R. v. Cook

R. v. Cook
Collection
Supreme Court Judgments
Date
1998-10-01
Report
[1998] 2 SCR 597
Case number
25852
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil
On appeal from
British Columbia
Subjects
Constitutional law
Evidence
Notes
SCC Case Information: 25852
Decision Content
R. v. Cook, [1998] 2 S.C.R. 597
Deltonia R. Cook Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada Intervener
Indexed as: R. v. Cook
File No.: 25852.
1998: June 17; 1998: October 1.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
on appeal from the court of appeal for british columbia
Constitutional law ‑‑ Charter of Rights ‑‑ Extraterritorial application ‑‑ Canadian police officers interviewing suspect in the United States on suspicion of a murder committed in Canada ‑‑ Charter right to counsel (s. 10 (b)) allegedly infringed ‑‑ Whether the Charter applies to the taking of the accused’s statement in the United States by Canadian police for a criminal prosecution to take place in Canada ‑‑ If so, whether the Charter was breached ‑‑ If a breach occurred, whether the statement should be excluded under s. 24(2) ‑‑ Canadian Charter of Rights and Freedoms, ss. 7 , 10 (b), 24(2) , 32(1) .
Evidence ‑‑ Admissibility ‑‑ Canadian police officers interviewing suspect in the United States on suspicion of a murder committed in Canada ‑‑ Charter right to counsel (s. 10 (b)) allegedly infringed ‑‑ Statement’s admission sought to impeach credibility ‑‑ Whether or not statement made at interview should be admitted.
The accused was arrested in the United States by U.S. authorities pursuant to a warrant issued in connection with a Canadian extradition request following a murder committed in Canada. The accused was read his Miranda rights upon arrest and said he understood those rights. When taken before a United States Magistrate, the accused indicated that he wanted a lawyer appointed for him, but he did not see or contact a lawyer prior to his interrogation by the Canadian detectives.
The Canadian detectives who interviewed the accused did not ask the U.S. authorities if the accused had requested a lawyer and, indeed, informed the accused of his right to a lawyer in a confusing and defective manner subsequent to asking the accused a series of background questions. The accused gave a statement in which he denied having committed the murder. At trial, the Crown sought a ruling which would have permitted it to use this statement to impeach the accused’s credibility. On a voir dire, the defence alleged that the statement was obtained in breach of s. 10 (b) of the Canadian Charter of Rights and Freedoms and sought its exclusion under s. 24(2) . The trial judge found that the statement was admissible, notwithstanding the Charter breach, for the limited purpose of impeaching the accused’s credibility in cross‑examination. The accused was convicted and his appeal to the Court of Appeal was dismissed. At issue is: (1) whether the Charter applies to the taking of the accused’s statement by Canadian police in the United States in connection with their investigation of an offence committed in Canada for a criminal prosecution to take place in Canada; (2) if so, whether the Charter was breached in the circumstances; and, (3) if the Charter was breached, whether the statement should be excluded under s. 24(2) of the Charter .
Held (L’Heureux‑Dubé and McLachlin JJ. dissenting): The appeal should be allowed.
Per Lamer C.J. and Cory, Iacobucci, Major and Binnie JJ.: The Charter applies to the actions of the Canadian detectives in interviewing the accused in the United States and its application here does not interfere with the sovereign authority of the U.S.
Application of the Charter abroad cannot be determined merely by reference to s. 32(1) . Notwithstanding the general prohibition in international law against the extraterritorial application of domestic laws, the Charter can in certain limited and rare circumstances apply beyond Canada’s territorial boundaries. Although territory is clearly a critical element in determining the scope of a state’s jurisdiction under international law, some circumstances exist where the reach of domestic law may not be determined solely by reference to territory. In these circumstances, the application of the Charter to Canadian law enforcement authorities can be founded on other jurisdictional principles that will not result in an objectionable interference with the exercise of a foreign state’s jurisdiction.
