R. v. Elshaw

R. v. Elshaw
Collection
Supreme Court Judgments
Date
1991-09-26
Report
[1991] 3 SCR 24
Case number
21614
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; McLachlin, Beverley; Stevenson, William; Iacobucci, Frank
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 21614
Decision Content
R. v. Elshaw, [1991] 3 S.C.R. 24
William Edward Elshaw Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Elshaw
File No.: 21614.
1991: May 9; 1991: September 26.
Present: Lamer C.J. and L'Heureux‑Dubé, Sopinka, Gonthier, McLachlin, Stevenson and Iacobucci JJ.
on appeal from the court of appeal for british columbia
Constitutional law ‑‑ Charter of Rights ‑‑ Admissibility of evidence ‑‑ Bringing administration of justice into disrepute ‑‑ Accused making incriminating statement to police officer while being held in van ‑‑ Accused's right to counsel violated ‑‑ Whether incriminating statement should be admitted into evidence ‑‑ Canadian Charter of Rights and Freedoms, s. 24(2) .
Appellant had been seen in a park with young boys in suspicious circumstances. The police were called and appellant was stopped when he attempted to leave the park by jumping a fence. The officer obtained identification from him, advised him that he was being investigated for possible child molesting, and placed him in the back of a police van. The police then questioned both the adult witnesses and the boys. About five minutes later, one of the officers opened the van door and engaged in a conversation with appellant in which appellant said he sometimes had "these urges, not so much with little boys, but more with little girls", and admitted his need for help. At no time prior to this conversation was appellant informed of his right to retain and instruct counsel under s. 10 (b) of the Canadian Charter of Rights and Freedoms , or of his common law right to remain silent. After the conversation, he was driven to the police station, formally charged with vagrancy and advised of his right to retain and instruct counsel. Charges of assault and attempted sexual assault were added later.
At trial, a voir dire was held to determine the admissibility of the conversation between appellant and the police officer. Defence counsel sought to have the evidence excluded under s. 24(2) of the Charter on the basis that appellant's s. 10 (b) right had been infringed while he was detained in the patrol van. The trial judge admitted the evidence. Neither appellant nor the boys testified at the trial. Appellant was acquitted on the charges of simple assault but convicted on the two counts of attempted sexual assault. The court then granted the Crown's application to have appellant declared a dangerous offender pursuant to Part XXI of the Criminal Code and appellant was given an indeterminate sentence. An appeal to the Court of Appeal was dismissed.
Held (L'Heureux-Dubé J. dissenting): The appeal should be allowed and a new trial ordered.
Per Lamer C.J. and Sopinka, Gonthier, McLachlin, Stevenson and Iacobucci JJ.: In view of the specific findings of the lower courts that there was a detention in this case, as conceded by the Crown, the sole issues before the Court were (1) the appropriate test under s. 24(2) of the Charter for the admission of a self‑incriminating statement obtained following a violation of the accused's s. 10 (b) Charter rights and (2) the Crown's alternative argument concerning the availability of the curative provision in s. 686(1) (b)(iii) of the Criminal Code .
The factors to be considered in determining whether the admission of evidence in proceedings would bring the administration of justice into disrepute can be divided into three groups based on their effect on the repute of the administration of justice. The first group of factors are those relating to the fairness of the trial. The second group relates to the seriousness of the Charter violations as shown by the conduct of the law enforcement authorities. The third group of factors deals with the possibility that the administration of justice could be brought into disrepute by excluding the evidence even though it was obtained in violation of the Charter . The measure of seriousness is a function of the deliberate or non‑deliberate nature of the violation by the authorities, circumstances of urgency and necessity, and other aggravating or mitigating factors.
The self-incriminating statement should not have been admitted in this case. The violation of appellant's rights was serious. What was important was the fact that the police obtained evidence from a detained person prior to fulfilling their responsibilities under s. 10 (b), not the relatively short period of time during which appellant was detained. The violation of s. 10 (b) arose when the police officer began to question appellant without advising him that he could retain a lawyer. The statement obtained under these conditions contributed substantially to his conviction. It was also used to provide a nexus to similar fact evidence regarding appellant's previous conviction for child molesting which was the basis of his indeterminate sentence as a dangerous offender.
