The reasons of Lamer C.J. and Sopinka, Cory and Major JJ. were delivered by
Lamer C.J. (dissenting) --
I. Factual Background
On May 28, 1982, the appellant was convicted of rape, gross indecency and attempted rape of three girls aged 10, 12 and 13. He was sentenced to five years' imprisonment. He spent two years in a sex offender program at the Regional Psychiatric Centre and was released on mandatory supervision in 1985.
On November 7, 1986, while on parole, the appellant was charged with three counts of sexual assault with a weapon and three counts of unlawful confinement. His victims were 9, 14 and 26 years old. The assaults on the nine-year-old girl took place just one day after the appellant was asked for a photograph to be used for the investigation of one of the other offences.
Prior to election, the appellant's counsel requested and obtained an order from the court pursuant to s. 465(1)(c) of the Criminal Code, R.S.C. 1970, c. C-34 (which became s. 537(1) (b), R.S.C., 1985, c. C-46 , and then was repealed by S.C. 1991, c. 43, s. 9 (it will be referred to as s. 537(1)(b) throughout these reasons)). Under this section, the court is empowered to remand an accused to such custody as the court directs for observation where there is evidence and/or reason to believe that the accused may be mentally ill. The appellant's counsel requested the order for the following purposes: to determine whether the accused was fit to stand trial; to determine whether the accused was sane at the time of the offence; and to gain some insight into the accused for the purpose of sentencing. The order itself did not specify a purpose. It simply remanded the accused into custody for observation on the grounds that there was, in the judge's opinion, reason to believe that the accused may have been mentally ill.
On November 18, 1986, the appellant was remanded into custody for psychiatric observation. The appellant was examined by two psychiatrists and one psychologist at the Forensic Psychiatric Institute. The trial judge found, as a matter of fact, that the accused was warned that whatever he told the psychiatrists could be used against him and might be included in a report to the court. However, he was not specifically told that the examination during the 30-day remand at some stage shifted its focus to include an opinion as to whether or not he was a dangerous offender. Nor was he told that what he said on the examination could also be used for the purpose of a determination of whether he was a dangerous offender. One psychiatrist told the appellant that he had the right to refuse to answer questions and had the right to consult counsel prior to answering any questions. The appellant indicated that he understood the warnings, cooperated willingly, and indicated that it was not necessary to consult counsel.
During the first interview, the psychiatrist became concerned about the appellant's potential for future violence. The focus of the observation was therefore broadened to include an inquiry as to whether the appellant was a dangerous offender. As a matter of fact, the trial judge found that there was no deliberate deception of the accused. Rather, this was a case in which the defence counsel asked for a limited examination of the accused and the psychiatrist, seeing cause for concern about the accused as a danger to re-offend, pursued that inquiry without telling Jones about it specifically and without referring it back to Jones' counsel.
The appellant pleaded guilty to one count each of sexual assault and sexual assault with a weapon. Following his conviction, an inquiry was held to determine whether he should be sentenced as a dangerous offender. The trial judge held a voir dire to determine the admissibility of evidence from the two psychiatrists and the psychologist from the Forensic Psychiatric Institute. Counsel for the appellant challenged the admissibility of the evidence on the grounds that, to admit the results of the pre-trial psychiatric examinations in the dangerous offender proceedings without the consent of the accused and without warning the accused at the time of the interviews that anything he said might be used in dangerous offender proceedings was a violation of the accused's rights under s. 7 of the Canadian Charter of Rights and Freedoms .
II. Decisions Below
On April 29, 1988, the Supreme Court of British Columbia (Spencer J.) found the appellant to be a dangerous offender: (1988), 6 W.C.B. (2d) 208. On July 29, 1992, the Court of Appeal for British Columbia (Toy, Legg and Hinds JJ.A.) dismissed the appeal: (1992), 16 B.C.A.C. 161, 28 W.A.C. 161, 75 C.C.C. (3d) 327, 11 C.R.R. (2d) 65. On December 10, 1992, the Supreme Court of Canada (La Forest, Sopinka and Cory JJ.) granted leave to appeal, [1992] 3 S.C.R., vi, and on October 12, 1993, the appeal was heard by the Supreme Court of Canada.
A. Supreme Court of British Columbia
First, the trial judge found as a matter of fact that there was no deliberate deception of the appellant:
... this is simply a case where the Defence asked for a limited examination of the accused and where Dr. Lohrasbe seeing cause for concern about the accused as a danger to re-offend, pursued that inquiry without telling Jones about it specifically and without referring it back to Jones' counsel.
The indicia of danger which has been put before me on the voir dire in the psychiatrist's opinions, emerges in the ordinary course of a consensual examination pursuant to s. 465, subsection (c).
Second, the trial judge rejected the defence argument that s. 7 of the Charter requires that no accused person who undergoes a pre-trial psychiatric examination to determine his fitness to stand trial or his sanity at the time of an alleged offence should have the contents of his interviews granted during the examination tendered against him in dangerous offender proceedings without his consent or unless he was warned at the time of the possibility of those interviews being used in dangerous offender proceedings.
... it is my view that the Charter of Rights and Freedoms does not permit me as a trial judge to legislate restrictions on the use to which evidence properly obtained under s. 456(c) [sic] of the Criminal Code on a pre‑trial psychiatric examination, may be put in the guise of protecting a constitutional right under s. 7. My function is to determine what right exists under s. 7 and not to create one as if by legislation. The only right that I can find is one which is exemplified in s. 11, subsection (c), that is, the right against self-incrimination. In that section, it is limited to those who are charged with an offence. It might have been a broader right under s. 7 extending to those who are no longer technically charged with an offence but for the fact that the criminal law of this country, at the highest level, in R. v. Wilband, has denied the existence of any such right.
... I have also found a case decided last year in the Ontario Court of Appeal, Thomson Newspapers v. The Director of Investigation and Research (1986), 30 C.C.C. (3d) 145 decided in 1986, not 1987. That case stands for the proposition that the only rights against self-incrimination now known to the law of Canada are those which are found in s. 11, subsection (c) and s. 13 of the Charter . S. 13, of course, has no application to the case before me. But that reinforces my view that there is no separate right contained in s. 7. I note also the imprimatur of the Supreme Court of Canada in the Big M Drug Mart case (1985), 18 C.C.C. (3d) 385, that the Charter itself was not enacted in vacuum. And I apply that in this case to tell me that the Charter , ss. 7 and 11 , subsection (c) were enacted in the context of R. v. Wilband which had already denied the existence of any right against self-incrimination except with respect to persons charged with offences who were speaking to people in authority.
The trial judge concluded:
I make this final point; my powers under the Charter are limited. I may declare legislation to be unconstitutional -- and I am not asked to do that here -- or I may exclude evidence under the provisions of s. 24 , subsection (2) where it was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter and then only if the applicant proves, on the balance of probabilities, that its admission would bring the administration of justice into disrepute. In my opinion, as I have said, there is no right of the accused that has been infringed here. Rather, what is happening, is that evidence not unlawfully obtained and highly relevant to an issue of great importance, both to the accused and to the public interest, is being tendered in accordance with the law. To exclude it, I am invited to declare a limitation on s. 465 , subsection (c) of the Criminal Code and then to rule out the evidence as a breach of that limitation. I must decline to do that. If it is thought necessary so to limit the reach of s. 465, subsection (c) of the Code, that is a matter which ought to be dealt with by legislation and not by a trial judge.
On the basis of all of the evidence before him (including the evidence gathered during the observation conducted under the s. 537(1)(b) remand order), the trial judge concluded that there was a danger the appellant would commit similar offences against girls or physically small women. He concluded that the appellant lacked the ability to prevent himself from committing assaults. He therefore declared the appellant to be a dangerous offender within the meaning of s. 688(a)(i) and (ii) (now s. 753(a)(i) and (ii)) and s. 688(b) (now s. 753(b)) of the Criminal Code and gave him an indeterminate sentence.
B. British Columbia Court of Appeal (1992), 75 C.C.C. (3d) 327
Legg J.A. considered whether there was a limitation of the appellant's right to silence under s. 7 of the Charter given the following circumstances of the case: (1) the order made under s. 537(1)(b) was not restricted to an assessment of whether the appellant was mentally ill at the time of the offences for which he was charged or whether he was fit to stand trial but rather encompassed an assessment of whether the appellant was mentally ill; (2) the appellant had counsel; (3) with counsel's advice, the appellant agreed to the psychiatric examinations; (4) the appellant was aware that what he said was not protected by confidentiality and might be incorporated into a report to the court; (5) the appellant spoke freely and openly to the doctors and did not assert his right to silence; and (6) the doctors did not engage in any sort of tricks to induce the appellant to speak to them.
Legg J.A. concluded, at pp. 338-39, that the appellant's right to silence under s. 7 was not limited. He quoted the following passage from the reasons of McLachlin J. in R. v. Hebert, [1990] 2 S.C.R. 151, at p. 180:
The Charter through s. 7 seeks to impose limits on the power of the state over the detained person. It thus seeks to effect a balance between the interests of the detained individual and those of the state. On the one hand s. 7 seeks to provide to a person involved in the judicial process protection against the unfair use by the state of its superior resources. On the other, it maintains to the state the power to deprive a person of life, liberty or security of person provided that it respects fundamental principles of justice. The balance is critical....
The right to silence conferred by s. 7 reflects these values. The suspect, although placed in the superior power of the state upon detention, retains the right to choose whether or not he will make a statement to the police. To this end, the Charter requires that the suspect be informed of his or her right to counsel and be permitted to consult counsel without delay. If the suspect chooses to make a statement, the suspect may do so. But if the suspect chooses not to, the state is not entitled to use its superior power to override the suspect's will and negate his or her choice.
In the case at bar, the state had the power to limit the appellant's liberty by detaining him for the purpose of determining whether he was mentally ill. This intrusion was made with his consent. Furthermore, although the doctors were "agents of the state", they were not undercover and they did not resort to trickery to persuade the appellant to speak. Rather, they warned him that what he said could be used against him and he chose to speak with them. The "critical balance" referred to in Hebert was maintained between the appellant's right to protection against the unfair use by the state of its superior resources and the state's obligation to respect fundamental principles of justice.
The Court of Appeal held that there was no breach of the appellant's s. 7 rights and dismissed the appeal.
III. Relevant Legislation
Criminal Code , R.S.C., 1985, c. C‑46
537. (1) A justice acting under this Part may
...
(b) by order in writing,
...
(ii) remand an accused to such custody as the justice directs for observation for a period not exceeding thirty days,
where, in his opinion, supported by the evidence, or where the prosecutor and the accused consent, by the report in writing, of at least one duly qualified medical practitioner, there is reason to believe that
(iii) the accused may be mentally ill,
...
(3) Where, as a result of observations made pursuant to an order issued under paragraph (1)(b), it appears to a justice that there is sufficient reason to doubt that the accused is, on account of insanity, capable of conducting his defence, the justice shall direct that an issue be tried whether the accused is then, on account of insanity, unfit to conduct his defence at the preliminary inquiry.
(4) Where the justice directs the trial of an issue under subsection (3), he shall proceed in accordance with section 615 in so far as that section may be applied.