International law permits states to evoke the nationality of the person subject to the domestic law as a valid basis of jurisdictional authority. Jurisdictional competence on the basis of territoriality and nationality is an incident of sovereign equality and independence. The terms “nationality” and “citizenship” are not synonymous. Nationality is much broader and refers to a person who may not possess full political and civil rights of citizenship but nevertheless has a right of protection of the state and in return owes allegiance to it. To require that Canadian law enforcement authorities comply with Charter standards abroad may not, depending on the circumstances, interfere with the foreign state’s sovereign authority and integrity. However, an objectionable extraterritorial effect would result if the Charter were applied to foreign officers, even where the foreign officers can be described as the agents of Canadian authorities.
The Charter is not absolutely restricted in its application to Canadian territory. It applies on foreign territory in circumstances where the impugned act falls within the scope of s. 32(1) of the Charter on the jurisdictional basis of the nationality of the state law enforcement authorities engaged in governmental action and where the application of Charter standards will not conflict with the concurrent territorial jurisdiction of the foreign state.
The Charter applies to the actions of the Canadian detectives in the United States. First, since the interrogation was conducted by Canadian detectives in accordance with their powers of investigation which are derived from Canadian law, the impugned action falls within the purview of s. 32(1) . Second, applying the Charter to the Canadian detectives’ actions in these circumstances does not result in an interference with the territorial jurisdiction of the foreign state. It is reasonable both to expect the Canadian officers to comply with Charter standards and to permit the accused, who is being made to adhere to Canadian criminal law and procedure, to claim Canadian constitutional rights relating to the interrogation conducted by the Canadian officers abroad.
The application of the Charter here will not ultimately confer Charter rights on every person in the world who is in some respect implicated in the exercise of Canadian governmental authority abroad. The holding here marks an exception to the general rule in public international law of territorial limits upon a state’s exercise of jurisdiction, and arises on the basis of the very particular facts. The situation is far different from the myriad of circumstances in which persons outside Canada are trying to claim the benefits of the Charter simpliciter.
The breach was very serious if not flagrant. The advice as to the right to counsel omitted pertinent information and in this way was defective. More importantly, it was confusing and misleading to the extent that it deprived the accused of the opportunity to make a decision whether to obtain legal advice. For police to lie or mislead individuals with regard to their Charter rights is fundamentally unfair and demeaning of those Charter rights. To countenance it would bring the administration of justice into disrepute. As well, the breach occurred when the accused was in custody and therefore particularly vulnerable.
Three groups of factors are to be considered in determining whether the admission of evidence would bring the administration of justice into disrepute: the effect of admission of the evidence on the fairness of the trial, the seriousness of the breach and the effect of exclusion of the evidence on the repute of the administration of justice. The question in all cases is whether the admission of the evidence could bring the administration of justice into disrepute, in the eyes of a reasonable person, dispassionate and fully apprised of the circumstances.
The nature of the evidence and of the violation are relevant to the determination of whether the admission of the evidence would render the trial unfair. The initial step is to classify the type of evidence in question, first as conscriptive or non‑conscriptive. Subject to rare exceptions, conscriptive evidence must be excluded. While the impugned statement contained denials of guilt, and therefore could be said not to be “self‑incriminating”, the content of the statement does not change its characterization for purposes of this analysis. Here, the accused’s statement made to the Canadian officers should be classified as conscriptive. There were no special circumstances here to justify the statement’s admission.
The distinction between incriminating and exculpatory statements is not a factor that should influence the s. 24(2) analysis. Similarly the fact that the Crown seeks to use the evidence only in cross‑examination of the accused should not have persuaded the trial judge to decide in favour of admitting the evidence. The evidence should be excluded under s. 24(2) .
Per Gonthier and Bastarache JJ.: There is no conflict between an interpretation of s. 32(1) which favours the application of the Charter to the activities of Canadian officials conducting an investigation abroad and international law principles of territorial jurisdiction.
Section 32(1) defines the application of the Charter according to who acts, not where they act. It applies the Charter to those persons exercising legislative authority or to those who are part of the executive government ‑‑ to governmental action, which may arise either because of the nature of the powers exercised, or because the actor is actually a part of the government. On its face, no mention is made of a territorial limitation. Section 32(1) therefore applies to officers of the Canadian state who are abroad, independent of whether they exercise governmental powers of coercion or not. That person’s movement into another jurisdiction does not alter his or her status or the application of the Charter to him or her. The fact that the officer may not be authorized to exercise any legislative power because of his or her presence in a foreign jurisdiction is immaterial.