While it may have been reasonable and necessary to place appellant in the patrol wagon, it was not necessary to violate his Charter right in the circumstances. The Crown did not produce any explanation or evidence to show why the police could not have waited to question him. If circumstances of urgency or necessity are to be a mitigating factor, they must go to the need to obtain information right away prior to advising the suspect of his or her rights to retain and instruct counsel, rather than the need to restrict a suspect's movements by detention or arrest. The urgency of detention should not be used as an excuse to violate the right to counsel if there is no need to question the accused immediately.
Even if the good faith of the police officers were definitively established, it should not have been considered as a mitigating factor in the violation of appellant's rights. The good faith of police will not strengthen the case for admission to cure an unfair trial. The fact that the police thought they were acting reasonably is cold comfort to an accused if their actions result in a violation of his or her right to fair criminal process.
No one can speculate what appellant might have said or done at the time of his detention had he been advised of his right to counsel or even of his right to remain silent. To base admission on the ground that he might have confessed completely undermines the enshrinement of the right to counsel in the Charter .
The Court of Appeal used the wrong criteria for admission of the evidence in this case, and misapplied them. It listed the self‑incriminating nature of the evidence obtained in violation of s. 10 (b) as just one factor among many to be considered, when a proper approach would have been premised on the principle that such evidence is not generally admissible because it would adversely affect the fairness of the trial and bring the administration of justice into disrepute. Section 686(1) (b)(iii) of the Criminal Code , which can be used to cure errors of law where no substantial wrong or miscarriage of justice results, is not available here. If the evidence should have been excluded under s. 24(2) of the Charter because its admission would put the administration of justice into disrepute, then generally its admission was such as to amount to a substantial wrong or miscarriage of justice.
Per L'Heureux‑Dubé J. (dissenting): There was no violation of appellant's rights under s. 10 (b) of the Charter ; he was not detained within the meaning of the section when he made the self‑incriminating statements to the police.
Detention can occur through the exercise of physical restraint or the assumption of control over movement. These two scenarios are not at issue here. While appellant was put in the back of a police vehicle, the entire incident took place in a park, in full view of the public. He had not been handcuffed or placed under arrest, had not been verbally or physically coerced in any way, and only spent some five or six minutes in the van. Further, the police officers had no firm suspicion at the time that he had been involved in criminal activity.
Detention for the purposes of triggering s. 10 (b) rights ought not to be recognized merely because a person might feel some kind of psychological compulsion during contact with a police officer. The requirement that police officers apprise persons of their rights under the Charter in such situations has massive implications for law enforcement since it would effectively shackle any investigation at its outset by preventing the authorities from making any kind of introductory inquiry and factual assessment of the situation before criminal liability even becomes an issue.
The balancing between the rights of the individual to be free from unnecessary and unjustified harassment at the hands of state agents and the right of society at large to expect efficient law enforcement is of primordial importance. Given the overly cumbersome and obtrusive position which has developed in Canada, a compromise attending to both competing interests might be found in the doctrine of preliminary investigatory detention short of arrest. Under this doctrine, s. 10 (b) rights would be rendered active later in the process ‑- after a period where the police have an opportunity to assess the situation which confronts them, to identify possible witnesses and suspects, and to confirm the initial information they receive. It is misguided to require the police to issue warnings pursuant to s. 10 (b) to all the people they meet at the scene of an accident, or after they receive a call and must investigate some kind of a disturbance, on the off‑chance that someone with whom they communicate will feel some kind of compulsion and make a self‑incriminating statement.
Concerns over the rights of a future accused in the proceedings prior to the laying of a charge are misplaced and should not result in the obliteration of values which are equally important. There is a middle ground where these concerns may co‑exist with effective law enforcement. To adopt a position which prevents state agents from attempting to gain any sort of information whatsoever from those persons whom, as a matter of simple common sense, they would routinely be expected to question would be to confuse constitutional vigilance with paranoia. Common sense must not be left at the doorstep when the Charter is being interpreted.
