Report No. 180
Section 4(6) of the Canadian Evidence Act 1985, provides as follows:
"Section 4(6). The failure of the person charged or of the wife or husband of that person to testify shall not be made the subject of comment by the Judge or by counsel for the prosecution."
In the above case, the judgment for the majority was pronounced by Sopinka J who observed that the right to silence was a fundamental principle of justice incorporated into section 7 of the Canadian Charter and that section 11(c) referred to the non-compellability of a person to be a witness against himself. The majority referred to R v. Hebart 1990(2) SCR 151 wherein it was held that there was a right to silence upon arrest, charge or detention and that the State could otherwise trick a detained accused into making self incriminating statements by using an undercover police office eliciting information in the cell of the accused under the coercive power of the State.
The right to silence vested in the accused could only be waived by an informed decision of the accused. The Court also referred to R v. Chambers 1990(2) SCR wherein it was laid down that it would be a snare and a delusion to caution the accused that he need not say anything in response to the police officer's question and at the same time put in the evidence that the accused had exercised his right to remain silent and that the said silence suggested guilt. The court also referred to R v. Amway Corp. 1989(1) SCR p.21 where in it was held that the silence of an accused could not be used to determine his guilt. After referring to the above decisions,