R. v. Black

The appellant was charged with the second degree murder of Deborah Lynn Tufts. At the commencement of the trial a voir dire was held to determine the admissibility of certain incriminating statements made by the appellant to the police. The trial judge excluded the statements under s. 24(2). Later in the trial argument was heard to determine whether evidence regarding the discovery of the alleged murder weapon was admissible into evidence given the trial judge's earlier ruling. The trial judge ruled that the evidence leading to the discovery of the knife was inadmissible.

The evidence at the voir dire disclosed that on October 11, 1985, Halifax police were called to investigate a stabbing at an apartment in Mulgrave Park, Halifax. The officers arrived on the scene between 11:30 and 11:40 p.m. and found a woman who had been stabbed near the throat. Based upon information received from individuals present at the scene, two police officers attended at the apartment of the appellant. They knocked on the appellant's door several times. After some time the appellant opened the door. One of the officers, Constable Small, testified that he advised the appellant that she was charged with attempted murder, that he read her the standard police warning, and that he told her she had the right to call a lawyer. The other officer, Sergeant O'Neil, recalled that the appellant was advised that she was being arrested for a stabbing.

The officers asked the appellant to get dressed and go with them to the police station. They arrived there at approximately 11:58 p.m. The appellant was taken to an interrogation room at which time she said she wanted to contact a lawyer by the name of Mr. Digby. Constable Small telephoned Mr. Digby at his residence, advised him that he was a police officer, and that a person in his custody wished to speak with him. Small then passed the telephone to the appellant and left the room. Constable Small did not inform Mr. Digby of the charge against the appellant. The appellant had a very brief conversation with Mr. Digby lasting about 30 to 40 seconds. Constable Small testified that the appellant appeared to be intoxicated and had a cut lip.

For approximately the next hour and a half the appellant was left alone in the interrogation room. Two officers entered the room around 1:35 a.m. to obtain pictures of the appellant and, in particular, pictures of bite wounds to the appellant's lip, neck and hand. Initially the appellant became quite upset because she thought the identification officer was a member of the press. Once she realized who the officers were and had settled down, pictures were taken and the appellant was given a change of clothes. The officers returned shortly thereafter and retrieved the appellant's clothes. A few minutes later the officers returned and asked the appellant to identify a pair of sandals and a knife. She cooperated by identifying the sandals and saying that she did not recognize the knife.

At 1:40 a.m. Detective Benjamin and Constable Ross entered the interrogation room. Detective Benjamin testified that the appellant was nervous, upset and under the influence of alcohol. They advised her of the death of Ms. Tufts and that she, the appellant, would now be charged with first degree murder. The appellant became very emotional, screaming, crying and accusing the officers of lying to her. The officers eventually managed to calm her down. Constable Ross read the appellant the following caution:

I wish to give the following warning. You must clearly understand that anything said to you previously should not influence you or make you feel compelled to say anything at this time. Whatever you felt influenced or compelled to say earlier you are not now obliged to repeat nor are you obliged to say anything further but whatever you do say may be given in evidence. Do you understand that which has been said to you?

The appellant once more became quite upset and again requested to speak with Mr. Digby. Detective Benjamin and Constable Ross left the room and Ross attempted on several occasions to contact Mr. Digby at his residence. On each occasion the line was busy. Ross returned to the interrogation room, advised the appellant that the line was busy, and asked her if she wished to speak with another lawyer. The appellant responded "no" and reiterated that she wanted to speak with Mr. Digby as she had spoken with him earlier.

The appellant then asked to call another person, her elderly grandmother. This call was made in the presence of Constable Ross. It lasted for five or six minutes and during it the appellant became more relaxed. After the conversation the appellant began to converse with Ross. The appellant asked whether she would be spending the weekend in jail as she was concerned about one of her children. The constable advised that she would be kept in the police cells over the weekend. He then asked her about the location of the knife. Ross testified that the appellant grinned and said that the knife was at home. He then asked her to tell him the whole story. According to Ross, the appellant agreed to give a statement. He left the room briefly to obtain the official Halifax Police Department statement forms. When Ross returned the appellant gave a long inculpatory narrative which Ross wrote out and which the appellant signed.

The appellant claimed that she only gave the statement because Ross had promised that she would receive bail and be allowed to go home if she did. She testified that she made up the story so that she could be released.

After the appellant gave the statement she was taken to a hospital and treated for her injuries. While the appellant was at the hospital a blood sample was taken from her. Subsequent analysis revealed that the appellant had a very high blood alcohol level. After the treatment at the hospital the two police officers escorted the appellant back to her apartment. According to the police officers, the appellant went to a kitchen drawer, pulled out a knife and handed it over to the officers indicating to them that it was the murder weapon.

