R. v. Bartle [1994] 3 S.C.R. 173: -- Right to retain and instruct counsel and to be informed thereof -- Rights read to person under arrest mentioning availability of legal aid but not mentioning availability of free and immediate duty counsel by toll-free telephone

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

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Constitutional law -- Charter of Rights -- Right to retain and instruct counsel and to be informed thereof -- Free duty counsel -- Rights read to person under arrest mentioning availability of legal aid but not mentioning availability of free and immediate duty counsel by toll-free telephone -- Arrest made outside normal working hours -- Person under arrest not knowing who to call -- Incriminating statement made -- Whether or not statement should be excluded from evidence -- Canadian Charter of Rights and Freedoms, ss. 10(b), 24(2) -- Criminal Code, R.S.C., 1985, c. C-46, ss. 253(b), 254(3)(a), (b), (5).

The appellant was arrested for impaired driving after failing a roadside breathalyser test in the early hours of a Saturday morning. The arresting officer read the appellant his rights under s. 10(b) of the Charter from a pre-printed caution card that mentioned the availability of legal aid. The officer did not, however, refer to the fact that free and immediate preliminary legal advice was available from duty counsel, who could be reached by calling a toll-free number printed on the caution card. Shortly after the caution was read to him the appellant made an incriminating statement. After being taken to the police station, the appellant was twice asked whether he wanted to call a lawyer. Again, no mention was made of the toll-free number for free duty counsel. On both occasions the appellant declined. He later testified that he thought that he could only contact a lawyer during normal working hours, and that he had indicated to a constable that he did not know who to call at that time of night. The constable, on the other hand, testified that appellant simply replied "no" when asked if he wanted to contact a lawyer.

The appellant's conviction was overturned on appeal to the Ontario Court, General Division but was restored by the Court of Appeal. At issue was whether the information component of s. 10(b) of the Charter requires that police routinely refer to the existence and availability of 24-hour duty counsel services providing free, preliminary legal advice, that can be reached by telephoning a toll-free number and, if so, whether the evidence obtained following a failure by the police to fulfil their informational duty should be excluded under s. 24(2) of the Charter.

Held (L'Heureux-Dubé and Gonthier JJ. dissenting): The appeal should be allowed.

The issues are decided as follows:

Section 10(b) of the Charter was violated: Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. (L'Heureux-Dubé J. dissenting).

Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ. held that there is a duty to advise detainees of existing duty counsel services. McLachlin J. held that there is a duty to advise of a right to immediate consultation with counsel independent of financial means, even if duty counsel services are not available. L'Heureux-Dubé J. held that there is no duty to advise detainees of the existence of counsel services, whether or not such services are available.
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(1) Section 10(b) of the Charter
Per
Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ.: Section 10(b) places three duties on state authorities: the duty to inform detainees of the right to counsel, the duty to provide them with a reasonable opportunity to exercise this right, and the duty to curtail questioning until that reasonable opportunity has been exercised. The first duty is an informational one. The second and third are implementation duties that are triggered only if a detainee expresses the wish to exercise the right to counsel. The right to counsel that s. 10(b) provides is not absolute. Unless a detainee invokes the right and is reasonably diligent in exercising it, the correlative duty on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended. The rights guaranteed by s. 10(b) may be waived by the detainee, but the standard for waiver is high, especially in circumstances where the alleged waiver has been implicit. The information component of the right to counsel must accordingly be comprehensive in scope and be presented by police authorities in a "timely and comprehensible" manner. Unless detainees are clearly and fully informed of their rights at the outset, they cannot be expected to make informed choices and decisions about whether or not to contact counsel and, in turn, whether to exercise other rights, such as their right to silence. Moreover, in light of the rule that police are not required to assure themselves that a detainee fully understands his or her rights, absent special circumstances indicating that a detainee does not understand the s. 10(b) caution, it is important that the standard caution given to detainees be as instructive and clear as possible.

The jurisprudence has added two elements to the information component. A detainee must be given information about access to legal aid and to duty counsel.