672.11 A court having jurisdiction over an accused in respect of an offence may order an assessment of the mental condition of the accused, if it has reasonable grounds to believe that such evidence is necessary to determine
(a) whether the accused is unfit to stand trial;
(b) whether the accused was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1);
672.21(1) In this section, "protected statement" means a statement made by the accused during the course and for the purposes of an assessment or treatment directed by a disposition, to the person specified in the assessment order or the disposition, or to anyone acting under that person's direction.
(2) No protected statement or reference to a protected statement made by an accused is admissible in evidence, without the consent of the accused, in any proceeding before a court, tribunal, body or person with jurisdiction to compel the production of evidence.
(3) Notwithstanding subsection (2), evidence of a protected statement is admissible for the purpose of
(a) determining whether the accused is unfit to stand trial;
(b) making a disposition or placement decision respecting the accused;
(c) finding whether the accused is a dangerous mentally disordered accused under section 672.65;
686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal
...
(b) may dismiss the appeal where
...
(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) [a wrong decision on a question of law] the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred;
753. Where, on an application made under this Part following the conviction of a person for an offence but before the offender is sentenced therefor, it is established to the satisfaction of the court
...
the court may find the offender to be a dangerous offender and may thereupon impose a sentence of detention in a penitentiary for an indeterminate period, in lieu of any other sentence that might be imposed for the offence for which the offender has been convicted.
755. (1) On the hearing of an application under this Part, the court shall hear the evidence of at least two psychiatrists and all other evidence that, in its opinion, is relevant, including the evidence of any psychologist or criminologist called as a witness by the prosecution or the offender.
756. (1) A court to which an application is made under this Part may, by order in writing,
(a) direct the offender in relation to whom the application is made to attend, at a place or before a person specified in the order and within a time specified therein, for observation, or
(b) remand the offender in such custody as the court directs, for a period not exceeding thirty days, for observation,
where in its opinion, supported by the evidence of, or where the prosecutor and the offender consent, supported by the report in writing of, at least one duly qualified medical practitioner, there is reason to believe that evidence might be obtained as a result of the observation that would be relevant to the application.
759. (1) A person who is sentenced to detention in a penitentiary for an indeterminate period under this Part may appeal to the court of appeal against that sentence on any ground of law or fact or mixed law and fact.
...
(3) On an appeal against a sentence of detention in a penitentiary for an indeterminate period, the court of appeal may
(a) quash the sentence and impose any sentence that might have been imposed in respect of the offence for which the appellant was convicted, or order a new hearing; or
(b) dismiss the appeal.
...
(7) The provisions of Part XXI with respect to procedure on appeals apply, with such modifications as the circumstances require, to appeals under this section.
Canadian Charter of Rights and Freedoms
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
IV. Analysis
A. Introduction
The appellant does not attack any particular section of the Code. He complains that his s. 7 Charter rights were infringed when he was not told that the examinations might be used for the purposes of dangerous offender proceedings and that his s. 10(b) rights were infringed when he was not offered the right to counsel once the focus of the examination had been expanded to include his future dangerousness. In view of my conclusion in this case, I find it necessary to discuss only the s. 7 issue.
In essence, the appellant's s. 7 argument is that the evidence obtained from the s. 537 observation should not have been used, at least not without an explicit warning, for the purposes of the dangerous offender proceedings. As will become apparent, I believe that the warning is irrelevant to the case at bar and the issue is the admissibility of the evidence obtained from the s. 537(1)(b) observation.
Section 755 (previously s. 690) relates to the admissibility of evidence at dangerous offender proceedings and provides, as set out above, that "the court shall hear the evidence of at least two psychiatrists and all other evidence that, in its opinion, is relevant...". In my opinion, while s. 755 was not directly challenged, we must ask whether it was, in this case, interpreted and applied in a way that offends s. 7 of the Charter (specifically, the s. 7 right to no self-incrimination).
Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, stands for the proposition that this Court should not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter and hence of no force or effect. Legislation conferring an imprecise discretion must therefore be interpreted as not allowing the Charter rights to be infringed.
There are two competing possible interpretations of s. 755. The first is that the section renders evidence gathered during psychiatric observation ordered under s. 537(1)(b) admissible for the purposes of dangerous offender proceedings (hereinafter "broad interpretation"). The second is that the section renders evidence gathered during psychiatric observation ordered under s. 537(1)(b) inadmissible for the purposes of dangerous offender proceedings (hereinafter "narrow interpretation").
If one of these interpretations would result in a Charter violation and the other would not, then, of course, the latter should be adopted. I therefore move now to the Charter analysis.
B. Section 7 of the Charter
(1) Life, liberty and security of the person
Section 7 of the Charter establishes that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Imprisonment and the imminent threat of imprisonment are both clearly deprivations of liberty (Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, and R. v. Vaillancourt, [1987] 2 S.C.R. 636). Therefore, an individual may be imprisoned or imminently threatened with imprisonment only in accordance with the principles of fundamental justice (unless the imprisonment or threat of imprisonment is justified under s. 1 of the Charter ).
(2) Principles of fundamental justice
As I said in Re B.C. Motor Vehicle Act, at pp. 512-13:
The term "principles of fundamental justice" is not a right, but a qualifier of the right not to be deprived of life, liberty and security of the person; its function is to set the parameters of that right.
Sections 8 to 14 address specific deprivations of the "right" to life, liberty and security of the person in breach of the principles of fundamental justice, and as such, violations of s. 7. They are therefore illustrative of the meaning, in criminal or penal law, of "principles of fundamental justice"; they represent principles which have been recognized by the common law, the international conventions and by the very fact of entrenchment in the Charter , as essential elements of a system for the administration of justice which is founded upon the belief in the dignity and worth of the human person and the rule of law.
Consequently, the principles of fundamental justice are to be found in the basic tenets and principles, not only of our judicial process, but also of the other components of our legal system.
...
Whether any given principle may be said to be a principle of fundamental justice within the meaning of s. 7 will rest upon an analysis of the nature, sources, rationale and essential role of that principle within the judicial process and in our legal system, as it evolves.
There are two principles of fundamental justice involved in this analysis. The first is the principle against convicting a person who was insane at the time of the offence and against proceeding against an accused who, on account of insanity, is unfit to conduct her or his defence. The second is the principle against self-incrimination. In this case, the accused, in order to take advantage of the protection afforded by the first principle, was compelled to undergo a period of psychiatric observation. The results of this observation were then used to incriminate him at the dangerous offender proceedings.
The status of the first principle as a principle of fundamental justice I take to be readily apparent. As I said in R. v. Swain, [1991] 1 S.C.R. 933, at p. 977, "it is a basic tenet of our legal system that a person who was insane at the time of the offence ought not to be convicted". It is also a basic tenet of our legal system that an individual who is mentally incapable of understanding the action being taken against him or her should not be required to stand trial.
The status of the principle against self-incrimination as a principle of fundamental justice may not be so readily apparent. Therefore, before proceeding with the application of these principles to the case at bar, I will first review the definition, rationale, and current status of the principle against self-incrimination (I will not review the history of this principle because that was thoroughly done by Wilson J. in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425).
At the outset, however, I emphasize two points. The first is that s. 7 is engaged in this case because of the serious limitation of liberty inherent in the dangerous offender legislation. What is at stake, from the point of view of the offender, is a sentence of indeterminate detention in a penitentiary. Whether one characterizes the dangerous offender proceedings as part of the sentencing process or a separate proceeding with new penal consequences, the liberty interest protected under s. 7 is engaged in such proceedings. The question is what the principles of fundamental justice require in this context, not whether they are implicated.
Secondly, the question here is not whether any of the specifically enumerated protections in the Charter which derive from the broader principle against self-incrimination are limited by the use of the evidence in cases like the present one. Rather, the question is whether the use of the evidence, in these circumstances, is contrary to the principles of fundamental justice.
(i) Definition
The principle against self-incrimination, in its broadest form, can be expressed in the following manner:
...the individual is sovereign and ... proper rules of battle between government and individual require that the individual ... not be conscripted by his opponent to defeat himself....
(Wigmore on Evidence, vol. 8 (McNaughton rev. 1961), § 2251, at p. 318.)
Or, put another way, nemo tenetur seipsum accusare and nemo tenetur seipsum prodere and nemo tenetur armare adversarum contra se -- no one shall be required to accuse or betray or arm his enemy against himself.
Any state action that coerces an individual to furnish evidence against him- or herself in a proceeding in which the individual and the state are adversaries violates the principle against self-incrimination. Coercion, it should be noted, means the denial of free and informed consent.
As noted by David Paciocco in Charter Principles and Proof in Criminal Cases (1987), at p. 539, "[t]here is a great deal of confusion over the terminology relating to problems of self-incrimination. One therefore bears a heavy responsibility to be as precise as possible in defining what one means...". Similarly, as noted by Alan Mewett in "Law Enforcement and the Conflict of Values" (1970), 12 Crim. L.Q. 179, at p. 186, "[p]erhaps no phrase is bandied about with more imprecision and with more unawareness of its legal and social significance than the privilege against self-incrimination...".
It should therefore be made clear here that I distinguish between the principle against self-incrimination and the privilege against self-incrimination. The principle is as defined above. The privilege is the narrow traditional common law rule relating only to testimonial evidence at trial. Much of the confusion around such issues as silence, non-compellability and self-incrimination has, I believe, arisen as a result of the failure to distinguish between these two levels of protection against self-incrimination. The principle is a general organizing principle of criminal law from which particular rules can be derived (for example, rules about non-compellability of the accused and admissibility of confessions). The privilege is merely one rule that has been derived from the principle. When the protection against self-incrimination is limited to the privilege against self-incrimination, then the underlying rationale for the various common law rules protecting against self-incrimination is lost and principled decisions about particular cases as they arise become impossible. It is therefore important to bear in mind throughout this judgment that it is the principle against self-incrimination and not the privilege for which I am claiming status as a principle of fundamental justice.
In this context, the word "incriminate" need not be equated with "tending to prove guilt of a criminal offence". The history of the various aspects of the principle against self-incrimination shows that the word "incriminate" was not thus limited in this context. It extended, for example, to evidence having the tendency to expose the individual to a penalty or a forfeiture: see R. Cross and C. Tapper, Cross or Evidence (7th ed. 1990), at pp. 418 et seq. Particularly relevant to this case is Wigmore's assertion that the principle operates in a proceeding to increase a sentence after conviction: see Wigmore on Evidence, supra, § 2257(d), at p. 342. Even if the dangerous offender proceeding is characterized as an aspect of sentencing, the operation of the principles against self-incrimination is by no means excluded.
(ii) Rationale
The modern-day rationale for the principle against self-incrimination is found in the two fundamental purposes for the principle that have been recognized by this Court: (1) protection against unreliable confessions; and (2) protection against the abuse of power by the state. Wilson J., dissenting, elaborated on the latter purpose in Thomson Newspapers, supra, at p. 480:
Having reviewed the historical origins of the rights against compellability and self-incrimination and the policy justifications advanced in favour of their retention in more modern times, I conclude that their preservation is prompted by a concern that the privacy and personal autonomy and dignity of the individual be respected by the state. The state must have some justification for interfering with the individual and cannot rely on the individual to produce the justification out of his own mouth. Were it otherwise, our justice system would be on a slippery slope towards the creation of a police state.
Concern about the abuse of state power is at the heart of the principle against self-incrimination.