Since appellant was not detained within the meaning of s. 10 (b) when he made the statements to the police officers, there was no violation of the section and no need to proceed to the stage of deciding whether or not the admission of the evidence would bring the administration of justice into disrepute. However, even if there were a violation, the statements ought not to have been excluded under s. 24(2) of the Charter since their admission would not bring the administration of justice into disrepute and render the trial unfair.
Cases Cited
By Iacobucci J.
Referred to: R. v. Therens, [1985] 1 S.C.R. 613; R. v. Collins, [1987] 1 S.C.R. 265; Chromiak v. The Queen, [1980] 1 S.C.R. 471; Clarkson v. The Queen, [1986] 1 S.C.R. 383; R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Black, [1989] 2 S.C.R. 138; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Evans, [1991] 1 S.C.R. 869.
By L'Heureux‑Dubé J. (dissenting)
United States of America v. Cotroni, [1989] 1 S.C.R. 1469; R. v. Therens, [1985] 1 S.C.R. 613; Chromiak v. The Queen, [1980] 1 S.C.R. 471; R. v. Esposito (1985), 24 C.C.C. (3d) 88, leave to appeal refused, [1986] 1 S.C.R. viii; R. v. Bazinet (1986), 25 C.C.C. (3d) 273; R. v. Moran (1987), 36 C.C.C. (3d) 225; R. v. Grafe (1987), 36 C.C.C. (3d) 267; R. v. Voss (1989), 50 C.C.C. (3d) 58; R. v. Ancelet (1986), 70 A.R. 263; R. v. C.(S.) (1989), 74 Nfld. & P.E.I.R. 252; R. v. Olivier, May 30, 1991, Man. Q.B., summarized at 13 W.C.B. (2d) 278; R. v. Rahey, [1987] 1 S.C.R. 588; R. v. Keegstra, [1990] 3 S.C.R. 697; Terry v. Ohio, 392 U.S. 1 (1968); Adams v. Williams, 407 U.S. 143 (1972); Dunaway v. New York, 442 U.S. 200 (1979); Brown v. Texas, 443 U.S. 47 (1979); United States v. Place, 462 U.S. 696 (1983); Florida v. Royer, 460 U.S. 491 (1983); United States v. Hensley, 469 U.S. 221 (1985); United States v. Sharpe, 470 U.S. 675 (1985); Miranda v. Arizona, 384 U.S. 436 (1966); Berkemer v. McCarty, 468 U.S. 420 (1984); United States v. Serna‑Barreto, 842 F.2d 965 (1988); Snyder v. Massachusetts, 291 U.S. 97 (1934); R. v. Collins, [1987] 1 S.C.R. 265.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 10 (b), 24(2) .
Crimes Act 1958, Victoria, as amended by Crimes (Custody and Investigation) Act 1988, No. 37, ss. 464, 464c, 464i.
Criminal Code, R.S.C. 1970, c. C‑34, Part XXI.
Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1) (b)(iii).
Criminal Code Act 1899, Queensland, 63 Vict. No. 9.
Criminal Code Act, 1924, Tasmania, 14 Geo. V No. 69.
Criminal Process (Identification and Search Procedures) Act, Tasmania (1976) No. 30.
Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60, ss. 24(6), (7), 37, 42, 56, 58.
Police Offences Act Amendment Act, 1985, South Australia, No. 46, ss. 32, 34.
Authors Cited
Archbold, John Frederick. Pleading, Evidence and Practice in Criminal Cases, 43rd ed. Edited by Stephen Mitchell and P. J. Richardson. London: Sweet & Maxwell, 1988.
Australia. Australian Law Reform Commission. Criminal Investigation (Report No. 2). Canberra: Australian Government Publishing Service, 1975.
Berger, Mark. "Legislating Confession Law in Great Britain: A Statutory Approach to Police Interrogations" (1990), 24 U. Mich. J.L. Ref. 1.
Canada. Law Reform Commission. Arrest (Report 29). Ottawa: Law Reform Commission of Canada, 1986.
Coughlan, Steve. "Police Detention for Questioning: A Proposal" (1986), 28 Crim. L.Q. 64 and 170.
de Montigny, Yves. "L'élargissement du concept de "détention", premier jalon d'une véritable protection contre l'auto‑incrimination?" (1990), 31 C. de D. 769.
