Present: Dickson C.J. and Beetz, McIntyre, Lamer, Wilson, Le Dain and La Forest JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights ‑‑ Right to retain and instruct lawyer ‑‑ Accused's rights read by police ‑‑ Accused indicating desire to remain silent and to see his lawyer ‑‑ Opportunity to telephone lawyer not volunteered to accused ‑‑ Questioning continued in absence of lawyer ‑‑ No urgency ‑‑ Conviction based on statement made in response to barbed question in absence of lawyer ‑‑ Whether or not inculpatory statements obtained in a manner that infringed right to retain and instruct lawyer ‑‑ Whether or not admission of inculpatory statements would bring administration of justice into disrepute ‑‑ Canadian Charter of Rights and Freedoms, ss. 10(b) , 24(2) .
Constitutional law ‑‑ Charter of Rights ‑‑ Admissibility of evidence ‑‑ Bringing administration of justice into disrepute ‑‑ Accused's rights read by police ‑‑ Accused indicating desire to remain silent and to see his lawyer ‑‑ Opportunity to telephone lawyer not volunteered to accused ‑‑ Questioning continued in absence of lawyer ‑‑ No urgency ‑‑ Conviction based on statement made in response to barbed question in absence of lawyer ‑‑ Whether or not inculpatory statements obtained in a manner that infringed the right to retain and instruct lawyer ‑‑ Whether or not admission of inculpatory statements would bring administration of justice into disrepute ‑‑ Canadian Charter of Rights and Freedoms, s. 24(2) .
Evidence ‑‑ Admissibility ‑‑ Bringing administration of justice into disrepute ‑‑ Police continuing questioning notwithstanding accused's wish to remain silent and to consult lawyer ‑‑ Whether or not admission of evidence obtained during that questioning bringing administration of justice into disrepute ‑‑ Canadian Charter of Rights and Freedoms, s. 24(2) .
Criminal law ‑‑ Right to retain and instruct lawyer ‑‑ Police continuing questioning notwithstanding accused's wish to remain silent and to consult lawyer ‑‑ Opportunity to telephone lawyer not volunteered to accused ‑‑ Questioning continued in absence of lawyer ‑‑ No urgency ‑‑ Scope of right to lawyer ‑‑ Canadian Charter of Rights and Freedoms, s. 24(2) .
This appeal raised the question of the exclusion of evidence under s. 24(2) of the Charter in the context of the right to counsel in s. 10(b). Respondent was arrested for theft and possession of a stolen car and armed robbery. The arresting officer read him his rights from a card twice because of a flippant remark respondent had made following the first reading. Even though respondent then indicated that he was not going to say anything until he saw his lawyer, the officers continued to question him. Respondent did not directly request to use the telephone and the officers did not volunteer the use of it. Respondent did not speak to his lawyer until his lawyer called him at the police station that evening. The trial judge, in convicting the respondent, relied on a statement made by him in reply to a barbed question asked before his lawyer had made contact with him. The trial judge held that, even if the right to counsel had been infringed, the admission of the statements would not bring the administration of justice into disrepute. The Court of Appeal unanimously allowed respondent's appeal, quashed the convictions and ordered a new trial.
Held: The appeal should be dismissed.
Section 10(b) imposes at least two duties on the police in addition to the duty to inform the detainee of his rights. First, the police must provide the detainee with a reasonable opportunity to exercise the right to retain and instruct counsel without delay. The duty to facilitate contact with counsel includes the duty to offer the respondent the use of the telephone. Although circumstances might exist where it is particularly urgent for the police to continue with their investigation before it is possible to facilitate a detainee's communication with counsel, there was no such urgency here. Secondly, the police must cease questioning the detainee until he has had a reasonable opportunity to retain and instruct counsel. The purpose of the right to counsel is to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights. The police officers here correctly informed the respondent of his right to remain silent and the main function of counsel would be to confirm the existence of that right and then to advise him as to how to exercise it. For the right to counsel to be effective, the detainee must have access to this advice before he is questioned or otherwise required to provide evidence. This aspect of the respondent's right to counsel was clearly infringed, and again, there was no urgency to justify immediate questioning.
