Held: The appeal should
be allowed.
Per Estey, Lamer,
Wilson, Le Dain and La Forest JJ.: The proper test to be applied in determining
the effectiveness of a waiver of the right to counsel at common law did not
have to be decided in this case because the appellant's constitutional right to
counsel under s. 10 (b) of the Charter had been violated.
Any voluntary waiver of the right to counsel in s.
10 (b) of the Charter , to be valid and effective, must be premised
on a true appreciation of the consequences of giving up that right. The
recognized purpose of the right is to ensure that the accused is treated fairly
in the criminal process. Accordingly, the court in assessing the validity of a
waiver, unlike a confession, cannot be concerned only with probative value and
restrict the test to the accused's mere comprehension of his words.
The appellant's waiver of the s. 10 (b) right
to counsel could not pass the "awareness of the consequences test".
The continued questioning of appellant by the police therefore violated her s.
10 (b) right. Absent any urgent reason compelling police to act
immediately to gather evidence, the interrogation, at a minimum, should have
been delayed until the accused was in a condition to properly exercise her s.
10 (b) right or appreciate the consequences of waiving it. The admission
of this evidence would bring the administration of justice into disrepute, and
accordingly, it must be excluded under s. 24(2) of the Charter .
Per McIntyre and
Chouinard JJ.: The "operating mind" test and the "knowledge of
consequences" test overlap. A non‑operative mind would not only be
unaware of its utterances but also of the consequences of those utterances. It
would be for either of these reasons that those utterances would be
inadmissible. If the mind operated sufficiently to make a conscious statement
but could not have the knowledge of the consequences of making the statement,
the evidence should as well be excluded.
The test to be applied in determining whether a
statement made to a police officer or other person in authority may be rendered
inadmissible because of intoxication of the accused involves two questions:
1. Was the accused aware of what she was saying?
and
2. Was she aware of the consequences of making the
statement on the particular occasion in question?
To be aware of the consequences in this context
simply means to be capable of understanding that her statement could be used in
evidence in proceedings to be taken against her. Common sense would dictate
that a very high degree of intoxication would be required to render such a
statement inadmissible.
Cases Cited
By Wilson J.
R. v. Therens,
[1985] 1 S.C.R. 613; Korponay v. Attorney General of Canada, [1982] 1
S.C.R. 41, applied; McKenna v. The Queen, [1961] S.C.R. 660; R. v.
Santinon (1973), 11 C.C.C. (2d) 121; Ward v. The Queen, [1979] 2
S.C.R. 30; Ibrahim v. The King, [1914] A.C. 599; R. v. Williams,
[1959] N.Z.L.R. 502; R. v. Phillips, [1949] N.Z.L.R. 316; Horvath v.
The Queen, [1979] 2 S.C.R. 376; R. v. Doyle (1887), 12 O.R. 347; Hogan
v. The Queen, [1975] 2 S.C.R. 574; R. v. Wray, [1971] S.C.R. 272; R.
v. Ireland (1970), 126 C.L.R. 321; Lawrie v. Muir, [1950] S.C.
(J.C.) 19; Adams v. United States, 317 U.S. 269 (1942); Minor v.
United States, 375 F.2d 170 (1967), certiorari denied 389 U.S. 882
(1967); Von Moltke v. Gillies, 332 U.S. 708 (1948), referred to.
Statutes and Regulations Cited
Canadian Charter of Rights
and Freedoms, ss. 10 (b), 24(2) .
Authors Cited
Cross, Sir Rupert. Evidence,
5th ed., London, Butterworths, 1979.
APPEAL from a judgment of the New Brunswick Court of
Appeal (1983), 9 C.C.C. (3d) 263, 50 N.B.R. 226, 131 A.P.R. 226, allowing an
appeal from acquittal by Stevenson J. and ordering a new trial. Appeal allowed.
C. David Hughes, Q.C.,
and Sherron Hughes, for the appellant.
Glendon J. Abbott,
for the respondent.
