R. v. Duguay

R. v. Duguay
Collection
Supreme Court Judgments
Date
1989-01-26
Report
[1989] 1 SCR 93
Case number
19422
Judges
Dickson, Robert George Brian; McIntyre, William Rogers; Lamer, Antonio; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John
On appeal from
Ontario
Subjects
Constitutional law
Courts
Notes
SCC Case Information: 19422
Decision Content
R. v. Duguay, [1989] 1 S.C.R. 93
Her Majesty The Queen Appellant
v.
Robert Joseph Duguay, Edward James Murphy
and Robert Stephen Sevigny Respondents
indexed as: r. v. duguay
File No.: 19422.
1988: October 14; 1989: January 26.
Present: Dickson C.J. and McIntyre, Lamer, Wilson, La Forest, L'Heureux-Dubé and Sopinka JJ.
on appeal from the court of appeal for ontario
Constitutional law -- Charter of Rights -- Admissibility of evidence -- Bringing administration of justice into disrepute -- Infringement of accused's right against arbitrary detention -- Accused acquitted following trial judge's exclusion of evidence pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms -- Court of Appeal upholding trial judge's decision to exclude evidence -- Supreme Court of Canada should not, in the absence of error or unreasonable findings, review the findings made by the courts below under s. 24(2) and substitute its opinion for that of the Court of Appeal -- Canadian Charter of Rights and Freedoms, ss. 9 , 24(2) -- Criminal Code, R.S.C. 1970, c. C-34, s. 450.
Courts -- Jurisdiction -- Power of appellate court to review a decision to exclude evidence -- Trial judge's decision to exclude evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms upheld by the Court of Appeal -- Supreme Court of Canada should not, in the absence of error or unreasonable findings, review the findings made by the courts below under s. 24(2) and substitute its opinion for that of the Court of Appeal.
Prior to leaving their home, the victims of a break and enter and theft noticed three young men drinking beer in a neighbour's back yard. On the basis of a description given by the victims to the police, the neighbour was able to identify M as one of the young men. The neighbour telephoned M inviting him to come over with the friends who were with him on the previous night. The respondents arrived shortly after. M and S were recognized by the victims as two of the youths in the neighbour's back yard on the night of the crime. A police officer asked the respondents to sit in the police car to answer a few questions. They complied. The officer then said: "You guys save me a trip back and tell me where the stereo is?" M spontaneously answered and gave an inculpatory reply. The respondents were advised that they were charged of break and enter and theft, were given the customary caution and read their rights to counsel. All replied that they understood their rights. The events in the patrol car lasted only a few minutes. They were then driven to the police station and put in separate interview rooms. At no time did any of them request the presence of a lawyer. An inculpatory statement was obtained from each of them, their fingerprints were taken and, later that evening, the stereo set was recovered at M's house. The fingerprints of D and M were eventually matched to the fingerprints found on the stereo, and D's fingerprints were also matched to those found on the window through which access to the victims' residence was gained.
At trial, the Crown sought to introduce as evidence the written statements, the stereo set and the fingerprints. The trial judge found that the arrest was not made in accordance with the provisions of s. 450 of the Criminal Code because the police did not establish reasonable and probable grounds for the arrest, that the accused had been submitted to an arbitrary detention contrary to s. 9 of the Canadian Charter of Rights and Freedoms , and that the evidence should be excluded under s. 24(2) of the Charter . As a result, the respondents were acquitted. The majority of the Court of Appeal accepted the trial judge's findings, upheld his decision to exclude the evidence and dismissed the Crown's appeal. The Crown appealed to this Court as of right and conceded that there was a violation of s. 9 of the Charter . The sole issue in this appeal is whether the evidence adduced should have been excluded under s. 24(2) of the Charter .
Held (L'Heureux-Dubé J. dissenting): The appeal should be dismissed.
Per Dickson C.J. and McIntyre, Lamer, Wilson, La Forest and Sopinka JJ.: The majority in the Court of Appeal did not enunciate any principle with which we disagree. They simply applied the law to the facts as found by the trial judge and did not feel justified to interfere. Absent some apparent error as to the applicable principles or rules of law, or absent an unreasonable finding, it is not the proper function of this Court, even though it has jurisdiction to do so, to review findings of the courts below under s. 24(2) of the Charter and substitute its opinion of the matter for that of the Court of Appeal.
