R. v. Jones

R. v. Jones
Collection
Supreme Court Judgments
Date
1994-05-12
Report
[1994] 2 SCR 229
Case number
23157
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
British Columbia
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 23157
Decision Content
R. v. Jones, [1994] 2 S.C.R. 229
Scott Jones Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Jones
File No.: 23157.
1993: October 12; 1994: May 12.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for british columbia
Criminal law ‑‑ Dangerous offenders ‑‑ Sexual offences ‑‑ Defence counsel requesting psychiatric assessment to determine whether accused mentally ill ‑‑ Accused later pleading guilty to sexual assault ‑‑ Trial judge finding accused to be dangerous offender on basis of pre‑trial psychiatric assessments ‑‑ Whether admission in evidence of results of pre‑trial psychiatric examinations violated accused's right against self‑incrimination ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 537(1) (b), 755 .
Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Right against self‑incrimination ‑‑ Defence counsel requesting psychiatric assessment to determine whether accused mentally ill ‑‑ Accused later pleading guilty to sexual assault ‑‑ Trial judge finding accused to be dangerous offender on basis of pre‑trial psychiatric assessments ‑‑ Whether admission in evidence of results of pre‑trial psychiatric examinations violated accused's right against self‑incrimination ‑‑ Canadian Charter of Rights and Freedoms, s. 7 .
Constitutional law ‑‑ Charter of Rights ‑‑ Right to counsel ‑‑ Defence counsel requesting psychiatric assessment to determine whether accused mentally ill ‑‑ Accused later pleading guilty to sexual assault ‑‑ Trial judge finding accused to be dangerous offender on basis of pre‑trial psychiatric assessments ‑‑ Whether accused's right to counsel violated when he was not advised that psychiatric investigation could include observations with respect to his future dangerousness ‑‑ Canadian Charter of Rights and Freedoms, s. 10 (b).
The accused was convicted of rape, gross indecency and attempted rape of three girls in 1982 and was sentenced to five years' imprisonment. In 1986, while on parole, he was charged with three counts of sexual assault with a weapon and three counts of unlawful confinement. His counsel obtained an order under s. 537(1) (b) of the Criminal Code remanding the accused into custody for observation to assess his mental state. The accused was examined by two psychiatrists and one psychologist. He was warned that whatever he told the psychiatrists could be used against him and might be included in a report to the court. He was not specifically told, however, that what he said on the examination could be used to assist in determining whether he was a dangerous offender. One psychiatrist told the accused that he had the right to refuse to answer questions and had the right to consult counsel prior to answering any questions. The accused pleaded guilty to one count each of sexual assault and sexual assault with a weapon. During the dangerous offender proceedings that followed, the trial judge held a voir dire to determine the admissibility of evidence from the two psychiatrists and the psychologist. He rejected defence counsel's argument that admitting the evidence would violate the accused's rights under s. 7 of the Canadian Charter of Rights and Freedoms . He declared the accused to be a dangerous offender and gave him an indeterminate sentence. The Court of Appeal upheld the decision.
Held (Lamer C.J. and Sopinka, Cory and Major JJ. dissenting): The appeal should be dismissed.
Per La Forest, L'Heureux‑Dubé, Gonthier, McLachlin and Iacobucci JJ.: Where there is psychiatric evidence legally obtained pursuant to an order under s. 537(1)(b) of the Code relevant to assessing the extent of an offender's dangerousness, it should be admitted at the sentencing stage. The results of the psychiatric observation are not used to "incriminate" the accused at his dangerous offender proceedings, since he has already been found guilty of the offence with which he was charged. Once guilt has been established, the court places greater emphasis on the interests of society in developing a sentence that is appropriate to the guilty party. As with all sentencing, both the public interest in safety and the general sentencing interest of developing the most appropriate penalty for the particular offender dictate the greatest possible range of information on which to make an accurate evaluation of the danger posed by the offender. Dangerous offender sentencing allows the justice system to tailor more precisely the actual time served by the offender to the threat that he poses to society. The overriding aim is not the punishment of the offender but the prevention of future violence through the imposition of an indeterminate sentence. An indeterminate sentence is not an unlimited sentence: the offender faces incarceration only for the period of time that he poses a serious risk to the safety of society. To deny the court access to the earlier findings of the psychiatrists may hinder the effective determination of the true risk posed by the offender. While it is true that under s. 756 the court may remand the offender for observation for the purposes of gathering evidence on his dangerous offender status, the offender may attempt to hide elements of his character or refuse to answer the psychiatrists' questions. As a result, there is a real danger that evidence from the pre‑trial psychiatric evaluation which is excluded may not surface in the post‑trial phase. While such an exclusion may be acceptable while the guilt of the accused is in question, it cannot be justified after his guilt has been established.
