R. v. Upston, [1988] 1 SCR 1083

r. v. upston, [1988] 1 S.C.R. 1083

Joseph Upston             Appellant

v.

Her Majesty The Queen                                                                   Respondent

indexed as: r. v. upston

File No.: 20382.

1988: May 27.

Present: Dickson C.J. and Beetz, McIntyre, Lamer and La Forest JJ.

on appeal from the court of appeal for british columbia

                   Constitutional law ‑‑ Charter of Rights  ‑‑ Right to retain and instruct counsel ‑‑ Appellant not informed of right on initial detention ‑‑ Evidence given voluntarily after being informed of right to counsel ‑‑ Evidence not obtained in manner breaching a Charter  right within meaning of s. 24 ‑‑ Canadian Charter of Rights and Freedoms, ss. 10(b) , 24 .

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms , ss. 10 ( b ) , 24 .

                   APPEAL from a judgment of the British Columbia Court of Appeal (1987), 1 W.C.B. (2d) 221, allowing an appeal from a judgment of Wetmore Co. Ct. J. and setting aside an acquittal. Appeal dismissed.

                   Barry Long, for the appellant.

                   S. David Frankel, for the respondent.

                   The judgment of the Court was delivered orally by

1.                       The Chief Justice‑‑It will not be necessary to hear from you Mr. Frankel. The judgment of the Court will be given by La Forest J.

2.                       La Forest J.‑‑While there was a breach of s. 10( b )  of the Canadian Charter of Rights and Freedoms  in that the appellant was not informed of his right to retain and instruct counsel when he was initially detained, the evidence adduced was not obtained as a result of that breach but, as the trial judge found, was completely voluntary after he had been informed of his right to counsel. The evidence was thus not obtained in a manner that infringed or denied a Charter  right within the meaning of s. 24  of the Charter  and should consequently not be excluded. The appeal is, therefore, dismissed.

                   Judgment accordingly.

                   Solicitors for the appellant: McCrea, Paul & Long, Vancouver.

                   Solicitor for the respondent: S. David Frankel, Vancouver.