The judgment of Estey, Lamer, Wilson, Le Dain and La
Forest JJ. was delivered by
1. Wilson
J.‑‑This case raises an issue as to the admissibility of a
confession made by an accused while in an intoxicated state and without the
benefit of counsel.
1. The Facts
2. The appellant, in an apparently
intoxicated state, telephoned her sister in the early morning hours of December
8, 1982 to tell her that her (the appellant's) husband had been shot. The
sister initially quoted the appellant as having said "I did it. I shot
him," but upon cross‑examination acknowledged that the appellant had
been in a rather inarticulate state and could have said something like
"Somebody shot him," or "James has been shot". In any
event, several of the appellant's family members arrived at her house soon
after the phone call and from there they called the police. The appellant was
found crying and screaming in a hysterical condition. Her husband, James
Clarkson, lay sprawled out on a living room chair with a bullet hole in his
head at the right temple. A rifle, on which no fingerprints could be found, was
located near the deceased's body.
3. The police arrived on the scene and
after some initial investigation charged the appellant with murder. She was
given the customary police warning and duly informed of her right to retain and
instruct counsel before being driven to a Fredericton hospital accompanied by
her aunt, Lorna Estey. While en route to the hospital the police
overheard a conversation between the appellant and Mrs. Estey which, according
to the police, contained admissions of guilt on the appellant's part. These
conversations, along with a number of other casual remarks made by the
appellant to Mrs. Estey and others and overheard by the police, were ruled inadmissible
at trial. Upon arrival at the hospital the appellant was physically examined
and, upon consent, provided a blood sample which showed her to have a blood
alcohol level of 210 mg. per 100 ml. of blood notwithstanding that nearly four
and a half hours had passed since the initial telephone call. Again, a number
of comments made by the appellant during the medical examination were held
inadmissible at trial.
4. The police proceeded to take the
appellant to the police station where, in the presence of Mrs. Estey, an
interrogation was conducted. Once again she was instructed of her right to
counsel and ap‑ parently nodded in the affirmative when asked if she
understood the question. She responded in a similar fashion when asked by the
police if it was all right to use a tape recorder during the interview. At this
point Mrs. Estey made the first of her interjections, asking whether it was
proper for the appellant to be questioned without her lawyer being present. The
police responded by pointing out that the appellant had been read those rights
of which she was required to be informed and then proceeded with the
interrogation. At several points during the questioning Mrs. Estey attempted to
have the interrogation halted and to convince the appellant to stop answering
questions until she had a lawyer present. It would seem, however, that the
appellant waved off Mrs. Estey's suggestion, stating that there was "no
point" and that she did not need the help of a lawyer. The police
questioning continued and the overall effect of the appellant's responses was
to provide the police and the Crown with a statement that was highly
inculpatory.
2. The Courts Below
5. At trial in the Court of Queen's Bench
of New Brunswick the appellant testified that she remembered nothing from the
applicable time period but that she did not think that she could have shot her
husband because, regardless of how drunk she may have been, she loved him too
much to commit such a deed. Her statements and responses at the police
interrogation were all ruled inadmissible on a voir dire. Stevenson J.
indicated that, although the statements were voluntary in the traditional sense
of not having been induced by fear of prejudice or hope of advantage, the fact
that they were made while intoxicated rendered them inadmissible. In
determining the effect of drunkenness on the admissibility of a confession
Stevenson J. formulated the test as a single question:
...was the accused so
intoxicated that the words she uttered were not her statement in the sense that
she did not comprehend her statement and was not capable of making a rational
judgment as to whether she ought, under the circumstances, to answer questions
the answers to which would ultimately be used at her trial on a charge of
murder?
Since the appellant was found by Stevenson J. not to have appreciated
the consequences of making the statements and the use to which they could be
put, the test of admissibility so formulated was not met.