The accused's rights under s. 10 (b) of the Charter were not violated during the psychiatric examinations. Dangerous offender proceedings are part of the sentencing process, and it is the duty of counsel to make an accused aware of the possible sentence he will be facing as a result of being found guilty of a particular crime. Given the accused's past record, counsel should have been aware that dangerous offender proceedings would likely be pursued by the Crown. The accused requested the tests and was made aware that his statements could be used against him. This general warning was sufficient. Further, the accused was not entitled to a second opportunity to exercise his right to counsel.
Given that the examinations of the accused were designed to provide an assessment of his mental health, they fell within the parameters of the s. 537(1) (b) order made by the trial judge. The evidence so obtained is covered by s. 755 and must be heard by the court on the dangerous offender application if, in the opinion of the court, it is relevant. It is admissible under the Charter and there is no basis for reading down s. 755 .
Per Lamer C.J. and Sopinka, Cory and Major JJ. (dissenting): Section 7 of the Charter is engaged in this case because of the serious limitation of liberty inherent in dangerous offender proceedings. This Court has recognized implicitly that the principle against self‑incrimination is a principle of fundamental justice. The word "incriminate" in this context need not be equated with "tending to prove guilt of a criminal offence". Even if dangerous offender proceedings are characterized as part of the sentencing process rather than as a separate proceeding with new penal consequences, the operation of the principle against self‑incrimination is by no means excluded.
Under s. 755 of the Code, in dangerous offender proceedings "the court shall hear the evidence of at least two psychiatrists and all other evidence that, in its opinion, is relevant". A broad interpretation of this section allows evidence gathered from the accused during psychiatric observation ordered to determine if the accused is or was mentally ill to be used for the purposes of dangerous offender proceedings. This allows for self‑incrimination and is thus not in accordance with the principles of fundamental justice. It is irrelevant that the accused in this case requested the order remanding him into custody for observation. The accused requested the order for purposes other than a dangerous offender proceeding. Furthermore, s. 537 does not require the consent of the accused and therefore an order can be made under this section for observation against the wishes of the accused. This is sufficient to constitute a limit on the s. 7 right to liberty.
The limitation on the right to liberty arising on a broad interpretation of s. 755 is not justified under s. 1 of the Charter . While the objective of s. 755 , which is to protect society from dangerous offenders, is a pressing and substantial concern in our society and is of sufficient importance to warrant limiting a constitutionally protected right or freedom, the means chosen to achieve this objective are unfair in the present case. In order to benefit from the protection afforded by the principles of fundamental justice to the mentally ill against committal or an unfair trial, the accused should not be forced into incriminating him or herself for dangerous offender proceedings. There is also more than minimal impairment of s. 7 here, since observation may be ordered under s. 756 of the Code, which has safeguards for the offender and therefore impairs the s. 7 rights less than s. 537(1) (b). A remand order under s. 756 can only be made once the offender has been convicted, whereas a remand order under s. 537(1) (b) can be made before conviction. The presumption of constitutionality approach to statutory interpretation dictates that s. 755 not be read as rendering evidence gathered during psychiatric observation ordered under s. 537(1) (b) admissible at dangerous offender proceedings.
Cases Cited
By Gonthier J.
