Hébert Case

In the Hébert case (1990), the Supreme Court of Canada spoke directly on the right to silence. Hébert was accused of grand larceny. Advised of his right to counsel, he was imprisoned after the consultation. A police officer who pretended to be a suspect arrested by the police was placed in the same cell as Hébert. The police agent engaged Hébert in conversation and the latter made incriminating statements to him.

The Supreme Court was unanimous on three points: that section 7 of the Canadian Charter of Rights and Freedoms includes the right to silence; that the right had been violated in this case because the police had used a ruse to obtain the statements, having been advised by the accused that he did not wish to make a statement; and that these statements were inadmissible as evidence by virtue of section 24(2) of the Charter.

The Court was divided on the extent of the right to silence. Madam Justice McLachlin spoke for the majority, declaring that the right to silence drew its strength from two concepts: the rule on confessions and the privilege against self-incrimination. The extent of the right to maintain silence must be defined in a sufficiently general fashion so that anyone detained retains the right to speak or not to the authorities, or to maintain silence, without regard to the fact that he is subject to the superior power of the state." A violation of section 7 occurs only when the Crown acts to subvert the right of the accused to make a choice regarding the making of statement to authorities. However, evidence improperly obtained is not automatically excluded.