Per L'Heureux-Dubé J. (dissenting): When a peace officer arrests a person without a warrant pursuant to s. 450(1) (a) of the Criminal Code , he is not required to have evidence which would secure the conviction of the suspect. The officer is authorized to act where the circumstances are such that, in the mind of a reasonable person, they would give rise to a belief in the likelihood that the person concerned is guilty. The trial judge did not apply this test. He directed his mind to the question whether the evidence upon which the officers proceeded "would result in a conviction". The trial judge erred in setting a threshold more onerous than belief of guilt based on reasonable and probable grounds. This error tainted his characterization of the circumstances as an "arrest for investigative purposes" and ultimately led to the exclusion of the evidence at trial and in the Court of Appeal as well. Although the evidence fell short of establishing the respondents' guilt beyond a reasonable doubt, it could very well have led a reasonable person to believe it was likely that the respondents committed the break-in. In any event, assuming that the circumstances amounted to something less than reasonable and probable grounds, the circumstances did not sufficiently depart from the prescribed norm to conclude that the detention was arbitrary. A detention is arbitrary if it is the product of an untrammelled discretion. That was not the case here. There was a rational investigative process leading up to the "detention" and arrest. The arrest was neither capricious nor random.
The Crown, however, conceded that there was a violation of s. 9 of the Charter and the sole question in this appeal is whether the admission of the evidence would bring the administration of justice into disrepute. The Crown argued that incorrect principles were applied by the Court of Appeal and that its decision to uphold the exclusion of evidence pursuant to s. 24(2) of the Charter was premised on an error of law. In these circumstances, this Court should exercise its jurisdiction to review the findings of the Court of Appeal with respect to the application of s. 24(2) .
In light of the principles enunciated in R. v. Collins, [1987] 1 S.C.R. 265, the admission of the evidence would not bring the administration of justice into disrepute. First, the admission of real evidence and the admission of voluntary statements do not affect the fairness of the trial. The stereo set found in M's possession existed prior to the Charter violation and was not created by it. Likewise, the fingerprint evidence cannot be said to have been manufactured by the Charter violation. The fingerprints were in the victims' residence and on the stolen goods before any infringement occurred. As for the written statements, the evidence clearly establishes that they were freely volunteered after the respondents had properly been charged, given the customary caution, told that they could remain silent and told as well that they had the right to retain and instruct counsel pursuant to the Charter . Second, the detention was a relatively minor and trifling infringement on the respondent's Charter rights. The detention was brief and no physical compulsion was used by the officer. The respondents conceded having voluntarily attended the police in a spirit of co-operation. The evidence shows a respect for individuals and their Charter rights, as then understood by the police and the courts. As soon as the formal arrest was made, the respondents' Charter rights were read. If any violation of the Charter did occur, it was one in the nature of an isolated error committed in good faith. Finally, in this case, it is more likely that it is the exclusion of the evidence, not its admission, that will bring the administration of justice into disrepute. Break and enter is a serious offence and the immediate effect of the exclusion of evidence was to withhold from the trial, because of a trivial breach of the Charter , highly probative and reliable evidence.
The trial judge and the majority of the Court of Appeal therefore erred in excluding the evidence. The trial judge considered the violation of s. 9 of the Charter to be "blatant" and "shocking" and he suggested that it fell just short of "torture". Similarly, in the Court of Appeal, the majority suggested that the police officers' actions were "irrational" and "repugnant to our concept of the administration of criminal justice" and indicative of an "incipient Star Chamber attitude". Their findings with respect to the seriousness of the violation were simply not supported by the evidence. There was also no justification for their assessment that the police conduct demonstrated bad faith. Further, both courts below assumed that admitting the evidence would condone the underlying infringement. This reasoning is inconsistent with a proper interpretation of s. 24(2) .