Considered: R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Lyons, [1987] 2 S.C.R. 309; distinguished: Estelle v. Smith, 451 U.S. 454 (1981); Clarkson v. The Queen, [1986] 1 S.C.R. 383; R. v. Black, [1989] 2 S.C.R. 138; referred to: R. v. Langevin (1984), 11 C.C.C. (3d) 336; Wilband v. The Queen, [1967] S.C.R. 14; R. v. Broyles, [1991] 3 S.C.R. 595; R. v. Vandale, B.C.C.A., Victoria CA18/84, October 31, 1984; R. v. Potvin, [1993] 2 S.C.R. 880; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Wigglesworth, [1987] 2 S.C.R. 541; Brusch v. The Queen, [1953] 1 S.C.R. 373; R. v. Chaulk, [1990] 3 S.C.R. 1303; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. Lippé, [1991] 2 S.C.R. 114; Re Moore and The Queen (1984), 10 C.C.C. (3d) 306.
By Lamer C.J. (dissenting)
R. v. Hebert, [1990] 2 S.C.R. 151; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Swain, [1991] 1 S.C.R. 933; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; Marcoux v. The Queen, [1976] 1 S.C.R. 763; R. v. Broyles, [1991] 3 S.C.R. 595; R. v. Amway Corp., [1989] 1 S.C.R. 21; Dubois v. The Queen, [1985] 2 S.C.R. 350; Clarkson v. The Queen, [1986] 1 S.C.R. 383; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Ross, [1989] 1 S.C.R. 3; R. v. Black, [1989] 2 S.C.R. 138; R. v. Brydges, [1990] 1 S.C.R. 190; Wilband v. The Queen, [1967] S.C.R. 14, aff'g (1965), 51 W.W.R. 251 (B.C.C.A.); Brusch v. The Queen, [1953] 1 S.C.R. 373; R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Wigglesworth, [1987] 2 S.C.R. 541; R. v. Oakes, [1986] 1 S.C.R. 103.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 10 (b), 11 (c), 13 , 24(2) .
Criminal Code, R.S.C. 1970, c. C‑34, ss. 465(1)(c) [am. c. 2 (2nd Supp.), s. 6; am. 1972, c. 13, s. 38; rep. & sub. 1974‑75‑76, c. 93, s. 58(1)], 688 [rep. & sub. 1976‑77, c. 53, s. 14], 690 [idem].
Criminal Code, R.S.C., 1985, c. C‑46, ss. 537(1) (b) [rep. 1991, c. 43, s. 9 (Sch., item 3)], (3) [idem], (4) [idem], 672.11 [en. idem, s. 4 ], 672.21 [idem], 672.65 [idem (not yet proclaimed)], 686(1)(b)(iii) [am. 1991, c. 43, s. 9 (Sch., item 8)], 753, 755, 756(1), 759(1), (3), (7).
Authors Cited
Canada. Canadian Committee on Corrections. Toward Unity: Criminal Justice and Corrections. Ottawa: Queen's Printer, 1969.
Canada. Canadian Sentencing Commission. Sentencing Reform: A Canadian Approach. Ottawa: Minister of Supply and Services, 1987.
Canada. Law Reform Commission. Working Paper 3. The Principles of Sentencing and Dispositions. Ottawa: Information Canada, 1974.
Cross, Rupert, Sir, and Colin Tapper. Cross on Evidence, 7th ed. London: Butterworths, 1990.
Hor, Michael. "The Privilege against Self‑Incrimination and Fairness to the Accused", [1993] Singapore J. Legal Stud. 35.
Mewett, Alan W. "Law Enforcement and the Conflict of Values" (1970), 12 Crim. L.Q. 179.
Paciocco, David M. Charter Principles and Proof in Criminal Cases. Toronto: Carswell, 1987.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 8. Revised by John T. McNaughton. Boston: Little, Brown & Co., 1961.
APPEAL from a judgment of the British Columbia Court of Appeal (1992), 16 B.C.A.C. 161, 28 W.A.C. 161, 75 C.C.C. (3d) 327, 11 C.R.R. (2d) 65, dismissing the accused's appeal against a sentence of indeterminate detention imposed by Spencer J. (1988), 6 W.C.B. (2d) 208. Appeal dismissed, Lamer C.J. and Sopinka, Cory and Major JJ. dissenting.
