R. v. Elshaw,  3 S.C.R. 24
William Edward Elshaw Appellant
Her Majesty The Queen Respondent
Indexed as: R. v. Elshaw
File No.: 21614.
1991: May 9; 1991: September 26.
Present: Lamer C.J. and L'Heureux‑Dubé, Sopinka, Gonthier, McLachlin, Stevenson and Iacobucci JJ.
on appeal from the court of appeal for british columbia
Constitutional law ‑‑ Charter of Rights ‑‑ Admissibility of evidence ‑‑ Bringing administration of justice into disrepute ‑‑ Accused making incriminating statement to police officer while being held in van ‑‑ Accused's right to counsel violated ‑‑ Whether incriminating statement should be admitted into evidence ‑‑ Canadian Charter of Rights and Freedoms, s. 24(2).
Appellant had been seen in a park with young boys in suspicious circumstances. The police were called and appellant was stopped when he attempted to leave the park by jumping a fence. The officer obtained identification from him, advised him that he was being investigated for possible child molesting, and placed him in the back of a police van. The police then questioned both the adult witnesses and the boys. About five minutes later, one of the officers opened the van door and engaged in a conversation with appellant in which appellant said he sometimes had "these urges, not so much with little boys, but more with little girls", and admitted his need for help. At no time prior to this conversation was appellant informed of his right to retain and instruct counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms, or of his common law right to remain silent. After the conversation, he was driven to the police station, formally charged with vagrancy and advised of his right to retain and instruct counsel. Charges of assault and attempted sexual assault were added later.
At trial, a voir dire was held to determine the admissibility of the conversation between appellant and the police officer. Defence counsel sought to have the evidence excluded under s. 24(2) of the Charter on the basis that appellant's s. 10(b) right had been infringed while he was detained in the patrol van. The trial judge admitted the evidence. Neither appellant nor the boys testified at the trial. Appellant was acquitted on the charges of simple assault but convicted on the two counts of attempted sexual assault. The court then granted the Crown's application to have appellant declared a dangerous offender pursuant to Part XXI of the Criminal Code and appellant was given an indeterminate sentence. An appeal to the Court of Appeal was dismissed.
Held (L'Heureux-Dubé J. dissenting): The appeal should be allowed and a new trial ordered.
Per Lamer C.J. and Sopinka, Gonthier, McLachlin, Stevenson and Iacobucci JJ.: In view of the specific findings of the lower courts that there was a detention in this case, as conceded by the Crown, the sole issues before the Court were (1) the appropriate test under s. 24(2) of the Charter for the admission of a self‑incriminating statement obtained following a violation of the accused's s. 10(b) Charter rights and (2) the Crown's alternative argument concerning the availability of the curative provision in s. 686(1)(b)(iii) of the Criminal Code.
The factors to be considered in determining whether the admission of evidence in proceedings would bring the administration of justice into disrepute can 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. The measure of seriousness 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.
The self-incriminating statement should not have been admitted in this case. The violation of appellant's rights was serious. What was important was the fact that the police obtained evidence from a detained person prior to fulfilling their responsibilities under s. 10(b), not the relatively short period of time during which appellant was detained. The violation of s. 10(b) arose when the police officer began to question appellant without advising him that he could retain a lawyer. The statement obtained under these conditions contributed substantially to his conviction. It was also used to provide a nexus to similar fact evidence regarding appellant's previous conviction for child molesting which was the basis of his indeterminate sentence as a dangerous offender.
While it may have been reasonable and necessary to place appellant in the patrol wagon, it was not necessary to violate his Charter right in the circumstances. The Crown did not produce any explanation or evidence to show why the police could not have waited to question him. 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. 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.
Even if the good faith of the police officers were definitively established, it should not have been considered as a mitigating factor in the violation of appellant's rights. 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.
No one can speculate what 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.
The Court of Appeal used the wrong criteria for admission of the evidence in this case, and misapplied them. It listed the self‑incriminating nature of the evidence obtained in violation of s. 10(b) as just one factor among many to be considered, when a proper approach would have been premised on the principle that such evidence is not generally admissible because it would adversely affect the fairness of the trial and bring the administration of justice into disrepute. Section 686(1)(b)(iii) of the Criminal Code, which can be used to cure errors of law where no substantial wrong or miscarriage of justice results, is not available here. If the evidence 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.
Per L'Heureux‑Dubé J. (dissenting): There was no violation of appellant's rights under s. 10(b) of the Charter; he was not detained within the meaning of the section when he made the self‑incriminating statements to the police.
Detention can occur through the exercise of physical restraint or the assumption of control over movement. These two scenarios are not at issue here. While appellant was put in the back of a police vehicle, the entire incident took place in a park, in full view of the public. He had not been handcuffed or placed under arrest, had not been verbally or physically coerced in any way, and only spent some five or six minutes in the van. Further, the police officers had no firm suspicion at the time that he had been involved in criminal activity.
Detention for the purposes of triggering s. 10(b) rights ought not to be recognized merely because a person might feel some kind of psychological compulsion during contact with a police officer. The requirement that police officers apprise persons of their rights under the Charter in such situations has massive implications for law enforcement since it would effectively shackle any investigation at its outset by preventing the authorities from making any kind of introductory inquiry and factual assessment of the situation before criminal liability even becomes an issue.
The balancing between the rights of the individual to be free from unnecessary and unjustified harassment at the hands of state agents and the right of society at large to expect efficient law enforcement is of primordial importance. Given the overly cumbersome and obtrusive position which has developed in Canada, a compromise attending to both competing interests might be found in the doctrine of preliminary investigatory detention short of arrest. Under this doctrine, s. 10(b) rights would be rendered active later in the process ‑- after a period where the police have an opportunity to assess the situation which confronts them, to identify possible witnesses and suspects, and to confirm the initial information they receive. It is misguided to require the police to issue warnings pursuant to s. 10(b) to all the people they meet at the scene of an accident, or after they receive a call and must investigate some kind of a disturbance, on the off‑chance that someone with whom they communicate will feel some kind of compulsion and make a self‑incriminating statement.
Concerns over the rights of a future accused in the proceedings prior to the laying of a charge are misplaced and should not result in the obliteration of values which are equally important. There is a middle ground where these concerns may co‑exist with effective law enforcement. To adopt a position which prevents state agents from attempting to gain any sort of information whatsoever from those persons whom, as a matter of simple common sense, they would routinely be expected to question would be to confuse constitutional vigilance with paranoia. Common sense must not be left at the doorstep when the Charter is being interpreted.
Since appellant was not detained within the meaning of s. 10(b) when he made the statements to the police officers, there was no violation of the section and no need to proceed to the stage of deciding whether or not the admission of the evidence would bring the administration of justice into disrepute. However, even if there were a violation, the statements ought not to have been excluded under s. 24(2) of the Charter since their admission would not bring the administration of justice into disrepute and render the trial unfair.
By Iacobucci J.
