Right to Remain Silent
Rule Absent Employment Relationship
Absent an employment relationship, there is no obligation to provide information which, in turn, may be used against such person in a criminal or quasi-criminal proceeding.
The IRC in Tober, referenced below, confirmed the above and also noted that the protections afforded to those testifying against their interests:
Outside of the employment relationship, the law clearly limits the circumstances in which a person is obliged to explain his behaviour. The common law has never imposed upon a person a positive obligation to explain his conduct or disclose information about anyone unless summonsed as a witness to give evidence under oath.
As further noted by Wedge J. of the Supreme Court of British Columbia in BC Ferry and Marine Workers’ Union v BC Ferry Services Inc. and BC Labour Relations Board, this right to remain silent originated before the Charter’s enactment and subsequently became entrenched as a Charter right:
Outside the context of employment, and absent a statutory requirement to the contrary, individuals have the right to choose whether to provide information that may be used against them in a criminal proceeding. The right to remain silent predates the Charter of Rights and Freedoms but is now entrenched as a constitutional right by s. 7 of the Charter: ....
The question then becomes how does an employment relationship alter this right ?
The issue may arise in the course of an employment investigation as to whether the alleged offender is asked certain questions in a context where the answers may expose this person to the possibility of subsequent or even current criminal proceedings due to the conduct in question and/or civil proceedings. The issue of termination with just cause also arise.
This issue is one also addressed in the review of the common law confession review below. This is not a Charter right but rather a common law one.
Right to Refuse to Answer Questions in the Investigation
As a preface to this question, the official view that an employee has no right to counsel in the course of an employment interview is questionable from a real world perspective. How could anyone have any understanding of this issues without the presence of counsel, on a question to question basis? The legal question, as reviewed above, is that such an investigation by a private body or citizen does not allow for a Charter defence. Alberta is the exception and perhaps Saskatchewan. The implied contractual obligation of honest performance may lead to a differing view.
The Investigative Interview
The employee will face the alternatives of co-operation, in which event any culpable statements and other evidence will be used against him in civil proceedings and may or may not be admissible in a criminal case, or refusing to do so and then facing disciplinary action.
There is no common law authority on this subject.
Potential of Termination Not the Same as Criminal Proceeding
In most circumstances there will not be a government actor as may be occasionally found in legislation which sets forth the obligation of the questioned person to co-operate with the investigation in process.
The Charter of Rights and Freedoms in Section 11(c) does not allow a person to maintain silence but rather allows the accused person to be free from the compulsion to testify against himself. This protection also allows an accused person to refuse to participate in the questioning of a police officer conducting a criminal investigation.
It also, of course, allows the accused the right to counsel and to be advised of this right.
The decision of the Ontario Superior Court in R. v. March 1 involved an investigation which did involve a government actor, namely the Ministry of Correctional Services under its operative statute, section 22 of the Ministry of Correctional Services Act. 2.
The court concluded that the employee could not invoke the Charter to refuse to answer the investigator’s queries due to the discovery of cannabis, tobacco and a knife in the physical premises of the jail in which he was employed.
It was determined that the Act’s provision which contemplated the potential of termination was not the same as a penal provision and hence the right of the employee to refuse to respond to the investigator was denied.
In the world of the private employer, there would appear to be no controversy that there is simply no Charter right to refuse to answer questions posed by the employer’s chosen investigator, presuming no criminal charges or no anticipated criminal charges.
Arbitral Case Law
Tober Enterprises Ltd. involved a criminal charge brought against the employee, a grocery store employee, due to his suspected sale of anabolic steroids to an undercover officer in business hours.
Following the charge, the employee was suspended pending the completion of its investigation. The employee declined to answer questions due to the pending criminal case. The employer terminated on the grounds that the sale of steroids took place during working hours.
At the hearing the employee admitted that he sold what he believed to be steroids on a singular occasion during working hours. His evidence was believed, no cause was found and he was ordered to be reinstated.