Richard P. Anderson, Q.C., and G. D. McKinnon, for the appellant.
Alexander Budlovsky, for the respondent.
The reasons of Lamer C.J. and Sopinka, Cory and Major JJ. were delivered by
Lamer C.J. (dissenting) --
I. Factual Background
On May 28, 1982, the appellant was convicted of rape, gross indecency and attempted rape of three girls aged 10, 12 and 13. He was sentenced to five years' imprisonment. He spent two years in a sex offender program at the Regional Psychiatric Centre and was released on mandatory supervision in 1985.
On November 7, 1986, while on parole, the appellant was charged with three counts of sexual assault with a weapon and three counts of unlawful confinement. His victims were 9, 14 and 26 years old. The assaults on the nine-year-old girl took place just one day after the appellant was asked for a photograph to be used for the investigation of one of the other offences.
Prior to election, the appellant's counsel requested and obtained an order from the court pursuant to s. 465(1)(c) of the Criminal Code, R.S.C. 1970, c. C-34 (which became s. 537(1) (b), R.S.C., 1985, c. C-46 , and then was repealed by S.C. 1991, c. 43, s. 9 (it will be referred to as s. 537(1) (b) throughout these reasons)). Under this section, the court is empowered to remand an accused to such custody as the court directs for observation where there is evidence and/or reason to believe that the accused may be mentally ill. The appellant's counsel requested the order for the following purposes: to determine whether the accused was fit to stand trial; to determine whether the accused was sane at the time of the offence; and to gain some insight into the accused for the purpose of sentencing. The order itself did not specify a purpose. It simply remanded the accused into custody for observation on the grounds that there was, in the judge's opinion, reason to believe that the accused may have been mentally ill.
On November 18, 1986, the appellant was remanded into custody for psychiatric observation. The appellant was examined by two psychiatrists and one psychologist at the Forensic Psychiatric Institute. The trial judge found, as a matter of fact, that the accused was warned that whatever he told the psychiatrists could be used against him and might be included in a report to the court. However, he was not specifically told that the examination during the 30-day remand at some stage shifted its focus to include an opinion as to whether or not he was a dangerous offender. Nor was he told that what he said on the examination could also be used for the purpose of a determination of whether he was a dangerous offender. One psychiatrist told the appellant that he had the right to refuse to answer questions and had the right to consult counsel prior to answering any questions. The appellant indicated that he understood the warnings, cooperated willingly, and indicated that it was not necessary to consult counsel.
During the first interview, the psychiatrist became concerned about the appellant's potential for future violence. The focus of the observation was therefore broadened to include an inquiry as to whether the appellant was a dangerous offender. As a matter of fact, the trial judge found that there was no deliberate deception of the accused. Rather, this was a case in which the defence counsel asked for a limited examination of the accused and the psychiatrist, seeing cause for concern about the accused as a danger to re-offend, pursued that inquiry without telling Jones about it specifically and without referring it back to Jones' counsel.
The appellant pleaded guilty to one count each of sexual assault and sexual assault with a weapon. Following his conviction, an inquiry was held to determine whether he should be sentenced as a dangerous offender. The trial judge held a voir dire to determine the admissibility of evidence from the two psychiatrists and the psychologist from the Forensic Psychiatric Institute. Counsel for the appellant challenged the admissibility of the evidence on the grounds that, to admit the results of the pre-trial psychiatric examinations in the dangerous offender proceedings without the consent of the accused and without warning the accused at the time of the interviews that anything he said might be used in dangerous offender proceedings was a violation of the accused's rights under s. 7 of the Canadian Charter of Rights and Freedoms .
