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R. v. Harper, [1994] 3 S.C.R. 343

 

Marcel George Harper                                                                     Appellant

 

v.

 

Her Majesty The Queen                                                                   Respondent

 

Indexed as:  R. v. Harper

 

File No.:  23160.

 

1994:  March 2, 3; 1994:  September 29.

 

Present:  Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

 

on appeal from the court of appeal for manitoba

 

                   Constitutional law ‑‑ Charter of Rights  ‑‑ Right to retain and instruct counsel and to be informed thereof ‑‑ Inculpatory statement made on arrival of police ‑‑ Second inculpatory statement made after arrest and advised of rights to counsel and to silence ‑‑ Rights as read mentioning availability of legal aid ‑‑ Whether or not breach of s. 10 (b) of the Charter  ‑‑ If so, whether or not statements should be excluded under s. 24(2) .

 

                   The police, responding to a call of wife battering, were met at the door by the appellant who stated, "I'm the guy you want.  Just take me away."  The arresting officer advised the appellant of his right to retain and instruct counsel without delay, and of the availability of legal aid if he could not afford counsel.  The officer then advised him of his right to remain silent.  On both occasions appellant appeared to understand and answered that he knew.  Appellant made a second inculpatory statement:  "Shit.  I did that to her, and she's pregnant too.  How much time do you think I'll get?  About nine months?"

 

                   The appellant did not testify on the voir dire dealing with the admissibility of his statements and the defence called no evidence at trial.  The complainant testified that she could not recall how she suffered the injuries which were the subject matter of the charge.  The Crown called no eye witness evidence to show how the complainant sustained her injuries.

 

                   The appellant's conviction of assault causing bodily harm was based on his second inculpatory statement.  The first one was found not to be determinative of guilt because there had been an outstanding warrant for the appellant's arrest at the time.  The Manitoba Court of Appeal dismissed the appellant's appeal.  At issue here was whether the confession should have been excluded under s. 24(2)  of the Charter  because it was obtained following a breach of s. 10 (b) of the Charter .

 

                   Held:  The appeal should be dismissed.

 

                   The issues are decided as follows:

 

Section 10 (b) of the Charter 

 

                   Section 10 (b) of the Charter  was violated (Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ., although McLachlin J. differed as to when it occurred; Major J. found that the s. 10 (b) informational rights had been waived and L'Heureux‑Dubé J. found no violation occurred).

 

Section 24(2)  of the Charter 

 

                   The evidence should be admitted under s. 24(2)  of the Charter  (Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.;  Major J. did not address this issue).

 

                               ______________________________________

 

(1)  Section 10 (b) of the Charter 

 

                   Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory and Iacobucci JJ.:  A detainee is entitled under the information component of s. 10 (b) of the Charter  to be advised of whatever system for free and immediate, preliminary legal advice exists in the jurisdiction and how such advice can be accessed.  Here, there was a 24‑hour, on‑call service maintained by Legal Aid Manitoba.  On the necessary balance of probabilities it was established that the appellant was denied his full informational rights under s. 10 (b).  He had done more than merely raise a doubt as to whether the arresting police officer fully complied with the informational obligations of s. 10 (b).  The appellant's statements to the effect that he knew of his rights did not amount to a waiver.

 

                   Per McLachlin J.:  In jurisdictions where some system of free and immediate, preliminary legal advice exists, the police must inform detainees of the existence and availability of these services and how they can be accessed.  Even in jurisdictions where no duty counsel scheme has been established, police are obliged to inform all detainees fully of their right to try to contact counsel immediately on detention, and that the right to do so is not restricted to persons who can afford private counsel.  The caution given here did not satisfy the minimum requirements.

 

                   The violation occurred even before the failure by the police to inform the appellant of the existence and availability of duty counsel.  The violation of the informational component of s. 10 (b) was complete  once the police failed to convey properly to the appellant that he had a right to have an opportunity to consult counsel immediately, even if he could not afford the services of a private lawyer.  As there was a system of duty counsel in the jurisdiction at the time of the appellant's detention, the police were under the additional duty to inform the appellant of the existence and availability of free and immediate, preliminary legal advice.

 

                   Per L'Heureux‑Dubé J. (dissenting on this issue):  Even though the appellant was not informed of the availability of immediate, free and preliminary legal advice from duty counsel, he was not denied his full informational rights under s. 10 (b) of the Charter Section 10 (b) of the Charter  does not make it a constitutional imperative to provide an accused or detainee with immediate free legal advice from Legal Aid or duty counsel.

