Present: Beetz, Estey, McIntyre, Lamer, Wilson, Le Dain and L'Heureux‑Dubé JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights ‑‑ Right to counsel ‑‑ Accused informed of his right to counsel following arrest ‑‑ Trial judge excluding inculpatory statement on basis that accused's right to counsel was violated ‑‑ No proof indicating that accused did not understand his right ‑‑Whether accused's right to counsel violated ‑‑ Canadian Charter of Rights and Freedoms, s. 10(b) .
The accused was arrested for murder and promptly informed of his right to counsel. When asked if he understood his right, the accused replied "How can you prove this thing?" At the police station, he made an inculpatory statement and the statement form indicated that the accused gave an affirmative answer to the question of whether he understood that he had the right to retain and instruct counsel without delay. At trial, the trial judge ruled that the accused's right under s. 10( b ) of the Charter had been violated and excluded the statement. The accused was acquitted on a directed verdict. On appeal, the Court of Appeal quashed the acquittal and ordered a new trial.
Held: The appeal should be dismissed.
The accused's right to counsel was not violated. Absent proof of circumstances indicating that the accused did not understand his right to retain counsel when he was informed of it, the onus has to be on him to prove that he asked for the right but it was denied, or he was denied any opportunity to even ask for it. No such evidence was put forth in this case. Absent such circumstances, once the police has complied with s. 10(b), by promptly advising the accused of his right to counsel without delay, there are no correlative duties triggered and cast upon it until the accused, if he so chooses, has indicated his desire to exercise his right to counsel.
Cases Cited
Applied: R. v. Anderson (1984), 10 C.C.C. (3d) 417.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , ss. 10 ( b ) , 24(2) .
APPEAL from a judgment of the Ontario Court of Appeal (1985), 20 C.C.C. (3d) 515, 46 C.R. (3d) 222, 16 C.R.R. 300, 9 O.A.C. 266, allowing the Crown's appeal from the accused's acquittal on a charge of first degree murder and ordering a new trial. Appeal dismissed.
John R. McGregor, for the appellant.
Edward Then, for the respondent.
The following is the judgment delivered by
1. The Court‑‑This appeal comes to us as of right. The appellant was charged with murder and tried in the Supreme Court of Ontario before a jury. He was acquitted following a directed verdict. This verdict was pursuant to the exclusion from the evidence of a statement given by the accused. The statement was excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms following a finding by the trial judge that the accused's right to counsel and to be informed thereof, guaranteed by s. 10( b ) of the Charter , had been violated. The Court of Appeal quashed the acquittal and ordered a new trial finding that the accused's rights under the Charter had not been violated: (1985), 20 C.C.C. (3d) 515, 46 C.R. (3d) 222, 16 C.R.R. 300, 9 O.A.C. 266.
2. The relevant facts, to state them succinctly, are as follows:
Facts
3. The accused, Mohsin Majeed Baig, was arrested at approximately 1:50 p.m. on September 20, 1982 and was charged with murder. The police had met the accused outside his house. The accused entered the police vehicle. The following exchange then took place between Constable Kelly and the accused:
Kelly:Okay Mohsin. You are under arrest for the murder of Navneet Uppal . . . Now before you say anything just listen to this. You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence . . . It is my duty to inform you that you have the right to retain and instruct counsel without delay; do you understand?
Baig: How can you prove this thing?
Kelly: We can prove it okay.
4. The accused was then taken to the police headquarters. No conversation took place en route. Upon arrival, the accused was taken to an interview room where the following exchange took place:
Kelly:Okay Mohsin, you have had a chance to think things out on the way here. Anees and Raza have been arrested, and we know exactly what happened, so you may as well tell us about it.
Baig: You have Anees and Raza here?
Kelly: Yes we have. We may as well tell you we have also arrested Kumerjeet. You're the last one we had to get.
Baig: Okay, okay. I'll tell you.
Kelly: Just a second. You understand that caution that I told you when you were arrested, that still applies.
Baig: Yes, I know.
The accused then made an oral statement concerning his knowledge of and involvement in the murder of Uppal. The statement was taken down in writing by Constable Kelly.
5. Kelly then typed the written statement on a statement form. The form contained the following three questions:
1. Do you understand the charge?
2. Do you understand the caution?
3. I have to inform you that you have the right to retain and instruct counsel without delay. Do you understand that?
The form was read to the accused and the accused answered "yes" to each of the three questions. The accused then read and signed the statement.
Disposition
6. We are in substantial agreement with the Court of Appeal. As there was and is no need to determine whether, under the circumstances of this case, the accused's conduct amounted to a waiver of his right to counsel, we prefer not to pronounce upon that matter. We agree with Tarnopolsky J.A. in R. v. Anderson (1984), 10 C.C.C. (3d) 417 (Ont. C.A.), wherein he said, at p. 431:
. . . I am of the view that, absent proof of circumstances indicating that the accused did not understand his right to retain counsel when he was informed of it, the onus has to be on him to prove that he asked for the right but it was denied or he was denied any opportunity to even ask for it. No such evidence was put forth in this case.
In the present case, the accused did not put forward, nor does the record reveal, any evidence suggesting that he was denied an opportunity to ask for counsel. Absent such circumstances, as that referred to by Tarnopolsky J.A., once the police have complied with s. 10(b), by advising the accused without delay of his right to counsel without delay, there are no correlative duties triggered and cast upon them until the accused, if he so chooses, has indicated his desire to exercise his right to counsel.
7. This appeal is dismissed.
Appeal dismissed.
Solicitor for the appellant: John R. McGregor, Toronto.
Solicitor for the respondent: The Ministry of the Attorney General, Toronto.
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