II. Decisions Below
On April 29, 1988, the Supreme Court of British Columbia (Spencer J.) found the appellant to be a dangerous offender: (1988), 6 W.C.B. (2d) 208. On July 29, 1992, the Court of Appeal for British Columbia (Toy, Legg and Hinds JJ.A.) dismissed the appeal: (1992), 16 B.C.A.C. 161, 28 W.A.C. 161, 75 C.C.C. (3d) 327, 11 C.R.R. (2d) 65. On December 10, 1992, the Supreme Court of Canada (La Forest, Sopinka and Cory JJ.) granted leave to appeal, [1992] 3 S.C.R., vi, and on October 12, 1993, the appeal was heard by the Supreme Court of Canada.
A. Supreme Court of British Columbia
First, the trial judge found as a matter of fact that there was no deliberate deception of the appellant:
... this is simply a case where the Defence asked for a limited examination of the accused and where Dr. Lohrasbe seeing cause for concern about the accused as a danger to re-offend, pursued that inquiry without telling Jones about it specifically and without referring it back to Jones' counsel.
The indicia of danger which has been put before me on the voir dire in the psychiatrist's opinions, emerges in the ordinary course of a consensual examination pursuant to s. 465, subsection (c).
Second, the trial judge rejected the defence argument that s. 7 of the Charter requires that no accused person who undergoes a pre-trial psychiatric examination to determine his fitness to stand trial or his sanity at the time of an alleged offence should have the contents of his interviews granted during the examination tendered against him in dangerous offender proceedings without his consent or unless he was warned at the time of the possibility of those interviews being used in dangerous offender proceedings.
... it is my view that the Charter of Rights and Freedoms does not permit me as a trial judge to legislate restrictions on the use to which evidence properly obtained under s. 456 (c) [sic] of the Criminal Code on a pre‑trial psychiatric examination, may be put in the guise of protecting a constitutional right under s. 7 . My function is to determine what right exists under s. 7 and not to create one as if by legislation. The only right that I can find is one which is exemplified in s. 11 , subsection (c), that is, the right against self-incrimination. In that section, it is limited to those who are charged with an offence. It might have been a broader right under s. 7 extending to those who are no longer technically charged with an offence but for the fact that the criminal law of this country, at the highest level, in R. v. Wilband, has denied the existence of any such right.
... I have also found a case decided last year in the Ontario Court of Appeal, Thomson Newspapers v. The Director of Investigation and Research (1986), 30 C.C.C. (3d) 145 decided in 1986, not 1987. That case stands for the proposition that the only rights against self-incrimination now known to the law of Canada are those which are found in s. 11 , subsection (c) and s. 13 of the Charter . S. 13 , of course, has no application to the case before me. But that reinforces my view that there is no separate right contained in s. 7 . I note also the imprimatur of the Supreme Court of Canada in the Big M Drug Mart case (1985), 18 C.C.C. (3d) 385, that the Charter itself was not enacted in vacuum. And I apply that in this case to tell me that the Charter , ss. 7 and 11 , subsection (c) were enacted in the context of R. v. Wilband which had already denied the existence of any right against self-incrimination except with respect to persons charged with offences who were speaking to people in authority.
The trial judge concluded:
I make this final point; my powers under the Charter are limited. I may declare legislation to be unconstitutional -- and I am not asked to do that here -- or I may exclude evidence under the provisions of s. 24 , subsection (2) where it was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter and then only if the applicant proves, on the balance of probabilities, that its admission would bring the administration of justice into disrepute. In my opinion, as I have said, there is no right of the accused that has been infringed here. Rather, what is happening, is that evidence not unlawfully obtained and highly relevant to an issue of great importance, both to the accused and to the public interest, is being tendered in accordance with the law. To exclude it, I am invited to declare a limitation on s. 465 , subsection (c) of the Criminal Code and then to rule out the evidence as a breach of that limitation. I must decline to do that. If it is thought necessary so to limit the reach of s. 465, subsection (c) of the Code, that is a matter which ought to be dealt with by legislation and not by a trial judge.
