What is the test for a waiver of the Statement of Allegiance?
British Columbia, Canada
The following excerpt is from R. v. Smith, 1988 CanLII 2918 (BC CA):
In Clarkson v. R., 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383, 50 C.R. (3d) 289, 25 C.C.C. (3d) 207, 26 D.L.R. (4th) 493, 19 C.R.R. 209, 69 N.B.R. (2d) 40, 177 A.P.R. 40, 66 N.R. 114, it was held, per Wilson J., that in order for a waiver to be effective, the detainee must truly appreciate the right and know the consequences of giving up that right. The test of "knowledge of the consequences" contemplates that the accused must know something of the risk in forfeiting the right. Wilson J. went on to say that the fact that the accused makes a statement is not, by that fact, a valid waiver.
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