6. The trial judge went on to state that,
with respect to the appellant's right to counsel, Mrs. Estey's protest against
the taking of the statement by the police and her efforts to obtain counsel for
the appellant would have to be seriously considered. He indicated that, if
confronted squarely with such a question, a court might well conclude that the
taking of a statement from an accused in the appellant's state of intoxication
amounted to an infringement of her right to counsel despite her purported
waiver of the right. As the statements had already been ruled inadmissible,
however, it was unnecessary to address the issue any more fully. In the absence
of the inculpatory statements the Crown was left with a weak and essentially
circumstantial case and the appellant was acquitted by the jury.
7. The Crown's appeal to the New Brunswick
Court of Appeal was allowed by the majority. Angers J.A. (with whom Stratton
J.A. concurred) stated that it was an error of law for the trial judge to focus
the test of admissibility on the appellant's appreciation of the consequences
of her statements. Rather, the proper test of admissibility was to ask merely
whether the utterances of the appellant were those of an "operating
mind". The relevant question to be answered was: was the appellant's mind,
despite her impairment from alcohol, in a sufficiently functional state to give
probative value to her words? He found that it was.
8. Ryan J.A., in his dissenting opinion,
disagreed. He stated that the test of admissibility enunciated by Stevenson J.
at trial was the correct one and that the inquiry had to go beyond the
appellant's comprehension of her own words and extend to her understanding of
the consequences of making the statements to the police. Accordingly, he
concluded that the decision of the trial judge to exclude the confession was
premised on an application of the proper legal test to the facts of the case.
He would have dismissed the appeal against acquittal.
3. Admissibility of the Intoxicated Confession
9. The debate over the test of
admissibility of (for want of a better phrase) an intoxicated confession may be
succinctly stated as being between a standard in which an accused must be
capable of comprehending what he or she is saying and a standard in which an
accused must comprehend the consequences of saying it. Although, as Angers J.A.
points out in his majority judgment, a survey of the relevant case law tends to
point in the direction of the former test, the jurisprudence on the issue
provides no clear answer. The pattern revealed in the cases dealing with the
admissibility of the confessions of intoxicated or otherwise incapacitated
persons is one of conflicting decisions with the "consequences" test
being alternately rejected and adopted by the highest authorities.
10. The seminal case is McKenna v. The
Queen, [1961] S.C.R. 660, in which Kerwin C.J. stated that such statements
are admissible unless "the words used by an accused did not, because of
his condition, amount to his statement" (p. 663). This was elaborated upon
by the British Columbia Court of Appeal in R. v. Santinon (1973), 11
C.C.C. (2d) 121, in which the admissibility of the confession of an insane
person was considered. Bull J.A. indicated that the rule allowing for the
admissibility of all voluntary confessions must be qualified to the extent that
(p. 124):
... if such incapacity is shown
that the accused, for example, is so devoid of rationality and understanding,
or so replete with psychotic delusions, that his uttered words could not fairly
be said to be his statement at all, then it should not be held admissible.
This approach was adopted by Spence J. in Ward v. The Queen,
[1979] 2 S.C.R. 30. He stated that the statement must represent "the
utterances of an operating mind" (p. 40). It was this formulation of the
test which Angers J.A. employed in finding the appellant's intoxicated
statement to the police admissible in this case.
11. These judicial pronouncements, although
addressing a different issue from that of voluntariness, disclose a concern
similar to that underlying the rule in Ibrahim v. The King, [1914] A.C.
599, on the admissibility of confessions in general. Thus, one explanation for
the rejection of the statement of an incapacitated person is that, like the
statement of a person acting involuntarily or under some compulsion, it would
be so unreliable as to be unsafe to admit it: Cross on Evidence (5th
ed., 1979), at p. 545. Indeed, the identity of the concerns underlying the
general Ibrahim rule with those underlying the rule for intoxicated
confessions has been recognized in express terms by the Supreme Court of New
Zealand in R. v. Williams, [1959] N.Z.L.R. 502. In that case, Hardie
Boys J. quoted with approval (p. 505) the following passage from the earlier
judgment of Finlay J. in R. v. Phillips, [1949] N.Z.L.R. 316 (C.A.), at
p. 356:
In
broad terms, any circumstance which robs a confession of the quality described
by the word "voluntary" will render the confession inadmissible. It
may be deprived of that quality by a variety of circumstances. Those
circumstances may well cover the whole field of motivation, and are not limited
to threats or promises. They may comprehend a defect in consciousness or
comprehension.
