R. v. Burlingham [1995] 2 S.C.R. 206: Right to counsel -- Plea bargaining -- Interrogation continuing despite assertion of right to lawyer – Plea bargain made in absence of lawyer

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

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Constitutional law -- Charter of Rights -- Right to counsel -- Plea bargaining -- Interrogation continuing despite assertion of right to lawyer – Plea bargain made in absence of lawyer -- Deal involving accused's telling police where murder occurred and where to find murder weapon – Deal significantly affecting rights and ultimately misunderstood by accused -- Police leaving accused with understanding that he would be charged with second-degree murder with right to plead not guilty -- Crown's offer requiring accused to plead guilty to second-degree murder -- Accused telling third party of what he had told police -- Murder weapon admitted as real evidence and third party testifying as to what accused told her -- Whether breach of right to counsel -- If so, whether gun, evidence of third party and other derivative evidence should be excluded -- Canadian Charter of Rights and Freedoms, ss. 10(b), 24(2).

Criminal law -- Powers of court of appeal -- Evidence obtained in breach of constitutional right admitted at trial -- If wrongly admitted, whether curative provisions of Criminal Code applicable -- Criminal Code, R.S.C., 1985, c. C-46, s. 686(1)(b)(iii).

The appellant, who had been charged with one murder and was suspected in a second, was subjected to an intensive and often manipulative interrogation by the police. He was systematically questioned notwithstanding his stating repeatedly that he would not speak unless he could consult with his lawyer. The police interrogators also constantly denigrated the integrity of defence counsel.

The police offered the appellant a "deal": he would be charged with second degree murder if he provided the police with the location of the gun and other ancillary information related to that murder. When the appellant refused to accept the "deal" without consulting his lawyer, the officers continued to badger him about the reliability of his lawyer and informed him this "one-time" chance would be kept open only for the weekend -- the period when appellant's counsel was unavailable. The appellant eventually agreed, despite his being advised by another lawyer not to talk to the police, and fulfilled his part of the deal by giving police a full confession, bringing them to the murder site, and telling them where the murder weapon had been thrown. The appellant recounted the events of the day and the information he had given to the police to his girlfriend.

A misunderstanding arose as to the deal. The appellant understood that he would be allowed to plead not guilty to a charge of second degree murder whereas the Crown insisted that he would have to plead guilty to that charge. The trial judge found as a fact that the police officers had made an honest mistake.

The appellant was charged with first degree murder. At trial, the Crown sought to introduce all of the evidence obtained while the appellant had been under the misunderstanding that he was participating in a valid agreement. The trial judge found that appellant's right to counsel (s. 10(b) of the Canadian Charter of Rights and Freedoms) had been breached and held that appellant's confession, his disclosure of the location of the weapon and his directions and gestures to the police were inadmissible. He admitted the fact of finding the gun, the actual gun, testimony of a witness, testimony identifying the gun and the testimony of his girlfriend regarding the statements appellant made to her. The appellant was convicted of the first degree murder and the Court of Appeal affirmed that decision. At issue here is whether or not appellant was denied his right to counsel guaranteed by s. 10(b) of the Charter, and if so, what was the just and appropriate remedy under s. 24(2) of the Charter.

Held (L'Heureux-Dubé J. dissenting in part): The appeal should be allowed.

Per La Forest, Sopinka, Cory, Iacobucci and Major JJ.: The "deal" fundamentally changed the prosecution to involve a different offence and so brought the accused's right to counsel under s. 10(b) of the Charter into play. This right was denied in several ways. First, the police refused to hold off and continued to question him despite his repeated statements that he would say nothing without consulting his lawyer. Second, s. 10(b) specifically prohibits the police from belittling an accused's lawyer with the express goal or effect of undermining the accused's relationship with defence counsel. Third, the police acted improperly when they pressured the accused to accept the "deal" without first giving him the chance to consult his lawyer. Their duties were not discharged, given the seriousness of the offence and the context of general trickery, when they allowed the accused to consult a random lawyer.

Section 10(b) mandates the Crown or police, whenever offering a plea bargain, to tender that offer either to the accused's counsel or to the accused while in the presence of his or her counsel, unless the accused has expressly waived the right to counsel. It is a constitutional infringement to place such an offer directly to an accused, especially when the police coercively leave it open only for the short period of time during which they know defence counsel to be unavailable. Mere expediency or efficiency or the facilitating of the investigatory process was not enough to create an urgency sufficient to permit a s. 10(b) breach. To the extent that the plea bargain is an integral element of the Canadian criminal process, the Crown and its officers engaged in the plea bargaining process must act honourably and forthrightly.

These proceedings should not be stayed; stays should only be limited to the "clearest of cases".

