Cite as: R. v. Black, 1987 NSCA 20 S.C.C. No. 01438 I N THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Jones , Macdonald and Pace, J J . A .
B E T W E E E N : HER MAJESTY THE QUEEN
a p p e l l a n t - and - CYNTHIA V I R G I N I A BLACK respondent
THE COURT: Appeal a l lowed, c o n v i c t i o n and s e n t e n c e quashed and a new t r i a l o rdered on t h e same i n d i c t m e n t p e r reasons f o r judgment of Pace, J . A . ; Macdonald , J . A . , concur r ing and J o n e s , J . A . , d i s s e n t i n g .
John D. Embree f o r a p p e l l a n t
J o e l E . P ink , Q.C. f o r respondent Appeal Heard: October 8 , 1986 Judgment Del ivered : J anua ry 28, 1987
PACE, J . A . : Th i s i s an appea l by t h e Crown from t h e d e c i s i o n of M r . J u s t i c e F.B. William Kel ly , p r e s i d i n g wi th a ju ry , wherein he found on a v o i r d i r e t h a t c e r t a i n evidence tendered by t h e Crown was i n a d m i s s i b l e having been obta ined i n breach of t h e r e s p o n d e n t ' s r i g h t t o counse l a s guaranteed by s. 1 0 ( b ) of t h e Canadian Char t e r of R i g h t s and Freedoms. The respondent was i n d i c t e d : That s h e a t . o r n e a r Ha l i f ax i n t h e County of H a l i f a x , Nova S c o t i a , on o r about t h e 1 1 t h day of October, 1985, d i d un lawful ly cause t h e d e a t h of Deborah Lynn T u f t s by s t abb ing her w i t h a k n i f e and d i d the reby commit second degree murder, c o n t r a r y t o S e c t i o n 2 1 8 ( 1 ) of t h e Cr imina l of Canada." A t t h e conc lus ion of t h e t r i a l t h e ju ry r e tu rned a v e r d i c t of g u i l t y of manslaughter and t h e accused was sentenced t o a term of f o u r y e a r s ' imprisonment. The Crown has a l s o made a p p l i c a t i o n f o r l e a v e t o a p p e a l t h e sen tence . Both t h e appea l and t h e a p p l i c a t i o n f o r l e a v e t o appea l t h e sen tence was heard a t t h e same t ime The f a c t s may be b r i e f l y summarized a s fo l lows . A t approximately 7:00 p.m. on October 11, 1985, t h e accused went t o t h e apar tment of Joan Stevens l o c a t e d a t 92-B, Block, Mulgrave Park i n t h e C i t y of Ha l i f ax , Nova S c o t i a , where a p a r t y was i n p r o g r e s s . The accused consumed some "home brew" and was danc ing wi th Nathan Barton when an a l t e r c a t i o n a r o s e between her and t h e deceased Deborah T u f t s . Both combatants f e l l t o t h e f l o o r w i t h M i s s T u f t s on t o p . Durinq t h e course of t h e i r s t r u g g l e t h e accused r ece ived b i t e s t c
her hand and neck, as well as a cut lip. They were finally - separated and the accused left the apartment shortly thereafter. The total time involved from the accused's arrival to departure was approximately one hour. The accused then proceeded to her own apartment which was downstairs from the Stevens' apartment. She began cooking chicken, but apparently went to sleep during the course of her culinary pursuit and was only awakened when members of .the Halifax Fire Department arrived on the scene in answer to a call when smoke was seen coming from the apartment. Shortly after the firemen departed, which was estimated between 11:OO to 11:30 p.m., the accused armed with a kitchen knife returned to Joan Stevens' apartment. When admitted to the apartment she walked directly over to where Deborah Tufts was seated and stabbed her with the knife. The knife entered the victim's body at the base of the neck on the right side. At the time of the stabbing the accused said to the victim, "take this you bitch", and immediately after left the apartment. The police arrived some few minutes after the stabbing and upon hearing what had occurred Sergeant Ronald Joseph OtNeil and Constable Robert Small went immediately to the accused's apartment. After a short delay the officers were admitted by the accused; whereupon they immediately placed her under arrest on the charge of attempted murder. She was advised by Constable Small of her right to call a
