R v. Herbert

[Editor’s Note: The casebook The U.S. Constitution and Comparative Constitutional Law: Texts, Cases, and Materials (Steven G. Calabresi et al. eds., 1st ed. 2016) erroneously titles this case as “R v. Herbert.” The correct title is “R v. Hebert.”] The police arrested Neil Hebert (defendant) on a charge of robbery. After consulting with counsel, Hebert informed the police that he did not wish to make a statement. Hebert was then placed in a cell with an undercover police officer posing as another inmate. The undercover officer engaged Hebert in conversation, and Hebert made several incriminating statements about the robbery to the undercover officer. Prior to trial, the trial judge found that the presence of the undercover officer had violated Hebert’s right to remain silent under § 7 of the Canadian Charter of Rights and Freedoms (the charter) and Hebert’s right to counsel under § 10(b) of the charter. The trial court then excluded the statements under § 24(2) of the charter. The Crown (plaintiff) offered no additional evidence, leading to Hebert’s acquittal. The Crown appealed the acquittal to the Yukon Court of Appeal. The Yukon Court of Appeal reversed the trial court, finding that the presence of the undercover officer did not violate Hebert’s right to remain silent or his right to counsel. The Yukon Court of Appeal set aside the acquittal and ordered a new trial. Hebert appealed to the Canada Supreme Court.