(iii) Current status
This Court has recognized implicitly that the principle against self-incrimination is a principle of fundamental justice. I draw the implication from the many rules, rights and privileges that can be traced to the principle against self-incrimination as well as from the ss. 7 , 10( b ) , 11( c ) , 13 and 24(2) Charter jurisprudence.
As Michael Hor noted in "The Privilege against Self-Incrimination and Fairness to the Accused", [1993] Singapore J. Legal Stud. 35, at p. 35:
Conceptually, it would seem that if there is any single organizing principle in the criminal process, it is the right of the accused to resist any effort to force him to assist in his own prosecution. It provides substance to the common law ideal of a fair trial through an adversarial or accusatorial process. The parties to a criminal prosecution are seen as competitors and the trial the competition. The prosecution is to use its own resources to gather and marshal the evidence without the unwilling assistance of the accused, and the accused is left to defend himself if the prosecution succeeds in making out a case against him. It is thought to be behind key principles of criminal justice like the voluntariness rule for confessions, the discretion to exclude improperly obtained evidence and the presumption of innocence.
Consider the following rules, rights, and privileges that can be traced to the principle against self-incrimination as well as the following ss. 7 , 10( b ) , 11( c ) , 13 and 24(2) Charter jurisprudence.
(a) The confessions rule
According to the confessions rule, a confession which the authorities improperly obtain from a detained person is inadmissible in evidence. The history and content of this rule were thoroughly canvassed in the reasons of McLachlin J. in R. v. Hebert, supra, at pp. 165-73, and need not be reviewed here. Suffice it to repeat McLachlin J.'s conclusion from p. 173 that:
... one of the themes running through the jurisprudence on confessions is the idea that a person in the power of the state's criminal process has the right to freely choose whether or not to make a statement to the police. This idea is accompanied by a correlative concern with the repute and integrity of the judicial process. This theme has not always been ascendant. Yet, its importance cannot be denied. It persists, both in Canadian jurisprudence and in the rules governing the rights of suspects in other countries.
The confessions rule was (and remains) clearly grounded in the principle against self-incrimination.
(b) The privilege against self-incrimination
The privilege against self-incrimination protected any witness from being compelled to testify against him- or herself at trial. Again, the history and content of this privilege were thoroughly canvassed in the reasons of McLachlin J. in Hebert, at pp. 173-75, and need not be reviewed here. Suffice it to note that the privilege was (and remains) clearly grounded in the principle against self-incrimination.
(c) The right to silence
Traditionally, the privilege against self-incrimination was limited to testimonial compulsion and the trial context (Marcoux v. The Queen, [1976] 1 S.C.R. 763). However, in Hebert, McLachlin J. noted, at p. 174, that some of the rules, rights and privileges derived from the principle should not be limited to the trial context: "[t]he protection conferred by a legal system which grants the accused immunity from incriminating himself at trial but offers no protection with respect to pre-trial statements would be illusory".
In Hebert, this Court expanded the rules, rights and privileges derived from the principle against self-incrimination by finding the right to silence within s. 7 of the Charter . The connection of the right to silence to the principle against self-incrimination is clear in McLachlin J.'s reasons at p. 175: "the measure of the right to silence may be postulated to reside in the notion that a person whose liberty is placed in jeopardy by the criminal process cannot be required to give evidence against himself or herself [i.e., the principle against self-incrimination], but rather has the right to choose whether to speak or to remain silent".
Two examples of the right to silence should illustrate its content. First, this Court has held that it is a violation of the right to silence to solicit admissions by placing an undercover police officer in the cell with a suspect who has expressly stated that he does not wish to speak to the police (Hebert). Second, this Court has also held that it is a violation of the right to silence to solicit admissions by placing in the accused's cell a friend of the accused who was asked by the police to visit the accused and whose visit was facilitated by them (R. v. Broyles, [1991] 3 S.C.R. 595).
A general rule can be seen in the approach this Court has taken to the right to silence: if the state interferes with either element of free and informed consent, then the individual's right to silence is limited. This is a rule that is clearly grounded in the principle against self-incrimination.
(d) Sections 10( b ) , 11( c ) and 13 of the Charter jurisprudence
Sections 11( c ) and 13 of the Charter explicitly provide protection against self-incrimination:
11. Any person charged with an offence has the right
...
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.
Section 10(b) implicitly provides protection against self-incrimination:
10. Everyone has the right on arrest or detention
...
(b) to retain and instruct counsel without delay and to be informed of that right;
This Court's purposive analysis of these sections reveals yet again the implicit recognition of the principle against self-incrimination as a principle of fundamental justice.
In R. v. Amway Corp., [1989] 1 S.C.R. 21, at p. 40, Sopinka J. wrote that the purpose of s. 11(c) is "to protect the individual against the affront to dignity and privacy inherent in a practice which enables the prosecution to force the person charged to supply the evidence out of his or her own mouth". In Dubois v. The Queen, [1985] 2 S.C.R. 350, at p. 358, I wrote that:
Section 13, like s. 11(c), is a recognition of the principle that,
...the individual is sovereign and that proper rules of battle between government and individual require that the individual not be bothered for less than good reason and not be conscripted by his opponent to defeat himself.
(Wigmore on Evidence, vol. 8 (McNaughton rev. 1961), para. 2251, at p. 318.)
Wilson J. wrote in Clarkson v. The Queen, [1986] 1 S.C.R. 383, at p. 394, that the "right [to counsel], as entrenched in s. 10( b ) of the Canadian Charter of Rights and Freedoms , is clearly aimed at fostering the principles of adjudicative fairness". I then wrote in R. v. Collins, [1987] 1 S.C.R. 265, at p. 284, that "one of the fundamental tenets of a fair trial [is] the right against self-incrimination". The purpose of s. 10(b), it can be concluded, is the fostering of the right against self-incrimination. Or, as L'Heureux-Dubé J. said more directly in R. v. Simmons, [1988] 2 S.C.R. 495, at p. 539:
The right to counsel is primarily aimed at preventing the accused or detained person from incriminating herself. Thus the main concern would be with coerced or uninformed confessions. In such circumstances, the accused would be manufacturing the evidence against herself. This is something which, in the interests of fairness, the right to counsel would seek to protect.
The underlying purpose for ss. 10(b), 11(c) and 13, set out by this Court, is protection against self-incrimination.
(e) Section 24(2) of the Charter jurisprudence
This Court has developed a method of determining whether evidence illegally obtained following a Charter violation may be admitted under s. 24(2) of the Charter (Collins, supra; R. v. Ross, [1989] 1 S.C.R. 3; and R. v. Black, [1989] 2 S.C.R. 138). Evidence is generally inadmissible under s. 24(2) if it would bring the administration of justice into disrepute. Evidence will tend to bring the administration of justice into disrepute if it renders the trial process unfair. Evidence renders the trial process unfair if it is obtained, after a violation of the Charter , by conscripting the accused against himself (that is, by using evidence that could not have been obtained but for the participation of the accused in the construction of the evidence); "[t]he use of such evidence would render the trial unfair, for it did not exist prior to the violation and it strikes at one of the fundamental tenets of a fair trial, the right against self-incrimination" (Collins, at p. 284).
This Court has excluded evidence of line-up identification (Ross) and inculpatory statements (for example, Black, supra, Broyles, supra, and R. v. Brydges, [1990] 1 S.C.R. 190) on self-incrimination grounds under s. 24(2).
The s. 24(2) method appears to be driven, at least in part, by the principle against self-incrimination. Given that a fair trial is a principle of fundamental justice and the right against self-incrimination is a fundamental tenet of a fair trial, it can be concluded that this Court has recognized (at least implicitly) that the right against self-incrimination is a principle of fundamental justice.
(f) Section 7 of the Charter jurisprudence
Before Thomson Newspapers, it was widely thought that ss. 11( c ) and 13 of the Charter were exhaustive of the protections against self-incrimination. However, in Thomson Newspapers, I noted, at p. 442, that "I ... agree with all of my colleagues that the specific enumerations in ss. 11( c ) and 13 of the Charter are not necessarily exhaustive of the protection afforded by s. 7, and do not prevent residual content being given to s. 7". This Court, however, did not reach agreement about the nature and scope of the residual content for s. 7 nor about the means appropriate for determining the nature and scope of the residual content.
Nevertheless, some guidance can be found in Hebert. In Hebert, McLachlin J. noted at p. 174 that "[t]he protection conferred by a legal system which grants the accused immunity from incriminating himself at trial but offers no protection with respect to pre-trial statements would be illusory". It seems reasonable to conclude that this extension of protection is grounded in the principle against self-incrimination.
Thus, while this Court did not specify the residual self-incrimination content for s. 7, it seems reasonable to conclude that the Court intended that it should be determined on a case-by-case basis with reference to the principle against self-incrimination.
In the end, therefore, I conclude that the principle against self-incrimination is a principle of fundamental justice and this Court has, at least implicitly, recognized its status as such.
Before moving on to the application of this Charter analysis to the case at bar, I must address the issue of limits on the principle against self-incrimination. Considerable confusion and disagreement surrounds this issue (see, for example, the conflict within Thomson Newspapers). Important questions abound. Does the principle protect against self-incriminatory evidence that is given voluntarily? Does it protect against self-incriminatory evidence given by an individual who is not under detention by the state? Does it protect against self-incriminatory derivative evidence? Does it cover evidence being used to prove a prior inconsistent statement?
I believe that these questions should be answered by reference to the underlying rationale for the principle and should be answered within the s. 7 analysis. However, these questions need not be answered here because the case at bar involves testimonial evidence gathered under compulsion from an individual under detention by the state for the purposes of self-incrimination (and these characteristics place it squarely within the rationale and hence the principle).
(3) Application to the case at bar
(i) Life, liberty and security of the person
On both the broad and narrow interpretations, s. 755 of the Criminal Code limits the accused's s. 7 right to liberty. If the accused is found to be a dangerous offender, on the basis of evidence introduced through s. 755, he or she may be given a sentence of detention in a penitentiary for an indefinite period. The question remains, however, whether these limits on the right to liberty are in accordance with the principles of fundamental justice.
(ii) Principles of fundamental justice
The limits on the right to liberty on the broad interpretation of s. 755 of the Criminal Code are not in accordance with the principles of fundamental justice. The broad interpretation of s. 755 allows evidence gathered from the accused during psychiatric observation compelled for the purposes of preventing the conviction or unfair trial of a mentally insane or unfit accused to be used against him or her for the purposes of sentencing the accused as a dangerous offender. This allows for self-incrimination.
(iii) Conclusion
If the state compels an accused to submit to psychiatric observation for the purpose of determining whether he or she was insane at the time of the offence or is, on account of insanity, unfit to conduct his defence, and then uses those observations for the purposes of dangerous offender proceedings, then it requires a person in detention to give evidence against him- or herself. There is, thus, a limitation on s. 7, which, unless justified under s. 1, would result in the broad interpretation of s. 755 violating the Charter . I turn then to examine whether the limitation arising on this interpretation is justified under s. 1.
It is irrelevant for this exercise of statutory interpretation that the accused in this case requested the order be made to remand him into custody for observation. The accused requested the order for purposes other than a dangerous offender proceeding. Furthermore, the section does not require the consent of the accused and therefore an order can be made under this section for observation against the wishes of the accused. This is sufficient to constitute a limit on the s. 7 right to liberty.