Referred to: R. v. Therens,  1 S.C.R. 613; R. v. Collins,  1 S.C.R. 265; Chromiak v. The Queen,  1 S.C.R. 471; Clarkson v. The Queen,  1 S.C.R. 383; R. v. Strachan,  2 S.C.R. 980; R. v. Black,  2 S.C.R. 138; R. v. Hebert,  2 S.C.R. 151; R. v. Evans,  1 S.C.R. 869.
By L'Heureux‑Dubé J. (dissenting)
United States of America v. Cotroni,  1 S.C.R. 1469; R. v. Therens,  1 S.C.R. 613; Chromiak v. The Queen,  1 S.C.R. 471; R. v. Esposito (1985), 24 C.C.C. (3d) 88, leave to appeal refused,  1 S.C.R. viii; R. v. Bazinet (1986), 25 C.C.C. (3d) 273; R. v. Moran (1987), 36 C.C.C. (3d) 225; R. v. Grafe (1987), 36 C.C.C. (3d) 267; R. v. Voss (1989), 50 C.C.C. (3d) 58; R. v. Ancelet (1986), 70 A.R. 263; R. v. C.(S.) (1989), 74 Nfld. & P.E.I.R. 252; R. v. Olivier, May 30, 1991, Man. Q.B., summarized at 13 W.C.B. (2d) 278; R. v. Rahey,  1 S.C.R. 588; R. v. Keegstra,  3 S.C.R. 697; Terry v. Ohio, 392 U.S. 1 (1968); Adams v. Williams, 407 U.S. 143 (1972); Dunaway v. New York, 442 U.S. 200 (1979); Brown v. Texas, 443 U.S. 47 (1979); United States v. Place, 462 U.S. 696 (1983); Florida v. Royer, 460 U.S. 491 (1983); United States v. Hensley, 469 U.S. 221 (1985); United States v. Sharpe, 470 U.S. 675 (1985); Miranda v. Arizona, 384 U.S. 436 (1966); Berkemer v. McCarty, 468 U.S. 420 (1984); United States v. Serna‑Barreto, 842 F.2d 965 (1988); Snyder v. Massachusetts, 291 U.S. 97 (1934); R. v. Collins,  1 S.C.R. 265.
Statutes and Regulations Cited
Crimes Act 1958, Victoria, as amended by Crimes (Custody and Investigation) Act 1988, No. 37, ss. 464, 464c, 464i.
Criminal Code, R.S.C. 1970, c. C‑34, Part XXI.
Criminal Code Act 1899, Queensland, 63 Vict. No. 9.
Criminal Code Act, 1924, Tasmania, 14 Geo. V No. 69.
Criminal Process (Identification and Search Procedures) Act, Tasmania (1976) No. 30.
Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60, ss. 24(6), (7), 37, 42, 56, 58.
Police Offences Act Amendment Act, 1985, South Australia, No. 46, ss. 32, 34.
Archbold, John Frederick. Pleading, Evidence and Practice in Criminal Cases, 43rd ed. Edited by Stephen Mitchell and P. J. Richardson. London: Sweet & Maxwell, 1988.
Australia. Australian Law Reform Commission. Criminal Investigation (Report No. 2). Canberra: Australian Government Publishing Service, 1975.
Berger, Mark. "Legislating Confession Law in Great Britain: A Statutory Approach to Police Interrogations" (1990), 24 U. Mich. J.L. Ref. 1.
Canada. Law Reform Commission. Arrest (Report 29). Ottawa: Law Reform Commission of Canada, 1986.
Coughlan, Steve. "Police Detention for Questioning: A Proposal" (1986), 28 Crim. L.Q. 64 and 170.
de Montigny, Yves. "L'élargissement du concept de "détention", premier jalon d'une véritable protection contre l'auto‑incrimination?" (1990), 31 C. de D. 769.
Dix, George E. "Nonarrest Investigatory Detentions in Search and Seizure Law",  Duke L.J. 849.
Garneau, Grant Smyth. "The Application of Charter Rights to the Interrogation Process" (1986), 35 U.N.B.L.J. 35.
Iller, Martin and George Goodwin. Criminal Litigation. London: Butterworths, 1985.
Mongiardo, Dante P. "The Terry Exception to Miranda" (1983), 10 Search & Seizure L. Rep. 165.
New South Wales Law Reform Commission. Procedure from Charge to Trial: Specific Problems and Proposals. Sydney: Law Reform Commission, 1987.
Sack, Emily J. "Police Approaches and Inquiries on the Streets of New York: The Aftermath of People v. De Bour" (1991), 66 N.Y.U. L. Rev. 512.
Sallmann, Peter and John Willis. Criminal Justice in Australia. Melbourne: Oxford University Press, 1984.
Scotland. Committee on Criminal Procedure in Scotland. Criminal Procedure in Scotland (Second Report). Edinburgh: H.M. Stationery Off., 1975.
Stuart, Don. "Four Springboards from the Supreme Court of Canada: Hunter, Therens, Motor Vehicle Reference and Oakes -‑ Asserting Basic Values of Our Criminal Justice System" (1987), 12 Queen's L.J. 131.
"Twentieth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1989‑1990" (1991), 79 Geo. L.J. 591.
Wiseman, Christine M. "The `Reasonableness' of the Investigative Detention: An `Ad Hoc' Constitutional Test" (1984), 67 Marq. L. Rev. 641.
Woods, Seumas. "Interrogation Law and the Charter: An American Plan for the Renovations" (1985), 43 U.T. Fac. L. Rev.153.
Young, Alan. "All Along the Watchtower: Arbitrary Detention and the Police Function" (1991), 29 Osgoode Hall L.J. 329
APPEAL from a judgment of the British Columbia Court of Appeal (1989), 70 C.R. (3d) 197, 45 C.R.R. 140, dismissing appellant's appeal from his convictions on two charges of attempted sexual assault by Greig Prov. Ct. J. sitting with jury. Appeal allowed, L'Heureux-Dubé J. dissenting.
William B. Smart, for the appellant.
Robert A. Mulligan, for the respondent.
The judgment of Lamer C.J. and Sopinka, Gonthier, McLachlin, Stevenson and Iacobucci JJ. was delivered by
Iacobucci J. -- This appeal involves the appropriate test under s. 24(2) of the Canadian Charter of Rights and Freedoms for the admission of a self-incriminating statement obtained following a violation of the accused's s. 10(b) Charter rights.
The appellant was charged with two counts of attempted sexual assault and two counts of simple assault following an incident on May 22, 1984 in a park in Victoria, British Columbia.
The complainants were five and six years old at the time. Two adult witnesses, D. W. and L. W., lived in a house which was adjacent to the park. They were working in their yard on May 22 at around 5 p.m. when D. W. observed the appellant walking in a crouched position along some bushes at the edge of the park. He was leading a young boy by the hand. When the appellant and the boy disappeared in the bushes, the witness L. W. went closer to attempt to find out what was happening. She saw the appellant and the boy seated together in an unusual position and overheard the appellant say "Let's keep it our secret, it will be our little secret." After the first boy left him in the bushes, a second young boy joined the appellant in the same secluded location. Once again L. W. heard the appellant say "shhh" and "let's keep it our little secret" before the second boy also left the bushes.