Dix, George E. "Nonarrest Investigatory Detentions in Search and Seizure Law", [1985] Duke L.J. 849.
Garneau, Grant Smyth. "The Application of Charter Rights to the Interrogation Process" (1986), 35 U.N.B.L.J. 35.
Iller, Martin and George Goodwin. Criminal Litigation. London: Butterworths, 1985.
Mongiardo, Dante P. "The Terry Exception to Miranda" (1983), 10 Search & Seizure L. Rep. 165.
New South Wales Law Reform Commission. Procedure from Charge to Trial: Specific Problems and Proposals. Sydney: Law Reform Commission, 1987.
Sack, Emily J. "Police Approaches and Inquiries on the Streets of New York: The Aftermath of People v. De Bour" (1991), 66 N.Y.U. L. Rev. 512.
Sallmann, Peter and John Willis. Criminal Justice in Australia. Melbourne: Oxford University Press, 1984.
Scotland. Committee on Criminal Procedure in Scotland. Criminal Procedure in Scotland (Second Report). Edinburgh: H.M. Stationery Off., 1975.
Stuart, Don. "Four Springboards from the Supreme Court of Canada: Hunter, Therens, Motor Vehicle Reference and Oakes -‑ Asserting Basic Values of Our Criminal Justice System" (1987), 12 Queen's L.J. 131.
"Twentieth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1989‑1990" (1991), 79 Geo. L.J. 591.
Wiseman, Christine M. "The `Reasonableness' of the Investigative Detention: An `Ad Hoc' Constitutional Test" (1984), 67 Marq. L. Rev. 641.
Woods, Seumas. "Interrogation Law and the Charter : An American Plan for the Renovations" (1985), 43 U.T. Fac. L. Rev.153.
Young, Alan. "All Along the Watchtower: Arbitrary Detention and the Police Function" (1991), 29 Osgoode Hall L.J. 329
APPEAL from a judgment of the British Columbia Court of Appeal (1989), 70 C.R. (3d) 197, 45 C.R.R. 140, dismissing appellant's appeal from his convictions on two charges of attempted sexual assault by Greig Prov. Ct. J. sitting with jury. Appeal allowed, L'Heureux-Dubé J. dissenting.
William B. Smart, for the appellant.
Robert A. Mulligan, for the respondent.
//Iacobucci J.//
The judgment of Lamer C.J. and Sopinka, Gonthier, McLachlin, Stevenson and Iacobucci JJ. was delivered by
Iacobucci J. -- This appeal involves the appropriate test under s. 24(2) of the Canadian Charter of Rights and Freedoms for the admission of a self-incriminating statement obtained following a violation of the accused's s. 10 (b) Charter rights.
The Facts
The appellant was charged with two counts of attempted sexual assault and two counts of simple assault following an incident on May 22, 1984 in a park in Victoria, British Columbia.
The complainants were five and six years old at the time. Two adult witnesses, D. W. and L. W., lived in a house which was adjacent to the park. They were working in their yard on May 22 at around 5 p.m. when D. W. observed the appellant walking in a crouched position along some bushes at the edge of the park. He was leading a young boy by the hand. When the appellant and the boy disappeared in the bushes, the witness L. W. went closer to attempt to find out what was happening. She saw the appellant and the boy seated together in an unusual position and overheard the appellant say "Let's keep it our secret, it will be our little secret." After the first boy left him in the bushes, a second young boy joined the appellant in the same secluded location. Once again L. W. heard the appellant say "shhh" and "let's keep it our little secret" before the second boy also left the bushes.
By this time, the witness D. W. had telephoned the police. Two officers, Constables Jorgensen and Randhawa, arrived shortly after the second boy had left the bushes. They testified that they entered the park and saw the appellant crouched in the bushes. When the appellant attempted to leave the park by jumping a fence, he was stopped by Constable Randhawa. The officer obtained identification from the appellant, advised him that he was being investigated for possible child molesting, and placed him in the back of the police van which Randhawa and Jorgensen had driven to the park. The officers then questioned both the adult witnesses and the complainants.
