R v Black [1989] 2 S.C.R. 138: Right to counsel -- Accused informed of her right to counsel upon arrest on a charge of attempted murder and exercising her right -- Charge later changed to first degree murder. Accused making inculpatory statement

Present: Lamer, Wilson, La Forest, L'Heureux-Dubé and Sopinka JJ.

ON APPEAL FROM THE NOVA SCOTIA SUPREME COURT, APPEAL DIVISION

Constitutional law -- Charter of Rights -- Right to counsel -- Accused informed of her right to counsel upon arrest on a charge of attempted murder and exercising her right -- Charge later changed to first degree murder -- Accused unable to contact her lawyer a second time and refusing to call another lawyer -- No urgency for interrogation -- Accused making inculpatory statement -- Evidence indicating accused intoxicated and emotionally distraught at the time of the statement -- Whether accused fully exercised her right to counsel -- Whether accused given a reasonable opportunity to retain and instruct counsel -- Whether accused waived her right to counsel -- Canadian Charter of Rights and Freedoms, s. 10(b).

Constitutional law -- Charter of Rights -- Admissibility of evidence -- Bringing administration of justice into disrepute -- Accused's right to counsel infringed -- Accused making inculpatory statement -- Derivative evidence obtained as a direct result of the statement -- Whether statement and derivative evidence should be excluded -- Canadian Charter of Rights and Freedoms, ss. 10(b), 24(2).

The accused was arrested for attempted murder following the stabbing of a neighbour. Upon arrest, she was given the standard police warning and informed of her right to counsel. On her arrival at the police station, she made a request to contact her lawyer and was given the opportunity to do so. The conversation between the accused and her lawyer was brief lasting less than a minute. Two hours later, she was informed that the victim had died and that she would now be charged with first degree murder. The accused became very emotional, screaming, crying and accusing the officers of lying to her. The officers managed to calm her down and gave her a second warning. She immediately requested to speak to her lawyer and refused to speak to another when she was unable to contact him in the middle of the night. After a call to one of her relatives, the accused began to converse with a police officer. The accused was concerned about one of her children and asked the officer whether she would be spending the weekend in jail. He answered in the affirmative. The officer then asked her about the location of the knife and to tell him the whole story. The accused gave a detailed inculpatory statement in writing. She was subsequently taken to a hospital and treated for her injuries. A blood sample was also taken from her and the analysis later revealed that the accused had a very high blood alcohol level. The police escorted the accused to her apartment after she had been treated. There, she pulled out a knife from a kitchen drawer and handed it over to the officers indicating to them that it was the murder weapon.

At the accused's trial for second degree murder, the trial judge excluded the statement pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms on the basis that the accused's right to retain and instruct counsel had been violated. For the same reason, he excluded all evidence surrounding the discovery of the knife. The accused was acquitted of murder and convicted of the lesser charge of manslaughter. The majority of the Court of Appeal allowed the Crown's appeal and ordered a new trial. The Court of Appeal felt that the police in this case had fulfilled their obligations and that the accused had waived her s. 10(b) Charter rights when she gave the statement.

Held: The appeal should be allowed.

(1) Section 10(b) and the Right to Counsel

The accused did not exhaust her rights to counsel when she briefly spoke with her lawyer in relation to the initial charge. The rights accruing to a person under s. 10(b) of the Charter arise because that person has been arrested or detained for a particular reason. An individual, therefore, can only exercise his s. 10(b) rights in a meaningful way if he knows the extent of his jeopardy. When the accused contacted her lawyer, she was under arrest for attempted murder. This is significantly different from a charge of first degree murder. Given the difference in the charges, to conclude that the advice from her counsel would inevitably have been the same is sheer conjecture. 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.

