R. v. Hebert, [1990] 2 SCR 151

In R. v. Hebert, the Supreme Court of Canada defined the scope and nature of the right to remain silent. The accused, Neil Gerald Hebert, was arrested on a charge of robbery and indicated that he did not wish to speak with the police. An undercover police officer was then placed in his cell, posing as another suspect under arrest. Mr. Hebert spoke to this individual and made numerous incriminating statements.

The court defined the right to remain silent broadly, noting that an accused cannot be required to give evidence against himself, and requiring the police to respect the choice of an accused person who does not wish to speak to them:

“The common law rules related to the right to silence suggest that the scope of the right in the pre-trial detention period must be based on the fundamental concept of the suspect’s right to choose whether to speak to the authorities or remain silent. Any doubt on the question is resolved by consideration of related rights protected by the Charter, by the Charter’s approach to the question of improperly obtained evidence, and by the fundamental purpose of the right to silence and related procedural guarantees. In keeping with the approach inaugurated by the Charter, our courts must adopt an approach to pre‑trial interrogation which emphasizes the right of the detained person to make a meaningful choice and permits the rejection of statements which have been obtained unfairly in circumstances that violate that right of choice.”

Hebert demonstrates a clear enhancement of the pre-existing common law right against self-incrimination. In Rothman v. The Queen, [1981] 1 S.C.R. 640, a similar case decided in accordance with the common law confessions rule, a statement to an undercover officer posing as a cell mate was deemed admissible on the grounds that it was a voluntary confession to a person who was not apparently in authority. The rule against self-incrimination in the Charter imposes a new obligation on police to respect a suspect’s decision to remain silent and refrain from such deceptive tactics.