I reject the proposition that the pre-Charter decision of this Court in Wilband v. The Queen, [1967] S.C.R. 14, compels the conclusion that the principle against self-incrimination can have no operation in the context of dangerous offender proceedings. Wilband stands for the propositions that the confession rule does not apply to dangerous offender proceedings and that, in any event, psychiatrists examining the offender are not persons in authority. The reason given by the Court for the former holding is that "[t]he confession rule ... is a rule which has been designed for proceedings where, broadly speaking, the guilt or innocence of a person charged with an offence is the matter in issue. The rule has not been established for proceedings related to the determination of a sentence" (per Fauteux J., at p. 20). In making this distinction between determination of guilt and imposition of a sentence, the Court relied, among other authorities, on its earlier decision in Brusch v. The Queen, [1953] 1 S.C.R. 373.
Wilband considered examinations by psychiatrists for the purpose of the dangerous offender proceedings, a fact which is more clearly apparent in the reasons of the Court of Appeal than it is in the brief decision of this Court: see (1965), 51 W.W.R. 251 (B.C.C.A.). It was, therefore, a different situation than the one now before us in which evidence obtained from the accused before trial and for a different purpose was then turned against him at the dangerous offender proceeding. Wilband is, therefore, readily distinguishable from the present case.
To the extent that Wilband is urged in support of a broader proposition that, upon conviction, procedural and evidentiary protections vanish for the purposes of sentencing proceedings, such broader implications must be rejected by virtue of this Court's decision in R. v. Gardiner, [1982] 2 S.C.R. 368. Gardiner held that disputed facts relied on by the Crown with respect to the penalty must be established according to the normal criminal standard of beyond a reasonable doubt. As Dickson J. (as he then was), said at pp. 413-15:
Sentencing is part of a fact finding, decision-making process of the criminal law. Sir James Fitzjames Stephen, writing in 1863 said that "the sentence is the gist of the proceeding. It is to the trial what the bullet is to the powder" (quoted in Olah, "Sentencing: The Last Frontier of the Criminal Law" (1980), 16 C.R. (3d) 97, at p. 98). The statement is equally true today.
...
It should also be recalled that a plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more. Beyond that any facts relied upon by the Crown in aggravation must be established by the Crown. If undisputed, the procedure can be very informal. If the facts are contested the issue should be resolved by ordinary legal principles governing criminal proceedings including resolving relevant doubt in favour of the offender.
To my mind, the facts which justify the sanction are no less important than the facts which justify the conviction; both should be subject to the same burden of proof. Crime and punishment are inextricably linked. "It would appear well established that the sentencing process is merely a phase of the trial process" (Olah, supra, at p. 107). Upon conviction the accused is not abruptly deprived of all procedural rights existing at trial: he has a right to counsel, a right to call evidence and cross-examine prosecution witnesses, a right to give evidence himself and to address the court.
Quite apart from any re-evaluation of Wilband that may be required by the Charter , it is readily distinguishable from this case and its broader implications have been circumscribed by Gardiner. More specifically, Wilband cannot assist the Crown as support for the notion that the principle against self-incrimination can have no application to the present case because the dangerous offender proceeding is a matter of sentencing.
Nor do I think that the majority judgment of this Court in R. v. Lyons, [1987] 2 S.C.R. 309 is in any way dispositive of this case. I note that the view of the majority of this Court in Lyons, that a person facing dangerous proceedings is not "charged with an offence" within the meaning of s. 11 of the Charter , may require re-evaluation in light of this Court's subsequent decision in R. v. Wigglesworth, [1987] 2 S.C.R. 541. In Wigglesworth, the majority of the Court held that s. 11 protections apply to those proceedings giving rise to "true penal consequences": see, e.g., Wilson J.'s reasons at p. 561. The imposition of an indeterminate period of imprisonment in a penitentiary would seem to qualify as such consequences. However, it is not necessary to reconsider this aspect of Lyons for the purposes of this case because the result I reach is perfectly consistent with the majority view in Lyons.
The majority in Lyons clearly recognized the role that s. 7 could play in these sorts of proceedings and the serious limitations of the offender's liberty at stake in them. For example, La Forest J. said, at p. 354:
The conclusion that the appellant is not entilted to the benefit of trial by jury under s. 11(f) does not, however, conclusively decide the question whether he is entitled to a determination by a jury of the question of his dangerousness, or, more generally, whether the procedural incidents of the proceeding are constitutionally adequate to safeguard his liberty. Such questions would appear to fall within the scope of a s. 7 inquiry, for s. 11 does not limit s. 7 but merely serves to illustrate and, perhaps, amplify its potential applications....
In the context of s. 7, it seems to me that the nature and quality of the procedural protections to be accorded the individual cannot depend on sterile logic or formalistic classifications of the type of proceeding in issue. Rather, the focus must be on the functional nature of the proceeding and on its potential impact on the liberty of the individual.
Moreover, the majority in Lyons specifically resisted resting its conclusion that s. 7 did not require a jury determination of issues in dangerous offender proceedings upon the distinction relied on in Wilband and Brusch between proceedings determining guilt and proceedings determining the sentence. As La Forest J. said at p. 362:
In other respects, however, the case law following Brusch has given a judicial gloss to Part XXI that might, at some point, merit reappraisal by this Court. In light of the foregoing discussion it might well be that the logic that justified holding Part XXI applications to be part of the sentencing process cannot now serve to justify the whittling down of procedural rights that appears to have flowed therefrom.
In short, Lyons as well as Gardiner substantially limit any far-reaching implication drawn solely on the basis of a distinction between whether the proceeding is to determine guilt or impose a penalty. To do so would be, to use La Forest J.'s language, to justify the "whittling down" of rights on the basis of "sterile logic" and "formalistic classifications".
C. Section 1 of the Charter
Section 1 of the Charter provides for some limits on the rights and freedoms set out in the Charter :
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
The test for demonstrably justified limits was set out by this Court in R. v. Oakes, [1986] 1 S.C.R. 103, and summarized in Swain, supra, at pp. 980-81:
1. The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right or freedom; it must relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.
2. Assuming that a sufficiently important objective has been established, the means chosen to achieve the objective must pass a proportionality test; that is to say they must:
(a) be "rationally connected" to the objective and not be arbitrary, unfair or based on irrational considerations;
(b) impair the right or freedom in question as "little as possible"; and
(c) be such that their effects on the limitation of rights and freedoms are proportional to the objective.
The objective of s. 755 is to protect society from dangerous offenders. While the protection of society from dangerous offenders is a pressing and substantial concern in our society and is of sufficient importance to warrant limiting a constitutionally protected right or freedom, the broad interpretation of s. 755 fails the rational connection and minimal impairment branches of the Oakes test.
The rational connection branch of the Oakes test requires that the means must be "rationally connected" to the objective and not be arbitrary, unfair or based on irrational considerations. The admission of the results of a compulsory psychiatric assessment ordered under s. 537(1)(b) at a hearing to determine whether a person is a dangerous offender is, at first blush, to me rationally connected to the objective of protecting society from dangerous offenders; it will assist in the detection and confinement of dangerous offenders. However, it is unfair when it need not be. Specifically, the means chosen to achieve the objective are unfair in the case at bar. In order to benefit from the protection afforded by the principles of fundamental justice to the mentally ill against committal or an unfair trial, the accused should not be forced into incriminating him- or herself for dangerous offender proceedings. Yet on the broad interpretation of s. 755, the accused is required to expose him- or herself to self-incrimination that could result in an indeterminate sentence as a dangerous offender in order to get this protection. This is unfair. Of course, different considerations might well arise if the compulsory psychiatric observation for the purposes of dangerous offender proceedings is ordered after conviction.
It should be noted here that the analysis applied to the admissibility of evidence gathered under s. 537(1)(b) in dangerous offender proceedings can also be applied to the admissibility of such evidence in other proceedings (e.g., subsequent prosecutions). The general proposition is that in order to benefit from the protection afforded by the principles of fundamental justice to the mentally ill against conviction or an unfair trial, the accused should not be forced into incriminating him- or herself at other proceedings.
In the case at bar, there is also more than minimal impairment of s. 7. The objective of protecting society from dangerous offenders can be met by ordering observation under s. 756 of the Criminal Code rather than s. 537(1)(b). Section 756 has safeguards for the offender and therefore impairs the s. 7 rights less than s. 537(1)(b). For example, under s. 537(1)(b), a justice may remand an accused into custody where there is evidence that the accused may be mentally ill. Under s. 756, a justice may remand an offender into custody only (except in special circumstances) where there is reason to believe that evidence might be obtained as a result of the observation that would be relevant to the dangerous offender proceedings. Most importantly, a remand order under s. 756 can only be made once the offender has been convicted, whereas a remand order under s. 537(1)(b) can be made before conviction.
Accordingly, s. 755 on the broad interpretation fails the Oakes test and this interpretation must be rejected.
The presumption of constitutionality approach to statutory interpretation dictates that s. 755 not be read as rendering evidence gathered during psychiatric observation ordered under s. 537(1)(b) admissible at dangerous offender proceedings.
It should be noted here that I am comforted in this interpretation of s. 755 by the new Criminal Code provisions (ss. 672.11 and 672.21) introduced to replace s. 537(1)(b). In this new legislation, Parliament clearly made evidence gathered during compelled psychiatric observations of the sort ordered under the old s. 537(1)(b) inadmissible in dangerous offender proceedings.
I conclude that, in the case at bar, the evidence of the psychiatrists and the psychologist gathered during the s. 537(1)(b) observation was not admissible during the dangerous offender proceedings.
D. Section 686(1)(b)(iii) of the Criminal Code
Now I must consider whether the curative proviso of s. 686(1)(b)(iii) of the Criminal Code should be applied.
Section 759 of the Criminal Code states that:
759. (1) A person who is sentenced to detention in a penitentiary for an indeterminate period under this Part may appeal to the court of appeal against that sentence on any ground of law or fact or mixed law and fact.
...
(7) The provisions of Part XXI with respect to procedure on appeals apply, with such modifications as the circumstances require, to appeals under this section.
Section 686 is not part of the provisions of Part XXI with respect to procedure on appeals. Section 686(1)(b)(iii) does not apply to appeals under Part XXIV of the Criminal Code . Therefore, this is not a case in which it is even possible to apply the curative proviso.
Under s. 759(3)(a), I will order a new sentencing hearing. I hope that the parties will agree not to compel the appellant's victims to testify at the new hearing. Their testimony was not challenged during these proceedings and it would likely be a significant hardship for them to be forced to relive the sexual assault experiences yet again.
E. The Scope of this Decision
The final issue in this case is the scope of this decision. First, it is important to note that the preceding analysis is directed only at psychiatric and psychological evidence gathered through observation ordered by a court.