Section 32(1) dictates that the Charter may not be applied to any matter within the authority of a foreign government, or to foreign personnel (unless they are somehow concurrently part of the Canadian government or subject to Canadian legislative authority). The key issue in cases of cooperation between Canadian officials and foreign officials exercising their statutory powers is determining who was in control of the specific feature of the investigation which is alleged to constitute the Charter breach. This inquiry involves weighing the relative roles of the Canadian officials and of the foreign officials. When a Canadian officer is invited by the foreign official to exercise some power during an investigation, whether s. 32(1) is engaged will depend on the extent to which the exercise of the power is supervised by the foreign official. If, in weighing these factors, it is found that the foreign authority was responsible for the specific circumstances leading to the Charter breach, then those activities are not subject to the Charter , notwithstanding the participation of the Canadian officials in the cooperative investigation. In cases in which a defendant seeks to invoke s. 24(2) to exclude evidence from a trial being conducted in Canada, the focus of the analysis must be on the relative roles of the Canadian and foreign officials in obtaining the specific evidence which the defendant seeks to exclude. If the Canadian officials were primarily responsible for obtaining the evidence in a manner which violated the Charter , then the Charter will apply to them and to the evidence obtained by them. In this case, the Canadian police officers exercised virtually total control over the questioning procedure.
At international law, territoriality in respect of the jurisdiction to enforce is very different from territoriality as it might constrain the prescription of juridical consequences within the domestic legal system. Modern territoriality doctrine recognizes that it is permissible to assert criminal jurisdiction over acts taking place in another state if they are connected to other acts that take place in the forum state which are in furtherance of criminal behaviour, or if the acts in the other state have some pernicious consequence within the forum. It is sufficient that there be a “real and substantial link” between an offence and this country. The courts of Canada can take cognizance of the decisions of other countries through the principles of autrefois acquit and autrefois convict.
Whether there is an extraterritorial application of law depends to a large extent on whether there is a conflict between the two legal systems engaged. The objective territorial principle will give way to an impermissible extraterritoriality on the basis of two factors: first, a conflict between the application of the two legal systems; and second, where there is a conflict, the application by a state of its laws without any, or with a lesser, real and substantial connection to the events in question. International law requires that concurrent claims to jurisdiction, especially with respect to the criminal law, be carefully circumscribed to ensure that a state purporting to assume jurisdiction over events occurring abroad has a significant connection, or in the case of conflict with another jurisdiction, the most significant connection to the events in question.
The nature of the Charter guarantees, in particular those contained in ss. 7 ‑14, must be assessed to determine whether there is a possibility of conflict with a foreign legal system. The legal rights contained in the Charter qualify and condition the exercise of powers by government officials and ensure that if the government chooses to conduct an investigation, it must observe certain rules.
There is a real and substantial connection between the investigation taking place abroad and the Charter simply by virtue of the fact that Canadian officials are involved. This connection cannot be equated with nationality. Indeed, the application of the nationality principle to Canadian police officers abroad was irrelevant.
Three factors are relevant to determining whether the application of the Charter interferes with the jurisdictional integrity of the host state, and whether that state has a more real and substantial connection to the events, so as to displace the presumed jurisdiction of Canadian law. First, the terms of s. 32(1) do not extend the application of the Charter to the actions of foreign officials, or to the exercise of powers authorized by a foreign legal authority. Second, the nature of the rights contained in the relevant sections of the Charter are not mandatory, but rather conditional upon the occurrence of specified investigatory activities. Third, the nature of the juridical consequences prescribed by the legal system of the forum do not raise any problems of extraterritoriality.
Evidence obtained as a result of a Charter breach is not automatically excluded at the trial of a defendant. Section 24(2) ensures that circumstances in the foreign country may be taken into account in determining whether the evidence should be admitted notwithstanding the breach of the Charter .