By this time, the witness D. W. had telephoned the police. Two officers, Constables Jorgensen and Randhawa, arrived shortly after the second boy had left the bushes. They testified that they entered the park and saw the appellant crouched in the bushes. When the appellant attempted to leave the park by jumping a fence, he was stopped by Constable Randhawa. The officer obtained identification from the appellant, advised him that he was being investigated for possible child molesting, and placed him in the back of the police van which Randhawa and Jorgensen had driven to the park. The officers then questioned both the adult witnesses and the complainants.
About five minutes later, Constable Jorgensen opened the van door. He stood outside while the appellant remained inside the van. They had the following conversation:
Jorgensen: "What would have happened if we had not come along?"
Appellant: "I don't know, I just can't help myself. Sometimes I have these urges, not so much with little boys, but more with little girls."
Jorgensen: "What age are we talking about?"
Appellant: "Oh, five or six year olds. I know I need help, but I just don't know how to get it."
Jorgensen: "We'll try and see if we can get you some help."
At no time prior to this conversation was the appellant informed of his right to retain and instruct counsel. After the conversation with Constable Jorgensen he was driven to the police station. There he was formally charged with vagrancy and advised of his right to retain and instruct counsel. Later on the charges of assault and attempted sexual assault were added.
At trial, a voir dire was held to determine the admissibility of the conversation between the appellant and Constable Jorgensen. Defence counsel sought to have the evidence excluded on the basis that the appellant's right to be informed of his right to retain and instruct counsel without delay had been infringed while he was detained in the patrol van.
Relevant Charter and Legislative Provisions
10. Everyone has the right on arrest or detention
(b) to retain and instruct counsel without delay and to be informed of that right;. . .
(2) Where ... a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit, on account of insanity, to stand trial, or against a special verdict of not guilty on account of insanity, the court of appeal
(b) may dismiss the appeal where
(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred ...
Judgment of the Provincial Court of British Columbia
Greig Prov. Ct. J. admitted the evidence of the self-incriminating statements. His conclusions following the voir dire were as follows:
With regard to the argument as to admissibility on the basis that there was an infringement of his rights as guaranteed by the Charter, I agree that there was detention. The defendant was detained. I think on the evidence I would have to agree with the Prosecutor that it was a reasonable detention in the circumstance. It was furthermore, relatively brief, that is, the period during which he was detained and prior to being informed of his right to counsel.
Given all of the circumstances that were dealt with in the evidence that I heard on the voir dire, I am not convinced that it would be appropriate to exclude any part of that evidence given on the voir dire, and I am referring in particular to the statement, on the basis that to admit it would bring the administration of justice into disrepute.
During the trial, neither the appellant nor the complainants testified. The appellant was acquitted on the charges of simple assault but convicted on the two counts of attempted sexual assault. The court then granted an application by the Crown to have the appellant declared a dangerous offender pursuant to Part XXI of the Criminal Code, R.S.C. 1970, c. C-34, and the appellant was given an indeterminate sentence.
Judgment of the Court of Appeal of British Columbia ((1989), 70 C.R. (3d) 197)
The basis of the appeal before the Court of Appeal was the failure of the trial judge to exclude evidence under s. 24(2) of the Charter in the face of an alleged violation of the s. 10(b) right to retain and instruct counsel and to be informed of that right.
In writing for the Court, Toy J.A. began by reviewing the trial judge's reasons, and in particular the finding that the self-incriminating statement was voluntary and the detention "reasonable". He noted that the trial judge had provided no "realistic assessment of the evidence" upon which he based his conclusion that the admission of the evidence would not bring the administration of justice into disrepute. As well, he correctly emphasised that, although the lower court decision had been rendered before the Supreme Court's rulings in R. v. Therens,  1 S.C.R. 613, and R. v. Collins,  1 S.C.R. 265, the appellant was entitled to the benefit of the interpretation of his Charter rights as set out in those cases.
Toy J.A. then turned to the specific submissions of the appellant. First, he considered whether the detention had been a wilful or flagrant violation of s. 10(b). He held that the police officers in the case were unaware of their duties to inform the detainee of his right to counsel under the Charter. Toy J.A. noted that this Court's decision in Chromiak v. The Queen,  1 S.C.R. 471, to the effect that investigative detentions were not detentions requiring persons to be advised of their right to counsel had not been challenged at the time of the arrest. As well, he agreed with the trial judge that the detention had been "reasonable and brief" considering that the police were attempting to question possible witnesses to the sexual assault of two children (at p. 204).
I consider that placing the accused in the patrol wagon was more appropriate than just leaving him standing beside the patrol wagon in full view of the four potential witnesses, which might seriously impair any defence that the accused might have had if identification was in issue at any subsequent trial he might have to face.
He concluded that the police had not acted deliberately or flagrantly in violation of the accused's s. 10(b) rights.
In his second submission, the appellant argued that the violation was not justified by urgency or necessity, and cited in support Clarkson v.The Queen,  1 S.C.R. 383. Toy J.A. distinguished Clarkson, saying that the case at bar bore more resemblance to R. v. Strachan,  2 S.C.R. 980, where police officers refused to allow the accused to telephone his lawyer until the police had the premises safely under control. He remarked that in the circumstances the police had to make "some very hasty decisions", and reiterated his conclusion that the detention in the patrol wagon was both reasonable and necessary.
Finally, the appellant claimed that the evidence should have been excluded under s. 24(2) of the Charter. In response, Toy J.A. enumerated a series of factors which, in his opinion, were to be considered when deciding whether or not the admission of evidence would bring the administration of justice into disrepute. The factors were as follows:
1. The nature of the evidence (whether real or self-incriminating);
3. The seriousness of the violation;
4. The wilful or flagrant nature of the violation;
5. Circumstances of urgency or necessity;
6. Whether the evidence would have been obtained in any event;
7. The seriousness of the offence;
8. Whether the evidence is essential to substantiate the charge;
9. 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.
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.
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,  2 S.C.R. 138, and R. v. Hebert,  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,  1 S.C.R. 613, and Trask v. The Queen,  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.
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,  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.
For all these reasons, I would allow the appeal and order a new trial on the two counts of attempted sexual assault.
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:
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:
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 other words, I see the crux of this case as the prior question of whether there was, in fact, a violation of the appellant's s. 10(b) rights. For the reasons which follow, I conclude that no such violation occurred.
At the outset, a preliminary matter warrants clarification. The focus at trial was on the "arbitrary detention" of the appellant. This explains both the way that the cross‑examination of the witnesses was conducted and the Court of Appeal's discussion of that issue. Before us that argument was abandoned since it was agreed that no arbitrary detention had occurred in the circumstances of this case. For our purposes then, the only violation alleged by the appellant was that of his right to be informed of his right to counsel as guaranteed in s. 10(b).