Second, it is important to note that this decision should not be taken to be inferentially ruling on any of the new provisions of the Criminal Code (specifically, s. 672.21(3)(c)). At first glance, s. 672.21(3)(c) appears to make statements made by the accused during the course of an assessment or treatment directed by a disposition admissible for the purpose of determining whether the accused is a dangerous offender. However, this section does not make statements made during compelled psychiatric observation admissible for the purposes of dangerous offender proceedings. Rather, it makes them admissible for the purpose of determining whether the accused is a dangerous mentally disordered accused. Dangerous mentally disordered accused persons are then dealt with under s. 672.65 (as yet unproclaimed). Dangerous offenders continue to be dealt with under s. 753 onwards. Statements made during compelled psychiatric observation are in fact inadmissible under s. 672.21(2) for the purposes of dangerous offender proceedings because dangerous offender proceedings are not included in the notwithstanding section of s. 672.21. The failure of the broad interpretation of s. 755 of the Criminal Code to clear the hurdle of s. 1 of the Charter should not be taken as any reflection on the constitutional validity of s. 672.21(3) (c) of the Criminal Code . The s. 1 arguments in support of s. 672.21(3)(c) will be different from those in support of s. 755 and they were not before this Court in this case.
V. Disposition
For these reasons, I would allow the appeal and order a new sentencing hearing.
The judgment of La Forest, L'Heureux-Dubé, Gonthier, McLachlin and Iacobucci JJ. was delivered by
GONTHIER J. -- At issue in this case is the admissibility on dangerous offender proceedings of psychiatric evidence obtained during a pre-trial psychiatric examination pursuant to an order under s. 465(1)(c) of the Criminal Code, R.S.C. 1970, c. C-34 (later s. 537(1) (b), R.S.C., 1985, c. C-46 , then repealed by S.C. 1991, c. 43, s. 9). While I have had the advantage of reading the reasons of Chief Justice Lamer, I respectfully disagree with them and would dismiss the appeal.
I. Facts
Scott Jones had a history of sexual assault. On May 28, 1982 he was convicted of rape, attempted rape and gross indecency for incidents involving young girls aged 10, 12 and 13. When the police sought to arrest Jones for these incidents, he confronted them with a loaded shotgun for which he was convicted of possession of a weapon for a purpose dangerous to the public peace. Jones was sentenced to five years in prison for these incidents.
On November 25, 1985, Jones was released under parole. On October 24, 1986, Jones sexually assaulted a 26-year-old woman, having forced her into his car and confined her there. Jones was alleged to have committed a sexual assault against a 14-year-old girl on October 26, 1986. On November 5, one day after being questioned for the earlier sexual assaults, Jones sexually assaulted a nine-year-old girl at knife point. On November 7, Jones was charged with three counts of sexual assault with a weapon (contrary to s. 246.2 of the Criminal Code ) and three counts of unlawful confinement (contrary to s. 247(2) of the Code).
On November 18, 1986, the appellant's lawyer requested that he be remanded for observation to determine if he was mentally ill. In particular, the appellant's counsel requested the order to determine whether the appellant was fit to stand trial, was sane at the time of the alleged offences and to gain some insight into the appellant for the purpose of sentencing. He was so remanded pursuant to s. 465(1)(c)(iii) of the Code. A 30-day remand order was issued "for purposes of medical and/or psychiatric observation".
Two psychiatrists and one psychologist examined the appellant at the Forensic Psychiatric Institute. Prior to the first examination, Dr. Lohrasbe warned the appellant that none of the discussions would be confidential and that all information that was provided could be used against the appellant in the course of the proceedings. A second psychiatrist, Dr. Semrau, also examined the appellant and warned him that the interview was not confidential and could be used against him in court. He also advised the appellant of his right to talk to counsel. The psychologist, Dr. La Torre, warned the appellant prior to his interview with him that anything he said could be used in a court of law.
Although the trial judge found that the appellant was adequately warned that his discussions with the psychiatrists could be used against him, he was not specifically warned that the evidence of the psychiatrists could be used to assist in determining whether or not he was a dangerous offender.
In the course of assessing the appellant's mental health, Dr. Lohrasbe became concerned about the appellant's potential for future violence. These concerns emerged from Mr. Jones himself who stated during the examination that he was a danger to potential victims. Although Dr. Lohrasbe considered the implications of the use of this evidence at the dangerous offender stage, he did not fundamentally alter his method of interviewing. While he administered a slightly different intelligence test (using a more widely accepted version), the focus of the testing was identical to the one to determine the state of Jones' mental health.
The appellant pleaded guilty to one count of sexual assault and one count of sexual assault with a weapon. During the dangerous offender proceedings that followed, the trial judge conducted a voir dire in which the appellant challenged the admissibility of the evidence from the three doctors at the Forensic Psychiatric Institute on the grounds that to admit this evidence would breach his s. 7 Charter rights. The trial judge found that the evidence was admissible in spite of the fact that additional warnings had not been given to the appellant about the possible use of this psychiatric testimony in dangerous offender proceedings.
Dr. Lohrasbe found that the appellant was extremely dangerous and he could see no basis for a change in this psychological make-up in the foreseeable future. He concluded that placing the appellant in the community would put other young women at risk. Dr. La Torre found that the appellant had considerable hostility toward women and that his lack of insight into his problem created a strong risk that he would re-offend. Dr. Semrau found that the appellant's sexual assault tendency followed a very dangerous pattern that was highly likely to repeat itself in the future.
The two doctors testifying on behalf of the appellant accepted the deep-seated nature of the appellant's problems. However, they were of the view that treatment over the normal period of detention could prevent the appellant from re-offending. The trial judge concluded that the appellant was dangerous within the meaning of the Code.
II. Judgments Below
A. Supreme Court of British Columbia
In his ruling on the admissibility of the psychiatrists' evidence for the purpose of dangerous offender proceedings, Spencer J. made three critical findings. First, he found that the scope of the examination conducted did not differ materially as a consequence of the doctors' suspicions regarding the appellant's "dangerous" tendencies and that there was no attempt to deceive the appellant about the scope of the inquiry:
Dr. La Torre testified that the psychological tests he administered would have been the same, in any event, except that a different intelligence test would have been given, had it not been for the direction that he examine the question of the accused as a danger. The psychological test or rather the intelligence test, in fact administered was something called the WAS Revised Test and revealed an intelligence quotient of 86, putting the accused in the low average range of intelligence.
Dr. Semrau came to see the accused because Dr. Lohrasbe asked him to give a second opinion. That apparently was not because Dr. Lohrasbe had begun to suspect that the accused represented a danger to re-offend, but because of the serious nature of the charges facing the accused __ they then were three counts of sexual assault and perhaps some other counts connected with those assaults.
...
The indicia of danger which has been put before me on the voir dire in the psychiatrist's opinions, emerges in the ordinary course of a consensual examination pursuant to s. 465, subsection (c).
Second, the trial judge examined the appellant's argument that his rights under s. 7 of the Canadian Charter of Rights and Freedoms had been violated by the failure of the doctors to warn him of the possible use of his psychiatric testimony against him in dangerous offender proceedings. Spencer J. accepted the distinction between the use of such evidence to determine guilt and its use in sentencing as found in R. v. Langevin (1984), 11 C.C.C. (3d) 336 (Ont. C.A.), and Wilband v. The Queen, [1967] S.C.R. 14:
The only right that I can find is one which is exemplified in s. 11, subsection (c), that is, the right against self-incrimination. In that section, it is limited to those who are charged with an offence. It might have been a broader right under s. 7 extending to those who are no longer technically charged with an offence but for the fact that the criminal law of this country, at the highest level, in R. vs. Wilband, has denied the existence of any such right.
In his judgment on the case, the trial judge concluded that the appellant was a dangerous offender within the meaning of s. 688(a)(i) and (ii) and imposed an indeterminate sentence. This verdict was reached on the basis of a review of all the evidence before him, including the testimony of the psychiatrists that had been obtained pursuant to the pre-trial assessment of the appellant's mental health.
B. British Columbia Court of Appeal (1992), 75 C.C.C. (3d) 327
Legg J.A. begins his judgment by confirming the evidentiary basis for Spencer J.'s finding that the psychiatric investigation was simply part of the determination of whether the appellant was mentally ill and was not a separate undertaking hidden from the accused (at p. 336):
My reading of the whole of Dr. Lohrasbe's evidence leads me to conclude that his investigation of the appellant's potential dangerousness was part of the assessment he had been directed to make on whether the appellant was mentally ill. As he said in the passage of his evidence which I have quoted, that assessment was focused on why these assaults were occurring.
The Court of Appeal then proceeded to assess this Court's jurisprudence in R. v. Hebert, [1990] 2 S.C.R. 151, and R. v. Broyles, [1991] 3 S.C.R. 595, in assessing whether there had been a breach of the appellant's s. 7 Charter rights. It stated that the case at hand differs significantly from those two cases in two important respects. First, the appellant consented to the examinations and understood that the findings could be used in court against him. Second, the psychiatrists did not resort to trickery in an attempt to persuade the accused to speak. The court found (at p. 337) that:
The order which was made under s. 537 of the Criminal Code required the doctors to assess whether the appellant was mentally ill. The order by its terms did not restrict the doctors to assessing the appellant's mental illness at the time of the offences for which he was charged or to assessing his fitness to stand trial. The order permitted, and indeed sought, an assessment of whether the appellant was mentally ill.
The appellant had counsel and with counsel's advice agreed to a psychiatric examination to determine whether he was mentally ill and whether he was fit to stand trial. The appellant was aware that what he might say was not protected by confidentiality and might be incorporated in a report to the court. He spoke freely and openly to the doctors at the forensic institute. He did not assert his right to silence. There were no tricks of any sort engaged in by the doctors which induced him to speak to them.
Based on these distinctions, the Court of Appeal concluded that there was no breach of the appellant's rights under s. 7 of the Charter and that the trial judge was correct in admitting the evidence.
Legg J.A. then proceeded to analyze the argument (raised by the appellant for the first time before the Court of Appeal) that the appellant's s. 10( b ) Charter rights were violated by the doctors' failure to offer the appellant access to counsel after the examinations had shifted to include an assessment of his potential dangerousness. Legg J.A. differentiated the decision of this Court in R. v. Black, [1989] 2 S.C.R. 138, on the basis that the appellant knew of the offences for which he was detained. The court found that the Crown was under no obligation to give notice of the potential sentencing options that he faced citing R. v. Vandale, B.C.C.A., Victoria CA18/84, October 31, 1984 (unreported), and R. v. Lyons, [1987] 2 S.C.R. 309, in support of this proposition.
The Court of Appeal rejected the application of the United States Supreme Court decision in Estelle v. Smith, 451 U.S. 454 (1981), noting that it differed in an important respect from the case at hand. In that case, defence counsel were not notified of the psychiatrist's examination. Here, the appellant's counsel actually requested the examination and was aware that the psychiatrist's report could be used against him. As a consequence, Legg J.A. concluded that there was no breach of the appellant's s. 10(b) rights.
III. Relevant Legislation
Canadian Charter of Rights and Freedoms
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
10. Everyone has the right on arrest or detention
...
(b) to retain and instruct counsel without delay and to be informed of that right; ...
Criminal Code , R.S.C., 1985, c. C-46
537. (1) A justice acting under this Part may
...
(b) by order in writing,
(i) direct an accused to attend, at a place or before a person specified in the order and within a time specified therein, for observation, or
(ii) remand an accused to such custody as the justice directs for observation for a period not exceeding thirty days,
where, in his opinion, supported by the evidence, or where the prosecutor and the accused consent, by the report in writing, of at least one duly qualified medical practitioner, there is reason to believe that
(iii) the accused may be mentally ill,
...
