## Facts

- Neil Gerald Hebert was arrested for robbery and detained.
- Police advised Hebert of his right to counsel; he consulted a lawyer.
- After consulting counsel, Hebert expressly told police he did not wish to make a statement.
- Police placed an undercover officer in Hebert’s cell posing as another detainee and engaged him in conversation.
- During that conversation, Hebert made incriminating statements about the robbery.
- The trial judge found Charter breaches of Hebert’s s. 7 right to silence and s. 10(b) right to counsel and excluded the statements under s. 24(2); the Crown had no other evidence and Hebert was acquitted.
- The Yukon Court of Appeal reversed, set aside the acquittal, and ordered a new trial.

## Issues

1. Whether the right to remain silent is a principle of fundamental justice protected by s. 7 when a person is detained and questioned by police.
2. Whether police violate s. 7 by placing an undercover officer with a detainee who has consulted counsel and expressly declined to speak to police, to elicit incriminating statements.
3. If s. 7 is infringed, whether the infringement is justified under s. 1.
4. Whether the statements must be excluded under s. 24(2).

## Decision

- The Supreme Court of Canada allowed the appeal and restored the trial judge’s exclusion of the statements.
- The Court held that the right to silence is a principle of fundamental justice under s. 7.
- Police infringed s. 7 by using an undercover officer to negate Hebert’s expressed choice to remain silent while detained.
- The infringement was not justified under s. 1.
- The statements were excluded under s. 24(2) because admission would bring the administration of justice into disrepute.

## Legal Principles

- The s. 7 right to silence protects a detained person’s freedom to choose whether to speak to authorities; the state may not overcome that choice through its coercive power.
- A key distinction exists between (a) the state merely receiving voluntary statements and (b) state conduct that actively seeks to defeat an asserted choice to remain silent through deception.
- Undercover techniques are not categorically prohibited, but police may not use them in custody to do indirectly what direct questioning cannot lawfully accomplish after silence is asserted.
- Any waiver of the right to silence must be free and informed; deception that conceals state involvement may prevent a valid waiver.
- Section 10(b) (right to counsel) and s. 7 (right to silence) are related but distinct: counsel advice supports an informed choice, while s. 7 constrains how the state may respond once silence is chosen.
- Where police deliberately circumvent an asserted right to silence to obtain statements, exclusion under s. 24(2) will generally follow if admission would harm confidence in the fairness of the justice system.

## Conclusion

The Court recognized the right to silence as a s. 7 principle of fundamental justice and held that police may not use undercover elicitation to defeat a detainee’s expressed decision not to speak; the resulting statements were excluded under s. 24(2).


R. v. Hebert, [1990] 2 S.C.R. 151 (Can.)