About five minutes later, Constable Jorgensen opened the van door. He stood outside while the appellant remained inside the van. They had the following conversation:
Jorgensen: "What would have happened if we had not come along?"
Appellant: "I don't know, I just can't help myself. Sometimes I have these urges, not so much with little boys, but more with little girls."
Jorgensen: "What age are we talking about?"
Appellant: "Oh, five or six year olds. I know I need help, but I just don't know how to get it."
Jorgensen: "We'll try and see if we can get you some help."
At no time prior to this conversation was the appellant informed of his right to retain and instruct counsel. After the conversation with Constable Jorgensen he was driven to the police station. There he was formally charged with vagrancy and advised of his right to retain and instruct counsel. Later on the charges of assault and attempted sexual assault were added.
At trial, a voir dire was held to determine the admissibility of the conversation between the appellant and Constable Jorgensen. Defence counsel sought to have the evidence excluded on the basis that the appellant's right to be informed of his right to retain and instruct counsel without delay had been infringed while he was detained in the patrol van.
Relevant Charter and Legislative Provisions
Canadian Charter of Rights and Freedoms
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 ... 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.
Criminal Code, R.S.C., 1985, c. C-46
686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit, on account of insanity, to stand trial, or against a special verdict of not guilty on account of insanity, the court of appeal
...
(b) may dismiss the appeal where
...
(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred ...
Judgment of the Provincial Court of British Columbia
Greig Prov. Ct. J. admitted the evidence of the self-incriminating statements. His conclusions following the voir dire were as follows:
With regard to the argument as to admissibility on the basis that there was an infringement of his rights as guaranteed by the Charter , I agree that there was detention. The defendant was detained. I think on the evidence I would have to agree with the Prosecutor that it was a reasonable detention in the circumstance. It was furthermore, relatively brief, that is, the period during which he was detained and prior to being informed of his right to counsel.
Given all of the circumstances that were dealt with in the evidence that I heard on the voir dire, I am not convinced that it would be appropriate to exclude any part of that evidence given on the voir dire, and I am referring in particular to the statement, on the basis that to admit it would bring the administration of justice into disrepute.
During the trial, neither the appellant nor the complainants testified. The appellant was acquitted on the charges of simple assault but convicted on the two counts of attempted sexual assault. The court then granted an application by the Crown to have the appellant declared a dangerous offender pursuant to Part XXI of the Criminal Code, R.S.C. 1970, c. C-34, and the appellant was given an indeterminate sentence.
Judgment of the Court of Appeal of British Columbia ((1989), 70 C.R. (3d) 197)
The basis of the appeal before the Court of Appeal was the failure of the trial judge to exclude evidence under s. 24(2) of the Charter in the face of an alleged violation of the s. 10 (b) right to retain and instruct counsel and to be informed of that right.
In writing for the Court, Toy J.A. began by reviewing the trial judge's reasons, and in particular the finding that the self-incriminating statement was voluntary and the detention "reasonable". He noted that the trial judge had provided no "realistic assessment of the evidence" upon which he based his conclusion that the admission of the evidence would not bring the administration of justice into disrepute. As well, he correctly emphasised that, although the lower court decision had been rendered before the Supreme Court's rulings in R. v. Therens, [1985] 1 S.C.R. 613, and R. v. Collins, [1987] 1 S.C.R. 265, the appellant was entitled to the benefit of the interpretation of his Charter rights as set out in those cases.
Toy J.A. then turned to the specific submissions of the appellant. First, he considered whether the detention had been a wilful or flagrant violation of s. 10 (b). He held that the police officers in the case were unaware of their duties to inform the detainee of his right to counsel under the Charter . Toy J.A. noted that this Court's decision in Chromiak v. The Queen, [1980] 1 S.C.R. 471, to the effect that investigative detentions were not detentions requiring persons to be advised of their right to counsel had not been challenged at the time of the arrest. As well, he agreed with the trial judge that the detention had been "reasonable and brief" considering that the police were attempting to question possible witnesses to the sexual assault of two children (at p. 204).