Per L’Heureux‑Dubé and McLachlin JJ. (dissenting): A person invoking a Charter right must first show that he or she held that right. Determining whether someone is granted a right by the Charter involves an analysis of the language of the provision at issue and of the purposes of the rights guarantees in the Canadian constitution. Neither party put forward argument on the question of whether the accused was a rights holder at the time his rights were allegedly violated, so the appeal was not decided on that basis.
Previous jurisprudence has established two fundamental principles regarding the extraterritorial application of the Charter . First, the action alleged to have violated the Charter must have been carried out by one of the governmental actors enumerated in s. 32 . Second, if there is cooperation between Canadian and foreign officials on foreign soil, that action will not trigger Charter application even if the action is attributable to a government listed in s. 32 .
Whether an investigation is cooperative depends on whether Canadian officials have legal authority in the place where the actions alleged to have infringed the Charter took place. Section 32 of the Charter mandates that it applies to matters that fall “under the authority” of Parliament or a provincial legislature. An investigation on soil under foreign sovereignty takes place under the authority of the foreign state, so s. 32 is not triggered. The Charter does not apply to any investigation where Canadian officials no longer hold the legal attributes of government. This occurs whenever an investigation takes place under foreign sovereignty.
The accused did not benefit from the protections of s. 10 (b) because the Canadian police were acting under U.S. legal sovereignty. They had to cooperate with Americans and work under American law in order to carry out their investigations. Their actions were not independent of the U.S. legal system, nor were the Canadian state’s legal powers implicated. The circumstances of this case show the myriad of ways in which cooperation was necessary here, and is necessary whenever Canadian officials work under the sovereignty of another government.
The Charter guarantees of a fair trial (s. 11 (d)) and of respect for the principles of fundamental justice (s. 7 ) may apply to exclude the admission of evidence at a trial, whether or not a Charter right applied to the gathering of that evidence. Evidence will be excluded when its admission would lead to an unfair trial. However, the fact that the evidence was obtained in a manner that would have violated one of the sections of the Charter is not determinative. All relevant circumstances must be taken into account. An important factor in this analysis is whether it was Canadian or foreign police who were responsible for the alleged unfairness. Canadian police should ensure, to the extent possible, that the letter and spirit of the Charter ’s protections are accorded, and their actions will be examined more strictly than those of foreign officials who work within a legal system that has different procedures from our own.
Here, the conduct of the Canadian detectives was not so serious that admission of the evidence would violate the accused’s right to a fair trial, taking into account all the circumstances and society’s interest in finding out the truth. The accused was aware of his right to counsel from the time of his arrest, and understood this right. His statement was voluntary, since he knew he did not have to talk to the Canadian officers. The Canadians told him of his right to counsel, though not in the clearest way possible, and offered to put him in touch with a legal aid lawyer. The delay in giving the information is relatively unimportant for the purpose of determining the admissibility of these statements, since they were made after the information about the right to counsel was given, and only background information was discussed before this point.
The evidence was admitted for the limited purpose of impeaching the accused’s credibility on cross‑examination. In many cases, the use of the statements at the trial is of no significance in the analysis under either s. 7 or s. 24(2) . However, in this case, where the credibility of other witnesses was also impugned with prior inconsistent statements, the jury would have been given a misleading impression about the credibility of the accused, compared to that of other witnesses, had the evidence not be admitted. This contributes to the finding that s. 7 was not violated.
The trial judge properly instructed the jury on the limited use that could be made of the accused’s statements.
Cases Cited
By Cory and Iacobucci JJ.
Considered: R. v. Collins, [1987] 1 S.C.R. 265; R. v. Harrer, [1995] 3 S.C.R. 562; R. v. Terry, [1996] 2 S.C.R. 207; R. v. Calder, [1996] 1 S.C.R. 660; Schreiber v. Canada (Attorney General), [1998] 1 S.C.R. 841; R. v. Stillman, [1997] 1 S.C.R. 607; referred to: R. v. Kuldip, [1990] 3 S.C.R. 618; The Case of the S.S. “Lotus” (1927), P.C.I.J., Ser. A, No. 10; Canada v. Schmidt, [1987] 1 S.C.R. 500; Argentina v. Mellino, [1987] 1 S.C.R. 536; United States v. Allard, [1987] 1 S.C.R. 564; R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Pozniak, [1994] 3 S.C.R. 310; R. v. Duguay, [1989] 1 S.C.R. 93; R. v. Whitford (1997), 115 C.C.C. (3d) 52.
