R. v. Elshaw

The nature of the evidence (whether real or self-incriminating);

The existence of a Charter infringement under s. 10(b);

The seriousness of the violation;

The wilful or flagrant nature of the violation;

Circumstances of urgency or necessity;

Whether the evidence would have been obtained in any event;

The seriousness of the offence;

Whether the evidence is essential to substantiate the charge;

The availability of other remedies.

Toy J.A. determined that the consideration of these factors pointed toward the admission of the statement. The nature of the evidence, the existence of a s. 10(b) violation, and the lack of other available remedies argued for exclusion. As well, he noted that the evidence obtained as a result of the violation "substantially contributed to the findings of guilt in this case". However, he repeated that the police had acted in good faith. And, while the situation may not have been urgent, "in my view, it was necessary to locate the accused in the patrol wagon while the brief interviewing process took place". Toy J.A. added that the offence was serious not only for the accused but also for society. Finally, he asked (at p. 206):

Would the evidence have been obtained in any event? Probably, as if he [the accused] had been informed of his right to counsel when he was asked to sit in the patrol wagon, he would still have responded to Constable Jorgensen in the way that he did.

Taking the authorities and all of these factors into consideration, Toy J.A. concluded that the appeal from the trial judge's decision to admit the evidence should be dismissed.

Issues

I have had the benefit of reading the reasons of my colleague, Justice L'Heureux-Dubé, who deals extensively with the question of whether there was a detention that could give rise to a Charter violation. As I do not intend to discuss this question, a few remarks are in order.

In my view, the question of detention is not before us. This appeal was argued by the parties on the basis of a violation of s. 10(b) of the Charter which was conceded by the Crown. In his judgment on the voir dire at trial, as I mentioned above, Greig Prov. Ct. J. concluded there was a detention and Charter violation. This was accepted by the Court of Appeal. In that respect, Toy J.A. stated (at p. 202):

Counsel for the Crown conceded that the trial judge had correctly concluded that at the time when the conversation took place between Constable Jorgensen and the accused, the accused was in fact detained.

Toy J.A. later found (at p. 204):

As the trial judge concluded, I too find that the detention was reasonable and brief. [Emphasis added.]

In proceedings before this Court, the Crown continued to acknowledge its concession although it did try to characterize the detention in the most favourable light. With that background and specific findings of the lower courts that there was a detention as conceded by the Crown, the sole issues before us are the application of s. 24(2) of the Charter and the Crown's alternative argument justifying the conviction which involves s. 686(1)(b)(iii) of the Criminal Code .

To those issues, I shall now turn.

Analysis

A. Section 24(2) of the Charter

Before this Court, the appellant has attacked four of the nine factors considered by the Court of Appeal in its formulation and application of the s. 24(2) test for the admission of evidence obtained in violation of s. 10(b) of the Charter . The attacked factors are (1) the seriousness of the Charter violation, (2) the circumstances of urgency or necessity, (3) the wilful or flagrant nature of the violation, and (4) the evidence would have been obtained in any event.

To put the specific submissions of the appellant in their proper context, I think it important to recall the approach taken by Lamer J. (as he then was) in R. v. Collins, supra, with respect to s. 24(2) of the Charter . Lamer J. reviewed the factors to be considered in determining whether the admission of evidence in proceedings would bring the administration of justice into disrepute. In his view, these factors could be divided into three groups based on their effect on the repute of the administration of justice. The first group of factors are those relating to the fairness of the trial. The second group relates to the seriousness of the Charter violations as shown by the conduct of the law enforcement authorities. The third group of factors deals with the possibility that the administration of justice could be brought into disrepute by excluding the evidence even though it was obtained in violation of the Charter . Subsequent decisions of this Court have applied the approach of Lamer J.; see R. v. Strachan, supra, R. v. Black, [1989] 2 S.C.R. 138, and R. v. Hebert, [1990] 2 S.C.R. 151.

I now return to the appellant's s. 24(2) submissions.

(1) The Seriousness of the Charter Violation

In the Court of Appeal, Toy J.A. wrote that "nothing of consequence flowed from the fact that the accused was being detained in the patrol wagon for a short period of time" (p. 206). On this basis he concluded that the violation of the appellant's rights was not serious. With respect, I disagree.