I consider that placing the accused in the patrol wagon was more appropriate than just leaving him standing beside the patrol wagon in full view of the four potential witnesses, which might seriously impair any defence that the accused might have had if identification was in issue at any subsequent trial he might have to face.
He concluded that the police had not acted deliberately or flagrantly in violation of the accused's s. 10 (b) rights.
In his second submission, the appellant argued that the violation was not justified by urgency or necessity, and cited in support Clarkson v.The Queen, [1986] 1 S.C.R. 383. Toy J.A. distinguished Clarkson, saying that the case at bar bore more resemblance to R. v. Strachan, [1988] 2 S.C.R. 980, where police officers refused to allow the accused to telephone his lawyer until the police had the premises safely under control. He remarked that in the circumstances the police had to make "some very hasty decisions", and reiterated his conclusion that the detention in the patrol wagon was both reasonable and necessary.
Finally, the appellant claimed that the evidence should have been excluded under s. 24(2) of the Charter . In response, Toy J.A. enumerated a series of factors which, in his opinion, were to be considered when deciding whether or not the admission of evidence would bring the administration of justice into disrepute. The factors were as follows:
1. The nature of the evidence (whether real or self-incriminating);
2. The existence of a Charter infringement under s. 10 (b);
3. The seriousness of the violation;
4. The wilful or flagrant nature of the violation;
5. Circumstances of urgency or necessity;
6. Whether the evidence would have been obtained in any event;
7. The seriousness of the offence;
8. Whether the evidence is essential to substantiate the charge;
9. The availability of other remedies.
Toy J.A. determined that the consideration of these factors pointed toward the admission of the statement. The nature of the evidence, the existence of a s. 10 (b) violation, and the lack of other available remedies argued for exclusion. As well, he noted that the evidence obtained as a result of the violation "substantially contributed to the findings of guilt in this case". However, he repeated that the police had acted in good faith. And, while the situation may not have been urgent, "in my view, it was necessary to locate the accused in the patrol wagon while the brief interviewing process took place". Toy J.A. added that the offence was serious not only for the accused but also for society. Finally, he asked (at p. 206):
Would the evidence have been obtained in any event? Probably, as if he [the accused] had been informed of his right to counsel when he was asked to sit in the patrol wagon, he would still have responded to Constable Jorgensen in the way that he did.
Taking the authorities and all of these factors into consideration, Toy J.A. concluded that the appeal from the trial judge's decision to admit the evidence should be dismissed.
Issues
I have had the benefit of reading the reasons of my colleague, Justice L'Heureux-Dubé, who deals extensively with the question of whether there was a detention that could give rise to a Charter violation. As I do not intend to discuss this question, a few remarks are in order.
In my view, the question of detention is not before us. This appeal was argued by the parties on the basis of a violation of s. 10 (b) of the Charter which was conceded by the Crown. In his judgment on the voir dire at trial, as I mentioned above, Greig Prov. Ct. J. concluded there was a detention and Charter violation. This was accepted by the Court of Appeal. In that respect, Toy J.A. stated (at p. 202):
Counsel for the Crown conceded that the trial judge had correctly concluded that at the time when the conversation took place between Constable Jorgensen and the accused, the accused was in fact detained.
Toy J.A. later found (at p. 204):
As the trial judge concluded, I too find that the detention was reasonable and brief. [Emphasis added.]
In proceedings before this Court, the Crown continued to acknowledge its concession although it did try to characterize the detention in the most favourable light. With that background and specific findings of the lower courts that there was a detention as conceded by the Crown, the sole issues before us are the application of s. 24(2) of the Charter and the Crown's alternative argument justifying the conviction which involves s. 686(1) (b)(iii) of the Criminal Code .
To those issues, I shall now turn.
Analysis
A. Section 24(2) of the Charter
Before this Court, the appellant has attacked four of the nine factors considered by the Court of Appeal in its formulation and application of the s. 24(2) test for the admission of evidence obtained in violation of s. 10 (b) of the Charter . The attacked factors are (1) the seriousness of the Charter violation, (2) the circumstances of urgency or necessity, (3) the wilful or flagrant nature of the violation, and (4) the evidence would have been obtained in any event.