Evidence obtained in a manner that infringes an accused's Charter rights, should be excluded under s. 24(2) if, having regard to all of the circumstances, its admission would bring the administration of justice into disrepute. Under the test in R. v. Collins, three categories of factors are to be considered: (1) those affecting the fairness of the trial; (2) those relating to the seriousness of the violation; and, (3) those relating to the effect on the reputation of the administration of justice of excluding the evidence. The impact of the evidence on the fairness of the trial was determined to be the most important consideration in triggering the Charter's exclusionary effect.

Self-incriminatory evidence obtained as a result of a Charter breach will generally go to the fairness of the trial and should generally be excluded. Trial unfairness strikes at the heart of the reputation of the administration of justice. That the evidence is classified as either real or conscriptive should not be of itself determinative.

Consideration of what evidence should be excluded should begin with that evidence most proximate to the Charter breach and then work towards evidence arising more remotely from it. More remote evidence might not be admitted if its admission would have the same effect as admitting the proximate evidence. Here, the contested evidence most proximate to the breach was the finding of the gun because the gun would not have been found but for the unconstitutional behaviour of the police. Appellant's statement voluntarily made to his girlfriend about directing the police to the location of the gun too was derivative evidence flowing from his confused state of mind stemming from the s. 10(b) violations and the critical decisions made in the absence of counsel. It was not mere windfall evidence for the Crown. Nothing would have been said had appellant not been improperly conscripted by the police to provide evidence against himself.

Evidence lying in close proximity with the Charter breach is excluded because it detracts from the integrity of the trial and thereby infringes both the principles of fairness and of reliability. Here, the Crown sought to introduce the statement at trial precisely because doing so allowed it to do indirectly what the trial judge had ruled it could not do directly: introduce evidence that the appellant knew where the gun was hidden. Excluding the gun while including the statements effectively eviscerates the Charter of most of its protective value to the accused in this case.

Where the impugned evidence flows from a violation of the s. 10(b) right to counsel, the Crown must demonstrate on a balance of probabilities that, regarding the unfairness of the trial component of the test under s. 24(2), the accused would not have consulted counsel even if properly advised. The Crown did not meet this burden here.

Given the serious nature of the Charter breach, the admission of the impugned evidence would bring the administration of justice into disrepute. The violation was wilful and flagrant and there was no element of urgency. The effect of excluding the evidence on the reputation of the administration of justice will be incidental and far outweighed by the negative consequences that would follow were this unconstitutional evidence to be included. The fact that the impugned evidence played only a minor role in the trial was irrelevant to a s. 24(2) analysis. The effect of evidence at the trial may be relevant in a consideration of the effects of excluding the evidence on the reputation of the administration of justice but no framework has been established to consider the effect of including the evidence. Such a framework should not be created here.

Section 686(1)(b)(iii) of the Criminal Code (the curative provision) should not be applied here because the admission of unconstitutionally obtained evidence at trial amounted to a "substantial wrong". There was a reasonable possibility that the impugned evidence could have weighed significantly in the conviction.

Per Sopinka, Cory, Iacobucci and Major JJ.: The reasons and conclusion of Iacobucci J. were agreed with. These reasons address L'Heureux-Dubé J.'s point that this Court has departed from R. v. Collins in favour of a rule of automatic exclusion.

Differing opinions exist among both commentators and the public as to the appropriate approach to the exclusion of evidence under s. 24(2) of the Charter.

With respect to the suggestion that this Court is out of step with public opinion, individual rights are not to be submitted to an adjudication by the majority.

Furthermore, there is no accurate assessment of public opinion. The test with respect to what could bring the administration of justice into disrepute is grounded in longer term community values rather than the public passion of the moment. These values are to be assessed in terms of the views of the hypothetical, reasonable, well-informed and dispassionate person in the community.

This Court's s. 24(2) jurisprudence, subsequent to Collins, has generally evolved with due respect for stare decisis but also with due regard for the fact that as an early comprehensive statement of principles, it did not purport to be exhaustive or immutable. The key words in that judgment, "conscripted against himself through a confession or other evidence emanating from him", necessitated further definition in subsequent cases. Whether it was ever so intended, it soon became apparent that real evidence and evidence emanating from the accused were not mutually exclusive categories. It is unfair for the Crown to make out its case in whole or in part by the use of evidence that it obtained in breach of the rights of the accused and involving his or her participation. The participation of the accused in providing incriminating evidence involving a breach of Charter rights is the ingredient that tends to render the trial unfair as he or she is not under any obligation to assist the Crown to secure a conviction. Serious breaches of the Charter which do not involve the participation of the accused may result in the exclusion of the evidence under the second branch of the Collins test.