As mentioned, this Court in Collins, supra, discussed the seriousness of a violation as shown by the conduct of the law enforcement authorities as the second of three groups of factors to be used in determining whether evidence should be excluded under s. 24(2) of the Charter . Lamer J. said this at p. 285:

There are other factors which are relevant to the seriousness of the Charter violation and thus to the disrepute that will result from judicial acceptance of evidence obtained through that violation. As Le Dain J. wrote in Therens, supra, at p. 652:

The relative seriousness of the constitutional violation has been assessed in the light of whether it was committed in good faith, or was inadvertent or of a merely technical nature, or whether it was deliberate, wilful or flagrant. Another relevant consideration is whether the action which constituted the constitutional violation was motivated by urgency or necessity to prevent the loss or destruction of the evidence.

I should add that the availability of other investigatory techniques and the fact that the evidence could have been obtained without the violation of the Charter tend to render the Charter violation more serious. We are considering the actual conduct of the authorities and the evidence must not be admitted on the basis that they could have proceeded otherwise and obtained the evidence properly. In fact, their failure to proceed properly when that option was open to them tends to indicate a blatant disregard for the Charter , which is a factor supporting the exclusion of the evidence.

The measure of seriousness, then, is a function of the deliberate or non-deliberate nature of the violation by the authorities, circumstances of urgency and necessity, and other aggravating or mitigating factors.

In my view, the error by the Court of Appeal was its focus on the length of the detention. It is the fact that the police obtained evidence from a detained person prior to fulfilling their responsibilities under s. 10(b) which is important, not the relatively short period of time during which the appellant was detained. The violation of s. 10(b) arose when Constable Jorgensen began to question the appellant without advising him that he could retain a lawyer. The appellant was not even told that he had the right to remain silent and that anything he might say could be used against him.

In this light, it is clear that the violation of the appellant's rights was serious. The appellant was denied access to counsel or even the opportunity to take refuge in silence at the very moment when he could have most benefited from the exercise of these rights. The police obtained a statement which the Court of Appeal acknowledged contributed "substantially" to his conviction. Finally, the self-incriminating evidence was used to provide a nexus to similar fact evidence regarding the appellant's previous conviction for child molesting. The similar fact evidence was the basis of the appellant's indeterminate sentence as a dangerous offender.

(2) Circumstances of Urgency or Necessity

Toy J.A. concluded that the detention of the appellant was necessary if not urgent. He stated at pp. 204-5:

The next factor to be considered is the submission of the accused's counsel that there was no urgency or necessity to detain the accused in the fashion they did. Here counsel for the accused relies on the reasoning in Clarkson, supra. In my view, the circumstances are substantially different. Here the two police officers were faced with a complaint of possible child molesting that had just taken place, and they were required to make some very hasty decisions. They had four potential witnesses to immediately question, and a suspect under their control. In my view, it would have been unreasonable to expect the police officers to immediately release the suspect and let him go his way and then commence investigating the stories of the four witnesses. The situation these police officers found themselves in was something akin to the situation in R. v. Strachan, supra, where the police officers refused to allow the accused to telephone his lawyer until the police had the premises safely under control.

Under the circumstances, it is my view that the police officers did what was not only reasonable but necessary in placing the accused in the patrol wagon for a short period of time to maintain control over the accused until their questioning of the witnesses was concluded and at the same time to remove him from the continued surveillance of four prospective witnesses.

It may have been reasonable and necessary to place the accused in the patrol wagon but the question is whether it was necessary to violate the appellant's Charter right in the circumstances.

Once again, the court below mistakenly focussed on the detention rather than on the questioning of the appellant. If circumstances of urgency or necessity are to be a mitigating factor, they must go to the need to obtain information right away prior to advising the suspect of his or her rights to retain and instruct counsel, rather than the need to restrict a suspect's movements by detention or arrest. As this Court concluded in Clarkson, supra, and more recently in Black, supra, the urgency of detention should not be used as an excuse to violate the right to counsel if there is no need to question the accused immediately.

In this case, there was no urgency or necessity that would have prevented compliance with s. 10(b). At trial, police officers Jorgensen and Randhawa testified that they were unsure whether they would charge the appellant with any offence until after they obtained the incriminating statement. This seems odd in light of the fact that by that time they had interviewed both the adult witnesses and the complainants, and they had informed the appellant that they were investigating a possible child molesting. But even if the police genuinely had not decided whether to arrest the appellant when he was questioned, this circumstance of uncertainty falls short of urgency or necessity. The Crown did not produce any explanation or evidence to show why the police could not have waited to question the accused.