- 3 - laywer and was read the standard police caution. The arrest occurred at 11:40 p.m. and the accused was then transported to the police station where she was placed in the interrogation room at 11:58 p.m. The accused advised Constable Small that she wished to speak to Mr. Bill Digby, a legal aid lawyer, whom he immediately contacted for her and gave her the telephone so that she could speak in private with him. The .. conversation between Mr. Digby and the accused appeared to be of short duration and concluded with the accused slamming down the telephone. The telephone was then removed from the room and the door was closed. No one had any further contact with the accused until 1:35 a.m. when Detective Aubrey Benjamin and Constable James Griffin entered the cubicle to take photographs of her. They also had the accused change her clothing and identify certain articles thought to belong to her. At 1:45 a.m. Detective Benjamin, accompanied by Constable David Ross, entered the cubicle and informed the respondent that Deborah Tufts had died and that she would now be charged with murder. After a somewhat emotional outburst, the accused recovered her composure and was read a "secondary caution" by Constable Ross. She was again advised of her right to call her lawyer and upon expressing such a desire Constable Ross attempted to contact Mr. Digby for her. After six or eight attempts to contact Mr. Digby, Constable Ross
adv i sed t h e accused t h a t M r . D igby ' s l i n e was busy and asked h e r i f s h e wanted t o t a l k t o a n o t h e r l awyer . She r e p l i e d t h a t s h e wished t o t a l k t o M r . Digby. The accused t h e n asked i f she cou ld c a l l h e r grandmother. The t e l ephone was provided f o r h e r and s h e t h e n t a l k e d w i t h someone f o r f i v e o r s i x minutes . A f t e r t h i s c a l l a c o n v e r s a t i o n commenced between t h e respondent and Cons tab le Ross which concluded wi th t h e r e sponden t , g i v i n g a d e t a i l e d i n c u l p a t o r y s t a t emen t i n w r i t i n g . The c a u t i o n e d s t a t e m e n t was t a k e n between 2:30 and 2:53 a.m. on October 12 , 1985 a f t e r which t h e respondent was t aken t o t h e V i c t o r i a General H o s p i t a l f o r t r e a t m e n t and a sample of h e r b lood t a k e n which a t 4:20 a.m. con ta ined 220 mi l l ig rams of a l c o h o l p e r 100 m i l l i l i t r e s of b lood. The respondent was t aken from t h e h o s p i t a l t o h e r apar tment where s h e produced a k n i f e . A t t h e c o n c l u s i o n of t h e e v i d e n c e adduced on t h e -v o i r -d i r e counse l f o r t h e accused submi t t ed t h a t t h e s t a t emen t should be excluded because t h e r e had been a promise of b a i l made t o t h e accused by a pe r son i n a u t h o r i t y and t h e Crown had f a i l e d t o prove beyond a r e a s o n a b l e doubt t h e s t a t emen t was v o l u n t a r y . Counsel a l s o submi t ted t h e a c c u s e d ' s r i g h t t o counse l had been d e n i e d i n breach of s . l O ( b ) of t h e C h a r t e r . The t r i a l judge found t h a t t h e r e was no inducement h e l d o u t t o t h e accused by t h e p o l i c e o f f i c e r s and t h e
- 5 - statement was "made freely and voluntarily and that at the time that it was made Miss Black was in command of her intellectual faculties sufficient to make a voluntary statement." On the issue of the accused's riqht to counsel the trial judge said: "In the case before us Constable Small gave the police caution and advised the accused she could 'call.a lawyer' when she was first arrested and at the same time he gave .the grounds for the arrest, that is, attempted murder or, according to Sergeant OINeil, stabbing. It is to be noted that the accused was not told of her full rights under section 10(b) of the Charter, only that she had the riqht to 'call a lawver.' It is also td be noted that she was not asked if she wished to call the lawyer from her apartment or given the opportunity to do so. However, Miss Black was subsequently given an opportunity to talk with the counsel of her choice very shortly after she arrived at the police station. The issue here is whether she should have been given or was given a further satisfactory opportunity to consult counsel after she had been advised of the death of the victim and after she had been advised that the charge against her would be first degree murder. 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 lO(b) of the ~anadian Charter of Rights and Freedoms if she requested such an opportunity." Mr. Justice Kelly in finding there was a breach of s. 10(b) of the Charter adopted the four propositions
s u b m i t t e d by t h e Crown i n R e q i n a l d v . Anderson ( 1 9 8 4 ) , 1 0 - C . c . C . ( 3 d ) 417, and c o n c l u d e d t h u s l y : " I a d o p t t h e s e p r o p o s i t i o n s a s b e i n g a t leas t p a r t o f t h e o b l i g a t i o n of t h e p o l i c e o f f i c e r s u n d e r s e c t i o n 1 0 ( b ) o f t h e C h a r t e r . I n d e t e r m i n i n g t h e e x t e n t o f t h e o b l i g a t i o n o f t h e p o l i c e i n p r o v i d i n g t h e a c c u s e d w i t h h e r C h a r t e r r i g h t s , t h e c i r c u m s t a n c e s o f t h e case, p a r t i c u l a r l y t h o s e r e l a t i n g t o t h e c a p a c i t y o f t h e a c c u s e d , are e x t r e m e l y r e l e v a n t .