On January 9, 1986 the appellant was charged with unlawfully causing the death of Deborah Lynn Tufts by stabbing her with a knife and thereby committing second degree murder.

(a) The Trial: Kelly J.

At the commencement of the trial Kelly J. held a voir dire to determine the admissibility of the inculpatory statement given by the appellant. He first rejected the appellant's argument that the statement ought to be excluded because Ross had promised the appellant she would receive bail if she confessed. He preferred Ross's version of the discussion over the appellant's.

Kelly J. then set out to determine whether the statement was voluntary under the common law test of voluntariness. Having accepted the veracity of the police officers' testimony, Kelly J. concluded that the statement was obtained without threats or inducements. He also concluded, despite the fact that the appellant had only a grade four education and was under the influence of alcohol and emotionally distraught at the time of questioning, that the statement given by the appellant was "an utterance of an operating mind". He concluded, therefore, that the appellant's statement was given voluntarily.

The learned trial judge moved next to the question whether the statement was extracted as a result of a violation of the appellant's right under s. 10(b) of the Charter to retain and instruct counsel without delay. While he expressed dissatisfaction with the fact that the appellant was not advised of her rights in the words of the Charter at the time of her arrest, he focussed in on the question whether the appellant should have been or was given a proper opportunity to consult counsel after she was told that Ms. Tufts had died and that the charge would be changed from attempted murder to first degree murder. Kelly J. stated:

I have no difficulty in finding that these factors brought about such a significant change to her legal position that she was entitled to a further opportunity to consult counsel under the provisions of section 10(b) of the Canadian Charter of Rights and Freedoms if she requested such an opportunity.

With respect to the obligation on police officers when an accused asks to contact counsel, Kelly J. adopted the four propositions espoused by Tarnopolsky J.A. in R. v. Anderson (1984), 10 C.C.C. (3d) 417 (Ont. C.A.), at p. 422:

(1)Upon arrest or detention there is an obligation upon a peace officer to communicate clearly to the accused that he has a right to retain and instruct counsel. In many circumstances, a question as to whether the accused understands that right ends the officer's obligation.

(2)A peace officer has to go further in explaining the right if there is something in the circumstances which suggests that the accused does not understand, such as a state of shock or drunkenness.

(3)If the accused in any manner chooses to invoke or exercise his right to retain and instruct counsel, the peace officer has two obligations: (a) to provide the opportunity without delay, and (b) to cease any questioning of the accused until after that opportunity has been provided.

(4)If the accused or arrested individual exercises the choice of not requesting an opportunity to retain and instruct counsel and speaks to the peace officer, the statement obtained is not inconsistent with the Charter .

Applying those propositions to the case at bar, Kelly J. stated:

Miss Black was unequivocal on her desire to consult counsel and insisting in her choice of counsel, that is, Mr. Digby. She expressed this position subsequent to the "secondary caution" and prior to giving the statement. Constable Ross advises that he made an attempt to reach Mr. Digby and guessed that his telephone was deliberately or otherwise off its cradle or its hook. He did not check if this guess was accurate or advise Miss Black of his opinion. If she had known it was impossible to reach Mr. Digby at that time perhaps she could have made a more reasoned decision to try another counsel instead of then insisting on Mr. Digby. In any event, she did clearly and frequently insist on Mr. Digby and she had a right to counsel of her choice unless such a request was unreasonable in the circumstances. In this case, I find that such a request was not unreasonable.

The evidence discloses, and the police admit, that there was no need for urgency. They could have waited to take the statement later in the same morning when contact with counsel would have been more reasonable and probable. The obligation of police authorities to facilitate access to counsel when requested is greater, in my opinion, under the present circumstances, that is circumstances where there is an unsophisticated, distraught, somewhat "alcohol impaired and injured woman under arrest for the most serious offence under the Criminal Code . The right to counsel is one of our most basic rights and is now the supreme law of Canada. I find in these circumstances that Miss Black, the accused, was denied this right". [Emphasis added.]

The trial judge excluded the statement pursuant to s. 24(2) of the Charter .

Later in the trial the trial judge had to decide whether the evidence concerning the discovery of the knife should also be excluded. He concluded that the discovery of the knife and the appellant's behaviour leading up to the discovery followed upon the breach of the appellant's s. 10(b) rights. For the same reasons as he gave in relation to the confession the trial judge also excluded all evidence surrounding the discovery of the knife. The appellant was acquitted of murder and convicted of the lesser charge of manslaughter. The Crown appealed.

