuntary commitment, to disbarment or deportation, and even to death. How, then, could one plausibly insist that the harm to privacy entailed by compelling the individual to supply information that could expose him to a criminal conviction – of even the most minor offense – must automatically outweigh any competing societal interest in preventing, or punishing crime?205  Finally, Canadian academic Ron Delisle has also questioned the notion that restricting the right to silence through allowing an adverse inference on silence unreasonably violates the right to privacy. While Delisle’s comments are in relation to the right to silence at trial, they are, I suggest, equally applicable to the right to pre-trial silence. According to Delisle, “our privacy has many limitations” and can be reasonably limited in certain situations. Delisle suggests the following analogy: …the privacy in our home is protected against intrusion by governmental officials unless there are reasonable grounds and a judicial warrant is authorized. When those conditions are satisfied the citizen’s right to privacy must yield. The parallel is clear; under the supervision of a judicial officer it is fair to intrude on the accused’s privacy by drawing an inference when the prosecution has made out a case to answer.206  The final metaphysical theme to be discussed before moving on to the pragmatic debate is the connection between the right to silence and the principles of the presumption of innocence and burden of proof.  204  Ibid at 1118. Ibid at 1121. Dolinko’s reference to a person being forced to supply information which could expose him or her to death refers to a witness being compelled to testify in a case where the giving of such evidence may expose the witness to retaliation, including the possibility of his or her death. 206 Delisle, supra note 152 at 319. 205  43  7.  Presumption of Innocence and Burden of Proof Some academics consider the burden of proof to be more of an instrumental legal tool to  protect the accused and preserve the presumption of innocence than a fundamental principle of law.207 Others, however, argue that it is a doctrinal principle of law on the same level as the privilege against self-incrimination and the right to silence.208 In reality, it is probably a bit of both. As Easton has stated, “the burden of proof … constitutes the symbolic and practical expression of the principle of the presumption of innocence.”209 However, whether the burden of proof is a fundamental normative principle or an instrumental mechanism to support other more fundamental principles, or whether it is a hybrid, the question is the same: Does restricting the right to silence through allowing an adverse inference from pre-trial silence shift the burden of proof from the prosecution to the defence? In her multi-faceted defence of the right to silence, Easton argues that restricting the right silence infringes the accused’s presumption of innocence “by focusing on the defence’s refusal rather than the strength of the prosecution’s case”.210 While Easton acknowledges that allowing an adverse inference to be drawn based on the accused’s silence may not “formally” shift the burden of proof, she claims it “does make it easier for the prosecution to discharge its burden if it is entitled to infer that the reason no explanation is given is because there is no innocent explanation”.211  Easton concedes, however, that the Woolmington principle212 has been  diminished “by means of express and implied statutory exceptions” and she goes on to lament,  207  See e.g. Ingraham, supra note 64 at 562-5. See e.g. Dennis, “Instrumental Protection”, supra note 68 at 344. 209 Easton, supra note 21 at 181. 210 Ibid at 96. 211 Ibid at 94. 212 Woolmington v DPP, [1935] AC 462 (HL) [Woolmington]. 208  44  “we find that the right to silence had already been substantially eroded in a gradual piecemeal way.”213 O’Reilly has studied the right to silence within the context of the American legal system. O’Reilly emphasizes the connection between the presumption of innocence, burden of proof and right to silence and uses this relationship as a basis to support the right to silence, stating: “Because the accused are presumed innocent and carry no burden, they may remain silent.”214 Referring to the cultural and constitutional history of the United States, O’Reilly asserts, “the right to silence evinces Americans’ inherent distrust of authority”. 215  In O’Reilly’s view,  restricting the right to silence would undermine the presumption of innocence and reverse the burden of proof. To this end, he asserts: “The use of adverse inferences will erode or eliminate the right to silence and, in doing so, shift the burden of proof to the accused, in some cases reduce the prosecution’s burden, and weaken or remove the presumption of innocence.”216 In discussing the right to silence in Great Britain, Galligan refers to the Royal Commission on Criminal Procedure,217 which studied the right to silence in the early 1980s and concluded that the “right to silence should be preserved because it helps to ensure that the burden of proof is on the prosecution.”218 Galligan suggests that the Royal Commission’s recommendation was consistent with the concept that, as the burden of proof lies on the state, the “discharge of that  213  Easton, supra note 21 at 236-7. Easton is referring to reverse onus or rebuttable presumption rules found in several statutes. For example, she cites the Prevention of Crime Act 1953 (UK), in which section 1(1) creates a “criminal offence for a person to carry an offensive weapon in a public place, without lawful authority or reasonable excuse, the proof whereof shall lie on him to show lawful authority or reasonable excuse.” Other examples cited by Easton are the Drug Trafficking Offences Act 1986 (UK), which “imposes a compulsion to answer questions by Customs and Excise officers”, and the Companies Act 1985 (UK) and the Criminal Justice Act 1987 (UK), both of which impose similar obligations for economic crimes. 214 O’Reilly, “England Limits the Right to Silence”, supra note 8 at 420. 215 Ibid at 421. 216 Ibid at 444. 217 See Chapter III.C.3, below. 218 Galligan, supra note 22 at 87. 45  burden is not to be achieved by requiring the accused to provide incriminating evidence.”219 However, while Galligan cites the Royal Commission’s conclusion, he does not necessarily agree with it, as he concludes: “The burden of proof is hardly reversed since the prosecution would still have to prove its case, the only argument being about which bits of evidence it may use.”220 Dennis has taken a similar position to that of Galligan, challenging the claim that restricting the right to silence will “dilute the presumption of innocence” as “not just weak but … a nonstarter.”221 Dennis agrees that the presumption of innocence places the burden of proof on the prosecution, but contends that the privilege does not “indicate anything about the methods by which the burden may be discharged.”222 In Dennis’ view, “no legal system could possibly entertain the notion that the defendant can never supply evidence of his own guilt.”223 While he admits that limiting the right to silence results in “de facto curtailment of the privilege against self-incrimination”,224 Dennis contends: “The legal burden of proof is not reversed by restriction of the right to silence; if the tribunal of fact is left with a reasonable doubt after consideration of all the evidence the accused must be given the benefit of it. It is not for the accused to ‘prove’ his innocence.”225 Other legal scholars have joined the abolitionists’ chorus refuting the claim that curtailing the right to silence will weaken the burden of proof. Delisle, for example, has stated: “The defendant’s silence may be treated as a piece of evidence in assisting the discharge of the  219  Ibid. Ibid. 221 Dennis, “Reconstructing”, supra note 61 at 41. 