M i s s B lack w a s u n e q u i v o c a l on h e r d e s i r e t o c o n s u l t c o u n s e l a n d i n s i s t i n g i n h e r c h o i c e o f c o u n s e l , t h a t i s , !&. Digby. She e x p r e s s e d t h i s p o s i t i o n s u b s e q u e n t t o t h e ' s e c o n d a r y c a u t i o n ' a n d p r i o r t o g i v i n g t h e s t a t e m e n t . C o n s t a b l e Ross a d v i s e s t h a t h e made a n a t t e m p t t o r e a c h M r . Digby and g u e s s e d t h a t h i s t e l e p h o n e w a s d e l i b e r a t e l y o r o t h e r w i s e o f f i t s c r a d l e o r i t s hook.
H e d i d n o t check i f a c c u r a t e o r a d v i s e M i s s B l a c k o p i n i o n . I f s h e had i m p o s s i b l e t o r e a c h M r . t i m e p e r h a p s s h e c o u l d have made a more r e a s o n e d d e c i s i o n t o t r y a n o t h e r c o u n s e l i n s t e a d o f t h e n i n s i s t i n g on M r . I n any e v e n t , s h e f r e q u e n t l y i n s i s t on M r . had a r i g h t t o c o u n s e l of u n l e s s s u c h a r e q u e s t w a s u n r e a s o n a b l e i n t h e c i r c u m s t a n c e s . I f i n d t h a t s u c h a u n r e a s o n a b l e .
The e v i d e n c e d i s c l o s e s , p o l i c e a d m i t , t h a t t h e r e w a s n o t need f o r u rgency . They t o t a k e t h e s t a t e m e n t l a t e r i n t h e same morning when c o n t a c t w i t h c o u n s e l would have been more r e a s o n a b l e and p r o b a b l e . The o b l i g a t i o n o f p o l i c e t o f a c i l i t a t e a c c e s s r e q u e s t e d i s g r e a t e r , u n d e r t h e p r e s e n t c i r c u m s t a n c e s , i s c i r c u m s t a n c e s where u n s o p h i s t i c a t e d , d i s t r a u g h t ,
t h i s g u e s s was o f h i s known it w a s Digby a t t h a t Digby. d i d c l e a r l y and Digby a n d s h e h e r c h o i c e I n t h i s case, r e q u e s t w a s n o t
and t h e c o u l d h a v e w a i t e d a u t h o r i t i e s t o c o u n s e l when i n my o p i n i o n , t h a t t h e r e i s a n 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 ~anada. I find in these circumstances that Miss Black, the accused, was denied this right." The trial judge then applied S. 24(2) of the Charter and found that the admission of the statement would bring the administration of justice in disrepute and excluded the statement. Evidence with reference to the knife was also excluded on the same grounds. The grounds of alleged error as stated by the appellant are as follows: 1--That the learned trial judge erred in law in refusing to admit into evidence a statement given by the Respondent, to the police on the ground that the Respondent's right to counsel had been infringed or denied due to her inability to contact counsel of her choice. 2- That the learned trial [judge] erred in law in refusing to admit into evidence the knife obtained from the Respondent on the ground that the Respondent's right to counsel had been infringed or denied. Section 10(b) of the Canadian charter of Rights and Freedoms states: "10 Everyone has the right on arrest or detention (b) to retain and instruct counsel without delay and to be informed of that right." In Clarkson (1986), 25 C.C.C. (3d) 207, Wilson, J., in rendering the majority judgment of the
Supreme Court of Canada s t a t e d a t p. 217: "This r i g h t , a s en t renched i n s. 1 0 ( b ) of t h e Canadian C h a r t e r of Freedoms i s c l e a r l y aimed a t f o s t e r i n g t h e p r i n c i p l e s of a d j u d i c a t i v e f a i r n e s s . A s Lamer J. i n d i c a t e d i n R . ( 1 9 8 5 ) , 18 C.C.C. ( 3 d ) 481 a t p. 18 D.L.R. ( 4 t h ) 655 a t p . 1 S.C.R. 613 a t p . 624, " 'where a d e t a i n e e i s r e q u i r e d t o provide evidence which i n c r i m i n a t i n g ...s. 1 0 ( b ) a d u t y n o t t o c a l l upon t o p rov ide t h a t ev idence w i t h o u t f i r s t in forming him of h i s s. and p r o v i d i n g him o p p o r t u n i t y and t ime i n s t r u c t c o u n s e l . ' "