Imposing additional informational requirements on the police is justified by the need to fulfil the underlying purpose of the Charter-guaranteed right to counsel. Central to s. 10(b) is the information component, which is what is provided universally to all detainees and upon which subsequent correlative duties on the state hinge.

R. v. Brydges stands for the proposition that police authorities are required to inform detainees about Legal Aid and duty counsel services which are in existence and available in the jurisdiction at the time of detention. Basic information about how to access available services which provide free, preliminary legal advice should be included in the standard s. 10(b) caution. Failure to provide such information is a breach of s. 10(b). Where the informational obligations under s. 10(b) have not been properly complied with by the police, questions about whether a particular detainee exercised his or her facilitation rights do not properly arise for consideration. (These questions may become relevant, however, when considering whether the evidence obtained in the course of the Charter violation should be excluded under s. 24(2) of the Charter). The breach of s. 10(b) is complete, except in cases of waiver or urgency, upon a failure by state authorities to inform a detainee properly of his or her right to counsel and until such time as that failure is corrected.

The validity of a waiver of a procedural right is dependent on it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect. This standard applies equally to Charter rights. In the case of s. 10(b)'s informational component, requiring that a person waiving the right have "full knowledge" of it means that he or she must already be fully apprised of the information that he or she has the right to receive. The fact that a detainee indicates that he or she does not wish to hear the information conveyed by the standard police "caution" mandated by s. 10(b) will not, by itself, be enough to constitute a valid waiver of s. 10(b)'s informational component.

If the circumstances reveal that a particular detainee does not understand the standard caution, the authorities must take additional steps to ensure that the detainee comprehends the rights guaranteed by s. 10(b), and the means by which they can be exercised. Conversely, situations may occasionally arise in which the authorities' duty to make a reasonable effort to inform the detainee of his or her s. 10(b) rights will be satisfied even if certain elements of the standard caution are omitted. This will only be the case if the detainee explicitly waives his or her right to receive the standard caution, and if the circumstances reveal a reasonable basis for believing that the detainee in fact knows and has adverted to his rights, and is aware of the means by which these rights can be exercised. The fact that a detainee merely indicates that he or she knows his or her rights will not, by itself, provide a reasonable basis for believing that the detainee in fact understands their full extent or the means by which they can be implemented. There must be a reasonable basis for believing that a detainee who waives the informational component of s. 10(b) is, in fact, cognizant of some, or all, of the information contained in the standard caution. In this case, omitting this information from the standard caution may not result in a violation of s. 10(b).

The standard for waiver of the informational right is high. In light of the informational component's importance in ensuring that the purposes of s. 10(b) are fully recognized, the validity of waivers of that component should only be recognized where it is clear that the detainee already fully understands his or her s. 10(b) rights, fully understands the means by which they can be exercised, and adverts to those rights. Requiring that these conditions be met ensures that any subsequent waiver of the right to counsel made following a waiver of the informational component will be a fully informed one. Since the informational obligations s. 10(b) imposes on state authorities are not onerous, it is not unreasonable to insist that these authorities resolve any uncertainty that might exist regarding the detainee's knowledge of his or her rights.

The appellant in this case did not express any interest in waiving any of his informational rights, including his right to be informed of the existence of Brydges duty counsel services, and moreover, the evidence did not reasonably support the inference that he knew that such services were available. Therefore, he did not waive his s. 10(b) informational rights, so the authorities' failure to inform him properly of the availability of duty counsel resulted in a s. 10(b) violation.

Per La Forest J.: The reasons of Lamer C.J. regarding the scope of obligation of the police to inform a person arrested or detained of existing and available duty counsel services were agreed with.

Per Gonthier J.: Agreement was expressed with the reasons of Lamer C.J. as to the scope of the obligation of the police regarding disclosure upon arrest or detention of existing and available duty counsel services and with the conclusion that appellant's s. 10(b) rights were infringed.