At this point I also wish to mention that I can only disagree with Iacobucci J.'s view that the issue of whether or not there had been a violation of s. 10(b) is not one which this Court ought to discuss given the Crown's concession that the appellant was detained. Clearly the fact that an issue is conceded below means nothing in and of itself: United States of America v. Cotroni,  1 S.C.R. 1469, at pp. 1479‑82. And, while the pleadings were ambivalent on the issue, in oral argument before us Mr. Mulligan for the Crown invited us to find that although Elshaw may have been "detained" in a technical sense, such "detention" was not one which would entail the full application of the appellant's s. 10 rights. This, in my view, renders the issue a live one. In his argument Mr. Mulligan urged us at the hearing to apply common sense and practicality to the issues bearing on this case. Too technical an approach would, in his view, defeat any possibility for the police to pursue the proper and necessary investigation of a crime. I agree with the Crown's submission in this regard as did both the trial judge and the Court of Appeal.
Before entering into a discussion of these issues, it is important to recall the precise circumstances under which the appellant made the statements in question.
The appellant was convicted of two counts of attempted sexual assault. The two counts arose out of an incident at a park involving two young boys. On May 22, 1984, at approximately 5:00 p.m. the witnesses, D. W. and L. W., were working in their garden. D. W. looked up from what he was doing to talk to L. W. when he noticed a man leading a young boy, D. T., into a set of bushes which bordered on their property. Thinking this strange, he asked L. W. to go nearer to the bushes in case she could hear anything. She moved closer and was able to hear the man say to the boy, "Let's keep it our secret, it will be our little secret." D. W. went next door to his mother's residence to seek her advice on the matter and she advised that he call the police. He promptly did so. At this point D. W. went out to the street to wait for the police while L. W. and D. W.'s mother approached the bushes. They heard another little boy, H. W., calling D. T. The latter responded: "I'm up here, I'll be down in a minute". As they peered through the bushes L. W. was able to see the appellant sitting on his side and "wrapped around" D. T. After D. T. left the appellant, H. W. entered the bushes. The two women again heard him requesting the boy to "keep it our little secret". As they approached, the appellant left the scene.
In the meantime, Constables Jorgensen and Randhawa had been flagged down by D. W. They had responded to the call D. W. had made and knew only that there was a "suspicious male" in the area. As Jorgensen and Randhawa approached, D.W. briefly told them what had transpired. D. W. had seen the appellant crossing the park but then had lost sight of him when he turned to talk to the officers. He relocated him however, once again crouched down surreptitiously but this time in another set of bushes. D. W. then confronted the appellant with what he had seen. Elshaw replied: "I'm just going through the park." The appellant then hopped a nearby fence and began walking down the sidewalk but was immediately intercepted by Randhawa who began asking him for particulars such as his name, address, place of work and so on. He also advised Elshaw that he was being investigated for possible child molestation. At this point the two boys appeared, and, in the words of Jorgensen, "we separated everybody and put Mr. Elshaw in the back of the patrol wagon". Jorgensen then began to speak with the boys while Randhawa, for his part, spoke with the other witnesses. It is important to note that at this point Elshaw was not in handcuffs and had not been placed under arrest. The officers then approached the patrol wagon to speak with the appellant and, in the absence of any s. 10(b) warning, the following exchange took place between them:
A:Well I asked Mr. Elshaw, "What would have happened if we had not come along?", and he replied, "I don't know, I just can't help myself. Sometimes I have these urges, not so much with little boys, but more with little girls". And I asked, "What age are we talking about?", and he replied, "Oh, five or six year olds". At that point he said, "I know I need help, but I just don't know how to get it". And I said to him, "We'll try and see if we can get you some help", and at that point, I closed the side door of the wagon and had no further conversation with him at that point.
The appellant subsequently sought to have these statements excluded, alleging that he had already been detained at the point in time when he made the statements and hence that his right to counsel as guaranteed in s. 10(b) had been infringed. The appellant further argues that admitting the statements would bring the administration of justice into disrepute within the meaning of s. 24(2).
At the outset, it must be clear that neither the good faith of the police nor the voluntary nature of the statements were ever put into question. It is also my view that at the time that the statements were made the police were simply investigating the possible commission of a crime. Finally, in my estimation, the statements in question in no way relate to the res gestae.
It goes without saying that if the appellant was not detained within the meaning of the Charter at the time at which he made the statements, the rights guaranteed under s. 10(b) are not triggered and there would therefore have been no violation. In that respect, the case of R. v. Therens,  1 S.C.R. 613, becomes the fundamental focus of our analysis.
(1) R. v. Therens
The issue in Therens was whether certificates of breath analysis obtained pursuant to the Criminal Code ought to be excluded under s. 24(2) of the Charter because the accused had been denied his right to counsel as guaranteed under s. 10(b). Although Le Dain J. ultimately dissented on the issue of admissibility itself, he is regarded as having written the seminal judgment on the meaning of detention in s. 10(b).
Le Dain J. first dismisses the Crown's contention that the section should be interpreted as the counsel provision under the Canadian Bill of Rights was. In doing so he rejects Chromiak v. The Queen,  1 S.C.R. 471, by implication. Le Dain J. then goes on to engage in a purposive analysis of the right in question. That purpose is, at p. 641, established to be ensuring that a person is made aware of the right to counsel and is permitted to retain and instruct that counsel without delay when the person finds himself or herself in certain circumstances. As basic precepts these can only be uncontentious. However, Le Dain J. next turns his attention to the question of just what those circumstances are and posits three basic scenarios or tests:
(i) the case of deprivation of liberty by physical constraint;
(ii) the case of a police officer assuming control over the movement of a person by a demand or direction which might have significant legal consequences and which prevents or impedes access to counsel; and,
(iii) a final category which, at p. 644, Le Dain J. characterizes in the following obiter statement:
Most citizens are not aware of the precise legal limits of police authority. Rather than risk the application of physical force or prosecution for wilful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand. The element of psychological compulsion, in the form of a reasonable perception of suspension of freedom of choice, is enough to make the restraint of liberty involuntary. Detention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist.
The first two scenarios are not really at issue in this case. While it is true that the appellant was put in the back of a police vehicle, that fact alone should not be wholly determinative, particularly in a situation such as this one where the entire incident took place in a park and in full view of the public. It must be noted that he had not been handcuffed, had not been placed under arrest, had not been verbally or physically coerced in any way, and only spent some five or six minutes in the van according to the uncontroverted testimony of Constable Jorgensen. Perhaps most importantly, that same testimony reveals that the officers at that particular time not only did not have any firm suspicion that the appellant had been involved in criminal activity but actually intended to take him to his sister's house; only after they pursued their investigation further and received details over the police radio of his record did they change their minds and decide to lay a charge under the vagrancy section of the Criminal Code.