Cases Cited
By L'Heureux-Dubé J. (dissenting)
R. v. Collins, [1987] 1 S.C.R. 265; R. v. Sieben, [1987] 1 S.C.R. 295; R. v. Hamill, [1987] 1 S.C.R. 301; R. v. Pohoretsky, [1987] 1 S.C.R. 945; R. v. Manninen, [1987] 1 S.C.R. 1233; R. v. Tremblay, [1987] 2 S.C.R. 435; R. v. Upston, [1988] 1 S.C.R. 1083, aff'g (1987), 86 N.R. 18 (B.C.C.A.), rev'g (1986), 86 N.R. 21 (B.C. Co. Ct.); R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Jacoy, [1988] 2 S.C.R. 548; R. v. Strachan (1986), 49 C.R. (3d) 289, aff'd [1988] 2 S.C.R. 980; R. v. Genest, [1989] 1 S.C.R. 000; Rothman v. The Queen, [1981] 1 S.C.R. 640; McArdle v. Egan (1933), 150 L.T. 412; Hussien v. Chong Fook Kam, [1970] A.C. 942; Holtham v. Commissioner of Police for the Metropolis, Engl. C.A. (Civ. Div.), November 25, 1987, unreported; R. v. Biron, [1976] 2 S.C.R. 56; Eccles v. Bourque, [1975] 2 S.C.R. 739; Campbell v. Hudyma (1985), 42 Alta. L.R. (2d) 59; R. v. Brown (1987), 33 C.C.C. (3d) 54; R. v. Hufsky, [1988] 1 S.C.R. 621; Re Jamieson and The Queen (1982), 70 C.C.C. (2d) 430; Re M.H. and The Queen (No. 2) (1985), 21 C.C.C. (3d) 384 (Alta. C.A.), aff'g (1984), 17 C.C.C. (3d) 443 (Alta. Q.B.); R. v. McGregor (1983), 3 C.C.C. (3d) 200; R. v. Beare, [1988] 2 S.C.R. 387; United States v. Leon, 468 U.S. 897 (1984); Curr v. The Queen, [1972] S.C.R. 889; R. v. Esposito (1985), 24 C.C.C. (3d) 88; R. v. Smith (1986), 25 C.C.C. (3d) 361; R. v. Bazinet (1986), 25 C.C.C. (3d) 273; R. v. Dedman (1981), 59 C.C.C. (2d) 97 (Ont. C.A.), aff'd on other grounds, [1985] 2 S.C.R. 2; R. v. Gladstone (1985), 22 C.C.C. (3d) 151.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 9 , 24(2) .
Criminal Code, R.S.C. 1970, c. C-34, ss. 450 [rep. & subs. S.R.C. 1970 (2nd Supp.), c. 2, s. 5], 621(1)(a).
Authors Cited
Tarnopolsky, Walter Surma.The Canadian Bill of Rights, 2nd rev. ed. Toronto: McClelland & Stewart, 1975.
APPEAL from a judgment of the Ontario Court of Appeal (1985), 50 O.R. (2d) 375, 8 O.A.C. 31, 18 D.L.R. (4th) 32, 17 C.R.R. 203, 18 C.C.C. (3d) 289, 45 C.R. (3d) 140, dismissing the Crown's appeal from the accused's acquittal on a charge of break, enter and theft. Appeal dismissed, L'Heureux-Dubé J. dissenting.
Bruce Duncan, for the appellant.
Andrew Kerekes, for the respondents.
//The Chief Justice//
The following is the judgment delivered by
THE CHIEF JUSTICE AND McINTYRE, LAMER, WILSON, LA FOREST AND SOPINKA JJ. -- The Crown in this case has conceded throughout a breach of s. 9 of the Canadian Charter of Rights and Freedoms . The only issue properly before us is whether the evidence adduced is to be excluded or not under s. 24(2) of the Charter . The majority in the Court of Appeal for Ontario did not enunciate any principle or rule of law with which we disagree: (1985), 18 C.C.C. (3d) 289. They simply applied the law to the facts as found by the trial judge, with which they did not feel justified in interfering.
It is not the proper function of this Court, though it has jurisdiction to do so, absent some apparent error as to the applicable principles or rules of law, or absent a finding that is unreasonable, to review findings of the courts below under s. 24(2) of the Charter and substitute its opinion of the matter for that arrived at by the Court of Appeal.
We would accordingly dismiss this appeal.
//L'Heureux-Dubé J.//
The following are the reasons delivered by
L'HEUREUX-DUBÉ J. (dissenting) -- I had the benefit of the reasons of the majority but with respect, I am unable to concur in them nor can I agree with the majority's disposition of this appeal.
Since I am of the view that the characterization of the circumstances of this case is of prime importance, I find it necessary at the outset to recite the facts in some detail.