By Bastarache J.
Considered: The Case of the S.S. “Lotus” (1927), P.C.I.J. Ser. A, No. 10; Libman v. The Queen, [1985] 2 S.C.R. 178; referred to: Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Reference Re Power of Municipal Council to Dismiss a Chief Constable (1957), 7 D.L.R. (2d) 222; Attorney‑General for New South Wales v. Perpetual Trustee Co., [1955] A.C. 457; Lavigne v. OPSEU, [1991] 2 S.C.R. 211; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Daniels v. White and The Queen, [1968] S.C.R. 517; Zingre v. The Queen, [1981] 2 S.C.R. 392; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; R. v. Treacy, [1971] A.C. 537; Chung Chi Cheung v. The King, [1939] A.C. 160; Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626; U.S. v. Aluminum Co. of America, 148 F.2d 416 (1945); U.S. v. Watchmakers of Switzerland Information Center, Inc., 133 F.Supp. 40 (1955); 134 F.Supp. 710 (1955); Nottebohm Case (second phase), Judgment of April 6th, 1955, I.C.J. Reports 1955, p. 4; Shamlou v. Canada (Minister of Citizenship and Immigration) (1995), 103 F.T.R. 241; Kanesharan v. Canada (Minister of Citizenship and Immigration) (1996), 120 F.T.R. 67; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Schreiber v. Canada (Attorney General), [1998] 1 S.C.R. 841.
By L’Heureux‑Dubé J. (dissenting)
R. v. Harrer, [1995] 3 S.C.R. 562; R. v. Terry, [1996] 2 S.C.R. 207; Schreiber v. Canada (Attorney General), [1998] 1 S.C.R. 841; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; R. v. Calder, [1996] 1 S.C.R. 660; R. v. Corbett, [1988] 1 S.C.R. 670.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 2 , 3 , 6 , 7 , 8 , 9 , 10 , 10 (b), 11 , 11 (d), 12 , 13 , 14 , 15 , 23 , 24(2) , 32(1) .
Citizenship Act, R.S.C., 1985, c. C‑29 .
Immigration Act, R.S.C., 1985, c. I‑2, Schedule E (am. R.S.C., 1985, c. 28 (4th Supp.)).
International Convention on Certain Questions Relating to the Conflict of Nationality Laws (Hague Convention on Conflict of Nationality Laws), Can. T.S. 1937, No. 7, art.1.
Police Act, R.S.B.C. 1996, c. 367, s. 7(2).
Authors Cited
Akehurst, Michael. “Jurisdiction in International Law” (1972‑1973), 46 B.Y.I.L. 145.
Arbour, J.‑Maurice. Droit international public, 2e éd. Cowansville, Qué.: Yvon Blais, 1992.
Brownlie, Ian. Principles of Public International Law, 4th ed. Oxford: Clarendon Press, 1990.
Combacau, Jean, et Serge Sur. Droit international public. Paris: Montchrestien, 1995.
Fox, James R. Dictionary of International and Comparative Law, 2nd ed. Dobbs Ferry, N.Y.: Oceana Publications, 1997.
Henkin, Louis et al. International Law: Cases and Materials, 2nd ed. St. Paul, Minn.: West Pub. Co., 1987.
Hogg, Peter W. Constitutional Law of Canada, vol. 2, loose‑leaf ed. Scarborough, Ont.: Carswell, 1992 (updated 1997, release 2).
Kindred, Hugh M. et al. International Law: Chiefly as Interpreted and Applied in Canada, 5th ed. Toronto: Emond Montgomery, 1993.
Lew, Julian D. M. “The Extraterritorial Criminal Jurisdiction of English Courts” (1978), 27 Int’l & Comp. L.Q. 168.
Oppenheim, Lassa Francis Lawrence. International Law: A Treatise, vol. 1, 8th ed. Edited by H. Lauterpacht. London: Longmans, Green and Co., 1955.