Respondent did not waive his right to counsel by answering the police officer's questions. A person may implicitly waive his rights under s. 10(b), but the standard is very high and was not met here.
Section 24(2) requires that the evidence must have been "obtained in a manner that infringed" the Charter . A sufficient relationship or connection between the violation and the evidence is made out where, as here, the evidence was obtained as a direct consequence of the violation of the Charter .
Finally, the evidence, to be excluded, must be such that its admission would bring the administration of justice into disrepute. Respondent's right to counsel was very seriously violated. The police officers simply ignored the rights they had read to him and his expressed desire to exercise the right to silence and the right to counsel. Their action was not justified by any urgency. The evidence, too, was self‑incriminatory: its use following a denial of the right to counsel will generally go to the very fairness of the trial and thus will generally bring the administration of justice into disrepute. The admission of the evidence, in light of the seriousness of the violation and the effect of the evidence on the fairness of the trial, could not be justified on the ground that the offence involved was serious and that respondent's guilt was clearly established by the statement sought to be excluded.
Cases Cited
Applied: R. v. Collins, [1987] 1 S.C.R. 265; referred to: Brownridge v. The Queen, [1972] S.C.R. 926; R. v. Nelson (1982), 3 C.C.C. (3d) 147; R. v. Anderson (1984), 10 C.C.C. (3d) 417; R. v. Dombrowski (1985), 18 C.C.C. (3d) 164; R. v. Therens, [1985] 1 S.C.R. 613; Clarkson v. The Queen, [1986] 1 S.C.R. 383; R. v. Esposito (1985), 24 C.C.C. (3d) 88.
Statutes and Regulations Cited
Canadian Bill of Rights, R.S.C. 1970, App. III.
Canadian Charter of Rights and Freedoms , ss. 10 ( b ) , 24(2) .
APPEAL from a judgment of the Ontario Court of Appeal (1983), 43 O.R. (2d) 731, 3 D.L.R. (4th) 541, 8 C.C.C. (3d) 193, 37 C.R. (3d) 162, allowing an appeal from a judgment of Trotter Co. Ct. J. convicting respondent of armed robbery and of use of a fire‑arm while committing an indictable offence. Appeal dismissed.
Casey Hill, for the appellant.
Irwin Koziebrocki, for the respondent.
The judgment of the Court was delivered by
1. Lamer J.‑‑This appeal raises once again the difficult question of the exclusion of evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms , this time in the context of the right to counsel in s. 10(b).
Facts
2. On October 26, 1982, there was a robbery at a Mac's Milk store in Toronto. According to the store owner and an employee, the robber was armed with a gun and a knife and he wore a grey sweat‑shirt with a hood. The store owner and the employee could not positively identify the gun, the knife or the sweat‑shirt found in the car driven by the respondent at the time of his arrest, except to say that the sweat‑shirt was similar in colour. An eyewitness saw a man running from the store to a car, and he noted the licence number of the car. The car had been stolen a few hours previously.
3. On October 28, two days after the robbery, police officers MacIver and Train, acting on information received, attended at E & R Simonizing on Caledonia Road in Toronto at around 1:30 p.m. Both officers were in plain clothes. At approximately 2:33 p.m., the respondent drove up to the premises in a car which answered the description of the stolen car used in the armed robbery.
4. The respondent left the car and proceeded to the office premises where Train was waiting. MacIver, who had been waiting in the parking lot, investigated the car. He saw a gun butt protruding from under the driver's seat. He put the gun into his hip pocket, and he then followed the respondent into the office. When the respondent entered the office, Train greeted him with "Hi Ron". The respondent asked "Do I know you?" At that stage, both officers identified themselves as police officers and showed the respondent their badges. They searched and handcuffed the respondent.
5. At 2:40 p.m., Train arrested the respondent for theft and possession of the stolen car and for the armed robbery of the Mac's Milk store. He read him his rights from a card which was issued to all police officers when the Charter was proclaimed. The card from which the constable read stated as follows:
CHARTER OF RIGHTS
1. NOTICE UPON ARREST
I am arresting you for (briefly describe reasons for arrest)
2. RIGHT TO COUNSEL
It is my duty to inform you that you have the right to retain and instruct counsel without delay.
Do you understand?