222 Ibid, emphasis in original. 223 Ibid. 224 Ibid. 225 Dennis, “Instrumental Protection”, supra note 68 at 355. 220  46  Crown’s burden … but that does not mean the burden of proof has been shifted.”226 Similarly, Ingraham has argued that an adverse inference rule, such as the one introduced in Britain, “does not shift the burden of proving all the essential elements of the crime from the prosecution to the defence.” Ingraham admits, however, that the British rule does “make the prosecutor’s burden of proof somewhat easier to satisfy”.227 Moreover, Berger has noted that, in R. v. Cowan,228 the English Court of Appeal held that allowing an adverse inference to be drawn from an accused’s failure to testify “created no inconsistency with the obligation of the prosecution to bear the burden of proof since no adverse inference could be drawn unless a prima facie case had already been established”.229 And Glanville Williams has observed: “The rule as to burden of proof has nothing to say on what evidence shall be taken into account.  It is illogical to argue that  reasonable changes to the law of evidence to help the prosecution to discharge their burden of proof shift the burden of proof.”230 It is thus evident that the philosophical discourse regarding the right to silence has been extensive and at times divisive, with both sides of the debate advancing reasoned arguments in support of their position. Paralleling and supplementing the philosophical debate has been an equally energetic discussion about the pragmatic or instrumental utility of the right to silence within the criminal justice system. It is to that segment of the right to silence debate that the thesis now turns.  226  Delisle, supra note 152 at 318. Ingraham, supra note 64 at 590. 228 (1995) 3 WLR 818 (CA) [Cowan]. 229 Berger, “Reforming Confession Law”, supra note 73 at 275. 230 Williams, supra note 22 at 108. 227  47  B.  THE PRAGMATIC DEBATE  1.  Introduction Within the pragmatic category of the right to silence discourse, the discussion has focused on  the instrumental role of the right within the broader context of the crime control versus due process dichotomy. The pragmatic debate includes many arguments and suppositions, with some of them proffered by retentionists and others by abolitionists. Retentionists submit that the main instrumental benefits of the right to silence include: deterring improper or oppressive police interrogations; guarding against false confessions and wrongful convictions; encouraging the police and prosecution to find independent evidence of the accused’s guilt; providing some leeway to recognize there are innocent reasons to remain silent; and freeing the accused from having to make “cruel choices”. On the other hand, abolitionists argue that the right to silence interferes with the important societal value of crime control because it allows sophisticated criminals to avoid conviction when they are in fact guilty. Furthermore, abolitionists assert that the right to silence results in “ambush defences” and prohibits the trier of fact from considering all relevant and probative evidence. Finally, abolitionists suggest that the right to silence is illusory because judges and juries draw adverse inferences from silence anyway as a matter of common sense. It should be noted that some of the pragmatic issues closely parallel some of the philosophical issues already discussed, so there may be some unavoidable overlap between the two branches of the debate. However, before reviewing the major pragmatic issues, a brief discussion of the broader crime control versus due process question is necessary to place the instrumental value of the right to silence at the investigative stage of the criminal process into perspective.  48  2.  Balancing Due Process and Crime Control Similar to the philosophical discourse, the pragmatic debate regarding the right to silence is  embedded within the “rights versus utility” framework.231 Clive Walker has described the debate as being between “due process and crime control”, both of which he recognizes as being “legitimate considerations within a Liberal democracy”.232 Moreover, Berger has emphasized the dynamic nature of the criminal justice system by observing: The criminal justice process is not a static system in which there is only one single variable whose changes can be measured. Instead, everything is changing over time, including crime rates, police interrogation techniques, protections available to the accused, and general attitudes towards the criminal justice system. All of these are significant influences on decisions to exercise or forego the right to silence…233  The issue of where to draw the line between the nemo debet principle underlining the right to silence and society’s interest in public security through effective law enforcement and convicting the guilty is, of course, largely a subjective exercise. As stated by the Law Reform Commission of Canada:  “The balance between effective law enforcement and effective protection of  individual interests is, ultimately, a working definition of justice, and the prospect of agreement on this aspect of social policy is always elusive.”234 Critics of the right to silence propose moving the balance further towards crime control, while those who support the right to silence contend that retaining the right to silence in its unaltered form is necessary to protect individual liberties. As examples of these differing opinions, Abolitionist Henry Friendly has asserted: “The protection of one citizen should not be pushed beyond his reasonable needs in such a manner as to impair the state’s ability to perform its duty to protect all citizens against criminal 231  Easton, supra note 21 at 163. Clive Walker, “Miscarriages of Justice in Principle and Practice” in Walker & Starmer, supra note 21, 31 at 58. 233 Berger, “Policy, Politics & Parliament”, supra note 113 at 428. 234 Law Reform Commission of Canada, Report No. 23: Questioning Suspects (Ottawa: Ministry of Supply and Services Canada, 1984) at 6. 