The third scenario, however, is very much at issue. Presumably, if taken to its extreme it would mean that anytime a police officer wished to speak with any person, perhaps in the aftermath of a traffic accident, perhaps to warn a crowd of people to move along, perhaps even to ask for the time, if the person does what the officer asks and subjectively and reasonably believes, for whatever reason, that she or he has no choice but to do so, the officer must apprise the person of her or his rights under the Charter. The implications in the context of law enforcement must be nothing short of massive for it would effectively shackle any investigation at its outset by preventing the authorities from making any kind of introductory inquiry and factual assessment of the situation before criminal liability even becomes an issue.
Many commentators have discussed Le Dain J.'s obiter comments. See, for example: Y. de Montigny, "L'élargissement du concept de "détention", premier jalon d'une véritable protection contre l'auto‑incrimination?" (1990), 31 C. de D. 769, and D. Stuart, "Four Springboards from the Supreme Court of Canada: Hunter, Therens, Motor Vehicle Reference and Oakes -‑ Asserting Basic Values of Our Criminal Justice System" (1987), 12 Queen's L.J. 131. Professor Stuart writes, at p. 141:
One has sympathy with the view that preliminary police investigative questioning should not now have to be peppered with Charter warnings. However, we must remember that under our Charter, a violation will not necessarily result in the exclusion of evidence.
Although I agree with Professor Stuart's comments they do not address the ambiguous position in which the police find themselves -‑ on the one hand needing to engage in some degree of preliminary questioning but on the other hand having to be wary of the point at which they will run afoul of the suspect's Charter rights as guaranteed under s. 10(b). In other words, as a practical matter, law enforcement agencies must know how to conduct themselves.
(2) Canadian Jurisprudence
In the wake of Therens were a litany of cases emanating from the provincial courts of appeal. The Ontario Court of Appeal has made a particularly convincing attempt to deal with the breadth of Le Dain J.'s comments and has produced a line of reasoning which has been followed by other courts.
In R. v. Esposito (1985), 24 C.C.C. (3d) 88 (Ont. C.A.) (leave to appeal to this Court refused,  1 S.C.R. viii) the appellant was under investigation for fraud. A police officer went to his house armed with some credit card invoices but no probable cause. The appellant made a number of incriminating statements and was then placed under arrest and taken to the station where more incriminating statements were forthcoming. The appellant then asked to see a lawyer. At trial he sought to have the statements excluded. Martin J.A. examines Therens, and ultimately decides that since he was under no obligation to continue the interview, the appellant had not been detained within the meaning of s. 10(b) of the Charter, and the statements were therefore admissible. He notes at p. 101:
Unless all questioning of a suspect by a police officer, in the absence of a warning that the suspect is free to leave and is entitled to refuse to answer, constitutes a detention under s. 10(b) of the Charter, the questioning of the appellant . . . did not constitute such a detention.
In R. v. Bazinet (1986), 25 C.C.C. (3d) 273 (Ont. C.A.) the accused had voluntarily agreed to accompany the police to the station where questioning in conjunction with a homicide began. The appellant subsequently confessed to the crime. Tarnopolsky J.A. examines the holding in Therens as well as Martin J.A.'s judgement in Esposito. He underscores in particular, at p. 283, the limitations which Le Dain J. attached to his conception of psychological compulsion:
In this vein it is important to note that Le Dain J.'s extension of "detention" to instances of "psychological" restraint or compulsion is predicated on two requirements: (1) a "demand or direction", in response to which (2) "the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist".
Tarnopolsky J.A. goes on to conclude that there was no "demand or direction" to which the appellant submitted. As such there was no detention and no violation.
R. v. Moran (1987), 36 C.C.C. (3d) 225 (Ont. C.A.) dealt with an appellant who had been convicted of second degree murder in the death of a woman with whom he was having an affair. Immediately after her death, and before he was ever remotely connected with the murder, the police were doing a routine check on her habits and wished to speak to the appellant at the station. At this first interview he told them of the affair. A second interview was held four days later when the appellant returned to go over the statement. Again, statements were made, this time tying him to the victim on the day of her death. At trial he sought to have these statements excluded from evidence. Relying primarily on Therens and the judgment of Tarnopolsky J.A. in Bazinet, Martin J.A., at pp. 258‑59, purports to lay down a non‑exhaustive list of criteria to assist in the determination of whether or not someone had been detained within the meaning in s. 10(b) of the Charter:
(i) What type of language was used by the police officer -‑ was the person given a choice to speak or not to speak?
(ii) Did the person accompany the officer on their own volition or were they escorted?
(iii) Did the person leave after the interview or was he or she arrested?
(iv) At what point in the investigation did the interview take place?
(v) Were there reasonable and probable grounds for believing that the person was, in fact, the guilty party?
(vi) What was the nature of the questions asked? Were they of a general nature or did they confront the accused with evidence pointing towards his or her guilt?
(vii) What was the subjective belief of the person? Did they think that they were being detained?
These criteria are then applied by Martin J.A. to the facts at hand and result in the conclusion that neither interview could be considered a "detention".
The same criteria are subsequently used in R. v. Grafe (1987), 36 C.C.C. (3d) 267 (Ont. C.A.) and R. v. Voss (1989), 50 C.C.C. (3d) 58 (Ont. C.A.) and this line of jurisprudence has also been adopted in other jurisdictions. See, for example: R. v. Ancelet (1986), 70 A.R. 263 (C.A.); R. v. C.(S.) (1989), 74 Nfld. & P.E.I.R. 252 (Nfld. C.A.); R. v. Olivier (May 30, 1991, Man. Q.B., summarized at 13 W.C.B. (2d) 278). From these cases I wish only to note the words of Krever J.A. at p. 274 of Grafe which I find quite appropriate:
The Charter does not seek to insulate all members of society from all contact with constituted authority, no matter how trivial the contact may be. When one considers the full range of contacts in modern society between state and citizen that which took place between the respondent and Constables Kalan and Waite on the first occasion cannot be characterized otherwise than as innocuous. Its occurrence was not an invasion of any of the respondent's Charter rights.
It is quite possible that if Le Dain J.'s third scenario in Therens were to be taken at its broadest, all of the statements with which the Ontario Court of Appeal were faced, all of which were highly probative, would have had to be excluded on the grounds that they were made in the face of so‑called psychological coercion. In so far as the Ontario court and the other courts which have adopted this line of reasoning have been able to arrive at a more practical position despite the broad wording of Le Dain J.'s obiter comments, that reasoning is constructive. However, because it developed within the parameters of those same obiter comments it is, by necessity, tarred with the same brush and, in my opinion, is also susceptible to putting undue restraint on law enforcement agencies.
(3) A Comparative Perspective
(a) The United States
Before I begin my analysis of the American law I wish to make it clear that I am in no way unmindful of the words of my colleague, La Forest J., in R. v. Rahey,  1 S.C.R. 588, at p. 639:
While it is natural and even desirable for Canadian courts to refer to American constitutional jurisprudence in seeking to elucidate the meaning of the Charter guarantees that have counterparts in the United States Constitution, they should be wary of drawing too ready a parallel between constitutions born to different countries in different ages and in very different circumstances. . .