On the basis of all of the evidence before him (including the evidence gathered during the observation conducted under the s. 537(1) (b) remand order), the trial judge concluded that there was a danger the appellant would commit similar offences against girls or physically small women. He concluded that the appellant lacked the ability to prevent himself from committing assaults. He therefore declared the appellant to be a dangerous offender within the meaning of s. 688(a)(i) and (ii) (now s. 753(a)(i) and (ii)) and s. 688(b) (now s. 753(b)) of the Criminal Code and gave him an indeterminate sentence.
B. British Columbia Court of Appeal (1992), 75 C.C.C. (3d) 327
Legg J.A. considered whether there was a limitation of the appellant's right to silence under s. 7 of the Charter given the following circumstances of the case: (1) the order made under s. 537(1) (b) was not restricted to an assessment of whether the appellant was mentally ill at the time of the offences for which he was charged or whether he was fit to stand trial but rather encompassed an assessment of whether the appellant was mentally ill; (2) the appellant had counsel; (3) with counsel's advice, the appellant agreed to the psychiatric examinations; (4) the appellant was aware that what he said was not protected by confidentiality and might be incorporated into a report to the court; (5) the appellant spoke freely and openly to the doctors and did not assert his right to silence; and (6) the doctors did not engage in any sort of tricks to induce the appellant to speak to them.
Legg J.A. concluded, at pp. 338-39, that the appellant's right to silence under s. 7 was not limited. He quoted the following passage from the reasons of McLachlin J. in R. v. Hebert, [1990] 2 S.C.R. 151, at p. 180:
The Charter through s. 7 seeks to impose limits on the power of the state over the detained person. It thus seeks to effect a balance between the interests of the detained individual and those of the state. On the one hand s. 7 seeks to provide to a person involved in the judicial process protection against the unfair use by the state of its superior resources. On the other, it maintains to the state the power to deprive a person of life, liberty or security of person provided that it respects fundamental principles of justice. The balance is critical....
The right to silence conferred by s. 7 reflects these values. The suspect, although placed in the superior power of the state upon detention, retains the right to choose whether or not he will make a statement to the police. To this end, the Charter requires that the suspect be informed of his or her right to counsel and be permitted to consult counsel without delay. If the suspect chooses to make a statement, the suspect may do so. But if the suspect chooses not to, the state is not entitled to use its superior power to override the suspect's will and negate his or her choice.
In the case at bar, the state had the power to limit the appellant's liberty by detaining him for the purpose of determining whether he was mentally ill. This intrusion was made with his consent. Furthermore, although the doctors were "agents of the state", they were not undercover and they did not resort to trickery to persuade the appellant to speak. Rather, they warned him that what he said could be used against him and he chose to speak with them. The "critical balance" referred to in Hebert was maintained between the appellant's right to protection against the unfair use by the state of its superior resources and the state's obligation to respect fundamental principles of justice.
The Court of Appeal held that there was no breach of the appellant's s. 7 rights and dismissed the appeal.
III. Relevant Legislation
Criminal Code, R.S.C., 1985, c. C‑46
537. (1) A justice acting under this Part may
...
(b) by order in writing,
...
(ii) remand an accused to such custody as the justice directs for observation for a period not exceeding thirty days,
where, in his opinion, supported by the evidence, or where the prosecutor and the accused consent, by the report in writing, of at least one duly qualified medical practitioner, there is reason to believe that
(iii) the accused may be mentally ill,
...
(3) Where, as a result of observations made pursuant to an order issued under paragraph (1)(b), it appears to a justice that there is sufficient reason to doubt that the accused is, on account of insanity, capable of conducting his defence, the justice shall direct that an issue be tried whether the accused is then, on account of insanity, unfit to conduct his defence at the preliminary inquiry.
(4) Where the justice directs the trial of an issue under subsection (3), he shall proceed in accordance with section 615 in so far as that section may be applied.
672.11 A court having jurisdiction over an accused in respect of an offence may order an assessment of the mental condition of the accused, if it has reasonable grounds to believe that such evidence is necessary to determine
(a) whether the accused is unfit to stand trial;
(b) whether the accused was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1);
672.21(1) In this section, "protected statement" means a statement made by the accused during the course and for the purposes of an assessment or treatment directed by a disposition, to the person specified in the assessment order or the disposition, or to anyone acting under that person's direction.