However, the Board determined that there would be an unpaid period of suspension from the date of the initial refusal to the date of the arbitration hearing when he was forthcoming for the first time.
The union appealed that suspension.
The Industrial Relations Council, now the Labour Relations Board, concluded that the employee’s decision to remain silent would not typically be culpable, in the context of pending criminal or quasi-criminal charges:
The Panel is satisfied a failure to explain misconduct, particularly where the employee also faces criminal or quasi-criminal charges, cannot amount to an independent cause for discipline. ... While the consequences of remaining silent may ultimately lead to dismissal, the failure to explain, standing alone, does not constitute just and reasonable cause for discipline. The failure to explain cannot be regarded as an offence which jeopardizes the employment relationship. It is the substantive misconduct alleged by an employer which must be proven on the balance of probabilities, with or without an explanation from the employee. Further, it is the proven substantive misconduct, and not the failure to explain, which constitutes just and reasonable cause for discipline or discharge. The failure to explain, without more, simply cannot be regarded as culpable behaviour.
It hence concluded that the failure of the employees to respond with explanations of their questioned behaviour in this context, as a singular independent issue, could not lead to discipline.
It was noted by the Industrial Relations Council, however, that the failure to reply did have other consequences, namely, that the absence of an affirmative rebuttal or explanation could lead to evidentiary conclusions. The hearing may determine that the credibility of the employees may be negatively impacted, or show a lack of remorse or show a refusal to admit responsibility.
The Council also found that the right of silence may also be culpable should this position lead to harm to the employer’s business:
On the other hand, where an employee deliberately attempts to deceive his employer by a false or misleading explanation, the employee's conduct is clearly blameworthy and threatens the basis of the employment relationship. The employee's behaviour is equally blameworthy where he knowingly allows his silence to damage the legitimate business interests of the employer.
Wedge J. of the Supreme Court of British Columbia in BC Ferry and Marine Workers’ Union v BC Ferry Services Inc. and BC Labour Relations Board also considered this issue in 2008.
The case involved the suspension of two employees, Lilgert and Hilton, who were the two crew members primarily responsible for the navigation of the Queen of the North when this ship sank in Wright Sound, killing two passengers.
A criminal investigation was commenced by the RCMP.
In addition, the Transportation Safety Board conducted its own inquiry, in the course of which the evidence given by the two grievors was statutorily identified as privileged and confidential by overriding federal law.
The employees also provided evidence to the insurer of the vessel under which litigation privilege was claimed.
The employer appointed its own inquiry, known as the Divisional Inquiry Panel, to determine the cause of the accident and to issue a public report, in the course of which it sought to question the two employees.
Both grievors declined to answer questions relating to the critical period leading up to the sinking of the ship, unless assurances were to be given that the information would be agreed to be privileged and held in confidence by the employer pending the conclusion of the criminal investigation. The consequence of such position was their unpaid suspensions until such time as they agreed to reverse this position.
The grievance was commenced in this context.
The Arbitrator concluded that the business interests of the employer and the need for public disclosure, in this instance trumped the right of the employees to remain silent.
While the conclusion was in the employer’s favour, it was nonetheless instructive that the fundamental analysis commenced with the presumption of the right to remain silent:
In summary, after considering all the circumstances involved and the jurisprudence referred to by the parties, I have concluded that the two employees’ declared right to remain silent about events that occurred during the critical period is outweighed by the Company’s legitimate entitlement to have all available information about what occurred during all the time of the vessel’s voyage so that it can make a full public disclosure on the incident.
The determination of which of the two competing interests prevailed hence involved the weight attached to these contrary forces:
The two employees’ refusal to provide the Divisional Inquiry with any information about the critical period has to be balanced against the Company’s legitimate business interests in obtaining their testimony about the critical period and then making public its complete report.