CAUTION TO CHARGED PERSON
You (are charged, will be charged) with Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence.
SECONDARY CAUTION TO CHARGED PERSON
If you have spoken to any police officer or to anyone with authority or if any such person has spoken to you in connection with this case, I want it clearly understood that I do not want it to influence you in making any statement.
6. The respondent made a flippant remark at the reading of the caution and the right to counsel to the effect that "It sounds like an American T.V. program". Train re‑read the whole card to the respondent and, at that time, the respondent said:
Prove it. I ain't saying anything until I see my lawyer. I want to see my lawyer.
7. MacIver then questioned the respondent as follows:
Q. What is your full name?
A. Ronald Charles Manninen.
Q. Where is your address?
A. Ain't got one.
Q. Where is the knife that you had along with this (showing the respondent the CO2 gun found in the car) when you ripped off the Mac's Milk on Wilson Avenue?
A. He's lying. When I was in the store I only had the gun. The knife was in the tool box in the car.
This last answer was relied on by the trial judge in convicting the respondent on the charge of armed robbery.
8. MacIver then returned to the car where he found two knives and the grey sweat‑shirt. While MacIver was out of the room, Train asked the respondent the following questions:
Q. What is your business here, Ron?
A. (No response.)
Q. Do you know someone that works here?
A. No. Why?
Q. Why did you come to this place?
A. (No response.)
MacIver returned to the office, showed the respondent the two knives he had found in the car and had the following conversation with the respondent:
Q. What are these for?
A. What the fuck do you think they are for? Are you fucking stupid?
Q. You tell me what they are for, and is this yours? (showing the grey sweat‑top)
A. Of course it's mine. You fuckers are really stupid. Don't bother me anymore. I'm not saying anything until I see my lawyer. Just fuck off. You fuckers have to prove it.
9. Train had gone out on MacIver's return to check the trunk of the car and he stated that he had not heard the respondent repeat that he was not saying anything until he saw his lawyer.
10. There was an operating telephone in the small office where the respondent was arrested and the police officers used it in the course of the afternoon. The respondent did not make a direct request to use the telephone and the police officers did not volunteer the use of the telephone to the respondent. The trial judge made the following finding:
I find the police had no desire to have him call a lawyer, and intended to call a lawyer back at the station when the arrest was completed.
The respondent did not speak to his lawyer until the lawyer called him at the police station at 8:35 p.m.
Judgments
County Court
11. At his trial, the respondent sought the exclusion of the statements under s. 24(2) of the Charter on the basis that his right to counsel under s. 10(b) had been infringed. Trotter Co. Ct. J. held a voir dire to determine the admissibility of the statements. He held that, even if the right to counsel had been infringed, the admission of the statements would not bring the administration of justice into disrepute. Accordingly, he admitted the statements and he relied upon those statements in convicting the respondent of armed robbery and use of a fire‑arm while committing an indictable offence.
Ontario Court of Appeal
12. In a unanimous judgment delivered by MacKinnon A.C.J.O., the Ontario Court of Appeal allowed the respondent's appeal, quashed the convictions and directed a new trial on those charges: (1983), 8 C.C.C. (3d) 193.
13. The Court first held that the conduct of the police officers had seriously infringed the respondent's rights under s. 10( b ) of the Charter . The respondent clearly asserted his right to remain silent and his desire to consult his lawyer, but the police officer ignored that assertion and commenced questioning him. There was a telephone immediately at hand, and no urgency or emergency that would justify the failure to make it available to the respondent. The conduct of the police officers was such as to render the reading to the respondent of his Charter rights a mere ritual without significance or meaning.
14. The breach of the respondent's rights was described by the Court as wilful and deliberate. There was no quality of inadvertance or ignorance, and no suggestion of emergency or urgency. The disregard of the respondent's right to consult counsel had devastating consequences for him. The evidence should be excluded, even though the offence was a serious one and the respondent's guilt was clearly established by his answer.
15. The Court allowed the appeal and quashed the convictions. It ordered a new trial on the basis that there was some other evidence to support the convictions.
The Law
16. Section 24(2) of the Charter provides:
24. ...