Oxman, Bernard H. “Jurisdiction of States”, in Encyclopedia of Public International Law, vol. 10. Amsterdam: North‑Holland, 1987, 277.
Randelzhofer, Albrecht. “Nationality”, in Encyclopedia of Public International Law, vol. 8. Amsterdam: North‑Holland, 1985, 416.
Schachter, Oscar. International Law in Theory and Practice. Boston: M. Nijhoff Publishers, 1991.
Sullivan, Ruth. Driedger on the Construction of Statutes, 3rd ed. Toronto: Butterworths, 1994.
Waldman, Lorne. Immigration Law and Practice, vol. 1. Toronto: Butterworths, 1992 (loose-leaf updated June 1998, issue 24).
Weis, Paul. Nationality and Statelessness in International Law, 2nd ed. Germantown, Md.: Sijthoff & Noordhoff, 1979.
Williams, Sharon A., and A. L. C. de Mestral. An Introduction to International Law: Chiefly as Interpreted and Applied in Canada, 2nd ed. Toronto: Butterworths, 1987.
APPEAL from a judgment of the British Columbia Court of Appeal (1996), 85 B.C.A.C. 192, 112 C.C.C. (3d) 508, [1996] B.C.J. No. 2615 (QL), dismissing an appeal from conviction by Low J. sitting with jury. Appeal allowed, L’Heureux‑Dubé and McLachlin JJ. dissenting.
Neil L. Cobb and Kathleen Mell, for the appellant.
Gregory J. Fitch, for the respondent.
S. David Frankel, Q.C., for the intervener.
The judgment of Lamer C.J. and Cory, Iacobucci, Major and Binnie JJ. was delivered by
//Cory and Iacobucci JJ.//
1 Cory and Iacobucci JJ. -- The present appeal brings two basic questions before the Court. First, does the Canadian Charter of Rights and Freedoms apply to the taking of the appellant’s statement by Canadian police in the United States in connection with their investigation of an offence committed in Canada for a criminal prosecution to take place in Canada, and if the Charter applies, was it breached in the circumstances? Second, if the Charter applies and was contravened, should the statement be excluded under s. 24(2) of the Charter under these circumstances?
I. Background
A. The Arrest
2 On January 14, 1993, the appellant, Deltonia R. Cook, was arrested under a provisional warrant by a United States Marshal, Michael Credo, in New Orleans, Louisiana for the murder of a taxicab driver, John McKechnie, in Vancouver on May 19, 1992. The warrant for the appellant’s arrest was issued by a United States Magistrate in connection with an extradition request made by Canadian authorities. The appellant was read his Miranda rights upon arrest and he said he understood those rights. Marshal Credo did not interrogate the appellant.
3 After the arrest, the appellant was taken before a United States Magistrate. As noted by the trial judge, a public defender was present during the appellant’s court appearance, but it is not clear from the evidence to what extent he participated. The Magistrate asked the appellant if he wanted a lawyer appointed for him and the appellant replied that he did. The Magistrate said a court‑appointed lawyer would contact him; however, the appellant did not at any time hear from or contact a lawyer prior to the interrogation which gave rise to this appeal.
4 Two days after the arrest, Detectives Aitken and MacDonald from the City of Vancouver Police Department interviewed the appellant in a New Orleans prison and obtained a tape‑recorded statement from him. The detectives made no inquiries of the U.S. authorities as to whether the appellant had seen or expected to see a lawyer.
5 Early in the initial questioning, Detective Aitken told the appellant that he had been arrested for the killing of a taxicab driver in Vancouver on May 19, 1992. The interrogation then began with a series of background questions which included inquiries about the appellant’s family, religion, career, and visits to Vancouver when he was stationed at Whidbey Island in Washington as a United States Marine. During this initial portion of the interview, the appellant was not advised of his right to counsel or told that he was not required to speak to the detectives. The appellant was never told that what he said could be used in evidence.