(3) The Wilful or Flagrant Nature of the Violation

The Court of Appeal considered that the police had acted in good faith. Toy J.A. noted that the arrest of the appellant took place before this Court had elaborated the concept of detention under s. 10(b) of the Charter . He determined that nothing on the record showed that the police were aware of an obligation to advise the appellant of his right to counsel.

However, the Crown tendered no evidence to show that Constables Jorgensen and Randhawa were ignorant of their responsibilities under s. 10(b) or that they had determined in their own minds that this was merely an "investigative" detention. It should be remembered that not only did the officers fail to advise the appellant of his right to counsel, but they also failed to give him the common law caution regarding the right to remain silent.

Even if the good faith of the police officers were definitively established, it should not have been considered by the Court of Appeal as a mitigating factor in the violation of the appellant's rights. Sopinka J. made the following comments in another s. 10(b) case, Hebert, supra, at pp. 207-8:

As Lamer J. pointed out in Collins, any impingement on trial fairness strikes at the heart of the reputation of the administration of justice. But the Crown has submitted in the present case that the good faith of the police officers who arranged for the deception of the appellant ... is a significant factor in favour of receiving the evidence. For myself, I fail to see how the good faith or otherwise of the investigating officers can cure, so to speak, an unfair trial. ... It seems odd indeed to assert that evidence the admission of which would render a trial unfair ought to be admitted because the police officer thought he was doing his job. From the accused's perspective (whose trial is ex hypothesi proceeding unfairly), it makes little difference that the police officer has a clean conscience in the execution of his duty.

In other words, the bad faith of the police may strengthen the case for exclusion because, as Lamer J. points out in Collins, supra, it may tend to show a "blatant disregard for the Charter ". However, the good faith of police will not strengthen the case for admission to cure an unfair trial. The fact that the police thought they were acting reasonably is cold comfort to an accused if their actions result in a violation of his or her right to fair criminal process.

(4) The Evidence Would Have Been Obtained in Any Event

The Court of Appeal concluded that the admission of the statement would not greatly prejudice the appellant because self-incriminating evidence probably would have been obtained from him even if the police had complied with s. 10(b) of the Charter .

In Black, supra, Wilson J. said the following at pp. 153-54:

The Crown argued that, despite the change in the charge, the preliminary legal advice which the appellant received might well have been unchanged. This may be so. On the other hand, given the differences in the charges as discussed above, to conclude that the advice would inevitably have been the same is sheer conjecture. In my opinion, it is improper for a court to speculate about the type of legal advice which would have been given had the accused actually succeeded in contacting counsel after the charge was changed.... Such reasoning runs directly afoul of this Court's judgments in R. v. Therens, [1985] 1 S.C.R. 613, and Trask v. The Queen, [1985] 1 S.C.R. 655. It also totally defeats the purpose of s. 10(b). [Emphasis in original.]

This reasoning applies equally well to the Court of Appeal's speculation that self-incriminating evidence would have been obtained in any event. No one can speculate what the appellant might have said or done at the time of his detention had he been advised of his right to counsel or even of his right to remain silent. To base admission on the ground that he might have confessed completely undermines the enshrinement of the right to counsel in the Charter .

Conclusions

The nature of the crime, the involvement of young children, and the appellant's record make this a serious and difficult case. It is clear that the appellant's s. 10(b) rights were violated. However, the courts below were correct in concluding that the police had to make some very hasty decisions. It also appears from the evidence that the inculpatory statement made by the appellant was not the result of harsh interrogation, but rather the somewhat unexpected reply to a simple question. After the appellant made the admission, the police made no attempt to elicit further information from him before he was taken to the station and formally charged.

However, the Court of Appeal used the wrong criteria for admission of the evidence in this case, and misapplied them. More fundamentally, it misunderstood the nature of the test under s. 24(2) of the Charter . As Sopinka J. wrote in Hebert, supra, at pp. 207-8:

This Court's cases on s. 24(2) point clearly, in my opinion, to the conclusion that where impugned evidence falls afoul of the first set of factors set out by Lamer J. in Collins (trial fairness), the admissibility of such evidence cannot be saved by resort to the second set of factors (the seriousness of the violation). These two sets of factors are alternative grounds for the exclusion of evidence, and not alternative grounds for the admission of evidence. [Emphasis in original.]