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
17. As I indicated in my judgment in R. v. Collins, [1987] 1 S.C.R. 265, at p. 276, there are three prerequisites to the exclusion of evidence under s. 24(2) of the Charter :
(1) that the applicant's rights or freedoms, as guaranteed by the Charter , have been infringed or denied,
(2) that the evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter , and
(3) that, having regard to all the circumstances, the admission of the evidence in the proceedings would bring the administration of justice into disrepute.
1. Violation of the Right to Counsel
18. Section 10( b ) of the Charter provides:
10. Everyone has the right on arrest or detention
...
(b) to retain and instruct counsel without delay and to be informed of that right; . . .
19. It is not disputed that the respondent was informed of his right to retain and instruct counsel without delay. Further, the sufficiency of the communication is not challenged.
20. The respondent's comment on being informed of his right to counsel was:
Prove it. I ain't saying anything until I see my lawyer. I want to see my lawyer.
Since there could hardly be a clearer assertion of the desire to exercise the right to counsel, it is not necessary in this appeal to decide whether an arrested or detained person is required to positively assert his right to counsel before a correlative obligation is imposed on the police.
21. In my view, s. 10(b) imposes at least two duties on the police in addition to the duty to inform the detainee of his rights. First, the police must provide the detainee with a reasonable opportunity to exercise the right to retain and instruct counsel without delay. The detainee is in the control of the police and he cannot exercise his right to counsel unless the police provide him with a reasonable opportunity to do so. This aspect of the right to counsel was recognized in Canadian law well before the advent of the Charter . In Brownridge v. The Queen, [1972] S.C.R. 926, a case decided under the Canadian Bill of Rights, Laskin J., as he then was, wrote at pp. 952‑53:
The right to retain and instruct counsel without delay can only have meaning to an arrested or detained person if it is taken as raising a correlative obligation upon the police authorities to facilitate contact with counsel. This means allowing him upon his request to use the telephone for that purpose if one is available.
The duty to facilitate contact with counsel has been consistently acknowledged under s. 10( b ) of the Charter by the lower courts: R. v. Nelson (1982), 3 C.C.C. (3d) 147 (Man. Q.B.); R. v. Anderson (1984), 10 C.C.C. (3d) 417 (Ont. C.A.); R. v. Dombrowski (1985), 18 C.C.C. (3d) 164 (Sask. C.A.), and the Ontario Court of Appeal in this case. In Dombrowski, the Court held that, where a telephone is available at an earlier occasion, there is no justification for delaying the opportunity to contact counsel until arrival at the police station.
22. In my view, this aspect of the right to counsel was clearly infringed in this case. The respondent clearly asserted his right to remain silent and his desire to consult his lawyer. There was a telephone immediately at hand in the office, which the officers used for their own purposes. It was not necessary for the respondent to make an express request to use the telephone. The duty to facilitate contact with counsel included the duty to offer the respondent the use of the telephone. Of course, there may be circumstances in which it is particularly urgent that the police continue with an investigation before it is possible to facilitate a detainee's communication with counsel. There was no urgency in the circumstances surrounding the offences in this case.
23. Further, s. 10(b) imposes on the police the duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel. The purpose of the right to counsel is to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights. In this case, the police officers correctly informed the respondent of his right to remain silent and the main function of counsel would be to confirm the existence of that right and then to advise him as to how to exercise it. For the right to counsel to be effective, the detainee must have access to this advice before he is questioned or otherwise required to provide evidence. I discussed the duty imposed on the police in the context of a breathalyzer demand in R. v. Therens, [1985] 1 S.C.R. 613, at p. 624:
I do not want to be taken here as giving an exhaustive definition of the s. 10(b) rights and will limit my comments in that respect to what is strictly required for the disposition of this case. In my view, s. 10(b) requires at least that the authorities inform the detainee of his rights, not prevent him in any way from exercising them and, where a detainee is required to provide evidence which may be incriminating and refusal to comply is punishable as a criminal offence, as is the case under s. 235 of the Code, s. 10(b) also imposes a duty not to call upon the detainee to provide that evidence without first informing him of his s. 10(b) rights and providing him with a reasonable opportunity and time to retain and instruct counsel. [Emphasis added.]