6 After 20 minutes of interrogation and after being asked specifically whether or not he shot the cab driver, the appellant was finally advised of his right to counsel under s. 10 (b) of the Charter , and then only partially. Detective Aitken told the appellant that he had the right to retain and instruct counsel without delay. However, the manner in which the warning was provided was so confusing that it deprived the appellant from forming a decision about whether or not to seek legal advice. For instance, the detective told the appellant that his right to counsel could be exercised by talking to a religious elder, his mother or a friend. Further, although Detective Aitken mentioned that legal aid was available to the appellant, he did not provide the appellant with a telephone number or any means to contact a legal aid lawyer in Vancouver. At this time, Detective Aitken also advised the appellant that he did not have to speak to the detectives.
7 After giving this convoluted s. 10 (b) Charter warning, Detective Aitken then asked the appellant why his fingerprints “would be” on the cab where the deceased was found. In fact, the appellant’s fingerprints had not been found on the cab. The interview continued and the appellant gave a statement in which he denied killing the cab driver.
B. The Trial
8 The Crown’s case consisted of testimony from witnesses which implicated the appellant in the murder. Prior to the close of its case, the Crown sought a ruling which would permit it to use the appellant’s statement in cross‑examination to impeach his credibility. The admissibility of the statement became the subject of a two‑day voir dire. The defence alleged that the statement was obtained in breach of s. 10 (b) of the Charter and he sought exclusion of the statement under s. 24(2) . The trial judge found that there had been a breach of s. 10 (b) but that the statement was admissible for the limited purpose of impeaching the appellant’s credibility in cross‑examination.
9 The appellant was the only witness called for the defence. He was questioned in direct examination about the statement made to police. He acknowledged that he had lied to the police when he told them that he met his friend, William Fennell, at another friend’s apartment on the evening of May 19, 1992. This version of the events contradicted what the appellant said in his testimony at trial: that he and Fennell had driven together from Whidbey Island to Vancouver on May 19, 1992, in Fennell’s car. The appellant said he lied in his statement to the police because he thought the police would let him go if he gave them a satisfactory statement, and because he wanted to dissociate himself from Fennell and his car. The appellant was later cross‑examined on this portion of his statement and again asked to explain why he lied to the Vancouver detectives.
10 On October 5, 1994, the jury entered a verdict of guilty of second degree murder. The trial judge sentenced the appellant to life imprisonment with no chance of parole for 15 years. The appellant’s appeal to the Court of Appeal was dismissed.
II. Relevant Charter Provisions
11 10. Everyone has the right on arrest or detention
. . .
(b) to retain and instruct counsel without delay and to be informed of that right;
24. . . .
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
32. (1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
III. Judicial History
A. Supreme Court of British Columbia, Ruling on Voir Dire
(1) Section 10 (b) Ruling ([1994] B.C.J. No. 2473)
12 In a written decision dated September 29, 1994, Low J. found that the appellant’s statement to the Canadian police was voluntary, but it was obtained in breach of s. 10 (b) of the Charter . He stated that the appellant was entitled, in the circumstances, to be informed promptly in the interview of his rights. He did not accept the Canadian officer’s evidence that the initial interview was to acquire background information and held that, in fact, the officers were eliciting corroborating evidence from the appellant.
13 Low J. also held at para. 27 that the appellant was informed of his rights in a manner which “deprived [him] of the opportunity to make an informed choice about talking to the police without obtaining legal advice”. The trial judge, at para. 28, specifically referred to three elements of the warning which may have confused the appellant:
The words “and I realize that probably means nothing” after the use of the s. 10 (b) words are potentially misleading. The reference to obtaining advice from somebody other than a lawyer is misleading. The purpose of s. 10 (b) is to give an arrested or detained person the opportunity to obtain legal advice, not spiritual or other advice. Finally, the advice about obtaining a lawyer from the Legal Aid Society of this province, to be of any value to the accused in New Orleans, had to be accompanied by an immediate offer to put him in touch with such a lawyer by telephone. Nothing said to the accused could have left him with the understanding that he could be so connected for legal advice.
Ultimately, Low J. concluded at para. 29 that the officer had given “the advice in a convoluted way which effectively confused the accused and distracted him from making a reflective choice about obtaining immediate legal assistance. Absent an explanation from Aitken [one of the detectives], I must conclude that he intended the result he obtained”.