Facts
Between 8:00 p.m. on June 25, 1982, and 3:00 a.m. on June 26, 1982, there was a break and entry in the home of Mr. and Mrs. Laframboise, in the city of Windsor, while the occupants were away. A stereo set, a wrist-watch and some liquor were stolen. On the morning following the theft, Detectives Reaume and Chevalier were dispatched to the Laframboise residence. Upon their arrival, the detectives were informed by a constable already on the scene that prior to leaving their home, the Laframboises had noticed three young men drinking beer in the Grummetts' back yard, which bordered their own property to the north. This information was thereafter confirmed in a discussion with Mrs. Laframboise, who recalled having already seen one of the youths there on a number of occasions. She added that there was a short conversation between one of the youths and Mr. Laframboise: as the latter was putting his dog in the garage before leaving the house, one of the three men inquired as to whether he always put his dog there. The detectives then met with the neighbour on the southern side of the property who informed them that the yard lights in the Laframboise residence went out at around 10:00 p.m., two hours after the occupants had left. The neighbour did not see anyone in the residence at the time. The detectives then returned to the Grummett residence and questioned a boarder who lived there, Mr. Dura. He told the detectives that he had not seen anybody in the Grummetts' back yard the previous evening.
While the detectives were receiving Mr. Dura's information, a car pulled up in the Grummetts' driveway. Mr. Grummett was returning from an out-of-town trip. The detectives went to meet him and informed him of the break-in and investigation. As he had been away, he could not confirm the presence of the youths in his back yard the preceding evening. Nevertheless, on the basis of the description of the young men given to him by the detectives, he recognized "the Murphy lad". He then went into his home to call the Murphy residence and asked Murphy to come over with his friends who were with him the night before. Detective Chevalier was informed by Mr. Grummett that three young men were on their way over. Both officers went back to the front porch of the Laframboise residence to wait for them.
The young men arrived a short while later, accompanied by the Grummetts' son, who left the group to enter into his parents' house. The Laframboises, who were with the detectives at the time, recognized Murphy and Sevigny as two of the youths in the Grummetts' back yard the previous evening. Detective Reaume went to meet the respondents at the Grummetts' driveway, while Detective Chevalier went back into the Laframboise residence with the couple. Detective Reaume identified himself to the youths and asked them their names, addresses and dates of birth. He then asked the respondents: "You guys want to have a seat in our car? We want to talk to you." All three complied and sat in the back seat of the car. Detective Reaume sat in the front. It was an unmarked patrol car. As the youths were seated, Detective Reaume asked them: "You guys save me a trip back and tell me where the stereo is?" One of them, Murphy, spontaneously answered and, while the content of his reply was not disclosed in evidence, both counsel agreed in their oral pleadings that it was an incriminating reply. At this time, Detective Chevalier returned to the patrol car and Detective Reaume formally placed the three respondents under arrest on a charge of break and enter and theft. The youths were given the customary caution and read their rights to counsel pursuant to the then newly-enacted Canadian Charter of Rights and Freedoms . All replied that they understood their rights. The events in the patrol car lasted only a few minutes. The youths were then driven to the police station and put in separate interview rooms. At no time did any of them request the presence of a lawyer. An inculpatory statement was obtained from each of them. Their fingerprints were taken. Later that evening, Murphy led the policemen to the crawl-space under his house, where the stereo set was recovered. The fingerprints of Duguay and Murphy were eventually matched to the fingerprints found on the stereo, and Duguay's fingerprints were also matched to those found on the window through which access to the Laframboise residence was gained.
Judgments
County Court (Criminal Division)
At trial, the Crown sought to introduce as evidence the written statements, the stereo set and the fingerprints. There was a voir dire on the admissibility of this evidence, and Huneault J. ruled all of it inadmissible pursuant to s. 24(2) of the Charter . As a result, the Crown's case collapsed and the respondents were acquitted.
Huneault J. first ruled that the respondents had been submitted to an arbitrary detention, contrary to s. 9 of the Charter . He found that, as they stepped into the cruiser in response to Detective Reaume's request, the respondents were in effect under arrest. While they had not been formally arrested, the judge found that Detective Reaume had already formed the intention of arresting the respondents and that he would not have let them go had they tried to get out of the car. No formal arrest was made at that time because Detective Chevalier had momentarily left his partner and the youths in order to escort the Laframboises back into their house. According to Detective Reaume, standard police practice required two officers to be present when an arrest was being made, to assure the corroboration of the arresting officer's testimony.