As stated in Tober Enterprise, supra, an employee’s right to remain silent can be abrogated if the surrounding circumstances and the nature of the employer’s business interests favour the employer’s right to require an explanation for what occurred when the employee was carrying out his/her job duties. Whether an employee’s obligation to provide such an explanation in fact arises and the nature of the obligation will vary dramatically with the facts of each case and accordingly each case ultimately must be determined on its own merits. (Canex Placer Ltd. and C.A.I.M.A., Loc. 17 (1978), 21 L.A.C. (2nd) 127, (Weiler)).
...
In this case, the grounding and sinking of the Queen of the North was a tragic incident, resulting in the presumed death of two passengers. The incident was the subject of enormous media attention and widespread public speculation on the safety and operational effectiveness of the B.C. Ferries system:
The Company, through the Divisional Inquiry, has very legitimate business reasons and public purpose for its desire to have all information about all the events that occurred during all the time before the vessel’s grounding. Messrs. Hilton and Lilgert had primary responsibility for navigation of the vessel and the information they have about the events and circumstances during the critical period before the vessel’s grounding is crucial to the Divisional Inquiry’s ability to complete its investigation and issue a full and complete public report.
The grievances were dismissed by the Arbitrator. Following an unsuccessful reconsideration application and an equally unsuccessful leave application from the latter, a judicial review application of the Labour Relations Board to review the Arbitrator’s decision was brought before Wedge J. The issue on the merits was not considered. 3
This issue was again considered in Gill v Treasury Board, a grievance under the Public Service Staff Relations Act. The grievor had been suspected of being associated with an organized crime group. His employment was terminated, regardless of his willingness to answer the employer’s questions for other reasons. He had been arrested and charged criminally.
The adjudicator referenced the above decision in BC Ferry and concluded that the employer most show “extraordinary” circumstances to demonstrate that the employer’s interests outweighed the “right of silence” of the grievor:
146 Mr. Lajoie testified that he explained to the grievor that he needed to provide more information surrounding his arrest and the criminal charges so that Mr. Lajoie could determine whether the grievor posed a threat to the security of the HRDC. He also advised the grievor, that if he did not cooperate and provide more details, Mr. Lajoie would have to base his decision on the information that the RCMP had provided.
147 The grievor, however, following his lawyer’s advice, chose not to discuss or provide any additional information about his arrest and criminal charges.
148 In B.C. Ferry and Marine Worker’s Union v. British Columbia Ferry Services Inc., 2008 BCSC 1464 (CanLII), the Supreme Court of British Columbia confirmed that although the arbitral jurisprudence establishes that silence per se is not misconduct giving rise to just cause for discipline, the ‘right to silence’ is not absolute. In the ‘extraordinary’ circumstances of that case (the disappearance of two passengers aboard the MV Queen of the North which ran around and sank on March 22, 2006), the employer’s interests in ascertaining and publicly disclosing the cause of the incident far outweighed the employee’s interest in refusing to talk.
149 In this case, I heard no compelling argument from counsel for the employer that would lead me to believe that this case is “extraordinary.” As such, I see no misconduct on the grievor’s part to maintain his “right to silence” with respect to the events leading to his arrest and the criminal charges.
150 I have concluded that Mr. Lajoie was justified in revoking the grievor’s ERS based on the information provided by the RCMP at the time, the grievor’s decision not to explain the events surrounding his arrest and the criminal charges, and the need to protect the security of the HRDC, its assets and its confidential information concerning Canadian citizens.
The test then became the search for evidence to show an "extraordinary" context to overcome the right of the suspected one to remain silent. The facts of the above case showed that criminal charges had been laid. The existence of such charges or pending charges make this position distinctive.
Much to the same end is a 2022 decision. 4 The arbitrator agreed that the person interviewed has the right to remain silent, pending the attendance of a union representative.
Even when this does occur, the right to remain silent will continue, given a reasonably held belief of likely sanctions. This is qualified by, as stated above, the employer maintaining an overriding legitimate business interest.
Again, these cases are arbitral and not common law authorities.