(2) Section 24(2) Ruling
14 In an unreported oral decision released that same day (September 29, 1994), Low J. made a ruling under s. 24(2) of the Charter . He declared that admissibility must be determined by reference to the factors set out in R. v. Collins, [1987] 1 S.C.R. 265. He began by considering the nature of the breach and concluded that, although there was a serious breach of a fundamental and important right, the breach was not “egregious”. Low J. reviewed the case law, particularly R. v. Kuldip, [1990] 3 S.C.R. 618, and concluded that there is a distinction between incriminating evidence and evidence used for other purposes, such as to attack credibility. He held that since the statement was not incriminating and was not being tendered by the Crown for the truth of its contents, but only to challenge the credibility of the accused, the use of the statement did not render the trial unfair.
B. British Columbia Court of Appeal (1996), 85 B.C.A.C. 192
15 Hinds J.A., Donald and Newbury JJ.A. concurring, first considered the applicability of the Charter to the taking of the appellant’s statement by Canadian police in New Orleans. He referred to R. v. Harrer, [1995] 3 S.C.R. 562, where this Court concluded that the Charter did not apply to the taking of a statement by U.S. authorities in the United States. He also considered R. v. Terry, [1996] 2 S.C.R. 207, where this Court held that the Charter did not apply where a statement was obtained in California by U.S. police at the request of a Canadian officer. Hinds J.A. concluded that these cases were not determinative since, unlike Harrer and Terry, the case before him involved the taking of a statement by Canadian authorities who happened to be in the United States.
16 He stated that there is an expectation within our criminal justice system that statements from persons accused of crimes will be obtained by Canadian police in a fair manner, without abuse, and in accordance with Canadian legal precepts of “voluntariness” and in accordance with the rights set out in s. 10 (b). He held that that expectation should prevail whether the statement is obtained by Canadian police authorities within this country or abroad.
17 In the result, the Court of Appeal concluded that both ss. 10 (b) and 24(2) of the Charter were applicable to the interrogation by Canadian police officers of an accused person in the United States with respect to an offence committed in Canada and that under the circumstances s. 10 (b) had been violated.
18 Hinds J.A. went on to consider whether the trial judge properly admitted the statement under s. 24(2) for the purpose of impeaching the accused’s credibility in cross‑examination. He found that the procedure set out in R. v. Calder, [1996] 1 S.C.R. 660, even though decided subsequent to the trial judgment, had been followed. He held that the trial judge had not erred in his conclusion on the s. 24(2) application. Hinds J.A. cautioned that, although the intended use of the statement was an important factor in the trial judge’s determination under s. 24(2) , the fairness of a trial cannot always be determined by reference to the intended use of the evidence sought to be admitted. He acknowledged that in some circumstances “not present in this case, the impeachment of an accused by his previous statement may seriously damage his defence” (at para. 52, emphasis added).
19 Hinds J.A. next considered whether, if the Charter did not apply to the actions of the Canadian police abroad, cross‑examination on the statement nonetheless rendered the trial unfair pursuant to ss. 7 and 11 (d) of the Charter . He reviewed the factors set out in Harrer on the question of fairness and he reviewed the major circumstances of the trial; he concluded that admission of the statement for the limited purpose of impeaching the accused’s credibility would not violate ss. 7 and 11 (d) of the Charter . Consequently, Hinds J.A. held that the appellant’s statement was admissible for the limited purpose of impeaching his credibility in cross‑examination.
20 Finally, Hinds J.A. rejected the appellant’s argument that the trial judge erred in his charge to the jury concerning the use that could be made of the appellant’s prior inconsistent statement. He concluded that the instructions given by the trial judge were adequate.
IV. Issues
21 1. Does the Charter apply to the taking of the appellant’s statement by Canadian police in the United States in connection with their investigation of an offence committed in Canada for a criminal prosecution to take place in Canada, and if the Charter applies, was it breached in the circumstances?
2. If the Charter applies and was contravened, should the statement be excluded under s. 24(2) of the Charter under these circumstances?
22 The parties raise two other issues on appeal. First, in the event that the Charter does not apply in the circumstances, would the admission of the statement render the trial unfair under ss. 7 and 11 (d) of the Charter ? Second, if the statement was properly admitted, did the trial judge fail to instruct the jury adequately