However, as Dickson C.J. pointed out in R. v. Keegstra,  3 S.C.R. 697, at p. 740, "In the United States, a collection of fundamental rights has been constitutionally protected for over two hundred years. The resulting practical and theoretical experience is immense, and should not be overlooked by Canadian courts".
In my opinion the case before us presents the ideal opportunity to look south and learn from the experience of the United States. The balancing in which we are presently engaged, that is to say between the rights of the individual to be free from unnecessary and unjustified harassment at the hands of state agents and the right of society at large to expect efficient law enforcement, is of primordial importance. And, given what appears to me to be the overly cumbersome and obtrusive position which has developed in Canada, the American position might well offer a compromise between the two conflicting rights which is worthy of our attention.
A promising avenue of inquiry, and a compromise which I see as attending to both competing interests might be found in the doctrine of preliminary investigatory detention short of arrest. In the United States investigatory detention is recognized as having emerged in Terry v. Ohio, 392 U.S. 1 (1968). At issue was the constitutionality under the Fourth Amendment of a "stop and frisk" made by a police officer. The officer had observed three men walk back and forth in front of a retail store for some minutes, looking in and then returning to confer with one another. The officer's suspicions were aroused and he approached the three men and asked their names. When they did not respond he turned Terry around, "patted him down", and removed a pistol. A weapon was also found on one of Terry's cohorts. Terry, on trial for carrying a concealed weapon, sought to suppress the evidence of the pistol arguing that its admission would constitute a violation of his rights under the Fourth Amendment which guarantees the right to be secure against unreasonable search and seizure. The issue eventually found its way to the U.S. Supreme Court which spoke through Warren C.J. and upheld the search.
The court first recognized the ambiguity inherent in the relationship between the public and the police. At page 13 it noted:
Street encounters between citizens and police officers are incredibly rich in diversity. They range from wholly friendly exchanges of pleasantries or mutually useful information to hostile confrontations of armed men involving arrests, or injuries, or loss of life. Moreover, hostile confrontations are not all of a piece. Some of them begin in a friendly enough manner, only to take a different turn upon the injection of some unexpected element into the conversation. Encounters are initiated by the police for a wide variety of purposes, some of which are wholly unrelated to a desire to prosecute for crime.
The reasonableness of the stop was then assessed by balancing the need for the search against the intrusiveness such a search would entail. The court, at pp. 30‑31, concluded:
. . . where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.
In the wake of Terry, the doctrine was thought to apply only where the officer in question had reasonable grounds to think that his or her safety, or that of others, was in danger (see, for example: D. P. Mongiardo, "The Terry Exception to Miranda" (1983), 10 Search & Seizure L. Rep. 165). However, the United States Supreme Court saw fit shortly thereafter to broaden the circumstances in which a state agent would be able to stop a person without running afoul of the Constitution. In Adams v. Williams, 407 U.S. 143 (1972), a police officer was on routine patrol and was informed by someone known to him that the occupant of a nearby car was carrying narcotics and a weapon. The officer approached the car to investigate and, as the occupant rolled down the window, reached inside to remove the weapon. Later, a search revealed the presence of the illegal narcotics. Rehnquist J. for the court notes at pp. 145‑46 that:
The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. . . . A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily, while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. [Emphasis added.]
The court saw a need therefore, to broaden the circumstances under which an officer could approach an individual and make inquiries of him or her. No longer was it necessary for the officer to entertain reasonable fears for his or her safety or the safety of others: A. Young, "All Along the Watchtower: Arbitrary Detention and the Police Function" (1991), 29 Osgoode Hall L.J. 329, at p. 371. Rather, under the expanded doctrine a stop and frisk became a protective measure to take while the more central "brief investigatory search", initiated on the basis of a reasonable suspicion that a crime was being or had been committed, was proceeding.
In the cases which followed Adams the court remained diligent in its maintenance of the underlying values of the Fourth Amendment while ensuring that police were able to perform the task which society assigns to them. The doctrine underwent a period of refinement during which its parameters were clarified: Dunaway v. New York, 442 U.S. 200 (1979); Brown v. Texas, 443 U.S. 47 (1979); United States v. Place, 462 U.S. 696 (1983); Florida v. Royer, 460 U.S. 491 (1983); United States v. Hensley, 469 U.S. 221 (1985); United States v. Sharpe, 470 U.S. 675 (1985). See also: "Twentieth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1989‑1990" (1991), 79 Geo. L.J. 591, at pp. 613‑24; E. J. Sack, "Police Approaches and Inquiries on the Streets of New York: The Aftermath of People v. De Bour" (1991), 66 N.Y.U. L. Rev. 512, at pp. 512‑19; and C. M. Wiseman, "The `Reasonableness' of the Investigative Detention: An `Ad Hoc' Constitutional Test" (1984), 67 Marq. L. Rev. 641.
Until 1984 the question which remained unanswered was the degree to which the so‑called "Miranda warning" was mandated during such preliminary investigatory detentions. Miranda v. Arizona, 384 U.S. 436 (1966), which was a watershed case in American constitutional law, held that when a person is subject to "custodial interrogation", that is to say questioning initiated by law enforcement officers after a person has been "taken into custody or otherwise deprived of his freedom by the authorities in any significant way" (Miranda, supra, at p. 478), it is necessary to caution the person of his or her right against self‑incrimination and his or her right to counsel. In Berkemer v. McCarty, 468 U.S. 420 (1984), the issue was finally resolved. In Berkemer, a police officer was on routine patrol when he noticed a car ahead of him being driven in a very erratic manner. The officer pulled the car over and requested the driver to get out and, after remarking that he was having difficulty doing so, gave a field sobriety test which the driver, McCarty, failed. At this point the officer asked if McCarty had been using intoxicants and the latter indicated that he had been consuming beer and had smoked marihuana a short time previously. McCarty was then arrested and taken to the station where questioning resumed and more incriminating statements were made. McCarty sought to suppress the statements made at roadside and at the station arguing, inter alia, that his rights under the Fifth Amendment had been violated when the officer failed to issue him a Miranda warning.
The court held that given the presumptively brief nature of such stops and the fact that they almost always occur in public and hence under the scrutiny of passers‑by, such traffic stops do not sufficiently impair the free exercise of the "detainee" to a point where he or she would feel compelled to speak where they otherwise would not. Of particular interest for our immediate purposes is the following statement by Marshall J., at pp. 439‑40, speaking for the court:
In both of these respects, the usual traffic stop is more analogous to a so‑called "Terry‑stop". . . than to a formal arrest. Under the Fourth Amendment, we have held, a policeman who lacks probable cause but whose "observations lead him reasonably to suspect" that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to "investigate the circumstances that provoke suspicion. . . . [T]he stop and inquiry must be `reasonably related in scope to the justification for their initiation'. ". . . Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obliged to respond. And, unless the detainee's answers provide the officer with probable cause to arrest him, he must then be released. The comparatively non‑threatening character of detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda. The similarly noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not "in custody" for the purposes of Miranda. [Emphasis added.]