 

                   Per Major J. (dissenting on this issue):  The accused's s. l0(b) rights were not breached.  The accused must be advised of his right to counsel and if duty counsel is available, that too, must be communicated.  Here, the appellant was advised of his rights as they existed in Manitoba and clearly understood that legal aid was available.  He, however, was not interested in pursuing these rights.

 

(2)  Section 24(2)  of the Charter 

 

                   Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, and Iacobucci JJ.:  A clear distinction must be drawn between the appellant's two self‑incriminatory statements.  The appellant's first statement had nothing to do with the alleged s. 10 (b) violation because the police had not yet arrested him and had had no opportunity to inform him of his rights, so as to trigger s. 10 (b).  The second statement fell within the first branch of s. 24(2)  of the Charter  because it was made as part of the "chain of events" in which the s. 10 (b) violation occurred.

 

                   On the balance of probabilities, the failure by the police to comply fully with the informational requirements under s. 10 (b) did not affect the appellant's behaviour.  He appeared to have had an almost irresistible desire to confess.  While the applicant seeking exclusion of the impugned evidence bears the ultimate burden of persuasion in satisfying the court on a balance of probabilities that its admission could bring the administration of justice into disrepute, the burden on particular contested issues may and, indeed, will shift to the Crown.  Here, the Crown discharged its burden of proving the accused would not have acted any differently absent a violation of his rights.  Admission of the appellant's second inculpatory statement would not significantly affect the fairness of his trial, and the breach of his s. 10 (b) rights was a minor one.

 

                   Per McLachlin J.:  The appellant did not show on a balance of probabilities that his behaviour was affected by the failure of the police to comply fully with the informational requirements of s. 10 (b).  It was reasonable to conclude that the impugned evidence would have been obtained in any event.  The admission of the appellant's second inculpatory statement would not accordingly affect the fairness of his trial in a significant way and should be admitted under s. 24(2)  of the Charter .

 

                   Per L'Heureux-Dubé J.:  Absent a Charter  violation, the remedy under s. 24(2)  of the Charter  is not available.  If it had been, the evidence of the second inculpatory statement should not be excluded because its admission would not have significantly affected the fairness of the trial and the breach of his s. 10 (b) rights was a minor one.

 

Cases Cited

 

By Lamer C.J.

 

                   Referred to:  R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Pozniak, [1994] 3 S.C.R. 310; R. v. Brydges, [1990] 1 S.C.R. 190; R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Schmautz, [1990] 1 S.C.R. 398.

 

By L'Heureux‑Dubé J.

 

                   Followed:  R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Prosper, [1994] 3 S.C.R. 236; referred toR. v. Pozniak, [1994] 3 S.C.R. 310; R. v. Matheson, [1994] 3 S.C.R. 328; R. v. Collins, [1987] 1 S.C.R. 265.

 

By McLachlin J.

 

                   Followed:  R. v. Prosper, [1994] 3 S.C.R. 236; referred to:  R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Pozniak, [1994] 3 S.C.R. 310.

 

By Major J.

 

                   Followed:  R. v. Bartle, [1994] 3 S.C.R. 173.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms , ss. 10 (b), 24(2) .

 

Authors Cited

 

Prairie Research Associates.  Duty Counsel Systems:  Summary Report (April 1993).

 

Prairie Research Associates.  Duty Counsel Systems:  Technical Report (April 1993).

 

                   APPEAL from a judgment of the Manitoba Court of Appeal (1992), 78 Man. R. (2d) 227, 16 W.A.C. 227, dismissing an appeal from conviction by Darichuk J.  Appeal dismissed.

 

                   Bill Armstrong, for the appellant.

 

                   Donna J. Miller, Q.C., for the respondent.

 

                   The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier, Cory and Iacobucci JJ. was delivered by

//Lamer C.J.//

 

                   Lamer C.J. -- As in the cases of R. v. Bartle, [1994] 3 S.C.R. 173, and R. v. Pozniak, [1994] 3 S.C.R. 310, which are handed down concurrently with judgment in this case, the issues raised here have to do with disclosure of available duty counsel systems under the information component of s. 10 (b) of the Canadian Charter of Rights and Freedoms  and exclusion of evidence under s. 24(2)  of the Charter .  Because I consider these issues at length in my reasons for judgment in Bartle, my comments in this case are abbreviated.