To put the specific submissions of the appellant in their proper context, I think it important to recall the approach taken by Lamer J. (as he then was) in R. v. Collins, supra, with respect to s. 24(2) of the Charter . Lamer J. reviewed the factors to be considered in determining whether the admission of evidence in proceedings would bring the administration of justice into disrepute. In his view, these factors could be divided into three groups based on their effect on the repute of the administration of justice. The first group of factors are those relating to the fairness of the trial. The second group relates to the seriousness of the Charter violations as shown by the conduct of the law enforcement authorities. The third group of factors deals with the possibility that the administration of justice could be brought into disrepute by excluding the evidence even though it was obtained in violation of the Charter . Subsequent decisions of this Court have applied the approach of Lamer J.; see R. v. Strachan, supra, R. v. Black, [1989] 2 S.C.R. 138, and R. v. Hebert, [1990] 2 S.C.R. 151.
I now return to the appellant's s. 24(2) submissions.
(1 ) The Seriousness of the Charter Violation
In the Court of Appeal, Toy J.A. wrote that "nothing of consequence flowed from the fact that the accused was being detained in the patrol wagon for a short period of time" (p. 206). On this basis he concluded that the violation of the appellant's rights was not serious. With respect, I disagree.
As mentioned, this Court in Collins, supra, discussed the seriousness of a violation as shown by the conduct of the law enforcement authorities as the second of three groups of factors to be used in determining whether evidence should be excluded under s. 24(2) of the Charter . Lamer J. said this at p. 285:
There are other factors which are relevant to the seriousness of the Charter violation and thus to the disrepute that will result from judicial acceptance of evidence obtained through that violation. As Le Dain J. wrote in Therens, supra, at p. 652:
The relative seriousness of the constitutional violation has been assessed in the light of whether it was committed in good faith, or was inadvertent or of a merely technical nature, or whether it was deliberate, wilful or flagrant. Another relevant consideration is whether the action which constituted the constitutional violation was motivated by urgency or necessity to prevent the loss or destruction of the evidence.
I should add that the availability of other investigatory techniques and the fact that the evidence could have been obtained without the violation of the Charter tend to render the Charter violation more serious. We are considering the actual conduct of the authorities and the evidence must not be admitted on the basis that they could have proceeded otherwise and obtained the evidence properly. In fact, their failure to proceed properly when that option was open to them tends to indicate a blatant disregard for the Charter , which is a factor supporting the exclusion of the evidence.
The measure of seriousness, then, is a function of the deliberate or non-deliberate nature of the violation by the authorities, circumstances of urgency and necessity, and other aggravating or mitigating factors.
In my view, the error by the Court of Appeal was its focus on the length of the detention. It is the fact that the police obtained evidence from a detained person prior to fulfilling their responsibilities under s. 10 (b) which is important, not the relatively short period of time during which the appellant was detained. The violation of s. 10 (b) arose when Constable Jorgensen began to question the appellant without advising him that he could retain a lawyer. The appellant was not even told that he had the right to remain silent and that anything he might say could be used against him.
In this light, it is clear that the violation of the appellant's rights was serious. The appellant was denied access to counsel or even the opportunity to take refuge in silence at the very moment when he could have most benefited from the exercise of these rights. The police obtained a statement which the Court of Appeal acknowledged contributed "substantially" to his conviction. Finally, the self-incriminating evidence was used to provide a nexus to similar fact evidence regarding the appellant's previous conviction for child molesting. The similar fact evidence was the basis of the appellant's indeterminate sentence as a dangerous offender.
(2) Circumstances of Urgency or Necessity
Toy J.A. concluded that the detention of the appellant was necessary if not urgent. He stated at pp. 204-5:
The next factor to be considered is the submission of the accused's counsel that there was no urgency or necessity to detain the accused in the fashion they did. Here counsel for the accused relies on the reasoning in Clarkson, supra. In my view, the circumstances are substantially different. Here the two police officers were faced with a complaint of possible child molesting that had just taken place, and they were required to make some very hasty decisions. They had four potential witnesses to immediately question, and a suspect under their control. In my view, it would have been unreasonable to expect the police officers to immediately release the suspect and let him go his way and then commence investigating the stories of the four witnesses. The situation these police officers found themselves in was something akin to the situation in R. v. Strachan, supra, where the police officers refused to allow the accused to telephone his lawyer until the police had the premises safely under control.