The trial judge also found that at the time the respondents stepped into the car, the officers did not have the evidence necessary to support a conviction on the charge of break and entry and theft. He relied on Detective Reaume's testimony who at one point candidly said in cross-examination that while he believed he had reasonable and probable grounds to arrest the respondents pursuant to s. 450 of the Criminal Code , he did not have enough evidence to lay a charge.
The trial judge found that the officers could not honestly believe that they had probable and reasonable grounds for an arrest. He held: "I find as a fact that there was absolutely no basis for Detective Chevalier's opinion that the three youths were the culprits" (Case on Appeal, at p. 259). He explained that, while the evidence showed that the respondents may have had an opportunity to commit the break-in, there was "no evidence whatsoever to warrant a prosecution of the charge, let alone support a conviction" (Case on Appeal, at p. 262). It was emphasized that the detectives "had no evidence against the individuals which would result in a conviction" (Case on Appeal, at p. 262).
The trial judge concluded that the arrest was for the officers "a means of conducting their investigation" and he ruled that the arrest was not made in accordance with the provisions of s. 450 of the Criminal Code . He then referred to a definition of "arbitrary detention" given in Tarnopolsky, The Canadian Bill of Rights (2nd rev. ed. 1975), at p. 235: "the proscription here is against detention, imprisonment or exile without specific authorization under existing law". On this basis, as there was no lawful authority for the arrest of the respondents, Huneault J. found a breach of s. 9 of the Charter . He remarked that the unlawful arrest constituted a "blatent [sic] violation of the rights and freedoms" of the accused (Case on Appeal, at p. 263).
The last step in the trial judge's analysis was to find that the illegally-obtained evidence should be excluded pursuant to s. 24(2) of the Charter . He referred to the "community shock" test, which was the approach enunciated in the pre-Charter case of Rothman v. The Queen, [1981] 1 S.C.R. 640. He adopted the view that s. 24(2) was intended to exclude evidence which is constitutionally tainted to such a degree that its admission would "shock the values of the right thinking members of the community". Reviewing the evidence, he concluded:
Other than some actual form of torture, I cannot think of anything more shocking to the right thinking member of the community that the courts would allow police officers to introduce evidence which they have obtained through the nefarious means of an unlawful arrest. To admit such evidence would, in effect mean, that the courts sanction unlawful arrests by the police. Far be it from this court to give that blessing. I therefore rule as inadmissible any utterances or statements made by the accused in this case. I further rule inadmissible, any evidence which the police might have obtained as a result of such utterances or statements. Fingerprint evidence which arises out of the fact that these accused were fingerprinted following their arrest is also ruled inadmissible.
(Case on Appeal, at pp. 265-66)
Ontario Court of Appeal
The Crown argued on appeal that the trial judge erred in finding a violation of s. 9 , and that he also erred in excluding the evidence pursuant to s. 24(2) of the Charter . The appeal was dismissed by the majority (MacKinnon A.C.J.O. and Martin J.A.): (1985), 18 C.C.C. (3d) 289. Zuber J.A. wrote a strong dissent.
Delivering the reasons of the majority, MacKinnon A.C.J.O. reviewed the definition of an "arbitrary" detention. He expressed the view that where the grounds upon which an arrest is made fall "just short" of constituting reasonable and probable cause, a detention may nevertheless fall outside the scope of s. 9 of the Charter if the person making the arrest honestly, though mistakenly, believed that the requisite grounds existed. In such circumstances, MacKinnon A.C.J.O. remarked, "the arrest, though subsequently found to be unlawful, could not be said to be capricious or arbitrary" (p. 296). However, he accepted the findings of Huneault J. that the arresting officers did not hold an honest belief that the youths were the culprits, and that the circumstances did not establish reasonable and probable grounds for the arrest. MacKinnon A.C.J.O. accordingly agreed with the trial judge's characterization that the arrest was made for the purpose of "assisting the investigation." The actions of the police officers were suggested to be "irrational" and "high-handed" (p. 296) and the trial judge's conclusion that the arrest constituted an arbitrary detention was not disturbed.