Nor did the practical aspects of requiring Miranda warnings in all such circumstances go unnoticed to Marshall J. At page 441 he adds:
[it] would substantially impede the enforcement of the Nation's traffic laws -‑ by compelling the police either to take the time to warn all detained motorists of their constitutional rights or to forego use of self‑incriminating statements made by those motorists -‑ while doing little to protect citizens' Fifth Amendment rights.
The comments of the Seventh Circuit Court of Appeals in United States v. Serna‑Barreto, 842 F.2d 965 (1988), at p. 966, are also appropriate:
The reason for creating the intermediate category, the investigatory stop, is not merely the appealing symmetry of a "sliding‑scale" approach -‑ though that is relevant, since it is common sense that if the Fourth Amendment is intended to strike a balance between the interest of the individual in being left alone by the police and the interest of the community in being free from the menace of crime, the less the interest of the individual is impaired the less the interest of the community need be impaired to justify the restraint. But beyond that, it is hard to see how criminal investigations could proceed if the police could never restrict a suspect's freedom of action, however briefly, without having probable cause to make an arrest. [Emphasis added.]
This position would seem to echo that expressed in G. S. Garneau, "The Application of Charter Rights to the Interrogation Process" (1986), 35 U.N.B.L.J. 35, at pp. 39‑40:
As long as detention is seen to follow arrest in interrogation situations, the application of the Charter provisions results in a very low cost to effective law enforcement . . . . However, if detention is determined to exist short of arrest, notice may result in a choice by the individual to exercise the right to counsel before the grounds for arrest are established, which in most cases will tend to have a chilling effect on the interrogation process.
The case for the existence of a post‑contact but pre‑arrest point at which the full range of constitutional protections are not yet brought to bear would seem to rest, however, not just on the basis of administrative expediency but also on simple common sense. G. E. Dix, in "Nonarrest Investigatory Detentions in Search and Seizure Law",  Duke L.J. 849, at p. 950, notes:
Questioning of a detainee before grounds for arrest developed should be recognized as different from post‑arrest questioning. To some extent, the risk of self‑incrimination is less ‑- answers will often be purely exculpatory -‑ while the justification for questioning is greater -‑ officers need to develop information on which to decide how to respond to rapidly developing field situations. In addition, the pressure on a detainee to abandon rational self‑interest for self‑incrimination is probably less, at least to the extent that the detainee is aware of the nature of the detention. No Miranda‑like prophylactic requirements, therefore, should be imposed on questions asked before grounds for arrest develop. [Emphasis added.]
and, according to S. Woods, "Interrogation Law and the Charter: An American Plan for the Renovations" (1985), 43 U.T. Fac. L. Rev. 153, at p. 168:
This makes sense conceptually. During the investigatory phase the individual is free to do as he wishes. A person may be suspected of having committed a crime, but prior to his arrest legally he is in the same position as every other citizen. Similarly within the limits of the law, police may conduct their investigation as they wish, including tactics which involve the use of undercover agents. The arrest of the suspect alters this situation fundamentally. The suspect is no longer like any other citizen, he has been identified by the police as an alleged criminal. His freedom is curtailed by the charge against him. Similarly arrest changes the position of the police. Under our system of law people may not be arrested without reasons substantiated by evidence. Arrest thus changes the position of both parties by commencing the adversary process. Investigation ceases and the judicial process commences.
(b) England and Wales
The question of preliminary investigatory detention as we know it is not dealt with in the English system of criminal procedure, although the provisions concerning detention consequent to arrest create a de facto position which, in some ways, is similar to that which we have already seen in the United States.
The Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60 (as amended) creates rather broad grounds for arrest which include the following:
24. . . .
(6) Where a constable has reasonable grounds for suspecting that an arrestable offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds for suspecting to be guilty of the offence.
(7) A constable may arrest without a warrant ‑‑
(a)anyone who is about to commit an arrestable offence;
(b)anyone whom he has reasonable grounds for suspecting to be about to commit an arrestable offence.
Then, once arrested a determination is made by the police whether or not they have enough evidence to lay a charge (s. 37). However, pursuant to s. 42 and following, the detained person may actually remain in a post‑arrest but pre‑charge state for up to 36 hours subject to numerous limitations.
Sections 56 and 58 stipulate that while in custody the detainee will be permitted to contact a friend or to speak with a solicitor but that this right may be overridden for a maximum of thirty‑six hours in the case of a serious arrestable offence if such a delay is authorized by an officer of at least the rank of Superintendent or Inspector. This may only be done in certain circumstances, however. Those circumstances include where contact would lead to interference with evidence or to injury to other persons, where it would lead to the alerting of other persons also suspected of committing such an offence, where it would hinder the recovery of property obtained pursuant to the commission of the offence, or where the detainee is suspected of drug trafficking and contact will hinder the recovery of the proceeds of this drug trafficking. See also: M. Berger, "Legislating Confession Law in Great Britain: A Statutory Approach to Police Interrogations" (1990), 24 U. Mich. J.L. Ref. 1, at pp. 24‑35; S. Coughlan, "Police Detention for Questioning: A Proposal" (1986), 28 Crim. L.Q. 64 and 170, at pp. 182‑85; M. Iller and G. Goodwin, Criminal Litigation (1985), at pp. 49‑81; and Archbold: Pleading, Evidence and Practice in Criminal Cases (43rd ed. 1988), at paras. 15‑36 to 15‑39.
The predominant view in Australia would appear to be that the common law does not guarantee the right to counsel to someone under suspicion of having committed an offence. The Australian Law Reform Commission, for example, in Criminal Investigation (Report No. 2 1975), at para. 105, stated:
The right to consult with a lawyer during the course of pre‑trial police investigations is one of those traditionally claimed civil rights to which almost universal obeisance is paid in principle, but which is greeted with very great circumspection in practice by law enforcement authorities. The `right' has no constitutional or statutory backing in Australia. It cannot be said to have more than the most marginal support from the common law. [Emphasis added.]
Similarly, Sallmann and Willis in Criminal Justice in Australia (1984), at p. 31, conclude:
The result is that the police are free as a matter of law to refuse a suspect access to a lawyer, and they can do so in the knowledge that there may not be any direct adverse impact on their case as a result.
See also: New South Wales Law Reform Commission, Procedure from Charge to Trial: Specific Problems and Proposals (1987), at p. 33.
Some of the Australian states have not seen fit to alter the common law position. Queensland's Criminal Code Act 1899, 63 Vict. No. 9, as amended, seems only to provide that a person who has been arrested is to be brought before a justice forthwith to be dealt with according to law. Similarly, see Tasmania's Criminal Code Act 1924, 14 Geo.V No. 69, and Criminal Process (Identification and Search Procedures) Act (1976) No. 30. And, given the fact that it appears highly doubtful that a right to counsel otherwise exists in Australia, it ought not to be surprising that the question of when a person is detained for the purposes of deciding when a warning of that right needs to be issued would arise infrequently.