(3) Where, as a result of observations made pursuant to an order issued under paragraph (1)(b), it appears to a justice that there is sufficient reason to doubt that the accused is, on account of insanity, capable of conducting his defence, the justice shall direct that an issue be tried whether the accused is then, on account of insanity, unfit to conduct his defence at the preliminary inquiry.
(4) Where the justice directs the trial of an issue under subsection (3), he shall proceed in accordance with section 615 in so far as that section may be applied.
753. Where, on an application made under this Part following the conviction of a person for an offence but before the offender is sentenced therefor, it is established to the satisfaction of the court
(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well‑being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he has been convicted forms a part, showing a failure to restrain his behaviour and a likelihood of his causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his behaviour,
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his behaviour, or
(iii) any behaviour by the offender, associated with the offence for which he has been convicted, that is of such a brutal nature as to compel the conclusion that his behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint, or
(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his conduct in any sexual matter including that involved in the commission of the offence for which he has been convicted, has shown a failure to control his sexual impulses and a likelihood of his causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses,
the court may find the offender to be a dangerous offender and may thereupon impose a sentence of detention in a penitentiary for an indeterminate period, in lieu of any other sentence that might be imposed for the offence for which the offender has been convicted.
755. (1) On the hearing of an application under this Part, the court shall hear the evidence of at least two psychiatrists and all other evidence that, in its opinion, is relevant, including the evidence of any psychologist or criminologist called as a witness by the prosecution or the offender.
756. (1) A court to which an application is made under this Part may, by order in writing,
(a) direct the offender in relation to whom the application is made to attend, at a place or before a person specified in the order and within a time specified therein, for observation, or
(b) remand the offender in such custody as the court directs, for a period not exceeding thirty days, for observation,
where in its opinion, supported by the evidence of, or where the prosecutor and the offender consent, supported by the report in writing of, at least one duly qualified medical practitioner, there is reason to believe that evidence might be obtained as a result of the observation that would be relevant to the application.
IV. Analysis
The appellant argues that his Charter rights were violated in two ways. First, the failure to specifically advise the accused that the psychiatric examinations might be used during the dangerous offender proceedings violated his s. 7 rights. Second, his s. 10(b) right to counsel was violated when he was not advised of the expansion of the psychiatric investigation to include observations with respect to his future dangerousness.
Section 755 of the Criminal Code deals with the evidence that may be tendered during the dangerous offender proceedings. It states that: "On the hearing of an application under this Part, the court shall hear the evidence of at least two psychiatrists and all other evidence that, in its opinion, is relevant, including the evidence of any psychologist or criminologist called as a witness by the prosecution or the offender". Lamer C.J. would read down this section to exclude any evidence obtained during pre-trial psychiatric evaluations to which the accused has consented. With respect, I cannot agree with that view.
A. Section 7
This Court has not addressed the issue of admissibility of pre-trial psychiatric observations in dangerous offender proceedings since the advent of the Charter . However, the Court did address the use of non-voluntary admissions made in the course of psychiatric observations for dangerous offender proceedings in Wilband v. The Queen, supra. In that case, counsel had argued that such evidence should be inadmissible both for reasons of hearsay and because it would violate the confessions rule.
The facts in Wilband bear a striking similarity to the facts at hand. Frank Wilband committed a number of sexual assaults against young girls. The trial judge found Wilband to be a dangerous sexual offender, in part, on the basis of the testimony of two psychiatrists who had examined him. Wilband's counsel claimed that the examinations were not proven to have been voluntary and that both the rules of hearsay and confession evidence were violated, making the psychiatrists' evidence inadmissible at the dangerous offender hearing.
In Wilband, this Court drew the following distinction that I believe to be as valid in the post-Charter world as it was then. Fauteux J., as he then was, speaking for a unanimous Court, stated at pp. 19-20:
The issue, in these [dangerous sexual offender] proceedings which can only be resorted to if the accused has been convicted of a sexual offence, is not whether he should be convicted of another offence, but solely whether he is afflicted by a state or condition that makes him a dangerous sexual offender within the meaning of s. 659 (b) of the Criminal Code . To be so afflicted is not an offence.... Indeed, a reference to subs. 3 of s. 661 of the Criminal Code makes it clear that the object sought by Parliament, in enacting these special provisions, is not to create an offence but to enable the Court, in cases where a sexual offender is found to be a dangerous sexual offender, to pass upon him a further sentence in lieu of or in addition to the sentence passed or which could have been passed for the sexual offence of which he was convicted. These proceedings do not involve the conviction of an offence, but the determination of the sentence which may be pronounced after conviction. The confession rule, which excludes incriminatory statements not affirmatively proved to have been made voluntarily, is a rule which has been designed for proceedings where, broadly speaking, the guilt or innocence of a person charged with an offence is the matter in issue. The rule has not been established for proceedings related to the determination of a sentence. [Emphasis added.]
The Court concluded that neither the hearsay nor the confession rules were violated given that the guilt of the accused had been established. Dangerous sexual offender proceedings were characterized as a form of sentencing for which such protection was not generally available.
The same approach has been followed by the courts since the advent of the Charter . For example, the Ontario Court of Appeal ruled in R. v. Langevin, supra, at pp. 355-56, that:
The procedure under Part XXI of the Code is to determine whether the convicted offender has the status of a "dangerous offender" and to determine the appropriate sentence. Upon conviction (or acquittal), the offender is no longer a "person charged with an offence". The dangerous offender proceedings against the offender are not "in respect of the offence" but in respect of his future dangerousness.
The Ontario Court of Appeal concluded that neither s. 7 nor s. 11(c) guaranteed a right to be warned against the possible use during dangerous offender proceedings of statements made during an initial psychiatric examination. The Langevin decision was followed by the trial judge in the case at hand.
The resolution of the s. 7 issue in this case hinges on whether the Wilband distinction between proceedings involving the risk of conviction for an offence and proceedings for sentencing remains valid. Lamer C.J. would eliminate this distinction. He states (at p. 247):
There are two principles of fundamental justice involved in this analysis. The first is the principle against convicting a person who was insane at the time of the offence and against proceeding against an accused who, on account of insanity, is unfit to conduct her or his defence. The second is the principle against self-incrimination. In this case, the accused, in order to take advantage of the protection afforded by the first principle, was compelled to undergo a period of psychiatric observation. The results of this observation were then used to incriminate him at the dangerous offender proceedings.
With the greatest of respect, I cannot agree with the characterization of Lamer C.J. that the results of the psychiatric observation are used to "incriminate" the accused at his dangerous offender proceedings. They are not. By the time the accused reaches the dangerous offender proceeding state, he has already been found culpable of the offence for which he was charged. He has, in effect, already been "criminated", transformed from "accused" to "offender". Section 753 proceedings are sentencing provisions and do not constitute a separate charge against the offender. A conclusion that the individual is a dangerous offender does not constitute a separate finding of culpability any more than any particular sentence generates a distinct culpability.
The distinction between sentencing and culpability proceedings was reinforced by this Court in R. v. Lyons, supra. In that case, La Forest J., speaking for the majority, held that the dangerous offender provisions contained in ss. 687 to 695 of the Criminal Code did not violate ss. 7 , 9 , 11 or 12 of the Charter .
When dealing with the question of whether s. 11( f ) of the Charter required a jury hearing for a dangerous offender application, La Forest J. made the following remarks at p. 353:
There would seem to be no warrant for reconsidering the conclusion of this Court [in Wilband v. The Queen] that the "labelling" procedure does not constitute the charge of an offence. Nor do I think that a different conclusion can be justified for the purposes of s. 11 of the Charter . As I observed in Canada v. Schmidt, [1987] 1 S.C.R. 500, the phrase "Any person charged with an offence" in the opening words of the section must be given a constant meaning that harmonizes with the various paragraphs of the section. It seems clear to me that for the purposes of s. 11 it would be quite inappropriate to conclude that a convicted person is charged with an offence when confronted with a Part XXI application. How can it be said that the right to the presumption of innocence until proven guilty (s. 11(d)) and the right to bail (s. 11(e)), for example, could have any application in the context of the unique post-conviction proceeding mandated by Part XXI? [Emphasis in original.]
These remarks were most recently cited with approval by Sopinka J. writing for a majority of the Court in R. v. Potvin, [1993] 2 S.C.R. 880, at p. 908. This view was not supported by Lamer J., as he then was, in his dissent in Lyons. He stated at pp. 373-74:
Under Part XXI, if the court finds that the offender is a dangerous offender then, rather than imposing a determinate sentence within the limits provided for the offence for which the offender was convicted, the court may impose a sentence of detention in a penitentiary for an indeterminate period. The conclusion that the offender is a dangerous offender gives the court jurisdiction to impose a greater sentence. The status of being a dangerous offender is thus in my view an offence for the purposes of s. 11 and the offender is charged with an offence when an application is brought under Part XXI.
By a clear majority, this Court rejected this characterization of dangerous offender proceedings as a separate offence for the purposes of s. 11. While this Court recognized in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, that Charter rights contained in ss. 8 to 14 are illustrative and not limitative of s. 7 rights, Lyons rejected the proposition that dangerous offender proceedings could be characterized as a new trial during which the accused was to be accorded the same procedural protection as is accorded in the initial hearing. I see no reason to reverse our reasoning in Lyons in the case at hand.
Nor do I believe, as Lamer C.J. suggests, that Lyons "may require re-evaluation in light of this Court's subsequent decision in R. v. Wigglesworth, [1987] 2 S.C.R. 541" (p. 261). That case involved the question of whether a charge of a "major service offence" under the Royal Canadian Mounted Police Act, R.S.C. 1970, c. R-9, constituted an "offence" within the meaning of s. 11 of the Charter . In deciding whether a private disciplinary matter would invoke s. 11 protection, Wilson J. asked whether the discipline imposed true penal consequences. She concluded that the penalty of one year imprisonment constituted true penal consequences. Thus, a service officer facing a major service offence charge would be afforded s. 11 protection during his hearing to determine his guilt due to the true penal consequences he was ultimately facing.
At no point does Wilson J. suggest that since true penal consequences are faced at the sentencing stage, the sentencing proceedings themselves attract full s. 11 protection. All sentencing proceedings involve true penal consequences. Whether the convicted party is faced with a sentence of ten years or an indeterminate sentence, as in the case of dangerous offender proceedings, his sentencing hearing involves true penal consequences for him. These penal consequences are the result of his having been found guilty of committing a serious crime during a proceeding at which full s. 11 protection was available to him. Lamer C.J.'s logic would have us hold that the existence of true penal consequences at the sentencing stage is enough to invoke full Charter protection during those proceedings in spite of the fact that the party has already been found guilty of an offence. With the greatest of respect, I do not believe that this position can be supported by the existing jurisprudence. Lyons remains unchallenged in its contention that a person facing dangerous offender proceedings is not charged with a separate offence any more than any sentencing proceeding constitutes a separate offence.
La Forest J. proceeded to analyze the right to a jury trial in the context of s. 7 rights, focusing on the functional nature of the proceeding and on its potential impact on the liberty of the individual. He concluded, at p. 361, that s. 7 did not mandate a jury trial for dangerous offender proceedings:
Suffice it to say, however, that a jury determination is not mandated in the present context. The offender has already been found guilty of an offence in a trial at which he had the option of invoking his right to a jury. Moreover, the procedure to which he was subjected subsequent to the finding of guilt does not impact on his liberty to the same extent as that initial determination. Indeed, this is made clear by the same considerations that led this Court, in Brusch, supra, to classify the proceedings as part of the sentencing process.