With respect to the exclusion of the evidence, MacKinnon A.C.J.O. ruled that the trial judge did not err in finding that the present case fell within s. 24(2) of the Charter . The majority acknowledged that Huneault J.'s language was "somewhat excessive in condemning the action of the two detectives". Nevertheless, in their opinion, "the manner in which the police proceeded suggested a somewhat incipient Star Chamber attitude" (p. 298). They held that the breach was not a slight one, noting that "[i]t is repugnant to our concept of the administration of criminal justice and to the rights of citizens in a free and democratic society, to make them subject to arbitrary arrest for investigative purposes" (p. 298).
The majority essentially considered three groups of factors, namely, the lack of good faith on the part of the officers, the relative seriousness of the offence and the lack of urgency in proceeding the way the policemen did. MacKinnon A.C.J.O. stressed that "the arrest was not made in good faith" and that there was "a deliberate breach of the Charter right for an illegal purpose" (p. 299). It was emphasized by the majority that admitting the evidence notwithstanding the violation would amount to a condonation of the perceived police misconduct. MacKinnon A.C.J.O. said (at p. 300):
If the court should turn a blind eye to this kind of conduct, then the police may assume that they have the court's tacit approval of it. I do not view the exclusion of the evidence as a punishment of the police for their conduct, although it is to be hoped that it will act as a future deterrent. It is rather an affirmation of fundamental values of our society, and the only means in this case of ensuring that the individual's Charter rights are not illusory. [Emphasis added.]
The majority accordingly confirmed the exclusion of the evidence by the trial judge.
Zuber J.A. expressed contrary views on both issues. He seemed prepared to hold that there had been no breach of s. 9 of the Charter . On the assumption that there was such a breach, however, he reached the alternative conclusion that the respondents fell short of their burden of persuading the Court that the admission of the evidence would bring the administration of justice into disrepute. In fact, he thought it more likely that the exclusion of the evidence would entail such a consequence.
Zuber J.A. could not agree with the trial judge's finding that there was "absolutely no basis" for the detectives' suspicion in the circumstances. While it was not clear to him that reasonable and probable grounds existed at the time of the arrest, he disagreed that the detectives' belief was "a pure flight of fancy" nor could he accept that the arrest was "capricious" or "random". He remarked that, contrary to what had been assumed at trial, s. 450 of the Criminal Code does not require that the reasonable and probable grounds "be made up of evidence that can later be adduced in a court-room" (p. 302). Zuber J.A. suggested that there were sufficient grounds for the detention not to be an arbitrary one.
Notwithstanding his "serious doubts" respecting the arbitrary nature of the detention, Zuber J.A. rested his dissent on the sole ground that, assuming a violation of s. 9 of the Charter had occurred, the evidence should not be excluded pursuant to s. 24(2) of the Charter .
The learned judge pointed out that the use of a "community shock" test amounted to a rewriting of s. 24(2) . He expressed the view that "the formulation of a judgment premised on s. 24(2) of the Charter requires more than a recitation of all of the circumstances followed by a selection of the result" (p. 304). It was also Zuber J.A.'s view that the decision under appeal lacked a clear appreciation of the principles involved in a s. 24(2) analysis. Consequently, he enumerated five criteria which should guide the courts in determining whether there is disrepute in each particular case.
First, section 24(2) is not an automatic exclusionary rule. According to Zuber J.A., "[e]vidence obtained as a result of a Charter violation is, as a general rule, admissible" (p. 304). The exclusion of evidence is an exceptional (not necessarily rare) remedy. Zuber J.A. also warned that a wide-spread application of the blind-eye argument would move s. 24(2) of the Charter in the direction of an exclusionary rule (at p. 305):
The logical extension of the blind-eye argument leads to the exclusion of evidence almost automatically and will inevitably lead us to a position very close to the exclusionary rule as it exists in the United States. This would be a result which is clearly inconsistent with the compromise position taken by s. 24(2) itself. On wider grounds, and as a matter of principle, we should be very wary of moving in the direction of an exclusionary rule. The American experience with the exclusionary rule should dampen the ardour of anyone ready to follow that course.
Second, the reliability of the evidence and the effect of its exclusion must be considered. Noting that "[c]ourts are being asked to suppress the truth", the learned judge wrote (at p. 305):
The question becomes whether the admission of the truth (albeit discovered as a result of a Charter violation) will bring the administration of justice into disrepute. The converse question is, what will the suppression of the truth do to the repute of the administration of justice?