232  49  acts and to punish those who commit them.”235 On the other hand, retentionist Susan Easton has suggested, “the essential purpose of the right to silence is to compensate for the inequality of resources between prosecution and defence”.236 Peter Mirfield has characterized the balancing act as a “quid pro quo argument” in which protections offered to suspects counterbalance the danger of allowing an adverse inference to be drawn from silence.237 Greer has described the argument used by those who favour curtailing the right to silence in the name of crime control as “exchange abolitionism”, which he defines as the assumption that, if appropriate safeguards such as access to legal advice are given to the suspect, “only the guilty will seek to hide behind silence in the police station.”238 Additionally, both Galligan and Dennis have suggested that granting an absolute right to silence would have a deleterious impact on police efficiency and the legitimacy of the criminal justice system. Galligan, for example, claims that, “[i]f the principle were to be taken seriously, the impact on investigation could be momentous”,239 while Dennis has noted that the privilege against selfincrimination in the United Kingdom has been restricted when it has been considered necessary to do so to achieve the appropriate balance between crime control and due process. Two such examples cited by Dennis are the enhanced powers of interrogation given to commercial crime  235  Friendly, supra note 60 at 723. Easton, supra note 21 at 107. 237 Mirfield, supra note 71 at 244. 238 Greer, supra note 141 at 719-20. Greer posits a four-fold typology for the right to silence. Beyond “exchange abolitionism” , the other three typologies identified by Greer are: (1) “utilitarian abolitionism”, which is based on Bentham’s argument that rectitude of decision is the paramount objective of the criminal process and that it should not be interfered with simply to promote other social values; (2) “symbolic retentionism”, which is the argument that the right to silence is the “touchstone against which broader criminal justice commitments have been tested” and, therefore, is a necessary symbol against the political effort to increase police powers; and (3) “instrumental retentionism”, which argues that abolishing the right to silence will make establishing the suspect’s guilt easier and thereby “increase the chances of innocent people being wrongly convicted with no obvious gains for law enforcement.” See Greer at 718-29. 239 Galligan, supra note 22 at 75. 236  50  investigators and extended police powers to take fingerprints and obtain bodily samples for forensic testing.240 However, while even the staunchest of retentionists, such as Walker and Easton, acknowledge that balancing effective law enforcement and respect for individual rights is necessary, finding the appropriate balance has indeed been “elusive”, to use the Law Reform of Canada’s terminology. The main pragmatic components of the right to silence debate will now be reviewed. 3.  Controlling Police Interrogations One of the most important strategies for investigating crime in the police arsenal since the  establishment of modern policing has been the police interview or interrogation. As David Feldman has observed, “during the twentieth century, the police increasingly relied on interrogation”.241 In the Canadian context, Ratushny has noted: “Obtaining an admission of guilt is widely recognized as a regular and important police function.”242 And Dennis has commented that the police interview is an important investigative strategy because: “It uses limited resources efficiently and more often than not produces what from the police point of view is a clear and satisfactory result. Many studies have shown that the majority of suspects do make statements to the police and that the great majority of these are incriminating.”243  240  Dennis, “Instrumental Protection”, supra note 68 at 369. The interrogation powers granted to commercial crime investigators are found in the Criminal Justice Act 1987 (UK), while the expanded police powers for obtaining fingerprints or DNA samples are in the Police and Criminal Evidence Act 1984 (UK). Canada has similar legislation authorizing fingerprinting and collection of DNA samples. See e.g. the Identification of Criminals Act, RSC 1985, c I-1, s 2 and the Criminal Code, RSC 1985, cC-46, ss 487.04 - 487.092. 241 David Feldman, “England and Wales” in Bradley, Worldwide Study, supra note 15, 149 at 154 [Feldman, “England and Wales”]. 242 Ratushny, Self-Incrimination, supra note 5 at 31. 243 Dennis, “Instrumental Protection”, supra note 68 at 349. 51  The success of interrogation as an investigative strategy has also been confirmed through empirical research in the United Kingdom. Studies conducted during the right to silence debate in the 1980s and early 1990s concluded that few suspects actually exercise their right to silence, choosing instead to speak to the police.244 Berger has cited research conducted by the Home Office, which concluded that “at most five percent of all suspects refuse to answer all police questions, with an additional six to fourteen percent partially exercising the right.”245 Even in the United States, according to Ives and Sherrin, most suspects speak to the police despite an onerous obligation placed on the police to warn persons who are the subject of custodial interrogations that they are not required to answer questions and that they have the right to speak to a lawyer first and to have a lawyer present during the interrogation.246 Finally, while Easton acknowledges the limited use of the right to silence by suspects, she asserts that it needs to be retained as it does “provide one important weapon in the armoury of the citizen and consideration should be given by means of making it more effective rather than resigning ourselves to its loss.”247 Certainly, my own experience as a police officer and investigator for many years was consistent with the academic findings. Personal experience and observation demonstrated to me that any police officer with a reasonable level of training and some ability to connect with a 244  Berger, “Policy, Politics & Parliament”, supra note 113 at 418. Unfortunately, there appears to be little research in Canada regarding how often a suspect remains silent during police questioning. See also Dale E Ives & Christopher Sherrin, “R. v. Singh – A Meaningless Right to Silence with Dangerous Consequences” (2007) 51 CR (6th) 250. 245 Berger, “Policy, Politics & Parliament”, supra note 113 at 418. 246 Ives & Sherrin, supra note 244 at 252. 247 Easton, supra note 21 at 256. Given the infrequency of suspects actually invoking their right to silence during police interrogations, one might wonder if the debate over pre-trial silence, at least in the context of the formal police interview, is even worth having. If the right to silence is exercised so infrequently, logical arguments may be advanced on both sides of the right to silence debate. Abolitionists might argue that the rarity of people actually seeking the protection of the right to silence means that nothing dramatic would result from its curtailment, if not outright abolition. On the other hand, retentionists could advance an equally logical argument that, if the right to silence is so rarely invoked, how can its continued existence be considered to be a major impediment to effective crime control? 