12. The test emerging from this line of
reasoning focuses therefore on whether the accused was coherent enough to
understand his or her own words, but does not go beyond this since the question
of comprehension is the only one that goes to the probative value of the
confession. Any further consideration of the accused's state of mind at the time
of the confession, such as an assessment as to whether or not he or she
appreciated the consequences of making the statement, is not directed to the
reliability of the statement as evidence probative of the truth. Indeed, one
might say that the likelihood of truthfulness is increased where the accused is
unaware that the statement will ultimately be utilized by the Crown at his or
her trial.
13. This approach to the problem may be
readily contrasted with the reasoning of Beetz J. in Horvath v. The Queen,
[1979] 2 S.C.R. 376. In that case the issue was the admissibility of a
confession made by the accused while under hypnosis. Beetz J. stated at p. 425:
Horvath was in control of
his faculties when Sergeant Proke cautioned him at the beginning of the
interview but, under hypnosis, he ceased to be in a state of full consciousness
and awareness. His awareness of what was at stake in making any statement is
very much a matter of doubt.
There was little doubt in this case that the accused was capable of
comprehending what he was saying under the influence of what was described as
"light hypnosis" so that the broad New Zealand test of a "defect
in consciousness or comprehension" did not apply. Indeed, the probative
value of the statements may be viewed as having been enhanced by the fact that
hypnosis made it unlikely that the accused could consciously lie. Accordingly,
the concern expressed by Beetz J. in determining that the evidence was
inadmissible was not that the accused did not understand his own statement but
rather that he did not understand "what was at stake" in making the
statement. This focus reveals a concern not so much for the probative value of
the statement as for adjudicative fairness in the criminal process and for
control of police conduct in interrogating accused persons.
14. The judicial debate over the proper test
of admissibility reflects conflicting concerns prevalent elsewhere in the law
of evidence. For example, the pre‑Charter case law dealing with
improperly or illegally obtained evidence discloses an inherent tension between
the concern for probative evidence and the concern for adjudicative fairness as
between the Crown and its agents and an accused person. The traditional common
law approach tends to respond to the former concern so that "evidence is
admissible so long as the fact so wrongly discovered is a fact‑‑apart
from the manner in which it was discovered‑‑admissible against the
party": R. v. Doyle (1887), 12 O.R. 347, at p. 353. On the other
hand, Laskin J. (as he then was) pointed out in Hogan v. The Queen,
[1975] 2 S.C.R. 574, that the common law acknowledges a discretionary power on
the part of trial judges to exclude evidence obtained in a way that violates a
principle of adjudicative fairness or fair treatment of the accused at the
hands of the police, notwithstanding the otherwise reliable nature of such
evidence. Whether this discretion is applied so as to narrow the ambit in which
an exclusionary rule can operate, as preferred by Martland J. in R. v. Wray,
[1971] S.C.R. 272, or is perceived as creating a broad discretion to exclude
evidence in recognition of the fact that "[c]onvictions obtained by the
aid of unlawful or unfair acts may be obtained at too high a price" (per
Barwick C.J. in R. v. Ireland (1970), 126 C.L.R. 321 (Aust. H.C.), at p.
335), the process is one of weighing two competing and frequently conflicting
concerns. As Lord Cooper stated in the leading Scottish case of Lawrie v.
Muir, [1950] S.C. (J.C.) 19, at p. 26:
From
the standpoint of principle it seems to me that the law must strive to
reconcile two highly important interests which are liable to come into conflict‑‑(a)
the interest of the citizen to be protected from illegal or irregular invasions
of his liberties by the authorities, and (b) the interest of the State
to secure that evidence bearing upon the commission of crime and necessary to
enable justice to be done shall not be withheld from Courts of law on any
merely formal or technical ground. Neither of these objects can be insisted
upon to the uttermost.