Wilson J . , f u r t h e r s t a t e s a t p . 219: "Rather , t h e purpose of t h e r i g h t , a s i n d i c a t e d by each of t h e members of t h i s Court w r i t i n g i n Therens, s u p r a , is t o ensu re t h a t t h e accused i s t r e a t e d f a i r l y i n t h e c r i m i n a l p rocess . While t h i ; c o n s t i t u t i o n a l g u a r a n t e e canno t be fo rced upon an u n w i l l i n g accused , any v o l u n t a r y waiver i n o r d e r t o be v a l i d and e f f e c t i v e must be premised on a t r u e a p p r e c i a t i o n of t h e consequences of g i v i n g up t h e r i g h t . " I n Regina v . Therens ( 1 9 8 5 ) , 18 C.C.C. ( 3 d ) 481, M r . J u s t i c e Lamer cons ide red t h e r i g h t s and o b l i g a t i o n s f lowing from s . 1 0 ( b ) of t h e C h a r t e r a s it a p p l i e d t o a charge p u r s u a n t t o S . 236 of t h e Code. He s t a t e d a t pp. I do n o t want t o be t a k e n he re a s g i v i n g an e x h a u s t i v e d e f i n i t i o n of t h e s. 1 0 ( b ) r i g h t s and w i l l l i m i t my comments i n t h a t r e s p e c t t o what i s s t r i c t l y r e q u i r e d f o r t h e d i s p o s i t i o n of t h i s c a s e . I n my view, s. 1 0 ( b )
R igh t s and v. Therens 4 9 0 , 665, 119851 may be a l s o imposes t h e d e t a i n e e 1 0 ( b ) r i g h t s wi th a r easonab le t o r e t a i n and
" r e q u i r e s a t l e a s t t h a t t h e a u t h o r i t i e s i n fo rm t h e d e t a i n e e of h i s r i g h t s , n o t p r e v e n t him i n any way f rom e x e r c i s i n g them and , where a d e t a i n e e i s r e q u i r e d t o p rov ide e v i d e n c e which may be i n c r i m i n a t i n g and r e f u s a l t o comply i s p u n i s h a b l e a s a c r i m i n a l o f f e n c e , as i s t h e case under s . 235 of t h e -Code, s. 1 0 ( b ) a l s o imposes a d u t y n o t t o c a l l upon t h e d e t a i n e e t o p r o v i d e t h a t ev idence w i t h o u t t ir s t i n f o r m i n g him of h i s s . 1 0 ( b ) r i g h t s and p r o v i d i n g him w i t h a r e a s o n a b l e o p p o r t u n i t y and t i m e t o r e t a i n and i n s t r u c t c o u n s e l . F a i l u r e t o a b i d e by t h a t d u t y w i l l l e a d t o t h e ob ta inment of e v i d e n c e i n a manner which i n f r i n g e s o r d e n i e s t h e d e t a i n e e ' s s. 10 ( b ) r i g h t s . S h o r t o f t h a t , s . 10 ( b ) would be a n e a r empty r i g h t , as r emed ie s
c o u l d seldom a f f e c t t h e a d m i s s i b i l i t y of ev idence o b t a i n e d t h r o u g h t h e accused . "
I n R . v. Nauqler ( 1 9 8 6 ) , 72 N.S.R. ( 2 d ) 271, Chief J u s t i c e C l a r k e i n r e n d e r i n g t h e judgment of t h i s Cour t on a c h a r g e of r e f u s a l c o n t r a r y t o S. 2 3 5 ( 2 ) o f t h e Code s a i d
The t e s t i n t h i s case i s whether t h e a p p e l l a n t w a s g i v e n a r e a s o n a b l e o p p o r t u n i t y and t i m e t o r e t a i n and i n s t r u c t c o u n s e l c o n s i s t e n t w i t h h i s r i g h t gua ran t eed by s . 1 0 ( b ) of t h e C h a r t e r . I t i s a r i g h t which must n o t be i n t e r p r e t e d l i g h t l y . It is one which must be a p p l i e d i n a r e a s o n a b l e way. I n my op in ion t h e r i g h t o f t h e a p p e l l a n t under s . 1 0 ( b ) o f t h e C h a r t e r w a s n o t v i o l a t e d . H e w a s p rov ided w i t h a f u l l and u n r e s t r i c t e d o p p o r t u n i t y t o s e e k c o u n s e l . H e w a s p e r m i t t e d t o c o n d u c t h i s t e l ephone c o n v e r s a t i o n s i n p r i v a t e . When he i n d i c a t e d he was hav ing d i f f i c u l t y r e a c h i n g a lawyer , t h e c o n s t a b l e o f f e r e d t o s u p p l y t h e names of some l awye r s . When t h e a p p e l l a n t
"was having difficulty operating the dialing system of the telephone, the constable offered his assistance. The appellant was able to complete a number of calls. All of this occurred over a space of one-half hour or so." In Regina v. Anderson (1984), 10 C.C.C. (3d) 417, Mr. Justice Tarnopolsky in rendering the unanimous judgment of the court made reference to four propositions which had been submitted by counsel for the Crown with reference to the application of s. 10(b) of the Charter. These propositions were as follows: (1) Upon arrest or detention there is an obligation upon a peace officer to communicate clearly to the accused that he has a riqht 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 chooes to invoke or exercise his riqht to retain and instruct counsel, the peace officer has two obligations: (a) to provide the opportunity without delay, and (b) to cease any B u estioning of the accused untll after t at 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."