 

I.  Facts

 

                   The appellant was convicted of assault causing bodily harm following a trial without a jury.  The police were called to attend at the residence of the complainant, the appellant's common law wife and mother of his two children, who had suffered substantial facial injuries.  Upon arrival, the police were met by the appellant at the door who stated, "I'm the guy you want.  Just take me away."  The police officer who arrested the appellant testified that he told the appellant that, "He had the right to retain and instruct counsel without delay, and if he could not afford a counsel, legal aid was available to him".  The police officer said that the appellant appeared to understand and replied, "Yeah, I know that."  The police officer then advised the appellant of his right to remain silent, to which the appellant again responded, "Yeah, I know."  While the officer was taking background information from the appellant, the appellant stated, "Shit.  I did that to her, and she's pregnant too.  How much time do you think I'll get?  About nine months?"

 

                   The appellant did not testify on the voir dire dealing with the admissibility of his statements.  As well, the defence called no evidence at trial.  The complainant testified that she could not recall how she suffered the injuries which were the subject matter of the charge.  No eye witness evidence was called by the Crown to show how the complainant sustained her injuries.

 

                   The basis for conviction was the confession the appellant made to police officers after his arrest when he said, "Shit.  I did that to her...".  In convicting the appellant, the trial judge indicated that, in the absence of this second statement, the evidence was "of an equivocal nature".  For example, the trial judge did not view the appellant's spontaneous first statement to the police, "I'm the guy you want", as determinative of guilt because there was an outstanding warrant for the appellant's arrest at the time.  Without the second statement, the trial judge said reasonable doubt would have existed.

 

                   The appellant appealed from his conviction.  Counsel for the appellant submitted that the confession should have been excluded under s. 24(2)  of the Charter  because it was obtained following a breach of the provisions of s. 10 (b) of the Charter .  The Court of Appeal for Manitoba dismissed the appeal.

 

II.  Judgments Below

 

Manitoba Court of Queen's Bench  (Darichuk J.)

 

                   At the conclusion of the voir dire, Darichuk J. admitted the appellant's inculpatory statements to the police.  He understood R. v. Brydges, [1990] 1 S.C.R. 190, as only applying where the detainee has expressed some concern about affordability.  He stated that he was satisfied that the accused understood his rights to counsel and that Legal Aid was available.

 

                   As to whether the second statement should be excluded under s. 24(2)  of the Charter  if he were wrong that the appellant's s. 10 (b) rights had not been infringed, Darichuk J. concluded:

 

                   The circumstances as presented suggests that the evidence would not be excluded.  There was no suggestion whatsoever, firstly that he misunderstood the officer, that he was not aware of his entitlement to Legal Aid; he was fully responsive and totally sober.  And in those circumstances I would not exclude the statement....

 

Court of Appeal (1992), 78 Man. R. (2d) 227 (O'Sullivan, Huband and Lyon JJ.A.)

 

                   In referring to what the police officer advised the appellant, O'Sullivan J.A. held for the Court at p. 228:

 

                   In my opinion, this was a sufficient compliance with the requirement of s. 10 (b) as interpreted in R. v. Brydges, supra.  The duty to inform does not depend on the use of "magic words" such as "duty counsel".  In substance, the accused was informed of his right to counsel without delay.  He said he knew his rights and did not ask for counsel.

 

                   He gave his incriminating statement spontaneously and not in response to an interrogation.

 

Because he found no breach of s. 10 (b), O'Sullivan J.A. held that there was no need to consider whether the statement should be excluded under s. 24(2)  of the Charter .

 

III.  Analysis

 

(a)  Section 10 (b)

 

                   As I have said in Bartle, a detainee is entitled under the information component of the right to counsel under s. 10 (b) of the Charter  to be advised of whatever system for free and immediate, preliminary legal advice which exists in the jurisdiction at the time and of how such advice can be accessed.  I am satisfied that there was in existence in Manitoba at the relevant time a system of "Brydges duty counsel" -- indeed, given that the appellant was arrested in Winnipeg, I assume from what counsel for the parties said at the hearing and from the Reports of the Prairie Research Associates that there was a 24-hour, on-call service maintained by Legal Aid Manitoba:  Prairie Research Associates. Duty Counsel Systems: Summary Report (April 1993), at p. 34, and Duty Counsel Systems:  Technical Report (April 1993), at p. 4-95.