(b)Nova Scotia Supreme Court, Appeal Division

(Jones, Macdonald and Pace JJ.A.)

The majority of the Court of Appeal (Pace J.A. with Macdonald J.A. concurring) allowed an appeal from the trial judge's decision and ordered a new trial: see (1987), 32 C.C.C. (3d) 425. Pace J.A. felt that the trial judge had misinterpreted the Ontario Court of Appeal's judgment in R. v. Anderson, supra. In Pace J.A.'s opinion Tarnopolsky J.A. in Anderson did not accept the third of the four principles advanced by Crown counsel in that case as constituting the obligation of a police officer. He stated at p. 435:

It would appear that neither the Ontario Court of Appeal or the British Columbia Court of Appeal have adopted proposition (3) as submitted in Anderson, supra, as being "at least part of the obligation of the police officers under section 10(b) of the Charter ". This ruling by the trial judge, in my respectful opinion, was in error as it sets too high an obligation on the police officers and denies the accused the freedom to speak if she so desires.

Pace J.A. also distinguished on its facts the Ontario Court of Appeal's decision in R. v. Manninen (1983), 8 C.C.C. (3d) 193, concluding that in the case at bar "the police did everything possible to facilitate the respondent's right to counsel" (p. 433).

The majority of the Court of Appeal set out what it believed to be the obligations on police officers to ensure the protection of an accused's s. 10(b) rights at p. 434 as follows:

Under s. 10(b) of the Charter there is an obligation imposed upon a peace officer to communicate clearly to the accused that he has a right to retain and instruct counsel without delay and to provide the opportunity to the accused to retain and instruct counsel without delay if the accused so desires. Should the accused voluntarily waive his right to counsel, the peace officer must then ascertain whether the accused did so on a true appreciation of the consequences of giving up the right: see Clarkson v. The Queen, supra. This later determination, in my view, would depend to a large measure on the accused's mental condition at the time, for example, drunk, or under the influence of drugs to such an extent as to be unaware of the consequences of giving up the right.

It would appear that the majority of the Court of Appeal felt that the police in this case had fulfilled their obligations and that the appellant had waived her s. 10(b) rights when she gave the statement. Pace J.A. stated at p. 434:

In the present appeal, unlike Clarkson, the trial judge found the accused was in command of her "intellectual faculties sufficient to make a voluntary statement". In arriving at that conclusion he took into account all of the surrounding circumstances such as the accused's injuries, educational background, degree of intoxication, ability to comprehend, and her emotional and mental state. It must also be remembered that the accused in the present case did consult counsel and was presented with a telephone to make the call she requested. The officers were not requested to wait for counsel nor was there any indication by the accused that she wished to remain silent until counsel was available. In fact, it would appear from the evidence that a good deal of the conversation between the accused and Constable Ross was initiated by the accused who appeared to be concerned about where she would be situate for the week-end and who would be looking after her child. The statement was given in narrative form with a few questions at the end asked by the officer.

The majority therefore found no s. 10(b) violation on the facts of this case. Pace J.A. added, however, that even if he had found a "technical breach" of s. 10(b), he would not have excluded the statement under s. 24(2).

Jones J.A. dissented. He was of the opinion that the finding by the trial judge that the appellant's statement was voluntary did not preclude him from finding a s. 10(b) violation. He thought that Clarkson was decisive in this case and stated at pp. 438-39:

How can it be said on the evidence that it was "clear and unequivocal" that the appellant was waiving her right to counsel on the facts of this case "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"? If fairness required the exclusion of the statements in Clarkson then surely that principle must apply to the facts in this case. With respect it was open to the trial judge to exclude the evidence which he did under s. 24(2) of the Charter and in view of Clarkson he was correct in doing so.

A resolution of this appeal requires us to answer the following questions:

(1) Did the appellant fully exercise her right to counsel during the course of her telephone conversation with Mr. Digby at 11:58 p.m.?

(2) If not, was the appellant given a reasonable opportunity to exercise her right to counsel prior to the giving of the inculpatory statement?

(3) Did the appellant waive her s. 10(b) rights?

(4) If there was a breach of the appellant's s. 10(b) rights, should the inculpatory statement be excluded under s. 24(2)?

(5) If there was a breach of the appellant's s. 10(b) rights, should evidence regarding the recovery of the knife be excluded?

10. Everyone has the right on arrest or detention

(a)to be informed promptly of the reasons therefor;

(b)to retain and instruct counsel without delay and to be informed of that right;

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(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.