(2) No protected statement or reference to a protected statement made by an accused is admissible in evidence, without the consent of the accused, in any proceeding before a court, tribunal, body or person with jurisdiction to compel the production of evidence.
(3) Notwithstanding subsection (2), evidence of a protected statement is admissible for the purpose of
(a) determining whether the accused is unfit to stand trial;
(b) making a disposition or placement decision respecting the accused;
(c) finding whether the accused is a dangerous mentally disordered accused under section 672.65;
686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, 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) [a wrong decision on a question of law] 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;
753. Where, on an application made under this Part following the conviction of a person for an offence but before the offender is sentenced therefor, it is established to the satisfaction of the court
...
the court may find the offender to be a dangerous offender and may thereupon impose a sentence of detention in a penitentiary for an indeterminate period, in lieu of any other sentence that might be imposed for the offence for which the offender has been convicted.
755. (1) On the hearing of an application under this Part, the court shall hear the evidence of at least two psychiatrists and all other evidence that, in its opinion, is relevant, including the evidence of any psychologist or criminologist called as a witness by the prosecution or the offender.
756. (1) A court to which an application is made under this Part may, by order in writing,
(a) direct the offender in relation to whom the application is made to attend, at a place or before a person specified in the order and within a time specified therein, for observation, or
(b) remand the offender in such custody as the court directs, for a period not exceeding thirty days, for observation,
where in its opinion, supported by the evidence of, or where the prosecutor and the offender consent, supported by the report in writing of, at least one duly qualified medical practitioner, there is reason to believe that evidence might be obtained as a result of the observation that would be relevant to the application.
759. (1) A person who is sentenced to detention in a penitentiary for an indeterminate period under this Part may appeal to the court of appeal against that sentence on any ground of law or fact or mixed law and fact.
...
(3) On an appeal against a sentence of detention in a penitentiary for an indeterminate period, the court of appeal may
(a) quash the sentence and impose any sentence that might have been imposed in respect of the offence for which the appellant was convicted, or order a new hearing; or
(b) dismiss the appeal.
...
(7) The provisions of Part XXI with respect to procedure on appeals apply, with such modifications as the circumstances require, to appeals under this section.
Canadian Charter of Rights and Freedoms
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
IV. Analysis
A. Introduction
The appellant does not attack any particular section of the Code. He complains that his s. 7 Charter rights were infringed when he was not told that the examinations might be used for the purposes of dangerous offender proceedings and that his s. 10 (b) rights were infringed when he was not offered the right to counsel once the focus of the examination had been expanded to include his future dangerousness. In view of my conclusion in this case, I find it necessary to discuss only the s. 7 issue.
In essence, the appellant's s. 7 argument is that the evidence obtained from the s. 537 observation should not have been used, at least not without an explicit warning, for the purposes of the dangerous offender proceedings. As will become apparent, I believe that the warning is irrelevant to the case at bar and the issue is the admissibility of the evidence obtained from the s. 537(1) (b) observation.
Section 755 (previously s. 690) relates to the admissibility of evidence at dangerous offender proceedings and provides, as set out above, that "the court shall hear the evidence of at least two psychiatrists and all other evidence that, in its opinion, is relevant...". In my opinion, while s. 755 was not directly challenged, we must ask whether it was, in this case, interpreted and applied in a way that offends s. 7 of the Charter (specifically, the s. 7 right to no self-incrimination).
Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, stands for the proposition that this Court should not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter and hence of no force or effect. Legislation conferring an imprecise discretion must therefore be interpreted as not allowing the Charter rights to be infringed.
There are two competing possible interpretations of s. 755 . The first is that the section renders evidence gathered during psychiatric observation ordered under s. 537(1) (b) admissible for the purposes of dangerous offender proceedings (hereinafter "broad interpretation"). The second is that the section renders evidence gathered during psychiatric observation ordered under s. 537(1) (b) inadmissible for the purposes of dangerous offender proceedings (hereinafter "narrow interpretation").