Again, the approach of the majority was in contrast to the opinion of Lamer J., who concluded, at p. 375, that "Part XXI cannot be characterized as simply part of the sentencing process with respect to the serious personal injury offence".
La Forest J. also dealt with the issue of whether the accused's s. 7 rights were violated by virtue of the fact that he was not advised of the Crown's intention to make a Part XXI application before entry of a guilty plea. Again, the Court held, at pp. 371-72, that there was no violation of s. 7 rights:
It is nowhere alleged, here or in the courts below (where this issue was not even addressed), that the appellant did not appreciate the potential consequences of his plea; indeed, Part XXI itself can be seen to provide notification that the dangerous offender provisions are invocable if "serious personal injury offences" are committed by an accused. Nor is it alleged, for example, that the accused was unfairly taken by surprise by the application, that he was not represented by competent counsel, or that counsel pressured him to plead guilty against his will, etc.... [Emphasis in original.]
The question then becomes one of whether the Lyons holdings with respect to a right to a jury trial or advanced notice of charges should be maintained for the use of pre-trial psychiatric evaluations during dangerous offender proceedings. I believe that this extension is consistent not only with this Court's jurisprudence in Brusch v. The Queen, [1953] 1 S.C.R. 373, and Wilband and Lyons, supra, but is supported by the approach taken by this Court more recently in R. v. Hebert, supra, and R. v. Broyles, supra.
R. v. Hebert affirmed the accused's s. 7 protection during the pre-trial period. In that case, the accused made a clear statement that he did not wish to speak with the police. An undercover officer was then placed in the cell with the accused and tricked him into making incriminatory statements. I agreed with McLachlin J. (speaking for the majority) that s. 7 protection extended to pre-trial investigations and that the police conduct effectively deprived the accused of his right to silence.
I draw three levels of analysis from McLachlin J.'s decision in Hebert. The narrow finding was that the police could not use trickery to obtain confessions from an accused. The wider finding was that s. 7 protection of pre-trial statements was necessary to ensure that the ensuing trial was fair. The widest finding was that s. 7 rights involve a contextual balancing between individual and state interests.
The narrow finding of Hebert was that the police could not use trickery to obtain statements that the accused would not otherwise have made. McLachlin J. states, at p. 180:
The scope of the right to silence must be defined broadly enough to preserve for the detained person the right to choose whether to speak to the authorities or to remain silent, notwithstanding the fact that he or she is in the superior power of the state. On this view, the scope of the right must extend to exclude tricks which would effectively deprive the suspect of this choice.
Clearly the state is not entitled to trick the accused into making statements against his will. Consent must be freely given after the accused has been given the opportunity to consult counsel. However, both Hebert and Broyles accepted that statements volunteered by an accused to an agent of the state will not infringe an accused's s. 7 right to silence.
In the case at hand, three important findings were made in this regard. First, the appellant not only consented to the evaluation of his mental health, he requested it. The request for a psychiatric evaluation was made not only to provide evidence with respect to fitness to stand trial and mental health at the time of the offence but also to provide some insight into sentencing. Counsel for the appellant conceded this point when he stated: "I want to make that clear and I was __ I was concerned at that point to gain some insight into this young man for the purpose of sentencing".
Second, the doctors did not deceive the accused about the nature of the tests they were conducting. They did not begin with an analysis of his mental health then secretly alter their evaluative approach to conduct an assessment of his dangerousness. The trial judge found that they undertook the same analysis of his mental health as they would have undertaken even if they had not suspected him to be dangerous: "The indicia of danger which has been put before me on the voir dire in the psychiatrist's opinions, emerges in the ordinary course of a consensual examination pursuant to s. 465, subsection (c)".
Third, the appellant freely consented to the tests with the advice of counsel. He was fully warned that his statements might be used against him in court. In spite of these warnings, and on the advice of his lawyer, he freely participated in the testing. He was not "tricked" into making statements as in Hebert. As the Court of Appeal found (at p. 337):
The appellant had counsel and with counsel's advice agreed to a psychiatric examination to determine whether he was mentally ill and whether he was fit to stand trial. The appellant was aware that what he might say was not protected by confidentiality and might be incorporated in a report to the court. He spoke freely and openly to the doctors at the forensic institute. He did not assert his right to silence. There were no tricks of any sort engaged in by the doctors which induced him to speak to them.
Clearly the facts of this case do not bring us within the realm of Hebert.
The slightly wider point to be drawn from Hebert is that s. 7 protection must extend to the pre-trial period in order to ensure that the ensuing trial is fair. On this point, McLachlin J. held, at p. 174:
From a practical point of view, the relationship between the privilege against self-incrimination and the right to silence at the investigatorial phase is equally clear. The protection conferred by a legal system which grants the accused immunity from incriminating himself at trial but offers no protection with respect to pre-trial statements would be illusory.
Full s. 7 protection in the pre-trial phase is essential to ensuring that an accused is not found culpable as a result of non-voluntary statements made against himself. That logic cannot easily be transferred to the post-trial phase. Given that guilt has conclusively been determined by that time, I do not believe that the logic of Hebert applies. As this Court held in Lyons, ss. 7 to 14 protection has a more limited scope when applied to the sentencing process. Once guilt has been established, our fundamental principles of justice dictate a focus on the most appropriate sentence for the guilty party. To assume that s. 7 post-trial protection should be identical to pre-trial and trial protection ignores a rather critical intervening fact: the accused has been found guilty of a crime. Having so found, the court places greater emphasis on the interests of society in developing a sentence that is appropriate to the guilty party. Evidence introduced at trial may be used in this assessment. I would argue that evidence emerging from the psychiatric evaluation should be similarly treated.
As I understand the approach of Lamer C.J., he focuses on the potential trade-off that the accused must make in deciding whether to seek a psychiatric examination to determine mental health at the time of the offence and fitness to stand trial. Lamer C.J. argues that the accused should be able to seek a psychiatric examination without fear of its being used against him at the later stage of dangerous offender proceedings. However, this logic would equally apply to testimony of the accused with respect to his mental state at the time of the offence.
Assume a court was faced with a fact situation similar to that found in R. v. Chaulk, [1990] 3 S.C.R. 1303. In support of the defence of insanity at the time of the offence, the accused takes the stand. He testifies that he had to kill the victim (and others like him) because they pose a threat to the world and to the personal safety of the accused. However, if it is found that the accused knew his actions to be morally wrong, his defence would fail. Under the reasoning of Lamer C.J., this testimony would have to be excluded from consideration during the dangerous offender proceedings because it was in furtherance of his seeking a benefit of being declared insane at the time of the offence. I would argue that it would offend our principles of fundamental justice if the accused were able to testify about how he has a compulsive need to kill others at one stage in the proceedings but this testimony could not be considered when sentencing the accused. I see no difference between this and other evidence which the accused may give in the hope of avoiding conviction but which may serve in assessing an appropriate sentence. Similarly, I would hold that to ignore psychiatric evidence legally obtained pursuant to s. 537(1)(b) of the Code and relevant to assessing his dangerousness at the sentencing stage would be an affront to our principles of fundamental justice.
The final point to be drawn from Hebert is that s. 7 establishes a contextual balance between individual and state interests. McLachlin J. states, at pp. 179-80:
Section 7 and the more specific procedural guarantees which follow it are generally concerned with the proper balance between the respective rights of the individual and the state in judicial proceedings where the accused's life, liberty or security of person is at stake. It guarantees the individual's life, liberty and security of person. But it recognizes that these rights are not absolute. In certain circumstances, the state may properly deprive a person of these interests. But it must do so in conformity with the principles of fundamental justice.
...
The Charter through s. 7 seeks to impose limits on the power of the state over the detained person. It thus seeks to effect a balance between the interests of the detained individual and those of the state. On the one hand s. 7 seeks to provide to a person involved in the judicial process protection against the unfair use by the state of its superior resources. On the other, it maintains to the state the power to deprive a person of life, liberty or security of person provided that it respects fundamental principles of justice. The balance is critical.
This contextual approach is in conformity with our general approach to Charter interpretation. As Cory J. stated in R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, at p. 226:
It is now clear that the Charter is to be interpreted in light of the context in which the claim arises. Context is relevant both with respect to the delineation of the meaning and scope of Charter rights, as well as to the determination of the balance to be struck between individual rights and the interests of society.
The fulcrum in the state-individual balancing is different in the context of sentencing proceedings such as those under the dangerous offender provisions than in pre-trial or trial contexts.
I repeat that once the party reaches the dangerous offender proceeding, he has already been found guilty of the offence. Where there is a serious risk that the offender will re-offend, Parliament has seen fit to provide for an indeterminate sentence for offenders who pose a danger to the public. Section 753 seeks to protect society against offenders who constitute "a threat to the life, safety or physical or mental well-being of other persons". As La Forest J. noted at pp. 328-29 of Lyons:
It must be remembered that the appellant was not picked up off the street because of his past criminality (for which he has already been punished), or because of fears or suspicions about his criminal proclivities, and then subjected to a procedure in order to determine whether society would be better off if he were incarcerated indefinitely. Rather he was arrested and prosecuted for a very serious violent crime and subjected to a procedure aimed at determining the appropriate penalty that should be inflicted upon him in the circumstances.
...
It is thus important to recognize the precise nature of the penological objectives embodied in Part XXI. It is clear that the indeterminate detention is intended to serve both punitive and preventive purposes. Both are legitimate aims of the criminal sanction. Indeed, when society incarcerates a robber for, say, ten years, it is clear that its goal is both to punish the person and prevent the recurrence of such conduct during that period. Preventive detention in the context of Part XXI, however, simply represents a judgment that the relative importance of the objectives of rehabilitation, deterrence and retribution are greatly attenuated in the circumstances of the individual case, and that of prevention, correspondingly increased.
As with all sentencing, both the public interest in safety and the general sentencing interest of developing the most appropriate penalty for the particular offender dictate the greatest possible range of information on which to make an accurate evaluation of the danger posed by the offender.
In the case of dangerous offender proceedings, it is all the more important that the court be given access to the widest possible range of information in order to determine whether there is a serious risk to public safety. If there is, the dangerous offender sentencing allows the justice system to more precisely tailor the actual time served by the offender to the threat that he poses to society. The overriding aim is not the punishment of the offender but the prevention of future violence through the imposition of an indeterminate sentence. An indeterminate sentence is not an unlimited sentence. If, in the case at hand, the psychiatrists testifying on behalf of the accused are correct in their assessment that Mr. Jones will be fit to be released in ten years, then he will be liberated at that time. The offender faces incarceration only for the period of time that he poses a serious risk to the safety of society. In the interim, it is hoped that he will receive treatment that will assist him in controlling his conduct. To release a dangerous offender while he remains unable to control his actions serves neither the interests of the offender nor those of society.
