Catching the fox : restricting the right to pre-trial silence in Canada

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.