Other states have altered the common law position significantly. For example, Victoria's Crimes Act 1958 was amended by the Crimes (Custody and Investigation) Act 1988, No. 37. Section 464c now provides as follows:
464c. (1) Before any questioning or investigation under section 464a(2) commences, an investigating official must inform the person in custody that he or she ‑-
. . .
(b)may communicate with or attempt to communicate with a legal practitioner ‑‑
Not unlike the English legislation I have already examined, the same section goes on to provide, however, that the investigating official may deny communication if he or she is of the opinion that the communication would result in the escape of an accomplice or the fabrication or destruction of evidence, or that the questioning is of an urgent nature having regard to the safety of other people.
Custody, and therefore the point at which the rights above are triggered, is defined as follows:
464 (1) For the purposes of this Subdivision a person is in custody if he or she is -‑
(a)under lawful arrest by warrant; or
(b)under lawful arrest under section 458 or 459 or a provision of any other Act; or
(c)in the company of an investigating official and is ‑-
(i) being questioned; or
(ii) to be questioned; or
(iii) otherwise being investigated ‑-
to determine his or her involvement (if any) in the commission of an offence if there is sufficient information in the possession of the investigating official to justify the arrest of that person in respect of that offence. [Emphasis added.]
but what would therefore appear to confer broad powers of detention upon law enforcement officials is later narrowed by s. 464i, which warns:
464i Nothing in sections 464 to 464h confers a power to detain against his or her will a person who is not under arrest.
I note also that comparable legislation has been enacted in South Australia under the Police Offences Act Amendment Act, 1985 (No. 46); see in particular ss. 32 and 34.
(4) Law Reform Commissions
The question of preliminary investigatory detention for questioning was considered by the Australian Law Reform Commission in Criminal Investigation, supra, where the majority of the members, at para. 66, concluded:
. . . a police officer should not question any person whom he thinks might be the author of a serious crime, nor seek to have that person go to a police station or anywhere else for the purpose of attempting to procure evidence against him, without previously advising him of his legal rights . . .
There was a dissenting voice however. The minority, at para. 72, was of the view that:
. . . a police officer at an early stage of the investigation ought to be able freely to pursue his inquiries from all citizens, whether suspected or not. . . . the giving of the warning and the request for the written acknowledgment by the person who may conceivably be implicated in an offence will impede adequate and proper police investigation.
A similar note was sounded in Scotland where, in a report prepared for the Secretary of State, Criminal Procedure in Scotland (Second Report) (1975), at para. 3.13, a period of investigatory detention was also advocated:
Clearly the police should not be entitled to arrest anyone they want to interview but it seems plainly wrong, for example, that a suspected violent criminal with significant evidence on his clothing has to be left at large while the police seek other evidence of his guilt sufficient to entitle them to charge. [Emphasis added.]
The period of detention, according to the Commission, was to be no longer than was necessary in the interests of justice and should not, in any event, exceed a fixed period of time (six hours) at the end of which the person would either be charged or released (3.15 and 3.25). An officer would only be able to detain the person where he or she had reasonable cause to suspect that the person had committed an offence for which there already existed the power to arrest without warrant (3.16) and there would be no general right to the assistance of counsel during the detention although this would be overridden if the police intended to search body cavities or take physical samples (3.24).
This position was not retained by our Canadian Law Reform Commission. In Arrest (Report 29) (1986), at p. 20, the Commission cautioned against the creation of any sort of intermediate position between arrest and complete liberty, arguing that either someone ought to be arrested and entitled to the full gamut of legal guarantees which that state entails, or they ought to be explicitly cautioned that their assistance is entirely voluntary. It is my respectful contention, however, that a balance which takes the rights of a possible suspect into account yet which protects the public at large by fulfilling reasonable expectations about law enforcement may be found by moving closer to the American position. In my view, a large‑scale endorsement of Le Dain J.'s third scenario in Therens would take Canadian justice to a point where the former interest, albeit a vitally important one, would be protected to the great detriment and complete neglect of the latter. The Charter cannot be interpreted in a manner which produces such an anomalous and unbalanced stance. Adopting a brief period of investigatory detention anterior to the point at which the full extent of the Charter rights take hold combines common sense and practicality while still being sufficiently sensitive to the protection of individual rights as guaranteed by our Canadian Charter of Rights and Freedoms.
In my opinion it is neither sound constitutional interpretation nor sound constitutional policy for the s. 10(b) rights guaranteed in the Charter to be required at every instance where a citizen may feel, rightly or wrongly, psychological compulsion in the presence of a police officer. It is clear to me that the rights guaranteed therein should be rendered active, if I may use those terms, at a point much later in the process -‑ after a period where the police have an opportunity to assess the situation which confronts them, to identify possible witnesses and suspects, and to confirm the initial information they receive. With respect to those who hold a contrary view, it would seem to me to be misguided to require the police to issue warnings pursuant to s. 10(b) to all the people they meet at the scene of an accident, or, as in the case currently before us, after they receive a call and must investigate some kind of a disturbance, on the off‑chance that someone with whom they communicate may feel some kind of compulsion and make a self‑incriminating statement.
While Professors de Montigny and Stuart may have legitimate concerns over the rights of a future accused in the proceedings prior to the laying of a charge, these concerns seem to me to be misplaced at such an early stage of an investigation and should not result in the obliteration of values which are equally important. As Justice Benjamin Cardozo remarked in Snyder v. Massachusetts, 291 U.S. 97 (1934), at p. 122:
The law, as we have seen, is sedulous in maintaining for a defendant charged with crime whatever forms of procedure are of the essence of an opportunity to defend. Privileges so fundamental as to be inherent in every concept of a fair trial that could be acceptable to the thought of reasonable men will be kept inviolate and inviolable, however crushing may be the pressure of incriminating proof. But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true. [Emphasis added.]
The American experience in the area has shown, I think, that there is a middle ground where the concerns expressed above may co‑exist with effective law enforcement. To adopt a position which prevents state agents from attempting to gain any sort of information whatsoever from those persons whom, as a matter of simple common sense, they would routinely be expected to question would be to confuse constitutional vigilance with paranoia. We must be careful not to leave this common sense at the doorstep when we are called on to interpret the Charter.
Application to the Facts at Bar
On the facts of this case, I would hold that the appellant was not detained within the meaning of s. 10(b) when he made the statements in question to the police officers. There was, therefore, no violation and no need to proceed to the stage of deciding whether or not the admission of the evidence would bring the administration of justice into disrepute. However, should I be mistaken on this view of the law, I would still hold that pursuant to the criteria set down in R. v. Collins,  1 S.C.R. 265, the statements ought not to have been excluded under s. 24(2) since their admission, in my view, would not bring the administration of justice into disrepute and render the trial unfair.
For these reasons I am in agreement with the courts below and would dismiss this appeal.
Appeal allowed, L'Heureux-Dubé J. dissenting.
Solicitors for the appellant: Smart & Associates, Vancouver.
Solicitor for the respondent: The Ministry of the Attorney General, Victoria.