The concern for societal interests is neither new nor is it limited to the dangerous offender proceedings. It has always been present in our general sentencing system. The 1969 Report of the Canadian Committee on Corrections, Toward Unity: Criminal Justice and Corrections, offered, at p. 15, three means by which the criminal justice process protects society:
The criminal justice process can operate to protect society only by way of:
(a)the deterrent effect, both general and particular, of criminal prohibitions and sanctions;
(b)correctional measures designed to achieve the social rehabilitation of the individual;
(c)control over the offender in varying degrees, including the segregation of the dangerous offender until such time when he can be safely released or, where safe release is impossible, for life. [Emphasis added.]
The need to consider societal interests at the sentencing stage was highlighted by the Law Reform Commission of Canada at p. 3 of Working Paper 3, The Principles of Sentencing and Dispositions (1974), as follows:
Thus, there are two bases upon which to justify an initial intervention by criminal law and sentencing: the common good and the sense of justice which demands that a specific wrong be righted. In other words, state intervention to deprive offenders of their property or freedom may be justified on a theory of justice according to which the wrong done ought to be righted. It would seem, however, that as a preliminary justification, it should be shown that state intervention would serve the common good; otherwise it could be said that men should be subject to sanctions, even though such sanctions appear useless.
In its Report entitled Sentencing Reform: A Canadian Approach (1987), the Canadian Sentencing Commission described, at p. 151, the fundamental purpose of sentencing in this way:
It is recognized and declared that in a free and democratic society peace and security can only be enjoyed through the due application of the principles of fundamental justice. In furtherance of the overall purpose of the criminal law of maintaining a just, peaceful and safe society, the fundamental purpose of sentencing is to preserve the authority of and promote respect for the law through the imposition of just sanctions.
The sentencing stage places a stronger emphasis on societal interests and more narrowly defines the procedural protection accorded to the offender. If the sentencing judge is to obtain the accurate assessment of the offender that is necessary to develop an appropriate sentence, he will have to have at his disposal the broadest possible range of information.
To deny the court access to the earlier findings of the psychiatrists may hinder the effective determination of the true risk posed by the offender. While it is true that under s. 756 the court may remand the offender for observation for the purposes of gathering evidence on his dangerous offender status, the offender may attempt to hide elements of his character or, indeed, refuse to answer the psychiatrists' questions. As a result, there is a real danger that evidence from the pre-trial psychiatric evaluation which is excluded may not surface in the post-trial phase. This creates the considerable risk that a dangerous offender will not be so labelled in spite of the fact that there was clear psychiatric evidence at the pre-trial stage that the offender was a serious danger to society. While such an exclusion may be acceptable while the guilt of the accused is in question, it cannot be justified after his guilt has been established. To exclude clear psychiatric evidence of the dangerousness of the accused would be to ask other young girls in society to bear the risk that this information might not emerge in the post-trial psychiatric evaluation. The release of Scott Jones while he continues to pose a clear threat to their security is not a risk that they should be forced to bear.
That is not to say that no protection is afforded to the offender at the sentencing stage. As Lamer C.J. points out, this Court held in R. v. Gardiner, [1982] 2 S.C.R. 368, that the Crown must prove disputed facts beyond a reasonable doubt during the sentencing hearing. However, in determining what facts are admissible at the sentencing stage, Gardiner reaffirmed the widely accepted principle that judges should have access to the fullest possible information concerning the background of the accused. As Dickson J. stated, at p. 414:
It is a commonplace that the strict rules which govern at trial do not apply at a sentencing hearing and it would be undesirable to have the formalities and technicalities characteristic of the normal adversary proceeding prevail. The hearsay rule does not govern the sentencing hearing. Hearsay evidence may be accepted where found to be credible and trustworthy. The judge traditionally has had wide latitude as to the sources and types of evidence upon which to base his sentence. He must have the fullest possible information concerning the background of the accused if he is to fit the sentence to the offender rather than to the crime. [Emphasis added.]
Where there is psychiatric evidence legally obtained pursuant to an order under s. 537(1)(b) relevant to assessing the extent of his dangerousness, this evidence should be admitted at the sentencing stage. Section 7 protection does not disappear on sentencing. Nonetheless, it does not extend to a denial of critical evaluative evidence from psychiatrists legally gained at the pre-trial evaluation that may show whether the offender could qualify as a dangerous offender. Once in the sentencing realm, the needs of society must be given greater weight. This may not appear ideal from the perspective of the offender. However, as Lamer C.J. noted in R. v. Lippé, [1991] 2 S.C.R. 114, at p. 142: "... the Constitution does not always guarantee the `ideal'". Nor, as La Forest J. pointed out in Lyons, at p. 362, does s. 7 entitle the accused to "the most favourable procedures that could possibly be imagined".
B. Section 10(b)
Before the Court of Appeal, counsel for the appellant raised the additional argument that the appellant's s. 10(b) rights were violated in two ways during the psychiatric examinations. First, the warning given to the accused by the doctors failed to outline the true extent of his jeopardy given the possibility that his statements might be used in dangerous offender proceedings brought against him. Second, he argues that the accused should have been given a second opportunity to exercise his right to counsel once it appeared that the focus of the examination was shifting to determining whether or not he was dangerous.
On the first point, the appellant relies on this Court's decision in Clarkson v. The Queen, [1986] 1 S.C.R. 383. In Clarkson, an accused made an incriminating statement while she was in a highly intoxicated and emotional state and before having consulted with counsel. The principle in that case is simply not applicable to the facts of the case at hand. Mr. Jones was warned that anything said during the psychiatric examination could be used against him in court. On the advice of counsel, he freely consented to the questioning. As Dr. Lohrasbe noted in his report: "Mr. Jones has an accurate knowledge of the charges against him, of the pleas available and of their possible consequences. He is aware of various aspects of the legal process, including the roles of the people in court. He is fully able to communicate with his Counsel".
The dangerous offender proceedings are sentencing provisions. It is the duty of counsel to make an accused aware of the possible sentence he will be facing as a result of being found guilty of a particular crime. Given the past record of the appellant, counsel should have been aware that dangerous offender proceedings would likely be pursued by the Crown. Given our characterization of dangerous offender proceedings as part of the sentencing process in Lyons, the Crown is not under an obligation to notify the accused of the intention to bring such proceedings prior to their plea being entered. If the Crown is not required to give notice of such proceedings in advance of the trial, I have difficulty seeing why the doctors should have been expected to warn the accused about possible dangerous offender proceedings. It was sufficient that they made him aware of the general availability of his statements to the court. As the Court of Appeal stated, at p. 342:
Here, the appellant knew that he was faced with serious charges. He was represented by counsel who had agreed to his being interviewed by the doctors. In my opinion, there was no obligation on the doctors to inform him of a sentencing option which had yet to be made, not by them, but by the Attorney-General.
This is not a case like Estelle v. Smith, supra, where counsel for the accused was unaware that tests were being conducted. Here, the accused requested the tests and was made aware that his statements could be used against him. Given that the dangerous offender proceedings are part of the post-guilt sentencing process, this general warning was sufficient.
The appellant further argues that he was entitled to a separate consultation with counsel after "Dr. Lohrasbe's decision to assess the Appellant's future dangerousness changed the Appellant's jeopardy from being exposed to a maximum 14 year sentence to being exposed to an indeterminate sentence" (appellant's factum, at p. 24). He cites R. v. Black, supra, in support of the proposition that the accused must be advised of a right to counsel a second time when circumstances give rise to a different and unrelated offence or a significantly more serious offence.
Two difficulties emerge with this position. First, the trial judge made a factual finding that the focus of the testing did not shift as a result of Dr. Lohrasbe's fears about the dangerousness of the accused. One must not lose sight of the fact that it is not the role of psychiatrists to determine whether an accused is a dangerous offender, is fit to stand trial or was mentally ill at the time of the offence. This is the role of our court system. As Ewaschuk J. noted in Re Moore and The Queen (1984), 10 C.C.C. (3d) 306, at pp. 310-11:
I accept the submission that the evidence of a psychiatrist, psychologist or criminologist is at times highly speculative and in certain instances a lay person is in as good a position to make a prediction as to future dangerousness. In the final say, the court, however, must be so satisfied and not the expert witnesses. That is not to say that experts may not assist the court, especially as to whether the offender currently suffers from a psychological disorder, e.g., psychopathy, which may be relevant to the likelihood of future dangerous conduct.
The psychiatrist's role is limited to making observations on the mental health of the accused. Such observations may be useful at a number of stages in the legal process. The fact that the observations made under the initial order to determine the accused's mental health were also useful in assessing his dangerousness should hardly be surprising. However, no separate or different analysis was conducted by the psychiatrists in an attempt to get greater insight into the dangerousness of the accused.
The second difficulty with the position of the appellant is his use of the Black decision. In that case, Wilson J. held that an accused must be given a right to consult counsel a second time when charged with a significantly different or more serious offence. There is quite simply no analogy to be drawn with the case at hand. The accused was not charged with a different offence nor was he charged with a more serious offence. As we held in Lyons, the dangerous offender proceedings do not constitute a new offence. Since there was no additional duty to warn of the possibility of dangerous offender proceedings being instituted or of the possible use of evidence obtained during the examination, I would find that the appellant's s. 10(b) rights were not violated.
Given that I have found no breach of s. 7 or 10( b ) of the Charter , it is not necessary for me to deal with either s. 1 or s. 24(2). Nonetheless, I would like to take this opportunity to speak briefly to the question of s. 24(2).
Lamer C.J. argues that the pre-trial psychiatric evidence is not saved by s. 24(2) given that the admission of this evidence would render the trial process unfair. As I indicated earlier, I respectfully disagree with Lamer C.J.'s characterization of the dangerous offender proceedings as akin to a new trial to establish guilt with respect to a second offence. Were this the case, our jurisprudence in Black, supra, might be useful. However, the sentencing process begins only after the trial has been completed and guilt has been proven. To exclude psychiatric evidence obtained in the pre-trial evaluation tending to show dangerousness would deny the court access to important evidence it can use to most accurately tailor the sentence while its admission can assist the court in reaching the most appropriate sentence having regard to the interests both of the offender and of society.
C. Section 537(1)(b) of the Code
The final question to be answered is whether the pre-trial investigation conducted by the psychiatrists fell within the parameters of the one permitted by s. 537(1) (b) of the Criminal Code . Section 537(1)(b) authorizes the remanding of the accused into custody for observation where there is reason to believe he may be mentally ill. As I have indicated, the doctors at the Forensic Psychiatric Institute conducted tests in order to determine whether Scott Jones was mentally ill. The observations emerging from these tests may be useful in assessing his mental state at the time of the offence, fitness at the time of trial and proclivity to commit offences in the future. It is not possible to theoretically limit observations to one particular purpose. Given that the examinations of Scott Jones were designed to provide an assessment of his mental health, they fell within the parameters of the s. 537(1)(b) order made by the trial judge. The evidence so obtained is covered by s. 755 and must be heard by the court on the dangerous offender application if, in the opinion of the court, it is relevant. For the reasons I have given, it is admissible under the Charter and there is no basis for reading down s. 755 as Lamer C.J. would do.
V. Disposition
For these reasons, I would dismiss the appeal.
Appeal dismissed, Lamer C.J. and Sopinka, Cory and Major JJ. dissenting.
Solicitors for the appellant: Richard P. Anderson and G. D. McKinnon, Vancouver.
Solicitor for the respondent: The Ministry of the Attorney General, Vancouver.
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