Under the circumstances, it is my view that the police officers did what was not only reasonable but necessary in placing the accused in the patrol wagon for a short period of time to maintain control over the accused until their questioning of the witnesses was concluded and at the same time to remove him from the continued surveillance of four prospective witnesses.
It may have been reasonable and necessary to place the accused in the patrol wagon but the question is whether it was necessary to violate the appellant's Charter right in the circumstances.
Once again, the court below mistakenly focussed on the detention rather than on the questioning of the appellant. If circumstances of urgency or necessity are to be a mitigating factor, they must go to the need to obtain information right away prior to advising the suspect of his or her rights to retain and instruct counsel, rather than the need to restrict a suspect's movements by detention or arrest. As this Court concluded in Clarkson, supra, and more recently in Black, supra, the urgency of detention should not be used as an excuse to violate the right to counsel if there is no need to question the accused immediately.
In this case, there was no urgency or necessity that would have prevented compliance with s. 10 (b). At trial, police officers Jorgensen and Randhawa testified that they were unsure whether they would charge the appellant with any offence until after they obtained the incriminating statement. This seems odd in light of the fact that by that time they had interviewed both the adult witnesses and the complainants, and they had informed the appellant that they were investigating a possible child molesting. But even if the police genuinely had not decided whether to arrest the appellant when he was questioned, this circumstance of uncertainty falls short of urgency or necessity. The Crown did not produce any explanation or evidence to show why the police could not have waited to question the accused.
(3) The Wilful or Flagrant Nature of the Violation
The Court of Appeal considered that the police had acted in good faith. Toy J.A. noted that the arrest of the appellant took place before this Court had elaborated the concept of detention under s. 10 (b) of the Charter . He determined that nothing on the record showed that the police were aware of an obligation to advise the appellant of his right to counsel.
However, the Crown tendered no evidence to show that Constables Jorgensen and Randhawa were ignorant of their responsibilities under s. 10 (b) or that they had determined in their own minds that this was merely an "investigative" detention. It should be remembered that not only did the officers fail to advise the appellant of his right to counsel, but they also failed to give him the common law caution regarding the right to remain silent.
Even if the good faith of the police officers were definitively established, it should not have been considered by the Court of Appeal as a mitigating factor in the violation of the appellant's rights. Sopinka J. made the following comments in another s. 10 (b) case, Hebert, supra, at pp. 207-8:
As Lamer J. pointed out in Collins, any impingement on trial fairness strikes at the heart of the reputation of the administration of justice. But the Crown has submitted in the present case that the good faith of the police officers who arranged for the deception of the appellant ... is a significant factor in favour of receiving the evidence. For myself, I fail to see how the good faith or otherwise of the investigating officers can cure, so to speak, an unfair trial. ... It seems odd indeed to assert that evidence the admission of which would render a trial unfair ought to be admitted because the police officer thought he was doing his job. From the accused's perspective (whose trial is ex hypothesi proceeding unfairly), it makes little difference that the police officer has a clean conscience in the execution of his duty.
In other words, the bad faith of the police may strengthen the case for exclusion because, as Lamer J. points out in Collins, supra, it may tend to show a "blatant disregard for the Charter ". However, the good faith of police will not strengthen the case for admission to cure an unfair trial. The fact that the police thought they were acting reasonably is cold comfort to an accused if their actions result in a violation of his or her right to fair criminal process.
(4) The Evidence Would Have Been Obtained in Any Event
The Court of Appeal concluded that the admission of the statement would not greatly prejudice the appellant because self-incriminating evidence probably would have been obtained from him even if the police had complied with s. 10 (b) of the Charter .
In Black, supra, Wilson J. said the following at pp. 153-54:
The Crown argued that, despite the change in the charge, the preliminary legal advice which the appellant received might well have been unchanged. This may be so. On the other hand, given the differences in the charges as discussed above, to conclude that the advice would inevitably have been the same is sheer conjecture.