- 11 - I have carefully considered the judgment in
Anderson and it is my view that Mr. Justice Tarnopolsky did not adopt all of these propositions as submitted by the Crown, although he made reference to them. In regard to proposition 3, Mr. Justice Tarnopolsky said at pp. 428-429: n The Manninen case was not involved with the first two propositions which comprise the first right under s. 10 (b), i-e., the obligation on the police to inform an accused of his right to counsel, but rather with the third, i.e., the obligation on the police to provide the opportunity without delay. MacKinnon A.C.J.O. stressed that the questioning of the accused commenced immediately after he had clearly asserted his desire to remain silent and to consult his lawyer. Moreover, this took place in premises where a telephone was immediately at hand and there was no urgency or emergency to prevent his being able to implement his right without delay. It will be recalled that the learned Associate Chief Justice asserted (at p. 12) [p. 738 O.R., p. 200 C.C.C., p. 548 D.L.R.]: I# I On the appellant's claiminq -his ris -ht to remain silent and -to -see- hi s lawyer under the circumstances recited, the constables should have offered him the use of the telephone so that he might exercise his right. ' " Clearly, in R. v. Manninen 8 C.C.C. (3d) 193, the accused had asserted his right to counsel, but the police never offered him the opportunity to use it although a telephone was immediately available and there was no urgency or emergency in the circumstances surrounding the offences.
I n t h e p r e s e n t a p p e a l , t h e f a c t s and c i rcumstances a r e e n t i r e l y d i f f e r e n t t h a n t h o s e i n Manninen i n t h a t t h e p o l i c e d i d e i e r y t h i n g p o s s i b l e t o f a c i l i t a t e t h e r e s p o n d e n t ' s r i g h t t o counse l . The o f f i c e r s n o t on ly made t h e t e l ephone a v a i l a b l e t o h e r , bu t a l s o a s s i s t e d h e r i n c o n t a c t i n g a lawyer of h e r choice t o whom she spoke i n p r i v a t e f o r some s h o r t i n t e r v a l of t ime . A f t e r t h e v i c t i m d i e d t h e o f f i c e r s informed t h e respondent and t o l d he r t h a t t h e charge would be changed from a t tempted murder t o murder, and a g a i n they a d v i s e d h e r of he r r i g h t t o counse l and a t t e m p t e d t o c o n t a c t h e r lawyer f o r he r . When they were unable t o c o n t a c t h e r c o u n s e l , t h e y then i n v i t e d h e r t o c o n t a c t a n o t h e r lawyer , which s h e r e f r a i n e d from doing. Later s h e r eques t ed a t e l e p h o n e t o c a l l he r grandmother and she spoke f o r f i v e o r s i x minutes . The t r i a l judge i n f i n d i n g t h e admission ' o f t h e e v i d e n c e would b r ing t h e a d m i n i s t r a t i o n of j u s t i c e i n t o d i s r e p u t e s t a t e d : " I n apply ing t h o s e comments t o t h e f a c t s b e f o r e us , I do n o t f e e l t h a t t h e p o l i c e o f f i c e r i n q u e s t i o n a c t e d w i t h f l a g r a n t l ack of concern f o r t h e a c c u s e d ' s r i g h t s , bu t a h igher deg ree of concern cou ld have been demons t ra ted . Of t h e f a c t o r s t o be cons ide red as w e l l i s t h a t t h i s charge is t h e most s e r i o u s under t h e Criminal 9, t h a t t h e r e i s o t h e r ev idence available t o t h e Crown i n t h i s
m a t t e r , and t h a t t h e r e urgency i n o b t a i n i n g a s t a t e m e n t . "
I must confess t h a t i n u s ing such te rminology a s
was no g r e a t
.- 13 - "a h i g h e r degree of concern" when a t t e m p t i n g t o q u a n t i f y t h e d u t i e s and o b l i g a t i o n s of p o l i c e o f f i c e r s under s . 1 0 ( b ) of t h e C h a r t e r c a u s e s me c o n s i d e r a b l e d i f f i c u l t y i n t h a t it i n t r o d u c e s a d e g r e e of u n c e r t a i n t y and g i v e s no d i r e c t i o n a s t o what a p o l i c e o f f i c e r should do i n t h e c i rcumstance . I t seems r easonab ly c l e a r t o me t h a t under t h e p r o v i s i o n s of s. 1 0 of t h e C h a r t e r everyone upon a r r e s t o r d e t e n t i o n h a s a r i g h t under s. 1 0 ( a ) t o be informed promptly of t h e r e a s o n s f o r h i s a r r e s t o r d e t e n t i o n , and it i s t h e o b l i g a t i o n and d u t y of t h e p o l i c e o f f i c e r t o s o a d v i s e . Under s. 1 0 ( b ) of t h e C h a r t e r t h e r e i s an o b l i g a t i o n imposed upon a peace o f f i c e r t o communicate c l e a r l y t o t h e accused t h a t he h a s a r i g h t t o r e t a i n and i n s t r u c t counse l w i thou t d e l a y and t o p rov ide t h e o p p o r t u n i t y t o t h e accused t