Per McLachlin J.: At a minimum, a detainee must be informed of his or her right to retain and instruct counsel immediately upon detention, and that the right to do so is conferred even on those individuals who cannot afford private counsel. This information must be provided to all detainees, regardless of the presence or absence of duty counsel systems in the jurisdiction at the time of detention. All detainees in Canada have equal rights under s. 10(b), although the means by which those rights may be exercised may not exist in all jurisdictions. Where no means exist for implementing the right to counsel under s. 10(b), a detainee is nevertheless entitled to be told of the scope of his or her rights, after which he or she can make an informed choice about exercising the right. In those jurisdictions where a duty counsel scheme has in fact been implemented, there is an additional duty to inform detainees of the existence and availability of duty counsel, including information about how to access such services.

The caution given here fell short of meeting even the two minimum requirements of the informational component of s. 10(b), let alone the additional requirement of informing the detainee of available legal aid. Once it has been established that the detainee was not properly informed of his or her right to counsel, the breach of s. 10(b) is complete and issues such as waiver and due diligence do not arise for consideration.

Per L'Heureux-Dubé J. (dissenting): Section 10(b) of the Charter requires the police to inform a person under arrest or detention of the right to consult counsel of choice. If the detainee expresses the desire to consult counsel, the police must provide the detainee with a reasonable opportunity to do so and must refrain from questioning the detainee until the detainee has had that opportunity. The detainee, however, must exercise reasonable diligence in attempting to consult counsel.

While it is desirable to inform a detainee of existing duty counsel services in all circumstances, such information is not constitutionally required by s. 10(b) of the Charter. Since s. 10(b) does not require the provinces to establish Legal Aid or duty counsel programs, it is not constitutionally required that police officers provide detainees with information concerning such programs, even in the event that they exist. R. v. Brydges goes no further than requiring police officers to inform a detainee of the existence and availability of free advice from Legal Aid and duty counsel when the detainee expresses a concern about his or her ability to afford a lawyer.

On this basis, since the caution, information and facilitation given in this case by the police to the appellant upon his detention met the s. 10(b) requirements discussed above, the appeal should be dismissed.

(2) Section 24(2) of the Charter
Per Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ.: To exclude evidence under s. 24(2), a Charter violation in the course of obtaining the evidence must first occur. It must also be found that, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. In this case, both the breathalyser evidence and the self-incriminating statement were obtained in the context of the infringement of the appellant's right to counsel under s. 10(b).

Although the applicant bears the ultimate burden of persuasion under s. 24(2), the onus on certain issues will shift to the Crown. Under the second branch of s. 24(2), an issue that arises is whether the accused would have acted any differently had there been no s. 10(b) violation. The legal burden (the burden of persuasion) of establishing that a s. 24(2) applicant would not have acted any differently rests on the Crown. Where conscripted evidence is involved, the conclusion must be drawn that trial fairness has been adversely affected because the evidence might not have been obtained if there had been no breach. Two reasons underlie this conclusion. First, breaches of s. 10(b) tend to impact directly on adjudicative fairness. Where self-incriminatory (as opposed to real) evidence has been obtained as a result of a s. 10(b) violation, its admission will generally have a negative affect on the fairness of the trial. Second, given this Court's warnings about the dangers of speculating as to the advice a lawyer has given a detainee, absent the s. 10(b) breach, any uncertainty about what an accused would have done should be resolved in the accused's favour. For the purposes of considering the effect of admission of evidence on trial fairness, courts assume that the incriminating evidence would not have been obtained but for the violation.

If the state claims that there was no causal link between a Charter breach and the obtaining of evidence, it is the state that should bear the burden of proving this assertion.

Although the scope of available legal advice in the impaired driving context is necessarily limited, there is sufficient scope for legal advice to a detainee who has received a breathalyser demand pursuant to s. 254(3)(a) of the Code to say that courts must not speculate about the nature of that advice and whether it would have made any difference to the outcome of the case. An ex post facto approach should not be used to determine whether or not the defence of "no reasonable and probable grounds" was actually available to the accused on the facts. One of the purposes of s. 10(b) is to provide detainees with an opportunity to make informed choices about their legal rights and obligations. This opportunity is no less significant when breathalyser charges are involved. Breathalyser evidence in the impaired driving context cannot be held ipso facto not to be self-incriminating evidence. Similarly, it cannot be said that its admission does not affect the fairness of a trial.