The Court of Appeal's balancing of all the various factors arguing for admission or exclusion is contrary to the approach to s. 24(2) suggested by this Court in Collins and subsequent cases. A violation of rights which jeopardizes the fairness of the trial cannot be "saved" by mitigating factors (such as the good faith of the police). It can, however, be worsened by aggravating factors (such as a lack of urgency or necessity).

It is well established that the test for the admissibility of self-incriminating evidence under s. 24(2) is more stringent than the test for real evidence. This is so because the former is directly related to the Charter violation and its admission would dramatically affect the presumption of innocence of the accused and also affect his or her right not to testify. A series of decisions by this Court, beginning notably with Collins, makes it clear that the exclusion of inculpatory statements obtained in violation of s. 10(b) should be the rule rather than the exception. McLachlin J. most recently wrote in R. v. Evans, [1991] 1 S.C.R. 869, at p. 896:

Generally speaking, the use of an incriminating statement, obtained from an accused in violation of his rights, results in unfairness because it infringes his privilege against self-incrimination and does so in a most prejudicial way -- by supplying evidence which would not be otherwise available.

In this case, the Court of Appeal listed the self-incriminating nature of the evidence obtained in violation of s. 10(b) as just one factor among many to be considered in admission. A proper approach would have been premised on the principle that, as a general rule, such evidence is not admissible because it would adversely affect the fairness of the trial and bring the administration of justice into disrepute.

B. Section 686(1)(b)(iii) of the Criminal Code

In its oral argument before this Court, the Crown urged that, even though the Court of Appeal used the wrong test, it achieved the right result. Counsel argued that all the other evidence in the case, such as the eye-witness testimony, the attempted flight of the appellant from the park, and the similar fact evidence adduced at trial, produced an "irresistible inference" of the appellant's guilt. Even in the absence of the admission of the self-incriminating statement, the appellant would have been convicted. As a result, the appeal should be dismissed under s. 686(1)(b)(iii) of the Criminal Code on the grounds that no substantial wrong or miscarriage of justice occurred. I do not agree.

I find the Crown's resort to the curative provision of s. 686(1)(b)(iii) somewhat disturbing in a case of this kind. If the evidence in question should have been excluded under s. 24(2) of the Charter because its admission would put the administration of justice into disrepute, then generally its admission was such as to amount to a substantial wrong or miscarriage of justice thereby putting matters beyond the reach of s. 686(1)(b)(iii), which is available to cure errors of law where no substantial wrong or miscarriage of justice results. Consequently, s. 686(1)(b)(iii) is not available in this case. This is not to say that there may not be other circumstances where the curative provision could apply notwithstanding that evidence should have been excluded under s. 24(2) of the Charter .

This argument also comes dangerously close to the reasoning of the Court of Appeal when it concluded that self-incriminating evidence probably would have been obtained in the absence of the s. 10(b) violation. Such speculation is unwarranted, and defeats the purpose of enshrined Charter rights. In any event, had evidence of the self-incriminating statement been excluded, it is entirely possible that the defence strategy would have been different. For example, the appellant might have testified. Moreover, it is arguable that the similar fact evidence of the appellant's previous conviction would not have been admitted had the impugned statement been excluded. It can therefore hardly be said that, as submitted by the Crown, the verdict would necessarily have been the same without that evidence.

In short, I reject the Crown's arguments based on s. 686 (1)(b)(iii) of the Code.

Disposition

For all these reasons, I would allow the appeal and order a new trial on the two counts of attempted sexual assault.

//L'Heureux-Dubé J.//

The following are the reasons delivered by

L'Heureux‑Dubé J. (dissenting) -- I have had the opportunity to read the opinion of my colleague, Justice Iacobucci. With great deference I must disagree with him, not only with respect to the result he reaches but also with respect to the identification of the central issue in this case.

The following questions were put to us in this appeal:

1.Whether the Court of Appeal erred in their interpretation and application of a number of the factors relevant to the application of s. 24(2) of the Canadian Charter of Rights and Freedoms .

2.Whether the Court of Appeal erred in speculating that, if the police had not violated the appellant's rights under s. 10(b) and had advised him of his right to retain and instruct counsel, he probably would still have provided the incriminating statement.

Unlike my colleague, however, I believe that the underlying and primary issue, indeed the only issue, concerns the point at which someone is "detained" for the purposes of the s. 10(b) Charter guarantee which I reproduce for the sake of convenience:

Everyone has the right on arrest or detention