Third, Zuber J.A. remarked that while the Charter transformed the law respecting illegally obtained evidence, there had been no abrupt change in our Canadian perception of what is likely to bring disrepute to the administration of justice. Commenting on the present circumstances, he remarked (at p. 306):
Had this case taken place prior to 1982, all of the evidence excluded by the trial judge would have been admitted without exciting any notice whatever.
Fourth, controlling the police has no place in the determination whether evidence should be excluded pursuant to s. 24(2) of the Charter . Zuber J.A. recognized that there existed specific remedies for police misconduct both in the civil and criminal law. He held that s. 24(2) does not provide a remedy for police misconduct, because "[w]hatever penalty there may be in excluding the evidence in a given case does not fall on the police. It falls on the public" (p. 306).
Finally, the disrepute must be established on the basis of the views of the whole community.
Applying these principles to the circumstances of the case, Zuber J.A. concluded that, contrary to the finding of the trial judge, there was some basis in fact for the arrest. It followed that the conduct of the officers was not tainted with bad faith. He disagreed with the majority that the offence committed by the respondents was not a serious one. He noted that "break and entry of a dwelling carries a maximum penalty of life imprisonment" (p. 307), that the evidence sought to be excluded was "clear, cogent and reliable" (p. 305) and that its exclusion "led to the collapse of the Crown's case" (p. 308). The effect of the exclusion on the victims was also considered. In this case, Zuber J.A. recalled the significant participation of the Laframboises in the criminal process and the broken expectations which have likely resulted from their experience with the police and the courts (at p. 308):
In my view, the plight of the victim is also a relevant circumstance within s. 24(2) . His dwelling was broken into and his possessions were stolen. He expended his time and energy by reporting the matter to the police, testifying at the preliminary hearing and apparently by attending at the trial ready to testify again. However, his recourse to the law has yielded him nothing. He, no doubt, has some interesting impressions as to the course of these proceedings.
Zuber J.A. further noted that the link between the Charter violation and the finding of the stolen goods was weak, and that it was weaker still between the violation and the obtention of the fingerprint evidence. Zuber J.A. consequently would have set aside the verdicts of acquittal and directed a new trial.
It must be noted that, at the time, the trial judge and the Ontario Court of Appeal did not have the benefit of the judgment of this Court in R. v. Collins, [1987] 1 S.C.R. 265, nor of the subsequent judgments in which this Court considered the application of s. 24(2) of the Charter , namely, those in R. v. Sieben, [1987] 1 S.C.R. 295; R. v. Hamill, [1987] 1 S.C.R. 301; R. v. Pohoretsky, [1987] 1 S.C.R. 945; R. v. Manninen, [1987] 1 S.C.R. 1233; R. v. Tremblay, [1987] 2 S.C.R. 435; R. v. Upston, [1988] 1 S.C.R. 1083; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Jacoy, [1988] 2 S.C.R. 548; R. v. Strachan, [1988] 2 S.C.R. 980, and R. v. Genest, [1989] 1 S.C.R. 000.
Arguments
The parties argued this appeal on the basis that a violation of s. 9 of the Charter had occurred. The Crown conceded at the outset that the compliance of the youths to the officer's request to get in the car may have constituted an arbitrary detention, contrary to s. 9 of the Charter . The argument, therefore, rested on whether the admission of the evidence obtained subsequently to this violation would bring the administration of justice into disrepute.
The Crown's main submission was that the lower courts erred in failing to recognize that evidence obtained in violation of a Charter right is nevertheless prima facie admissible. Illegally obtained evidence, in the Crown's view, should only be excluded in exceptional (not necessarily rare) cases which fall within the scope of s. 24(2) . The Crown noted that, in excluding the evidence, the Court of Appeal emphasized that it could not condone improper police conduct which could be "explained" neither by urgency nor by good faith. Such an approach, the Crown argued, amounts to reversing the rule of prima facie admissibility which is said to follow from the clear words of s. 24(2) and substituting in its place an American-style quasi-automatic rule of exclusion accompanied by some exceptions. The approach advocated by the Court of Appeal requires the Crown to bring the case within one of these exceptions, and this, it was submitted, constitutes an error of law.
