R. v. Hebert
Encyclopedia
R. v. Hebert [1990] 2 S.C.R. 151 is the leading Supreme Court of Canada
decision on an accused's right to silence
under section seven
of the Canadian Charter of Rights and Freedoms
.
At trial, a voir dire
was held to determine the admissibility of the conversation. The judge found that Hebert's right to counsel under section 10(b) of the Charter, and his right to remain silent under section 7 were violated. On appeal the court found that Hebert's rights were not violated and a new trial was ordered.
, writing for the majority, held that the evidence was inadmissible and upheld the trial judge's ruling.
McLachlin found that the right to silence was a principle of fundamental justice
and as such was protected under section 7. Once in police custody, an accused's right cannot be undermined through acts of police trickery. However, if the accused were to divulge information to an informer or undercover agent of their own free will then the statements could be used against them.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
decision on an accused's right to silence
Right to silence
The right to remain silent is a legal right of any person. This right is recognized, explicitly or by convention, in many of the world's legal systems....
under section seven
Section Seven of the Canadian Charter of Rights and Freedoms
Section Seven of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section, namely the right to life, liberty, and...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
.
Background
In 1987, Neil Gerald Hebert was arrested for armed robbery. He was informed of his rights and taken to an RCMP detachment. Upon consulting a lawyer, he said he was not going to make any statements. Hebert was put in a cell with an undercover agent posing as another arrested suspect. The undercover agent chatted with Hebert and managed to elicit several incriminating statements from him.At trial, a voir dire
Voir dire
Voir dire is a phrase in law which comes from the Anglo-Norman language. In origin it refers to an oath to tell the truth , i.e., to say what is true, what is objectively accurate or subjectively honest, or both....
was held to determine the admissibility of the conversation. The judge found that Hebert's right to counsel under section 10(b) of the Charter, and his right to remain silent under section 7 were violated. On appeal the court found that Hebert's rights were not violated and a new trial was ordered.
Opinion of the Court
Beverley McLachlinBeverley McLachlin
Beverley McLachlin, PC is the Chief Justice of Canada, the first woman to hold this position. She also serves as a Deputy of the Governor General of Canada.-Early life:...
, writing for the majority, held that the evidence was inadmissible and upheld the trial judge's ruling.
McLachlin found that the right to silence was a principle of fundamental justice
Fundamental justice
Fundamental justice is a legal term that signifies a dynamic concept of fairness underlying the administration of justice and its operation, whereas principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the...
and as such was protected under section 7. Once in police custody, an accused's right cannot be undermined through acts of police trickery. However, if the accused were to divulge information to an informer or undercover agent of their own free will then the statements could be used against them.