15. It seems to me that if it is the concern
over fair treatment of an accused which must prevail, then the test of
awareness of the consequences as espoused by Beetz J. in Horvath, supra,
must displace the more restrictive "operating mind" test as the
appropriate standard against which to measure the admissibility of intoxicated
confessions. The continued interrogation of an accused who, although not so
incapacitated as to be incoherent and uncomprehending of her own words,
incriminates herself without being aware that that is what she is doing, is
incompatible with the view that the adjudicative process must arrive at the
truth in a way which does not reflect an abuse by the police or the Crown of
its dominant position vis‑à‑vis the individual. In order to
avoid the problem of a person unwittingly inculpating herself in a criminal
offence, the police must necessarily hold off their interrogation until their
suspect has become sober enough to appreciate the consequences of making a
statement.
16. On the other hand, if the paramount
concern underlying the admissibility of evidence is perceived as being to probe
the truth of the facts in issue without too much regard for the fairness of the
adjudicative process, then the "operating mind" test adopted by
Angers J.A. in the court below might be viewed as acceptable. As already
indicated, the relevant case law has produced two conflicting lines of
reasoning which reflect these two underlying concerns and it is difficult, if
not impossible, to reconcile them. It is perhaps entirely appropriate then that
the common law has left the task of balancing these two concerns to the
discretion of the trial judge who has the unique advantage of hearing the
entire body of evidence and who can consequently best assess both the probative
value and the prejudice to the accused in the overall context of the case. The
tension between the concern over the probative value of evidence and the
concern over police conduct and fairness in obtaining the evidence may not,
however, have to be resolved in this case as the issue may be effectively pre‑empted
by the second issue raised by the appellant, namely the alleged violation of
her constitutional right to counsel.
4. Waiver of the Right to Counsel
17. The question whether the appellant's right
to counsel has been violated may well provide an acceptable alternative
approach to the problem posed by the police extraction of an intoxicated
confession. This right, as entrenched in s. 10 (b) of the Canadian
Charter of Rights and Freedoms is clearly aimed at fostering the principles
of adjudicative fairness. As Lamer J. indicated in R. v. Therens, [1985]
1 S.C.R. 613, at p. 624, "where a detainee is required to provide evidence
which may be incriminating ... s. 10 (b) also imposes a duty not to call
upon the detainee to provide that evidence without first informing him of his
s. 10 (b) rights and providing him with a reasonable opportunity and time
to retain and instruct counsel". This constitutional provision is clearly
unconcerned with the probative value of any evidence obtained by the police but
rather, in the words of Le Dain J. in Therens, supra, at pp. 641‑42,
its aim is "to ensure that in certain situations a person is made aware of
the right to counsel" where he or she is detained by the police in a
situation which may give rise to a "significant legal consequence".
18. Given the concern for fair treatment of an
accused person which underlies such constitutional civil liberties as the right
to counsel in s. 10 (b) of the Charter , it is evident that any
alleged waiver of this right by an accused must be carefully considered and
that the accused's awareness of the consequences of what he or she was saying
is crucial. Indeed, this Court stated with respect to the waiver of statutory
procedural guarantees in Korponay v. Attorney General of Canada, [1982]
1 S.C.R. 41, at p. 49, that any waiver "... is dependent upon it being clear
and unequivocal that the person is waiving the procedural safeguard and is doing
so with full knowledge of the rights the procedure was enacted to protect and
of the effect the waiver will have on those rights in the process"
(emphasis in original).
19. There is also a wealth of case law in the
United States to the effect that an accused may waive his constitutional right
to counsel only "if he knows what he is doing and his choice is made with
eyes open": Adams v. United States, 317 U.S. 269 (1942), at p. 279.