 

                   Moreover, I am satisfied on the necessary balance of probabilities that the appellant was in fact denied his full informational rights under s. 10 (b).  In other words, I do not agree with the respondent Crown's submission that the appellant has merely succeeded in raising a doubt as to whether the arresting police officer fully complied with his informational obligations under s. 10 (b), to wit his duty to inform the appellant about the existence and availability of free and immediate, preliminary legal advice.  The record clearly reveals that the arresting police officer did not advise the appellant of the availability of duty counsel.  The relevant exchange between defence counsel and the police officer is reproduced here, with the pertinent passages underlined:

 

                   Q.   And what did you tell him specifically with respect to obtaining legal aid?

 

                   A.   That -- just let me think here.  He had the right to retain and instruct counsel without delay, and if he could not afford a counsel, legal aid was available to him.

 

                   Q.   And that was the extent of it?

 

                   A.   I believe so.

 

                   Q.   So if he couldn't afford counsel, legal aid was available?

 

                   A.   Yes.

 

                   Q.   And you're basing that solely on your memory now, after some 12 months, because the exact words aren't on your notebook?

 

                   A.   Yes, I am.

 

                   Q.   Aren't in here; is that correct?  No reference was made to how he might obtain a lawyer through other independently -- through legal aid outside of what you said?

 

                   A.   I don't believe so. [Emphasis added.]

 

Admittedly, it would have been preferable had the appellant come forward and testified on the voir dire into the admissibility of his statements (where he would have been protected from general cross-examination) that he was not advised of his right to contact duty counsel and that, had he been, he would have sought legal advice.  However, given the police officer's testimony, the fact that the trial judge made no contrary finding to the effect that the appellant was actually told about duty counsel, and the Court of Appeal's acknowledgment that there was no mention of duty counsel, I accept that the appellant was not properly informed of his right to immediate, free and preliminary legal advice from duty counsel.  Furthermore, the appellant's comments regarding his knowledge of his rights did not constitute a valid waiver of his informational s. 10 (b) rights: Bartle, at pp. 203-7.  Accordingly, I find that he suffered a violation of his s. 10 (b) rights.

 

(b)  Section 24(2) 

 

                   At the outset of my discussion of s. 24(2)  of the Charter , it is necessary to draw a clear distinction between the two self-incriminatory statements which were made by the appellant.

 

                   The first statement by the appellant, "I'm the guy you want.  Just take me away", was made spontaneously upon his opening the door and discovering two police officers standing before him.  This statement, which the trial judge found to be voluntary but not determinative of guilt in light of the outstanding warrant for the appellant's arrest which existed at the time, has nothing to do with the alleged s. 10 (b) violation.  Not only had the police not yet been given an opportunity to inform the appellant of his right to counsel, but more importantly, they had not even arrested or detained the appellant, which are the triggering events for s. 10 (b).

 

                   The second statement, "Shit.  I did that to her, and she's pregnant too.  How much time do you think I'll get?  About nine months?", was held by the trial judge to be determinative of the appellant's guilt.  I find that it falls within the first branch of s. 24(2)  of the Charter .  That is, it was made as part of the "chain of events" in which the s. 10 (b) violation occurred:  Bartle, at pp. 208-10, and R. v. Strachan, [1988] 2 S.C.R. 980, per Dickson C.J. at pp. 1005-6.

 

                   However, under the second branch of s. 24(2) , where it must be determined whether admission of the evidence would bring the administration of justice into disrepute following the test laid down by this Court in R. v. Collins, [1987] 1 S.C.R. 265, I must admit to having certain reservations about the causal connectedness of the appellant's second statement with the alleged breach of s. 10 (b).  Specifically, I would note that not only was it not responsive to police questions dealing with general background information, but also it followed immediately on the heels of the appellant being advised by police of his right to remain silent and the appellant expressly stating that he understood his right to silence.  However, in light of this Court's warnings about the dangers of speculating as to whether an incriminating statement, such as the one in issue here, would have been made irrespective of the breach of s. 10 (b) (see Bartle, at pp. 211-13), I am not prepared to admit the appellant's statement on the basis that it might have been made even if the appellant had consulted counsel.

 

                   What I am prepared to say, however, is that in all the circumstances of this case, I am satisfied on the balance of probabilities that the police's failure to comply fully with the informational requirements under s. 10 (b) did not affect the appellant's behaviour.  That is, the appellant appears to have had an almost irresistible desire to confess -- both when he first opened the door and subsequently, after he received his s. 10 (b) caution (albeit a defective one) and was advised of his right to silence.  After both warnings he stated clearly that he understood.

