Supreme Court of Canada
R. v. Turgeon, [1983] 1 S.C.R. 308
Date: 1983-03-24
Her Majesty The Queen Appellant;
and
Luc Turgeon Respondent.
File No.: 16452.
1982: October 19; 1983: March 24.
Present: Dickson, Beetz, Estey, Mclntyre, Chouinard, Lamer and Wilson JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Criminal law—Appeal—Evidence—Confession—Refusal by police to allow lawyer to be consulted—Whether confession free and voluntary—Difference of opinion as to effect of refusal—Appeal not raising a question of law—Appeal quashed.
Respondent was convicted of conspiracy to commit fraud. There was no valid proof of his guilt aside from a confession made by respondent to the police when he was being detained prior to his trial. This confession was obtained after respondent was denied the right to consult a lawyer. At trial, after a voir-dire the judge held the confession was admissible because it was free and voluntary. On appeal, a majority of the Court of Appeal rejected the findings of the trial judge, and ruled that the repeated refusal of the police to allow the accused to consult a lawyer made his fear that he would not be released until he had signed a statement credible, and left room for a reasonable doubt as to the free and voluntary nature of the confession.
Held: The appeal should be quashed.
Per Estey, Mclntyre, Lamer and Wilson JJ.: In light of the evidence and the actions of the police, the judges of appeal could have had doubts not countenanced by the trial judge. The majority’s difference of opinion with the trial judge and with their brother on the Court of Appeal—who concurred with the view of the lower court as to the effect which the repeated refusals of the police might have had in the circumstances—was not such as to raise a question of law.
Per Dickson, Beetz and Chouinard JJ.: This appeal did not raise a question of law. For this reason, it should be quashed.
APPEAL from a judgment of the Court of Appeal for Quebec, [1981] C.A. 217, 20 C.R. (3d) 269, setting aside respondent’s conviction. Appeal quashed.
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Raynald Bordeleau and Jean-François Dionne, for the appellant.
Pierre Fauteux, for the respondent.
English version of the reasons of Dickson, Beetz and Chouinard JJ. delivered by
CHOUINARD J.—Like Lamer J., I am of the opinion that this appeal does not raise a question of law. For this reason, it should be quashed.
English version of the judgment of Estey, Mclntyre, Lamer and Wilson JJ. delivered by
LAMER J.—Luc Turgeon was convicted by a judge of the Provincial Court of Quebec of the crime of conspiracy to commit fraud.
The Court of Appeal by a majority judgment allowed his appeal and acquitted him: hence the appeal by the Crown to this Court.
One component of the prosecution evidence is a confession by respondent, which the trial judge held, following the holding of a voir-dire, was admissible because it was made freely and voluntarily. Two of the three judges of the Court of Appeal came to the opposite conclusion. The confession was not admitted and the accused was acquitted. At the hearing of the appeal before this Court, the Crown conceded that unless this confession was in evidence the accused had to be acquitted. The Crown admitted that on two occasions the police denied the accused the right to telephone a lawyer and consult him, and that the statement was obtained from the accused after these refusals.
Both Judge Bigué of the Provincial Court and Dubé J.A. made clear and thorough analyses of the various decisions of this Court and of the other Canadian superior courts regarding the effect of a flagrant denial of the rights of an inmate, recognized by the Canadian Bill of Rights, on the admissibility in evidence of a statement. It should be mentioned that, at the time of the trial, the appeal, and above all, the decision of this Court to authorize the appeal, Canada did not yet have the Canadian Charter of Rights and Freedoms . The coming into force of the Charter now greatly diminishes the importance this appeal had at the time, namely that it provided this Court with an
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opportunity to review the rule as to the admissibility of statements under such circumstances.
Judge Bigué found that the actions of the police officers, in denying Turgeon access to counsel, did not in any way affect the free and voluntary nature of the statement. The ratio decidendi of the majority decision of the Court of Appeal is stated by Mayrand J.A. as follows:
[TRANSLATION] The circumstances in which the incriminating statement was made and signed by the accused leave room for a reasonable doubt as to its voluntariness.
One of the significant circumstances is the repeated refusal of the police to allow the accused to consult a lawyer before being interrogated(10). This illegal refusal(11) created an atmosphere of coercion that makes the fear the accused said he felt of not being able to be released until he had signed the statement credible.
I concur in this regard in the view of my brother Dubé J.A. and would dispose of the appeal as suggested by him.
(10)See as to this F. Kaufman, The Admissibility of Confessions, 3rd ed., Toronto, Carswell, 1979, pp. 160-178.
(11)Canadian Bill of Rights, s. 2(c)(i).
(Emphasis added.)
Dubé J.A. had concluded as follows:
[TRANSLATION] It is easy to say that Luc Turgeon was in no way forced to make a statement, but he told this Court that the police officers gave him to understand that he would not be released until he had made a confession: it does not matter whether the police used exactly these words; it seems to me, at least in my opinion, that the simple fact that Turgeon was denied permission to see a lawyer until he had made a statement meant it would be better to make such a statement. How can there be no reasonable doubt in these circumstances, when Luc Turgeon stated that he felt he had to make a statement?
(Emphasis added.)
In light of the evidence and the actions of the police, it was open to the judges of appeal to entertain doubts not countenanced by the trial judge. This difference of opinion of the majority in the Court of Appeal with the trial judge and with
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their brother on the Court of Appeal, Turgeon J.A., who concurred with the lower court, as to the effect which these refusals might have had in the circumstances, is not such as to raise a question of law. Earlier in his opinion, Dubé J.A. had enunciated the following rule: [TRANSLATION] “… where a person in authority categorically denies an accused his undisputed right to get in touch with a lawyer without unreasonable delay, a confession obtained in such circumstances should not be accepted since it is practically impossible for it to have been made freely and voluntarily, even if this appears to have been the case”. In fact, in the case at bar respondent had testified that he felt, as a result of the actions of the police, that he had to make a confession in order to be released. On this point, Dubé J.A. gave him the benefit of the doubt. The fact that Mayrand J.A. only concurred in the reasons of his brother as to that conclusion places the rule proposed by Dubé J.A. in the category of an obiter dictum.
For these reasons, I would quash this appeal.
Appeal quashed.
Solicitor for the appellant: Raynald Bordeleau, Amos.
Solicitors for the respondent: Leclerc, Fauteux, Lemay & Massol, Amos.
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