52  person on a human level would very often obtain useful information, if not an outright confession, from the suspect by means of questioning. On the other hand, on many occasions I interviewed people alleged to have committed a crime who provided information which exonerated themselves or pointed me in another direction. Along the same lines, as a police chief I was required to develop policy requiring officers to provide suspects arrested in a domestic violence case with the opportunity to respond to the allegation through a formal interview when it became apparent that a practice had developed within the department of officers making arrests based solely on the complainant’s allegations under the guise of a provincial pro-arrest policy without obtaining a statement from the suspect. Therefore, from an experiential perspective, I suggest the pragmatic value of interviewing or interrogating a person suspected of having committed a crime is manifestly clear. One of the main justifications for the existence of the right to silence at the investigative stage of the criminal justice process cited by retentionists is that it performs a vital role in counterbalancing the superior power of the police during a criminal investigation. Retentionists contend, with some justification given the empirical evidence, that the right to silence during police interviews is extremely important because it is at the police interview that the accused is in the most significant jeopardy. Ratushny has pounced on this point, commenting:  53  The widespread existence and acceptance of police custodial interrogation results in a fundamental incongruity in the whole process. A number of elaborate procedures are provided to the accused at his trial including a public hearing, the right to counsel, the right to test every aspect of the Crown’s case before being required to respond, the supervision of the trial by a Judge and many others. At the same time, there is a minimum of effective restraint upon police officers taking a suspect into custody and interrogating him in the circumstances and using methods which would never be tolerated in our courtrooms.248  Other legal scholars and jurists have echoed Ratushny’s concern. Easton, for example, has alleged that a common theme in British miscarriage of justice cases has been police misconduct during an interrogation.249 Furthermore, Chief Justice Warren of the United States Supreme Court spent considerable time in Miranda discussing police interrogation manuals and voicing his concern about “over-zealous police practices” and the impact of such tactics on the reliability of the confession, as well as on the dignity of the suspect.250 Moreover, two dissenting Supreme Court of Canada judges in R. v. McCrimmon251 took issue with the use of the benign term “investigative interview” used by the majority of the Court, arguing that a police interrogation “is an attempt by police officers, who have total physical control of a detainee, to obtain an incriminating statement by systematically disregarding the detainee’s express wish and declared intention not to speak to them.”252 The concerns voiced by academics and jurists do not, however, only apply to obviously improper or overly aggressive police interrogation strategies. Bullying, threatening or creating oppressive conditions during a police interrogation will normally render a confession given in such circumstances inadmissible under the Ibrahim rule.253 However, both Easton and Ratushny 248  Ratushny, Self-Incrimination, supra note 5 at 31. Easton, supra note 21 at 263. 250 For a discussion of Miranda, see Romantz, supra note 91. 251 2010 SCC 36, [2010] 2 SCR 402 (available on lexUM) [McCrimmon] [cited to online source]. 252 Ibid at para 40. 253 See text accompanying note 415, infra. 249  54  have emphasized that the law governing confessions does not cover more subtle police strategies or “pressures inherent in an interrogation, or the use of techniques which are seen by interviewers as legitimate.”254  Furthermore, Galligan contends that “police questioning of  suspects occurs in an environment which militates against remaining silent and leads to the great majority of suspects breaking their silence and making incriminating disclosures.” 255  And  Mirfield has pointed out that in a police interview, “the suspect typically suffers from what has been aptly described as an ‘information deficit’, and this even when he has had the advantage of legal advice.”256 Moreover, Greer has raised the spectre that the police may use the interview not simply as a means to discover evidence of a crime, but to actually create an offence. Greer posits: Criminal offences are not only capable of being discovered in police interviews. The interview process can itself create them. A crude conception of guilt or innocence, according to which the suspect either ‘did it’ or ‘didn’t do it’ has tended to underpin the debate about the right to silence. However, legal guilt or innocence can be considerably more complicated. Some offences are defined in ways which separate them by a hairsbreadth from innocent conduct. Police interviews can, therefore, construct offences out of otherwise innocent behaviour. The abolition of the right to silence is likely to increase the opportunities for this to occur.257  It is within this inherently unbalanced environment of police interviews, argue the retentionists, that concerns arise not only in regard to the reliability of statements made by suspects but also as to what sort of inference, if any, might be reasonably assumed when the accused remains silent in the face of police questioning.  254  Easton, supra note 21 at 253. Galligan, supra note 22 at 74. 256 Mirfield, supra note 71 at 245. 257 Greer, supra note 141at 727-28, emphasis in original. 255  55  On the other hand, some academics have expressed doubt about the prophylactic value of the right to silence in assisting the accused to resist police pressure to talk or answer questions. Zuckerman, for example, has argued: However, it is difficult to see how the privilege affords the suspect protection against abuse. The suspect is still free to waive his privilege, submit to questioning, and make incriminating statements. Far from shielding the suspect from the more insistent investigator, the privilege against self-incrimination presents the investigator with the challenge of obtaining, in the first instance, a waiver of the privilege so as to clear the way to questioning.258  Additionally, Berger and Redmayne have asserted that allowing an adverse inference to be drawn from the accused’s silence during interrogation would “lessen the likelihood that police will engage in improper tactics because they can secure some evidentiary benefit even if the suspect remains mute when questioned.”259 An important secondary pragmatic issue relating to the right to silence during police interrogations relates to the actual role, if any, that defence counsel perform either before or during the interrogation. The availability of legal advice for a person about to be, or actually being, interviewed by the police is considered by many to be an essential strategy to level the unequal relationship between the police and the accused. Mirfield has recognized the value of legal advice by observing:  “[T]he innocent suspect pressed to respond immediately to an  unformulated or inadequately formulated charge, with little or no idea of what he is alleged to have done, might be very wise to keep his counsel.”260  258  Zuckerman, Principles of Evidence, supra note 72 at 318. Zuckerman appears to consider the right to silence and privilege against self-incrimination to be synonymous in the context of a police interrogation. 