If one of these interpretations would result in a Charter violation and the other would not, then, of course, the latter should be adopted. I therefore move now to the Charter analysis.
B. Section 7 of the Charter
(1) Life, liberty and security of the person
Section 7 of the Charter establishes that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Imprisonment and the imminent threat of imprisonment are both clearly deprivations of liberty (Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, and R. v. Vaillancourt, [1987] 2 S.C.R. 636). Therefore, an individual may be imprisoned or imminently threatened with imprisonment only in accordance with the principles of fundamental justice (unless the imprisonment or threat of imprisonment is justified under s. 1 of the Charter ).
(2) Principles of fundamental justice
As I said in Re B.C. Motor Vehicle Act, at pp. 512-13:
The term "principles of fundamental justice" is not a right, but a qualifier of the right not to be deprived of life, liberty and security of the person; its function is to set the parameters of that right.
Sections 8 to 14 address specific deprivations of the "right" to life, liberty and security of the person in breach of the principles of fundamental justice, and as such, violations of s. 7 . They are therefore illustrative of the meaning, in criminal or penal law, of "principles of fundamental justice"; they represent principles which have been recognized by the common law, the international conventions and by the very fact of entrenchment in the Charter , as essential elements of a system for the administration of justice which is founded upon the belief in the dignity and worth of the human person and the rule of law.
Consequently, the principles of fundamental justice are to be found in the basic tenets and principles, not only of our judicial process, but also of the other components of our legal system.
...
Whether any given principle may be said to be a principle of fundamental justice within the meaning of s. 7 will rest upon an analysis of the nature, sources, rationale and essential role of that principle within the judicial process and in our legal system, as it evolves.
There are two principles of fundamental justice involved in this analysis. The first is the principle against convicting a person who was insane at the time of the offence and against proceeding against an accused who, on account of insanity, is unfit to conduct her or his defence. The second is the principle against self-incrimination. In this case, the accused, in order to take advantage of the protection afforded by the first principle, was compelled to undergo a period of psychiatric observation. The results of this observation were then used to incriminate him at the dangerous offender proceedings.
The status of the first principle as a principle of fundamental justice I take to be readily apparent. As I said in R. v. Swain, [1991] 1 S.C.R. 933, at p. 977, "it is a basic tenet of our legal system that a person who was insane at the time of the offence ought not to be convicted". It is also a basic tenet of our legal system that an individual who is mentally incapable of understanding the action being taken against him or her should not be required to stand trial.
The status of the principle against self-incrimination as a principle of fundamental justice may not be so readily apparent. Therefore, before proceeding with the application of these principles to the case at bar, I will first review the definition, rationale, and current status of the principle against self-incrimination (I will not review the history of this principle because that was thoroughly done by Wilson J. in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425).
At the outset, however, I emphasize two points. The first is that s. 7 is engaged in this case because of the serious limitation of liberty inherent in the dangerous offender legislation. What is at stake, from the point of view of the offender, is a sentence of indeterminate detention in a penitentiary. Whether one characterizes the dangerous offender proceedings as part of the sentencing process or a separate proceeding with new penal consequences, the liberty interest protected under s. 7 is engaged in such proceedings. The question is what the principles of fundamental justice require in this context, not whether they are implicated.
Secondly, the question here is not whether any of the specifically enumerated protections in the Charter which derive from the broader principle against self-incrimination are limited by the use of the evidence in cases like the present one. Rather, the question is whether the use of the evidence, in these circumstances, is contrary to the principles of fundamental justice.
(i) Definition
The principle against self-incrimination, in its broadest form, can be expressed in the following manner:
...the individual is sovereign and ... proper rules of battle between government and individual require that the individual ... not be conscripted by his opponent to defeat himself....
(Wigmore on Evidence, vol. 8 (McNaughton rev. 1961), § 2251, at p. 318.)
Or, put another way, nemo tenetur seipsum accusare and nemo tenetur seipsum prodere and nemo tenetur armare adversarum contra se -- no one shall be r