Thus, an accused must "knowingly intelligently and with a full
understanding of the implications, waive his constitutional rights to
counsel": Minor v. United States, 375 F.2d 170 (8th Cir. 1967), at
p. 179, certiorari denied 389 U.S. 882 (1967). Indeed, the Supreme Court
of the United States has gone so far as to indicate that not only must an
accused person be cognizant of the consequences of waiving the constitutional
right to counsel in a general way, but he or she must be aware of the legal
specificities of his or her own case such that there is a presumption against a
valid waiver where the accused is not perceived at the time of the waiver to be
capable of comprehending its full implications. For instance, it was stated in Von
Moltke v. Gillies, 332 U.S. 708 (1948), at p. 724:
To be valid such waiver
must be made with an apprehension of the nature of the charges, the statutory
offenses included within them, the range of allowable punishments thereunder,
possible defenses to the charge and circumstances in mitigation thereof, and
all other facts essential to a broad understanding of the whole matter.
20. Whether or not one goes as far as
requiring an accused to be tuned in to the legal intricacies of the case before
accepting as valid a waiver of the right to counsel, it is clear that the
waiver of the s. 10 (b) right by an intoxicated accused must pass some
form of "awareness of the consequences" test. Unlike the confession
itself, there is no room for an argument that the court in assessing such a
waiver should only be concerned with the probative value of the evidence so as
to restrict the test to the accused's mere comprehension of his or her own
words. Rather, the purpose of the right, as indicated by each of the members of
this Court writing in Therens, supra, is to ensure that the
accused is treated fairly in the criminal process. While this constitutional
guarantee cannot be forced upon an unwilling accused, any voluntary waiver in
order to be valid and effective must be premised on a true appreciation of the
consequences of giving up the right.
5. Conclusion
21. The trial judge found as a fact that the
appellant's confession could not pass the "awareness of the
consequences" test and, if such is the case, then presumably neither could
the waiver of the s. 10 (b) right to counsel. Accordingly, the test for a
valid and effective waiver of the right was not met and the continued
questioning of the appellant constituted a violation of s. 10 (b) of the Charter .
At the very minimum it was incumbent upon the police to delay their questioning
and the taking of the appellant's statement until she was in a sufficiently
sober state to properly exercise her right to retain and instruct counsel or to
be fully aware of the consequences of waiving this right. Accordingly,
regardless of the view one takes of the admissibility of the intoxicated
confession per se, the conclusion that the appellant's confession was
improperly obtained is inescapable.
22. Having come to the conclusion that the
constitutional rights of the appellant were infringed by the police in their
obtaining of her confession, it remains to be decided whether exclusion of the
confession from the evidence is the appropriate remedy. Section 24(2) of the Charter
provides:
24. ...
(2)
Where, in proceedings under subsection (1), a court concludes that evidence was
obtained in a manner that infringed or denied any rights or freedoms guaranteed
by this Charter , the evidence shall be excluded if it is established that,
having regard to all the circumstances, the admission of it in the proceedings
would bring the administration of justice into disrepute.
In the case at bar, the Court is confronted with a blatant violation by
the police of the appellant's right under s. 10 (b) of the Charter .
The appellant's drunken assertion that there was "no point" in
retaining counsel in face of a murder charge could not possibly have been taken
seriously by the police as a true waiver of her constitutional right,
especially when viewed in conjunction with the efforts of Mrs. Estey to
convince the police to postpone their interrogation until defence counsel could
be retained. This was not a situation in which the police were for some urgent
reason compelled to act immediately in gathering evidence. Rather, the actions
of the police in interrogating the intoxicated appellant seem clearly to have
been aimed at extracting a confession which they feared they might not be able
to get later when she sobered up and appreciated the need for counsel. In other
words, this seems to be a clear case of deliberate exploitation by the police
of the opportunity to violate the appellant's rights. In this context the words
of Estey J. writing for the majority of this Court in Therens, supra,
become highly relevant (pp. 621‑22):
Here the police authority
has flagrantly violated a Charter right without any statutory authority
for so doing. Such an overt violation as occurred here must, in my view, result
in the rejection of the evidence thereby obtained.... To do otherwise than
reject this evidence on the facts and circumstances in this appeal would be to
invite police officers to disregard Charter rights of the citizens and
to do so with an assurance of impunity.