259 Berger, “Policy, Politics & Parliament", supra note 113 at 425. 260 Mirfield, supra note 71 at 245. 56  Some scholars have argued that the availability of legal advice for the accused either before or during police questioning is sufficient protection, so the right to silence at the pre-trial stage is no longer needed, or at least not in its entirety.261 Such exchange abolitionists, as Greer labels them, suggest that providing the accused with access to a lawyer means that the right to silence is no longer “a right which the accused needs to have.”262 Greer has reviewed empirical studies in England regarding the use of silence by suspects during police interviews, concluding there is “a strong correlation between exercise of the right to silence and the presence of legal representatives.”263 Zuckerman, a leading exchange abolitionist, has also argued that as long as the police have “a sufficiently strong case against the suspect to necessitate a response” 264 and provide the suspect with sufficient information regarding the case against him or her as well as legal advice, “[a]n inference from silence will be in order”.265 Zuckerman even argues that it should be permissible to draw an adverse inference from the silence of an accused who chooses to remain silent based on legal advice to do so. Zuckerman contends that silence in such circumstances may be based on reasons other than the accused simply relying on the legal advice which he or she has received. According to Zuckerman, “the majority of persons who exercise the privilege do so because they wish to avoid being convicted for a crime they have committed. 261  There are several technical issues relating to the issue of providing legal advice to a suspect being interrogated by the police in England because of the adverse inference rule. For example, solicitors in England are in a difficult situation because the North American norm of simply telling the suspect not to speak may not be the best advice, as an adverse inference may be drawn from that silence. A concern also arises with regard to solicitor client privilege. When a suspect remains silent on the advice of his or her lawyer and such advice does not, on its face, appear to satisfy the “good cause” exception to the adverse inference rule (i.e., a suspect who remains silent for “good cause” is immunized from having an adverse inference drawn on his or her silence), the solicitor who provided the advice may be called as a witness at the accused’s trial in order to give evidence as to the reason he or she advised the accused to remain silent. This of course raises the issue of solicitor client privilege. Given the specific nature of these issues, they will not be discussed in detail in this thesis. For a discussion of the issue of legal advice within the British adverse inference regime, see Andrew Sanders & Lee Bridges, “The Right to Legal Advice” in Walker & Starmer, supra note 21, 83 [Sanders & Bridges, “The Right to Legal Advice”]; Easton, supra note 21 at 111; Redmayne, supra note 123 at 1066-71; Mirfield, supra note 71 at 256. 262 Greer, supra note 141at 720. 263 Ibid at 721. 264 Zuckerman, Principles of Evidence, supra note 72 at 330. 265 Ibid. 57  There is therefore no reason in logic why the trier of fact should not, in appropriate cases, infer that the suspect exercised his right in order to conceal his guilt.”266 Access to legal advice is an important adjunct to the right to silence in the United Kingdom,267 the United States268 and Canada;269 although, the actual level of involvement of defence counsel differs between jurisdictions. In Britain, there is a statutory right to legal advice including the presence of a solicitor during the police interview, while in the United States, under the Miranda rule, there is a generally unfettered right to consult a lawyer and to have a lawyer present during a custodial interrogation. The situation in Canada, however, is very different from Britain and the United States as the Supreme Court of Canada has declared, albeit it in sharply divided decisions, that an accused is not entitled to have his or her lawyer present at a police interrogation, nor is he or she normally allowed to stop an interrogation in order to obtain new or updated legal advice.270 4.  False Confessions and Protecting the Innocent The debate in Britain which eventually resulted in to the curtailment of the right to silence in  the late 1980s and early 1990s occurred during a time of significant public concern regarding several highly publicized wrongful convictions, most of which involved Irish Republican Army (IRA) members or supporters who were suspected of having committed bombings or other 266  Ibid at 331. In the United Kingdom, the Police and Criminal Evidence Act 1984 (UK) prescribes a system of free legal advice for all detained suspects. The statutory provisions are very detailed and allow for a solicitor to not only be consulted prior to the interview but to be present during the interview. See Chapter III.C.4, below. 268 In the United States, Miranda requires the police to advise all detained suspects that they not only have the right to silence, they also have the right to speak to a lawyer and have the lawyer paid for by the government if they cannot afford one. Lawyers are also permitted in the police interview and the police are prohibited from questioning a detained suspect until the suspect has unequivocally waived his or he right to counsel. See Bradley, “United States” in Bradley, Worldwide Study, supra note 15 at 533. 269 In Canada, section 10(b) of the Charter of Rights provides the “right to retain and instruct counsel without delay” to all arrested and detained persons. 270 See Chapter IV.D.3, below, for further discussion. 267  58  violent acts in Northern Ireland and England.271 While the spectre of wrongful convictions may not have been as dramatic in Canada, there have certainly been several wrongful convictions and some of them have included questionable police investigative practices, so the issue is clearly relevant to the right to silence debate in Canada as well as in Britain.272 The Supreme Court of Canada also referred to the importance of the right to silence as a guardian against false confessions in R. v. Oickle273 and R. v. Singh.274 Several legal scholars have argued that the right to silence performs an important instrumental role in providing some measure of protection against false confessions and hence the wrongful conviction of the innocent. Walker, for example, has submitted that restricting the right to pretrial silence will increase the risk of false confessions because “there is a danger that suspects will be pressured to speak, leading to false confessions.”275 Furthermore, Easton has contended that while allowing an adverse inference to flow from silence gives suspects “a formal choice