The evidence should be excluded under s. 24(2) of the Charter. Admission of the breathalyser tests and the self-incriminatory statement would adversely affect the fairness of the trial. To try and draw conclusions one way or the other as to what the appellant would have done, had he been properly cautioned, would be speculative and the uncertainty must accordingly be resolved against the Crown. Where the impugned evidence runs afoul of the "trial fairness" factor, admissibility cannot be saved by resorting to the "seriousness of the violation" factor. The good faith of the police and questions as to the seriousness of the breach, while favouring admission, cannot cure the fact that the admission would render the trial unfair. Notwithstanding the appellant's near admission of guilt and the seriousness of the problem of drunk driving, the evidence should be excluded in the long-term interests of the administration of justice. Section 24(2) must work together with s. 10(b) to ensure that the privilege against self-incrimination and the principle of adjudicative fairness are respected and protected in our criminal justice system.

Per La Forest J.: The breathalyser test should be excluded under s. 24(2) of the Charter, substantially for the reasons given by Lamer C.J., but with some observations about the distinction between conscriptive evidence and real evidence. That distinction is not always helpful; the terms are not mutually exclusive because evidence may well be both. Here the evidence was undoubtedly conscriptive (though by virtue of statute) but the argument that it is real evidence is also maintainable. Rather than relying on the foregoing distinction, it is more useful to examine whether the obtention of the evidence was related to the Charter breach.

Here, the breach of s. 10(b) deprived the accused of the possibility of making a choice about whether or not to take the test. The range of advice available to counsel in the particular circumstances was limited, but such advice may well have changed the option exercised by the accused. This inability to exercise a choice because of the failure of the police to comply with the duty set forth in Brydges was compelling. Though the case for excluding the evidence was by no means overwhelming, the repute of the administration of justice on the long term is better served by such exclusion, given the need to underline for the police the importance of complying with their duties in relation to the accused's right to counsel.

Per McLachlin J.: The exclusion of the impugned evidence under s. 24(2) of the Charter was in the best interests of the administration of justice.

Per L'Heureux-Dubé J. (dissenting): Even if there had been an infringement of s. 10(b), the breathalyser evidence and the appellant's statement should not be excluded under s. 24(2) of the Charter, since, on the basis of the test set out in R. v. Collins, the violation, had there been one, was not a serious one and the admission of the evidence would not bring the administration of justice into disrepute and render the trial unfair.

As regards the first set of factors under the Collins test, admission of the breathalyser results would not render the trial unfair. They are not self-incriminating evidence in the same sense as a confession. Rather, they are indicia of a physical condition which existed independently and which could in fact be observed by police officers and recorded by them. Police officers would have required the appellant to take the breathalyser test regardless of whether he spoke to them or to counsel as the breathalyser test is statutorily compellable under the Criminal Code.

With respect to the appellant's incriminating statement, even if it would not have been made but for the Charter breach, its admission would not seriously prejudice the appellant in that it presents evidence which was otherwise and independently available through the results of the breathalyser tests.

As regards the seriousness of the Charter violation, the evidence disclosed that the police had been acting in good faith. Consequently, the admission of the evidence is favoured by this second set of factors under the Collins test.

The final group of factors to consider under the Collins test concern the effect of the exclusion of the evidence on the administration of justice. Offences against s. 253(b) are extremely serious offences and this has been consistently recognized by this Court. Thus, when considered in conjunction with the fairness of the trial and the nature of the Charter violation, the seriousness of the offence demonstrates that it is the exclusion, rather than admission of the evidence, which would tend to bring the administration of justice into disrepute.

Per Gonthier J. (dissenting): In agreement with L'Heureux-Dubé J., the evidence should not have been excluded under s. 24(2) of the Charter.

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