o r e t a i n and i n s t r u c t counse l w i thou t d e l a y i f t h e accused s o d e s i r e s . Should t h e accused v o l u n t a r i l y waive h i s r i g h t t o c o u n s e l , t h e peace o f f i c e r must t h e n a s c e r t a i n whether t h e accused d i d s o on a t r u e a p p r e c i a t i o n of t h e consequences of g i v i n g up t h e r i g h t . See: Clarkson v . The Queen, suo ra . Th i s l a t e r d e t e r m i n a t i o n i n my view would depend t o a l a r g e measure on t h e a c c u s e d ' s menta l c o n d i t i o n a t t h e t i m e , f o r example, d runk , o r under t h e i n £ luence of d rugs t o such an e x t e n t as t o be unaware of t h e consequences of g i v i n g up t h e r i g h t . I n t h e p r e s e n t a p p e a l , u n l i k e Clarkson , t h e t r i a l judge found t h e accused was i n command of h e r " i n t e l l e c t u a l
f a c u l t i e s s u f f i c i e n t t o make a v o l u n t a r y s t a t emen t . " I n - a r r i v i n g a t t h a t conc lus ion he took i n t o account a l l of t h e su r round ing c i rcumstances such a s t h e a c c u s e d ' s i n j u r i e s , e d u c a t i o n a l background, degree of i n t o x i c a t i o n , a b i l i t y t o comprehend, and h e r emot iona l and men ta l s t a t e . It must a l s o b e remembered t h a t t h e accused i n t h e p r e s e n t c a s e d i d c o n s u l t counse l and was p r e s e n t e d w i t h a t e l e p h o n e t o make t h e c a l l s h e r eques t ed . The o f f i c e r s w e r e n o t r e q u e s t e d t o w a i t f o r counse l n o r was t h e r e any i n d i c a t i o n by t h e accused t h a t s h e wished t o remain s i l e n t u n t i l counse l was a v a i l a b l e . I n f a c t , it would a p p e a r from t h e ev idence t h a t a good d e a l of t h e c o n v e r s a t i o n between t h e accused and Cons tab le Ross was i n i t i a t e d by t h e accused who appeared t o be concerned about where s h e would be s i t u a t e . f o r t h e weekend and who would be l o o k i n g a f t e r h e r c h i l d . The s t a t e m e n t was g iven i n n a r r a t i v e form w i t h a few q u e s t i o n s a t t h e end asked by t h e o f f i c e r . I n Reqina v. Ferguson ( 1 9 8 5 ) , 2 0 C.C.C. ( 3 d ) 256, L a c o u r c i e r e , J . A . , i n r e n d e r i n g t h e judgment of t h e O n t a r i o Court of Appeal s t a t e d a t p. 259: "The a p p e l l a n t w a s n o t denied counse l b u t , i n f a c t , was g i v e n eve ry a s s i s t a n c e t o o b t a i n one. I n h i s subsequent r e a s o n s , Judge Lovekin found what I have j u s t s t a t e d and a l s o found t h a t t h e a p p e l l a n t w a s n o t a f r i g h t e n e d t e e n a g e r o r neophyte ; t h a t t h e r e were no t h r e a t s , promises o r inducements , and t h a t t h e a p p e l l a n t , f o r h i s own r e a s o n s , saw f i t t o make v o l u n t a r y r e p l i e s t o t h e r o u t i n e i n v e s t i g a t i o n q u e s t i o n s . A s u s p e c t who has been made
"aware of his constitutional rights under the Charter is, of course, free to remain silent but is also free to talk if he thinks that it will serve his purpose to do so." See also: Reqina v. Gordon Arthur White, British Columbia Court of Appeal; Judgment delivered November 8, 1985, Victoria Registry, CAU 20-84 (unreported). 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. Counsel for the respondent submitted that the judgment of the Ontario Court of Appeal in Reqina v. Howard and Trudel (1983), 3 C.C.C. (3d) 399, was germane to the present appeal in that the police should have refrained from taking a statement from the accused until her lawyer was present. In my opinion, the factual circumstances present in Howard and Trudel are distinguishable from those present in this appeal. In Howard and Trudel the accused made it abundantly clear that he wanted his lawyer present before answering any questions. He contacted his lawyer in the presence of the police and advised them that his lawyer was coming and
h e d i d n o t wish t o answer f u r t h e r q u e s t i o n s u n t i l t h e lawyer a r r i v e d . I n t h e f a c e of such knowledge by t h e p o l i c e t h e y con t inued 60 q u e s t i o n T rude l i n an a u t h o r i t a r i a n manner. Chief J u s t i c e Howland i n r e n d e r i n g t h e judgment of t h e c o u r t s t a t e d a t p. 4 1 4 : " A f t e r T rude l made it c l e a r t h a t he wanted h i s l awyer t o be p r e s e n t and had c a l l e d him, Corpo ra l McCurdy shou ld n o t have con t inued h i s examina t ion which made a mockery of T r u d e l ' s r i g h t t o c o u n s e l and h i s r i g h t t o remain s i l e n t . The p r o b a t i v e v a l u e of t h e e v i d e n c e was .. s l i g h t a s compared t o i t s p o t e n t i a l p r e j u d i c e to T r u d e l . I n t h o s e c i r cums tances t h e t r i a l judge would p r o p e r l y have e x e r c i s e d h i s d i s c r e t i o n i f h e had exc luded it. I t h i n k i n a l l