whether to speak or not”, in practice it places pressure on them to speak “because they are likely to believe it would be better to speak” once they are warned about the possible adverse inference of silence.276 Easton submits that, “in the stressful context of detention … [t]rying to recall specific names of witnesses, times, places and events … will increase the strain on defendants and raise special difficulties for suspects with a poor command of English, increasing the risk of  271  See chapter III.C.7, below, for a discussion of the impact of these cases on the right to silence debate in Britain. For a discussion of wrongful convictions in Canada, see Gary Botting, Wrongful Conviction in Canadian Law (Markham, Ontario: LexisNexis Canada, 2010); Christopher Sherrin, “False Confessions and Admissions in Canadian Law” (2005) 30 Queen’s LJ 601 (Lexis) [Sherrin, “False Confessions”]; Lee Stuesser, “The Accused’s Right to Silence: No Doesn’t Mean No” (2002) 29 Man LJ 149 at paras 35-42 (Lexis); Gary T Trotter, “False Confessions and Wrongful Convictions” (2003 – 2004) 35 Ottawa L Rev 179 (QL). 273 2000 SCC 28, [2000] 2 SCR 3 (available on lexUM) [Oickle]. See Chapter IV.B.3.b, below, for a discussion of Oickle. 274 Singh, supra note 19. See discussion at Chapter IV.D.2, below, for a discussion of Singh. 275 Walker, “Agenda” in Walker & Starmer, supra note 21 at 12. 276 Easton, supra note 21 at 266. 272  59  unsafe confessions.”277 Easton goes on to emphasize that the “loss of the right to silence is most dangerous for vulnerable and younger suspects who may be more likely to make false confessions to escape the pressure of police questions.”278 Greer has also argued that the accused’s decision to speak or remain silent is made in an environment where he or she will “at least be partially ignorant of the police case against him and thus open to manipulation”.279 Greer further asserts that “police assumptions about the guilt or innocence of any given suspect can be fundamentally mistaken”.280 In Greer’s opinion, such an environment raises the distinct possibility of a false confession because: Instead of winkling a crook out of his shell they [police] may instead inadvertently trick an innocent suspect into compromising his position by making remarks which are open to misrepresentation at trial. It is now widely recognized that under pressure people are capable of confessing to offences which it would have been impossible for them to have committed.281  Stewart has similarly argued that forcing a suspect to speak will result in potential unreliable evidence being obtained. According to Stewart, “[t]he common law has long recognized that coercive police tactics are likely to produce statements from suspects that are designed to satisfy the police and alleviate the coercion rather than to be truthful and reliable.”282 Finally, Lee Stuesser has identified the infamous Canadian wrongful conviction cases of Thomas Sophonow,  277  Ibid. Ibid. 279 Greer, supra note 141 at 726. 280 Ibid. 281 Ibid. 282 Stewart, “The Confession Rule", supra note 70 at 522. Stewart also suggests that while modern police interrogation strategies are more subtle, they “may also have the kind of coercive effect that can produce unreliable confessions.” 278  60  Donald Marshall and Guy Paul Morin as examples of “a common theme in wrongful conviction cases that inappropriate police questioning is putting innocent people in jail.”283 However, not surprisingly, Glanville Williams has taken a completely opposite position to those who suggest restricting the right to silence increases the chance of the innocent being wrongfully convicted. Based on his view of human nature, Williams claims that an innocent person “faced with a criminal charge … would not stay mum – except perhaps in the most unusual circumstances.”284 According to Williams, failing to respond to the allegation “would greatly increase the risk of being wrongly convicted.”285 Rupert Cross has also challenged the suggestion that suspects are in the dark when questioned by the police, asking the question: “[A]re there really many suspects who are unaware of the case against them by the time they are charged?”286  Moreover, Greenawalt, while acknowledging that “[t]he right to silence may  prevent some convictions of innocent people”, argues that “[g]iven the very high incidence of convictions of defendants who decline to testify, we must doubt that silence helps many innocent persons.”287 Greenawalt suggests, “[s]tricter safeguards against police pressures would provide better protection against the kinds of tactics that might induce false confessions during interrogation.”288 Finally, Galligan has contended that, “even if there is significant risk of false confessions, that risk would be controlled and reduced more effectively and directly, not by the right to silence, but by stringent conditions on the interrogation.”289  283  Stuesser, supra note 272 at paras 35-42. Williams, supra note 22 at 1107. 285 Ibid. 286 Rupert Cross, “The Evidence Report: Sense of Nonsense – A very wicked animal defends the 11th Report of the Criminal Law Revision Committee” (1973) Crim L Rev 329 at 335. 287 Greenawalt, supra note 125 at 44. 288 Ibid. 289 Galligan, supra note 22 at 86. 284  61  5.  Encouraging Other Investigative Strategies Another instrumental benefit of the right to silence at the investigative stage of the criminal  process, according to retentionists, is that the accused’s silence forces the police and prosecution to look for other evidence to prove guilt. Easton has referred to the issue as “the lazy prosecutor argument”, suggesting that if “the individual is relied on as the source of the prosecution’s case against him, this can only weaken the effectiveness of the prosecution in obtaining evidence and it may encourage improper police practices.”290 To support her argument, Easton quotes Sir James Stephen’s famous recollection of an Indian police officer’s response to a question as to why the police sometimes use force. The officer is quoted as responding: “There is a good deal of laziness in it. It is far pleasanter to sit comfortably in the shade rubbing red pepper in a poor devil’s eyes than to go about in the sun hunting up evidence.”291 Stuesser has also gone to an historical source to back his claim that the right to silence protects against “tunnel vision” by the police and promotes other avenues of investigation. Stuesser cites Wigmore’s concern that a system which “permits the prosecution to trust habitually to compulsory self-disclosure as a source of proof” leads to “[t]he inclination … to rely mainly upon such evidence, and to be satisfied with an incomplete investigation from other sources”, the result of which is that “the innocent are jeopardized by the encroachments of a bad system.”292 Greenawalt, however, has challenged Wigmore’s view. Greenawalt contends that, “[i]n many cases, methods of gathering facts that do not depend upon questioning of suspects will prove ineffective or too burdensome”.293 Furthermore, Greenawalt asserts that “many other  290  Easton, supra note 21 at 183-4. Ibid at 184. 