As Estey J. went on to point out, such action on the part of the police
in blatantly violating the right to counsel must result in the inadmissibility
of evidence thereby directly obtained, otherwise s. 10 (b) would cease to
have any meaningful content whatsoever. Accordingly, allowing the appellant's
confession to be admitted into evidence would necessarily "bring the
administration of justice into disrepute". Whatever the scope of the s.
24(2) test for admissibility of evidence obtained in violation of the Charter ,
the flagrant exploitation by the police of the fact that to their knowledge the
appellant was in no condition to insist on her rights has to be the kind of
violation that gives rise to the exclusionary remedy. The decision of the trial
judge to exclude this evidence was therefore correct and the jury verdict,
based as it was solely on evidence admissible at trial, must be restored.
23. I would accordingly allow the appeal, set
aside the order of the New Brunswick Court of Appeal and restore the verdict of
acquittal rendered by the jury.
The reasons of McIntyre and Chouinard JJ. were
delivered by
24. McIntyre
J.‑‑I have read the reasons for judgment of my colleague,
Wilson J. She has outlined the facts sufficiently and they need not be
repeated. She has as well contrasted what are said to be the two tests for
determining the admissibility of a statement made by an accused to persons in
authority, described as the "operating mind" test and the
"knowledge of consequences" test. She did not find it necessary to
decide the issue thus raised but based her judgment on a Charter
infringement.
25. I am in agreement with the result she has
reached. I do not find it necessary to consider the Charter in reaching
this conclusion. In my view, the two tests described above overlap. A non‑
operative mind would not only be unaware of its utterances but also of the
consequences of those utterances. It would be for either of these reasons that
those utterances would be inadmissible. Thus, if the mind operated sufficiently
to make a conscious statement but could not have the knowledge of the
consequences of making the statement, the evidence should as well be excluded.
26. The two tests in reality collapse into one
when approached in the manner chosen by the trial judge where he said:
...was the accused so
intoxicated that the words she uttered were not her statement in the sense that
she did not comprehend her statement and was not capable of making a rational
judgment as to whether she ought, under the circumstances, to answer questions
the answers to which would ultimately be used at her trial on a charge of
murder?
There is no real difference between the two tests and under either the
result in this case would be the exclusion of the evidence.
27. The test to be applied then in determining
whether a statement made to a police officer or other person in authority by an
accused person may be rendered inadmissible because of intoxication of the
accused involves two questions:
1. Was
the accused aware of what she was saying?
and
2. Was
she aware of the consequences of making the statement on the particular
occasion in question?
To be aware of the consequences in this context simply means to be
capable of understanding that her statement could be used in evidence in
proceedings to be taken against her. There is no novelty in this approach. It
is consistent with the familiar and customary warning derived from the English
judges' rules which was to the effect that "you may remain silent but
anything you say will be taken down in writing and may be given in
evidence". This warning was designed to insure knowledge of the
consequences of the statement, that is, its possible use in proceedings against
the accused. It must be observed that common sense would dictate that a very
high degree of intoxication would be required to render such a statement
inadmissible.
28. The trial judge found that, because of
drunkenness, the appellant lacked the knowledge of the consequence of making
the statement and he excluded the statement. I would not disturb this finding,
and would accordingly allow the appeal.
29. I would leave open any question raised as
to the application of the Canadian Charter of Rights and Freedoms to
this case. I would allow the appeal and dispose of the issue as does my
colleague, Wilson J.
Appeal allowed.
Solicitor for the appellant: C. David Hughes,
Fredericton.
Solicitor for the respondent: Glendon J. Abbott,
Fredericton.
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