t h e c i r cums tances he shou ld have excluded t h e ev idence because of i t s tenuous p r o b a t i v e v a l u e and i t s p o t e n t i a l p r e j u d i c e . " I n t h i s a p p e a l t h e p o l i c e o f f i c e r s d i d e v e r y t h i n g r e a s o n a b l y p o s s i b l e t o s e c u r e counse l f o r t h e accused: t h e y n o t o n l y a t t emp ted t o c o n t a c t t h e lawyer of h e r c h o i c e , b u t a l s o sugges t ed t h a t s h e c o n t a c t a n o t h e r l awyer when h e r own was u n a v a i l a b l e . Counsel f o r t h e respondent f u r t h e r submi t ted t h a t by changing t h e c h a r g e from a t t empted murder t o murder t h e r e w a s a change i n h e r l e g a l p o s i t i o n and s h e was f u r t h e r e n t i t l e d t o c o n s u l t counse l on t h e new cha rge . The t r i a l judge a p p e a r s t o have adopted t h i s argument i n t h a t he found
- 17 - there was "a significant change" in the accused's legal
position when the charge was changed to murder. Even accepting such was the case, I cannot see 'in the present circumstances where it advances the respondent's cause, unless one is to say the police must obtain counsel for the accused or no statement can be taken unless counsel is obtained. Neither proposition a s far as I have been able to ascertain has been adopted as the law in Canada, and I do not intend to adopt it in this appeal. In my view, there must be some denial of the right to counsel by the police officers either by omission or commission before there can be enforcement of guaranteed constitutional rights under s. 24(2) of the Charter. In the present case I can find no such denial committed by the police officers as it would appear the accused was given all reasonable assistance by them to obtain counsel. Thus, I must respectfully conclude the learned trial judge erred in finding the accused had been denied her rights under s. 10(b) of the Charter and in ruling the evidence inadmissible under the provisions of s. 24(2) of the Charter. Even if I had found that there was a technical breach of s. 10 (b) of the Charter, which I do not, I would have had grave difficulty in concluding the evidence was inadmissible under s. 24(2) of the Charter. In Brown v. R., S.C.C. 410473, dated January 20, 1987, (unreported), Mr. Justice Macdonald in rendering the
unanimous judgment of this Court stated at p. 28: We do not have nor do we need in this country a rule that evidence obtained as a result of a breach of a Charter right must in all cases be excluded. The test under s. 24(21 of the Charter is clear and admits of no judicial discretion. Evidence obtained as a result of a breach of Charter rights is prima facie admissible. It shall not be excluded unless and only unless it is established on a balance of probabilities or by a preponderance of evidence that under all the circumstances to allow such evidence in the .proceedings would bring the administration of justice into disrepute. When s. 24 (2) of the Charter is utilized it has the effect, in practically all cases, of interfering with the criminal justice system's truth finding function. It follows therefore in my view that the indiscriminate application of such exclusionary power is bound to generate disrespect for our legal s-ystem and the administration of justice. See: Stone v. Powell, supra. Section 24(2) should not in mv view be applied to nullify ob jeStively reasonable law enforcement activities of the kind and nature that existed in this case." I agree with the principle enunciated by my brother Macdonald and only wish to add that on the evidence present in this appeal I cannot conclude that the admission of the evidence would bring the administration of justice into disrepute. The trial judge on the new trial is not bound by this opinion that the statements were voluntarily made, based
a s it i s on t h e ev idence d i s c l o s e d i n t h e r e c o r d b e f o r e us . The i s s u e of s t a t e m e n t a d m i s s i b i l i t y w i l l have t o be dec ided anew by t h e a p p l i c a t i o n of p rope r l e g a l p r i n c i p l e s t o t h e f a c t s d i s c l o s e d t o t h e c o u r t on t h e new t r i a l . See: R, v. Owen (19831, 56 N.S.R. (2d l 541, p e r Macdonald, J.A., a t p. 557. I n t h e r e s u l t , t h e appea l shou ld be a l lowed, t h e v e r d i c t of t h e j u r y set a s i d e , and t h e c o n v i c t i o n and sen tence quashed, and a new t r l a l o rde red on t h e . . .same ind ic tmen t .