292 Stuesser, supra note 272 at para 36, citing JH Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law, 3d ed (Boston: Little & Brown, 1940) at para 2251. 293 Greenawalt, supra note 125 at 45. 291  62  techniques for establishing guilt are actually worse from a moral point of view.”294 Friendly has also suggested it is unrealistic to think there will always be discoverable independent evidence of the suspect’s guilt, asserting: It is a curious principle that would prohibit investigators from beginning their investigation by seeking information from the person best qualified to give it and would require them to operate under the rules of blind man’s bluff. Furthermore, it assumes what is not always the case, namely, that other forms of evidence will be available without interrogation if the police are only bright enough to find them. What Mr. Justice Black so rightly said in a fourth amendment context applies equally to the fifth amendment: “It is always easy to hint at mysterious means available just around the corner to catch outlaws.295  Finally, Zuckerman has underlined the efficiency of the police interview as a means of collecting evidence, referring to the findings of the Royal Commission on Criminal Procedure 296 which found that there was “no adequate substitute for police questioning in the investigation and, ultimately, in the prosecution of crime.”297 6.  Innocent Reasons for Silence Those who oppose the drawing of an adverse inference from the accused’s silence argue that  to do so is risky because inaccurate deductions may result from such silence. Retentionists suggest there are many reasons for a person to remain silent other than a desire to avoid conviction.298 Easton, for example, claims it is extremely difficult to distinguish between “innocent and guilty silences” given that the “population of suspects and detainees is heterogeneous” and includes the spectrum from “professional criminals” to “vulnerable groups  294  Ibid. Friendly, supra note 60 at 691. 296 See Chapter III.C.3, below, for a discussion of the Royal Commission on Criminal Procedure. 297 Zuckerman, “Reports of Committees”, supra note 146 at 318-19, citing The Royal Commission on Criminal Procedure, Report (1981) para 4.1. 298 See e.g. Easton, supra note 21 at 145. 295  63  such as those with learning disabilities and juveniles, who are at risk of making damaging or unreliable statements.”299 Moreover, Starmer and Woolf assert that, since there are valid reasons to remain silent other than to avoid guilt, concluding “inferences can safely be drawn as a matter of common sense may be too simplistic in some cases.”300 While it is generally accepted that there may be reasons other than avoiding guilt for a suspect to remain silent during police questioning, some scholars take the position that adverse inferences are still legitimate and safe. Dennis, for example, argues that to conclude it is unsafe to draw an adverse inference from silence simply because there may be reasons “other than consciousness of guilt”301 is questionable because: “Other evidence may be admitted against a defendant which may be mistaken or open to innocent explanation. It is doubtful whether the probative value of silence is generally so slight that we are justified in excluding it from consideration in all cases.”302 Moreover, while Ingraham acknowledges there may be valid reasons for a suspect to remain silent other than to avoid conviction, he also believes “these situations would be sufficiently rare and exceptional as not to render the inference of guilt an unreasonable one; they would be possibilities, not probabilities.”303  Cross has also cast a  sceptical eye on the assertion advanced by the retentionists that it would be improper to allow an adverse inference based on the silence of an accused who had an innocent reason to remain silent, declaring:  299  Ibid. Starmer & Woolf, “The Right to Silence” in Walker & Starmer, supra note 21 at 115. 301 Dennis, “Reconstructing", supra note 61 at 40. 302 Ibid at 40-41. 303 Ingraham, supra note 64 at 568. 300  64  I am afraid, however, that I am left completely cold by horror stories about the innocent man advised not to give evidence because he would be such a bad witness, or the innocent husband who did not want his wife to know that he had been with a mistress at the material time. The law of evidence must cater for the comparatively normal, and such cases are highly abnormal.304  Finally, Redmayne contends that the existence of innocent reasons for silence should not eliminate the possibility of an adverse inference being drawn from silence because: The possible existence of an innocent explanation for not mentioning facts to the police does not necessarily block an inference from silence. An innocent person may have good reasons to run away from the scene of a crime, but that does not mean that flight is not evidence of guilt. The innocent may sometimes confess, but, even more obviously, that does not mean that we should exclude all confessions. In each of these examples, so long as guilt is a better explanation for the evidence than is innocence, then the evidence is probative of guilt, and we would need some countervailing reason to exclude it.305  Redmayne does, however, concede that innocent explanations may “weaken the inference from silence” and further acknowledges that where innocent explanations “outweigh ‘guilty’ explanations, they may prevent the adverse inference from being drawn.”306 7.  Cruel Choices A common argument advanced in support of the right to silence has been the assertion that  requiring an accused to speak or face an adverse inference forces him or her onto the horns of a “cruel trilemma”, as the accused must choose between “self-accusation, perjury or contempt.”307 The “trilemma” has, however, been downgraded by most observers to a “dilemma” because the  304  Cross, supra note 286 at 336. Redmayne, supra note 123 at 1057. 306 Ibid at 1058. 307 Friendly, supra note 60 at 686, citing Murphy, supra note 108. It should be noted that the English law which creates an adverse inference of guilt based on the accused’s silence does not make silence a crime, as the law specifically states that an accused does not commit contempt by refusing to provide information to the police or testify. See Berger, “Reforming Confession Law", supra note 73 at 264. 305  65  probability of being cited for contempt is remote.308 However, even if contempt is not a major concern, retentionists still argue that is cruel and morally wrong to force an accused to decide between self-incrimination and committing perjury. The difficulty of the choice forced upon the accused was recognized by Bentham, who stated “’tis hard upon a man to be obliged to criminate himself”;309 although, he recognized the dilemma was “not so much in the making of an incriminating statement as in the likelihood of punishment created by the statement.”310 Easton has referred to the development of the privilege against self-incrimination in the United States and suggests that it “has been fashioned … by the dangers of perjury in forced testimony; confronted with the cruel trilemma of choosing selfincrimination, contempt or perjury, the accused may well prefer to lie.” 311 Easton asserts that it is futile to force the accused to speak against his or her interests and, therefore, “if it is impossible to guarantee that the accused will speak the truth, given his desire for selfpreservation, it is pointless to force the suspect to speak.”312 Other academics, however, have refuted the retentionists’ “cruel choices” argument. Zuckerman, for example, has proffered a similar argument to the one advanced by Bentham, suggesting that the choice faced by the accused is actually “not that harsh” because other people, such as witnesses, are often also placed into positions of having to make difficult choices.313 Zuckerman asserts that “the law recognizes no general privilege not to be faced with such a  308  See e.g. Friendly, supra note 60 at 695; Zuckerman, The Principles of Evidence, supra note 72 at 316. Ibid at 315, citing Rationale of Judicial Evidence (1827), vol. 5, p. 230. 