 

                   In Bartle, at pp. 211-13, I discussed at length the issue of burden of proof under s. 24(2)  in the context of right to counsel cases.  I stated that while the applicant seeking exclusion of the impugned evidence bears the ultimate burden of persuasion in satisfying the court on a balance of probabilities that admission could bring the administration of justice into disrepute, the burden on particular contested issues may and, indeed, will shift to the Crown.  In particular, I considered which party should bear the burden of establishing that the applicant would not (or might) have conducted him or herself differently if there had been no violation of s. 10 (b) and, therefore, that the evidence would (or might not) have been obtained.  I concluded that the legal burden (the burden of persuasion) on this issue should be borne by the Crown.

 

                   In the case at bar, I am satisfied that the Crown has discharged this burden.  The evidence before me establishes on a balance of probabilities that the accused would not have acted any differently had the police fulfilled their informational duty.  The appellant never testified on the voir dire, nor did he tender any evidence showing that he would have contacted duty counsel had he been informed of their existence and how to access the service.   Consequently, I am satisfied that his incriminating statement would have been made even if his s. 10 (b) rights had not been violated.  Accordingly, I am of the view that admission of the appellant's second inculpatory statement would not significantly affect the fairness of his trial and that the breach of his s. 10 (b) rights was a minor one:  see R. v. Schmautz, [1990] 1 S.C.R. 398, per Lamer J. (as he then was) at p. 423.

 

(c)  Conclusion

 

                   I conclude, therefore, that while the appellant suffered a violation of his right to counsel under s. 10 (b), his inculpatory statement should nevertheless be admitted under s. 24(2)  of the Charter .

 

                   For the foregoing reasons, the appeal should be dismissed.


 

                   The following are the reasons delivered by

//L'Heureux-Dubé J.//

 

                   L'Heureux-Dubé J. -- This case and the four other cases heard at the same time (R. v. Bartle, [1994] 3 S.C.R. 173, R. v. Prosper, [1994] 3 S.C.R. 236, R. v. Pozniak, [1994] 3 S.C.R. 310, and R. v. Matheson, [1994] 3 S.C.R. 328) and in which judgment is handed down contemporaneously with this one, raise the issue of the scope of the guarantee provided for in s. 10 (b) of the Canadian Charter of Rights and Freedoms , that is, the right of everyone on arrest or detention "to retain and instruct counsel without delay and to be informed of that right...".  This case raises the particular issue of the disclosure of available duty counsel systems under the information component of s. 10 (b) of the Charter  and the exclusion of evidence under s. 24(2)  of the Charter .

 

                   Although I agree with the Chief Justice and McLachlin J. that the appeal should be dismissed and the conviction of the appellant upheld, I disagree with their reasons and, to that extent, I refer to my opinions in Bartle and Prosper, as if herein recited at length.

 

                   In particular, I do not agree that the appellant was denied his informational rights under s. 10 (b).  Constable Bellingham testified that he told the appellant, upon his arrest, that "[h]e had the right to retain and instruct counsel without delay, and if he could not afford a counsel, legal aid was available to him."   In my opinion, this is sufficient.  While the appellant was not informed of the availability of immediate, free and preliminary legal advice from duty counsel, as I said in Bartle, supra, s. 10 (b) of the Charter  does not make it a constitutional imperative to provide an accused or detainee with information about free legal advice from Legal Aid or duty counsel, absent an expression of concern by the accused or detainee over his or her ability to afford a lawyer.  As Darichuk J. of the Manitoba Court of Queen's Bench said:

 

                   Again, my understanding [of R. v. Brydges, [1990] 1 S.C.R. 190] was that it is only in those instances where a concern has been expressed by an accused individual, as the accused in Brydges, about his ability to afford a lawyer that then there was a duty to inform the accused of the existence of duty counsel and the availability of Legal Aid.

 

In the present case, the appellant expressed no concern relating to duty counsel or to his ability to afford or find a lawyer.  In these circumstances, there was no breach of s. 10 (b) of the Charter .  Consequently, the remedy under s. 24(2)  of the Charter  is not available and there is no need to consider the factors outlined in R. v. Collins, [1987] 1 S.C.R. 265.

 

                   Had I agreed with the Chief Justice and McLachlin J. that the appellant's s. 10 (b) Charter  rights were violated, I would have held, as the Chief Justice and McLachlin J. do, that the inculpatory statement should not be excluded under s. 24(2)  of the Charter .  Specifically, had I found a violation of the appellant's s.10 (b) rights, I would have agreed with the Chief Justice's statement that  the "admission of the appellant's second inculpatory statement would not significantly affect the fairness of his trial and that the breach of his s. 10 (b) rights was a minor one" (p. 354).  Accordingly, I would have found that the statement was admissible.