a c e , J.A. Concurred in: . Macdonald, . .. I
- 20 Â JONES, J.A.: DISSENTING The facts in this case are set out in the decision of" Mr. Justice Pace. Based on those facts I cannot distinguish this case from the decision of the Supreme Court of Canada in Clarkson v. The Queen (1986), 25 C.C.C. (3d) 207. The Clarkson decision was handed down after the ruling by the trial jUdge on the admissibility of the statement in this case. Whether a trial judge would rule the statement voluntary in this case in the light of Clarkson is open to question. In deciding whether the statement was voluntary Mr. Justice Kelly did not consider whether the appellant was aware of the consequences of making the statement, although he apparently considered that as a factor in determining whether the statement should be excluded under s. 24(2) of the Charter. In any event I do not think the finding that the statement was voluntary precluded the trial judge from excluding the statement because of a violation of the appellant's rights under s. 10 (b) of the Charter of Rights and Freedoms. Wilson J. in Clarkson v. The Queen 25 C.C.C. (3d) 207 stated at p. 217: "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), 18 C.C.C. (3d) 481 at p. 490, 18 D.L.R. (4th) 655 at p. 665, [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, pp. 503-4 C.C.C., p. 678 D.L.R., pp. 641-2 S.C.R., 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'. ~ i v e nt he 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 Korponey v. A.G. Can. (1982), 65 C.C.C. (2d) 65 at p. 74, 132 D.L.R. (3d) 354 at p. 363, (19821 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.) 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 (19421, 317 U.S. 269 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 (19671, 375 F. 2d 170 at p. 179 (8th C r certiorari denied 389 U.S. 882. 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
t o counse l i n a g e n e r a l way, be aware of t h e l e g a l s p e c i f i c i t i e s of own c a s e such t h a t t h e r e i s a a v a l i d waiver where t h e accused i s n o t perce ived a t t h e t i m e of t h e comprehending i t s f u l l i m p l i c a t i o n s . it w a s s t a t e d i n Von Moltke v. U.S. 708 a t p . 724: 'To be v a l i d such waiver must be made wi th an apprehens ion of t h e n a t u r e of s t a t u t o r y o f f e n s e s inc luded w i t h i n them, t h e range of a l lowab le punishments d e f e n s e s t o t h e charge m i t i g a t i o n t h e r e o f , and a l l o t h e r f a c t s e s s e n t i a l t o a broad unders tanding of t h e whole m a t t e r . '
Whether o r n o t one goes a s f a r a s r e q u i r i n g an accused t o be tuned i n t o t h e l e g a l i n t r i c a c i e s of t h e c a s e be fo re a c c e p t i n g a s v a l i d a wa ive r of t h e r i g h t t o counse l , i t is c l e a r t h a t t h e waiver of t h e s. 1 0 ( b ) r i g h t by an i n t o x i c a t e d accused must p a s s some form of 'awareness of t h e consequences ' t e s t . "
How can it be s a i d on t h e ev idence t h a t it was ' c l e a r and unequivocal" t h a t t h e a p p e l l a n t was waiving h e r r i g h t t o counse l on t h e f a c t s of t h i s c a s e "wi th f u l l knowledge of t h e r i g h t s t h e procedure was enac ted t o p r o t e c t and of t h e e f f e c t t h e waiver w i l l have on t h o s e r i g h t s i n t h e p r o c e s s " ? I f f a i r n e s s r e q u i r e d t h e e x c l u s i o n of t h e s t a t e m e n t s i n Clarkson . . then s u r e l y t h a t p r i n c i p l e must app ly t o t h e f a c t s i n t h i s
case . With r e s p e c t it was open t o t h e t r i a l judge t o exc lude t h e evidence which he d i d under s. 2 4 ( 2 ) of t h e Char t e r and i n view of Clarkson he w a s c o r r e c t i n do ing s o I would acco rd ing ly d i s m i s s t h e Crown's appea l a g a i n s t t h e v e r d i c t of n o t g u i l t y on t h e cha rge of second degree murder and confi rm t h e c o n v i c t i o n f o r mans laughter . I n view of t h e d e c i s i o n of t h e Court o r d e r i n g a new t r i a l I do n o t t h i n k
b u t he o r s h e must h i s o r h e r presumption a g a i n s t waiver t o be capable of For i n s t a n c e , G i l l i e s (19471, 3 3 2 t h e cha rges , t h e t h e r e u n d e r , p o s s i b l e and c i rcumstances i n
- 2 3 it would be a p p r o p r i a t e f o r me t o comment on t h e appea l a g a i n s t s en tence .