The Crown further argued that, on a proper analysis of all the circumstances, using the guidelines set forth by this Court in Collins, the evidence was incorrectly excluded by the lower courts. A specific submission was made with respect to the fairness of the trial, in that the admission of voluntary confessions does not affect the fairness of the trial. On that basis, the admission of the statements in this case would not go to fairness, nor would the admission of the stolen goods and fingerprints, because "real" evidence does not go to fairness. It was also submitted that none of the other factors in Collins militate in favour of exclusion, and that the lower courts erred in holding that the requisite burden had been discharged by the respondents.
The respondents' first submission went to the jurisdiction of an appellate court to review a trial judge's finding of fact as well as his finding respecting the exclusion of the evidence. According to the respondents, a decision to exclude made pursuant to s. 24(2) of the Charter cannot be reversed unless it is shown to be unreasonable.
In the alternative, the respondents invoked for the first time in these proceedings a breach of s. 10 of the Charter . Relying on Collins, they argued that, as the respondents were not informed of their right to counsel immediately upon their entering the patrol car, the admission of the subsequently-obtained statements would necessarily affect the fairness of the trial. As for the other factors of exclusion, the respondents argued that the test in Collins should lead to the exclusion of the evidence in this case.
Analysis
In view of the position taken by the Crown in this appeal, I am prepared to rest my opinion solely on s. 24(2) of the Charter . Nevertheless, I find it necessary to express my views as to whether there was a breach of s. 9 of the Charter in the circumstances of the present case.
Section 9 of the Charter
Section 9 of the Charter reads as follows:
9. Everyone has the right not to be arbitrarily detained or imprisoned.
What is at issue here is the characterization of the evidence by the trial judge, later accepted and relied upon by the Court of Appeal. In my view, the trial judge's findings rest on an erroneous appreciation of the grounds required for an arrest without warrant under s. 450(1) (a) of the Criminal Code .
The trial judge found that the arrest was for the officers "a means of conducting their investigation". He stressed that the facts known to the police officers did not give them enough evidence to establish the respondents' guilt in a court of law. He wrote:
Detective Reaume admits that notwithstanding their arrest, if they had not subsequently obtained inculpatory statements, the accused would have been released. Detective Reaume admitted that at the time of the arrest he had no evidence against the individuals that would result in a conviction. Detective Chevalier said, "We arrested them to determine whether they actually did it or not". He said he believed them to be guilty and was trying to get a case against them and hoped to get a statement. [Emphasis added.]
(Case on Appeal, at p. 262)
The trial judge focussed on part of the evidence offered by the officers. The gist of Detective Reaume's testimony was that, while there was not enough evidence to convict, there was enough evidence to arrest:
Q. All right; so to answer the question directly, you do believe that you have the right to arrest someone and then carry on an investigation about that person to see whether or not the investigation reveals further evidence that may allow you to lay a charge?
A. You missed one thing. I needed reasonable and probable grounds to arrest. I must have that for me to do that and you're right with the rest of your statement.
Q. So it would be fair to conclude on your evidence that you felt that you had enough to arrest, but that you did not have enough to lay a charge?
A. That's true.
(Case on Appeal, at pp. 206-7)
Detective Chevalier's testimony is to the same effect (Case on Appeal, at pp. 230-31). The powers of a peace officer to arrest a suspect without a warrant are conferred by s. 450 of the Criminal Code , which reads as follows:
450. (1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable and probable grounds, he believes has committed or is about to commit an indictable offence, . . .
The origins of that disposition are found in the common law power of arrest. In McArdle v. Egan (1933), 150 L.T. 412, the Court of Appeal of England considered the extent of a police officer's power to arrest without warrant. Lord Hewart C.J. set out a test which was adopted by the Court (at p. 412):
The law is very concisely stated in the well-known edition of Bullen and Leake (3rd edit.) at p. 795, note: "A constable is justified in arresting a person without a warrant upon a reasonable suspicion of a felony having been committed and of the person being guilty of it".
The "reasonable suspicion" criterion was incorporated in specific statutes, one of which was considered by the Privy Council in Hussien v. Chong Fook Kam, [1970] A.C. 942. Police officers in Malaysia had acted pursuant to a statutory disposition which gave them the power to arrest a person without warrant if there existed a "reasonable suspicion" that this person was concerned in an offence of reckless driving. Delivering the reasons of the Court, Lord Devlin emphasized that, under the statute, the suspicion necessary for an arrest without warrant could