 

                   In the result, I would dismiss the appeal.

 

                   The following are the reasons delivered by

//McLachlin J.//

 

                   McLachlin J. -- As in the cases of R. v. Bartle, [1994] 3 S.C.R. 173, and R. v. Pozniak, [1994] 3 S.C.R. 310 both of which were heard at the same time as this appeal, and which are released concurrently with judgment in this case, I find myself in substantial agreement with the analysis and conclusion of the Chief Justice.  That is to say, I agree that it is a requirement of the informational component of s. 10 (b) of the Canadian Charter of Rights and Freedoms  that police disclose to detainees the existence and availability of duty counsel systems, where such services exist.  As in Bartle and Pozniak, however, I find it necessary to discuss the case briefly in light of my reasons in R. v. Prosper, [1994] 3 S.C.R. 236.

 

                   I state in Prosper that in jurisdictions in which the province or the local bar has implemented some system of free and immediate, preliminary legal advice, there is an obligation on the part of police to inform detainees of the existence and availability of these services.  This information should include readily available details about how to access duty counsel (e.g., 1-800 numbers).  However, I emphasize in Prosper that even in jurisdictions where no duty counsel scheme has been established, police are obliged to inform all detainees fully of their right to try to contact counsel immediately on detention, and that the right to do so is not restricted to persons who can afford private counsel.

 

                   On this approach to the informational component of s. 10 (b), it is evident that the caution given in this case did not satisfy the minimum requirements.  The arresting officer testified at trial that he told the appellant that "[h]e had the right to retain and instruct counsel without delay, and if he could not afford a counsel, legal aid was available to him".  In my view, this caution did not adequately communicate that the appellant was entitled to call a lawyer immediately, nor did it sufficiently convey to the appellant that his right to call a lawyer was not dependent on an ability to afford private counsel.  Further, the police failed to inform the appellant properly of the existence and availability of duty counsel in the jurisdiction.

 

                   Thus, while I agree with the Chief Justice that the appellant's s. 10 (b) rights were breached in this case, in my view, the violation occurred even before the failure by the police to inform the appellant of the existence and availability of duty counsel.  The violation of the informational component of s. 10 (b) was complete  once the police failed to convey properly to the appellant that he had a right to have an opportunity to consult counsel immediately, even if he could not afford the services of a private lawyer.  As there was a system of duty counsel in the jurisdiction at the time of the appellant's detention, the police were under the additional duty to inform the appellant of the existence and availability of free and immediate, preliminary legal advice.

 

                   Notwithstanding that the appellant's right to counsel was infringed in this case, I agree with Lamer C.J. that in all the circumstances of the case, the appellant has not shown on a balance of probabilities that his behaviour was affected by the failure of the police to comply fully with the informational requirements of s. 10 (b).  It is reasonable to conclude that the impugned evidence would have been obtained in any event, and therefore I agree with the Chief Justice's conclusion that the admission of the appellant's second inculpatory statement would not significantly affect the fairness of his trial.  In the result, I agree that the inculpatory statement, though taken in violation of the appellant's right, should nevertheless be admitted under s. 24(2)  of the Charter .

 

                   Accordingly, I would dispose of the appeal in the same manner as the Chief Justice.

 

                   The following are the reasons delivered by

//Major J.//

 

                   Major J. -- I agree with the result reached by the Chief Justice, however, I disagree that the accused s. l0(b) rights were breached.

 

                   The Chief Justice in R. v. Bartle, [1994] 3 S.C.R. 173, released concurrently, defined the rights of an accused upon detention.  As stated the accused must be advised of his right to counsel and if duty counsel is available, that too, must be communicated.

 

                   In this appeal the appellant was advised of his rights as they existed in Manitoba.  The response of the appellant made it clear he understood legal aid was available.  He was not interested in pursuing these rights under the circumstances.  Accordingly, I find no violation of the appellant's s. 10 (b) rights; if I am wrong, I would dismiss the appeal for the reasons of the Chief Justice.


                   Appeal dismissed.

 

                   Solicitor for the appellant:  Bill Armstrong, Winnipeg.

 

                   Solicitor for the respondent:  The Attorney General of Manitoba, Winnipeg.

 

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