Section 10(b) imposes at least two duties on the police in addition to the duty to inform detainees of their rights. The first is that the police must give the accused or detained person who so wishes a reasonable opportunity to exercise the right to retain and instruct counsel without delay. The second is that the police must refrain from attempting to elicit evidence from the detainee until the detainee has had a reasonable opportunity to retain and instruct counsel. The accused, however, must be reasonably diligent in attempting to obtain counsel if he wishes to do so. Here, the accused was not given a reasonable opportunity to exercise her right to counsel prior to the giving of the inculpatory statement. Upon her arrival at the police station, she made a request to consult her lawyer and she did so again when she was informed of the change in the charge. Since she is entitled to consult with the lawyer of her choice, it was not unreasonable for her to refuse to try to contact another lawyer when, in the middle of the night, she was unable to reach her lawyer. The eight-hour delay until normal office hours was not so unreasonable as to warrant requiring the accused to choose another lawyer given the seriousness of the charge and the lack of urgency for the interrogation. Once a detainee asserts his right to counsel, the police cannot compel the detainee to make a decision or to participate in a process which could ultimately have an adverse effect in the conduct of an eventual trial until that person has had a reasonable opportunity to exercise that right. Consequently, the police officer breached the accused's s. 10(b) rights when he asked her about the whereabouts of the knife and when he asked her to tell him the whole story.

The accused did not implicitly waive her right to counsel by answering the police officer's questions. The evidence at trial indicates that, at the time she gave her statement, the accused was under the influence of alcohol, emotionally distraught and suffering from certain injuries which required medical attention. She never intended to waive her rights as she was obviously concerned throughout about her legal rights, both upon her arrival at the police station and upon being advised of the change in the charge. It is true that she was the one who initiated the conversation with the police officer, but the conversation she initiated related to the safety of the accused's child and whether she would have to spend the weekend in jail. It was the officer who turned the conversation back to the stabbing in an attempt to extract a confession.

(2) Section 24(2) and the Exclusion of Evidence

The accused's inculpatory statement was properly excluded by the trial judge under s. 24(2) of the Charter. The fairness of the trial would be adversely affected since the admission of the statement would infringe on the accused's right against self-incrimination, a right which could have been protected had the accused had an opportunity to consult counsel. Moreover, the breach of the accused's s. 10(b) rights was a serious one. The police officers continued to question the accused even though she had clearly requested an opportunity to consult her lawyer. Finally, the seriousness of the offence charged does not require the admission of the accused's statement. The mere fact that an accused is charged with a serious offence provides no justification for admitting the evidence where there has been a serious Charter violation and the admission of the evidence would affect the fundamental fairness of the trial.

With the exception of the knife, the evidence relating to the discovery of the knife was properly excluded by the trial judge under s. 24(2). The events leading up to the discovery of the knife were sufficiently tainted by the Charter violation to engage the exclusionary rule found in s. 24(2). First, this evidence was obtained in a manner that infringed the accused's s. 10(b) rights. The events which took place at the accused's apartment were sufficiently proximate to the Charter violation. Indeed, the knife is derivative evidence obtained as a direct result of a statement or other indication made by the accused. Its discovery is causally connected to the breach of the accused's s. 10(b) rights. This breach was ongoing from the time she was advised of the change in the charge. The police continued to seek and did obtain incriminating evidence from her despite the fact that she had asked to speak with her lawyer. She was under the control and supervision of the police throughout. The breach of the accused's s. 10(b) rights and the discovery of the knife, therefore, were inextricably linked and could be said to have occurred in the course of a single transaction. Second, the admission of the evidence relating to the accused's conduct in retrieving the knife, as well as any words she may have uttered, would bring the administration of justice into disrepute. Any evidence obtained, after a violation of the Charter, by conscripting the accused against himself through a confession or other evidence emanating from him would tend to render the trial process unfair.

The knife, however, should not have been excluded by the trial judge. The admission of real evidence will not usually bring the administration of justice into disrepute just because it was obtained as a result of a Charter breach. There is no doubt that the police would have conducted a search of the accused's apartment with or without her assistance and that such a search would have uncovered the knife. In this case there was no issue as to whether it was the accused who stabbed the victim. The only issue was whether the stabbing was an intentional act which the accused knew would kill the victim or cause her grievous bodily harm from which death could result. The admission of the knife itself would not in any way affect the jury's handling of this aspect of the case.

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