Saturday, October 01, 2005

The right to silence entitles Canadians to refuse to answer police questions without it being used against them by the prosecution, the Supreme Court has ruled in granting a new trial for a convicted triple axe-murderer.

The top court affirmed 9-0 yesterday a British Columbia Court of Appeal decision last year that ordered a new trial for Thomas Turcotte. The 47-year-old was sentenced to life in prison in 2001 after a jury convicted him of three counts of second-degree murder.

The high court clarified for the first time that people who are neither arrested nor detained do not have to answer police questions and their refusal to do so can't be held against them in a subsequent criminal trial.

Mr. Turcotte walked into the Vanderhoof, B.C., RCMP detachment in May 2000 and repeatedly suggested that police go to nearby Erhorn Ranch where he lived and did odd jobs for the owner Robert Erhorn.

Mr. Turcotte refused to explain his demands, but investigators later found the bodies of ranch hands Terry Price, 50, and Kim Martindale, 29. Aale Heikkila, a 70-year-old trapper and wildlife photographer was comatose and died three weeks later. All three were killed by blows to the head with an axe. Mr. Turcotte testified he was innocent.

The right to silence has traditionally protected people who are under arrest or in police detention.

But the Supreme Court ruled that the right is much broader and extended to Mr. Turcotte, who was neither arrested nor detained when he approached police.

The Crown argued the right to silence should be confined to people in detention or under arrest.

Justice Rosalie Abella explained that "everyone has the right to be silent in the face of police questioning" in the absence of specific laws to the contrary.

"It would be an illusory right if the decision not to speak to the police could be used by the Crown as evidence of guilt," she ruled.

She held that a person's "right to silence against the state" exists at all times, whether the person is in police custody, and even if the person initiates the contact with police. Moreover, even if someone opts to answer some, but not all, police questions, their silence cannot be used as evidence of guilt by the prosecution, said the court.

"It's a decision of enormous significance," said Turcotte's Vancouver lawyer Gregory DelBigio.

"The court has made clear that people have the right to remain silent whether or not they are in custody."

He said Mr. Turcotte remains in custody in the B.C. lower mainland, but is now eligible for a bail review.

The Crown confirmed it will proceed with a new trial.

"I would anticipate it at this time," said Oleh Kuzma, regional Crown counsel in Prince George. B.C.

The prosecution's case against Mr. Turcotte was built solely on circumstantial evidence, but the Crown told the jury that his unusual behaviour and silence when he came to the police detachment should be viewed as evidence of a "guilty mind."

Mr. Turcotte testified that he was too shocked and panicked after he came upon the blood-soaked murder scene to behave rationally.
© The Ottawa Citizen 2005