310 Ibid. 311 Easton, supra note 21 at 169. 312 Ibid. 313 Zuckerman, Principles of Evidence, supra note 72 at 316. Zuckerman uses the example of a father having to testify as a witness when he knows that his testimony will convict his son as a choice just as difficult as the choice facing an accused. 309  66  dilemma”.314 Furthermore, Dennis has described the “state of cruel choices” for the accused at the pre-trial stage as being the requirement to decide either to refuse to answer questions and by so doing to “prolong the interview as well as run the risk of silence being interpreted as an admission of guilt, or to answer truthfully and incriminate oneself.”315 In Dennis’ view, such a choice is neither cruel nor unreasonable. He states: However, the weakness of the theory is that … its underlying premise assumes that the suspect is guilty. An innocent suspect would, at least in theory, have nothing to lose by answering questions truthfully. There is therefore no cruelty involved in requiring the innocent suspect to speak. Once the true nature of the premise is recognised the argument loses much of its claim to moral force. It becomes difficult to accept that the interest of a guilty person in escaping conviction by not disclosing evidence of the crime is worthy of official protection.316  Dolinko has also challenged the cruel choices rationale for retaining the right to silence, asserting: “Typically, those who find compelled self-incrimination unacceptably cruel or inhumane give no reasons for this judgement save for an appeal to intuition.”317 Dolinko points out that the law often requires people to make difficult choices, such as “compelling an immunized witness to testify against hoodlums who threaten to kill him or his loved ones in retaliation” or requiring “a rape victim” to testify and thereby “either relive her trauma by testifying … or let her assailant go free, perhaps to find new targets.” 318 According to Dolinko, “the practice of compelling a suspect or defendant to answer potentially incriminating questions would not aim at forcing the individual to harm himself or something he holds dear. It would aim simply at helping to establish the truth, whether that truth be exculpating or inculpating.”319 Dolinko concludes that “compelled self-incrimination – the practice of compelling persons 314  Ibid. Dennis, “Instrumental Protection", supra note 68 at 358. 316 Ibid at 359. 317 Dolinko, supra note 119 at 1092. 318 Ibid at 1094. 319 Ibid at 1105. 315  67  suspected of crime to answer potentially incriminating questions – cannot be judged impermissibly cruel”.320 Friendly has expressed a similar view to that of Dennis and Dolinko, stating: “It is not ‘plain’ or ‘obvious’ to me why it is more cruel to require a man to admit commission of a misdemeanor than to testify to his mother’s immorality or his partner’s peculations.”321 Finally, Greenawalt has rejected the claim that drawing an adverse inference from silence is unfair or cruel to the accused, asserting: When substantial evidence exists against someone, allowing ordinary inferences from his silence and dismissing him if he refuses to speak about his performance of public duty hardly seem inhumane. These are, rather, natural consequences of his choice to remain silent. Undoubtedly, those practices may affect a suspect’s or a defendant’s choice to speak, but the moral right to silence should not be viewed as a right to be released from all the normal influences to respond to accusations. Rather, it should be viewed as a right to be free of the especially powerful compulsions that the state can bring to bear on witnesses.322  Beyond rebutting the retentionists’ arguments, those who criticize the right to silence have also advanced their own reasons for claiming the right to silence undermines the legitimate role of the state to prevent and investigate crime. Those arguments will now be reviewed. 8.  Professional Criminals Take Advantage of the Right to Silence One of the major elements in the attack on the right to silence that occurred in the United  Kingdom during the 1980s and early 1990s was the assertion that the right to silence was being exploited by professional criminals.323 However, this claim has been vigorously refuted by several academics. Greer has noted that the claim was a central theme of the abolitionists’ 320  Ibid at 1106. Friendly, supra note 60 at 683. 322 Greenawalt, supra note 125 at 40. Greenawalt includes in his discussion of the moral and constitutional aspects of the right to silence in the United States not only the application of the right to silence to criminal law, but also to employment law in the civil service; hence, Greenawalt’s reference to “dismissing him if he refuses to speak about his performance of public duty”. 323 Easton, supra note 21 at 133. 321  68  criticism of the right to silence, although he suggests there was no empirical evidence to support it,324 and Mirfield has also expressed doubt about the validity of the claim.325 Moreover, Starmer and Woolf have rebutted the assertion that professional criminals avoid conviction because they remain silent as being an “unsubstantiated belief”,326 and Easton has suggested the claim rests “on mere speculation”.327 In addition, Easton argues that even if it is true that some professional criminals exploit the right to silence, the fact that “relatively few suspects exercise the right to silence” means “[t]he exercise of the right to silence is unlikely to have an impact on the number of acquittals or to adversely affect police work.”328 Easton also contends that the abolitionists’ argument “fails to take account of the principal aims of the law of evidence, to provide fairness to the accused, and to determine truth.”329 Finally, Easton refers to the principles underlining the right to silence by stressing that even if criminals are exploiting it, “[i]f a right exists, predicated on principles such as equal treatment and the presumption of innocence, then it should be available to everyone regardless of the reasons for exercising that right.”330 Associated to the question of whether or not professional criminals take advantage of the right to silence to avoid conviction is the larger question of whether restricting the right to silence actually achieves its desired instrumental goal of inc