This passage was cited by Wilson J. in Clarkson v. The Queen, [1986] 1 S.C.R. 383, at p. 394, in the context of confessions, and I agree that this duty is equally applicable in that context. The Ontario Court of Appeal came to the same conclusion in Anderson, supra, and in R. v. Esposito (1985), 24 C.C.C. (3d) 88, at p. 97:
If the suspect states that he wishes to retain counsel all questioning must cease until he has been afforded the opportunity of consulting counsel....
24. This aspect of the respondent's right to counsel was clearly infringed in the circumstances of this case. Immediately after the respondent's clear assertion of his right to remain silent and his desire to consult his lawyer, the police officer commenced his questioning as if the respondent had expressed no such desire. Again, there may be circumstances in which it is particularly urgent that the police proceed with their questioning of the detainee before providing him with a reasonable opportunity to retain and instruct counsel, but there was no such urgency in this case.
25. The Crown contends that there was no infringement of the right to counsel because the respondent had waived his right by answering the police officer's questions. While a person may implicitly waive his rights under s. 10(b), the standard will be very high (Clarkson, supra, at pp. 394‑95). In my view, the respondent's conduct did not constitute an implied waiver of his right to counsel. It seems that he did not intend to waive his right, as he clearly asserted it at the beginning and at the end of the questioning. Rather, the form of the questioning was such as to elicit involuntary answers. The police officer asked two innocuous questions followed by a baiting question which led the respondent to incriminate himself. In addition, where a detainee has positively asserted his desire to exercise his right to counsel and the police have ignored his request and have proceeded to question him, he is likely to feel that his right has no effect and that he must answer. Finally, the respondent had the right not to be asked questions, and he must not be held to have implicitly waived that right simply because he answered the questions. Otherwise, the right not to be asked questions would only exist where the detainee refused to answer and, thus, where there is no need for any remedy or exclusionary rule.
26. For these reasons, I would conclude that the respondent's rights under s. 10(b) were infringed.
2. Relationship Between the Violation and the Evidence
27. Section 24(2) requires that the evidence must have been "obtained in a manner that infringed" the Charter . There must thus be some relationship or connection between the violation and the evidence. In my view, a sufficient relationship or connection is obviously made out where, as in this case, the evidence was obtained as a direct consequence of the violation of the Charter (Therens, supra, at pp. 621‑22 per Estey J., at p. 624 per Lamer J. and at p. 649 per Le Dain J.) It is not necessary to define with any greater precision the nature of the relationship or connection required.
3. Bringing the Administration of Justice into Disrepute
28. The final requirement for the exclusion of the evidence is that the admission of the evidence in the proceedings must bring the administration of justice into disrepute. The Court discussed the nature of that inquiry, the guidelines to be followed and the factors to be considered in its recent decision in R. v. Collins, supra, and I need only apply that discussion to the facts of this case.
29. The first point that must be made is that the violation of the respondent's right to counsel was very serious. The respondent clearly asserted his right to remain silent and to consult his lawyer. There was a telephone at hand. There was no urgency which would justify the immediate questioning or the denial of the opportunity to contact his lawyer. In effect, the police officers simply ignored the rights they had read to him and his assertion of the right to silence and the right to counsel. The Ontario Court of Appeal characterized this violation as "wilful and deliberate" and as an "open and flagrant disregard of the [respondent's] rights", and I fully agree.
30. Further, the evidence obtained was self‑incriminatory. As I stated in Collins, supra, the use of self‑incriminatory evidence obtained following a denial of the right to counsel will generally go to the very fairness of the trial and thus will generally bring the administration of justice into disrepute.
31. It is true that the offence was a serious one and that the respondent's guilt is clearly established by the statement sought to be excluded, but that cannot justify the admission of the evidence in light of the seriousness of the violation and the effect of the evidence on the fairness of the trial.
Conclusion
32. I agree with the Ontario Court of Appeal that the evidence should have been excluded and, for the reasons given by the Court of Appeal, I agree that a new trial should be ordered on the charges of armed robbery and use of a fire‑arm while committing an indictable offence.
33. I would accordingly dismiss the appeal.
Appeal dismissed.
Solicitor for the appellant: The Attorney General for Ontario, Toronto.
Solicitor for the respondent: William S. Hechter, Toronto.
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