The application of the Reliability and the Fairness Principles as suggested L'Heureux-Dubé J. does not constitute a return to Collins. Nowhere in Collins is the fairness of the trial equated with the reliability of the evidence. The description used in Collins as to the kind of evidence that could render a trial unfair was "a confession or other evidence emanating from him". Even the admissibility of a "confession" is not determined solely on the basis of reliability. Prior to the Charter and at common law, reliability ceased to be the exclusive basis for excluding confessions. The fairness of the trial was also a factor in the exclusion of involuntary confessions. The reliability principle would, therefore, impose a more restrictive exclusionary rule than that which existed at common law. Its preoccupation with the probative value of the evidence would also appear to be a close relative of the rule in R. v. Wray. This case was widely criticized, has not been followed by this Court and was not the basis for the exclusionary power adopted by the Charter in s. 24(2).

The first branch of the Collins test cannot be accurately characterized as an automatic rule of exclusion with respect to all self-incriminating evidence. While a finding that admission of illegally obtained evidence would render the trial unfair will result in exclusion, the court must first conclude that "in all the circumstances" the admission of the evidence would render the trial unfair.

The discoverability or "but for" test can be traced to Collins. While the Court has not decided the extent to which discoverability is relevant in all aspects of the Collins test, it has been applied to admit as well as to exclude evidence. The distinction made in Collins between real evidence and evidence emanating from the accused was based, at least in part, on the rationale that real evidence (or things) can be discovered without the participation of the accused. They pre-existed the state action which is called into question, and were there to be discovered by investigative means not involving the accused. Where this distinction is blurred, discoverability has been used to place the evidence in one or other of these two categories. If the evidence was discoverable without the participation of the accused, then it has the attributes of real evidence. Conversely, evidence that clearly emanates from the accused such as statements has not been subjected to the discoverability analysis.

The distinction between real and conscriptive evidence is thus not determinative and greater emphasis has been placed on the discoverability or "but for" test. The law relating to s. 24(2) should be developed on this basis rather than the new approach advocated by L'Heureux-Dubé J. This approach to date is more consistent with Collins, and therefore with stare decisis.

Per Gonthier J.: The reasons of L'Heureux-Dubé J., read together with the comments of Sopinka J., contribute to a proper understanding of the principles governing the exclusion of evidence under s. 24(2) of the Charter. Evidence of the accused's statement to his girlfriend, evidence of the gun and of its location, all of which were made possible by this statement, were to be excluded for its admission would tend to bring the administration of justice into disrepute in the eyes of a reasonable person, dispassionate and fully apprised of the circumstances. The statement was intimately connected to that deal which was obtained through the highly egregious conduct of the police officers in pressing the accused to confess and in systematically undermining the role of defence counsel. This conduct was a Charter violation of the most serious kind, bringing into play both the Reliability and the Fairness Principles referred to by L'Heureux-Dubé J., although other evidence served to allay concern as to reliability. The curative provisions of s. 686(1)(b)(iii) of the Criminal Code should not be applied.

Per L'Heureux-Dubé J. (dissenting in part): The police conduct constituted a serious violation of the s. 10(b) Charter right to counsel. The Crown or police, when offering a plea bargain, must tender the offer to either the accused's counsel or the accused while in the presence of his or her counsel, unless the accused has expressly waived the right to counsel.

Certain of the evidence derived from the Charter breach need not be excluded under s. 24(2) of the Charter. Section 24(2) is not to be apprised according to the views of the reasonable lawyer, but simply according to the reasonable person, dispassionate and fully informed of the circumstances. Under s. 24(2), a court's duty to preserve the integrity and repute of the judicial system in the eyes of the Canadian community must prevail if in conflict with its more general duty under the Charter to vindicate the rights guaranteed therein. There is some evidence to suggest that a material gap has developed between the views of the community and those of the Court with respect to the exclusion of unconstitutionally obtained evidence. In particular, this is attributable to the broad interpretation that this Court has given to the term "trial fairness" in the first branch of the Collins test, and the virtually absolute exclusionary consequences that follow from a finding of "trial unfairness". This approach to "trial fairness" is inconsistent with the first principles laid down by this Court in Collins and with the courts' obligation under s. 24(2) to adjudicate upon the exclusion of the impugned evidence "having regard to all the circumstances". The nature of the evidence (real or self-incriminatory, or discoverable or undiscoverable) should not be determinative of "trial fairness", and therefore of almost automatic exclusion. "Trial fairness" should not be so broadly defined as to allow the "trial fairness" tail to wag the s. 24(2) dog.

At the time that s. 24(2) was enacted, the common law in Canada was in the process of recognizing two different bases for the exclusion of evidence. The first was reliability. The second was the integrity of the justice system. This constituted the legal context in which s. 24(2) was enacted, and against which the approach to s. 24(2) in Collins was elaborated. Two fundamental principles are identified as flowing from the common law and the Charter, and as underlying the Court's approach to s. 24(2). The first, the Reliability Principle, is engaged whenever anything done by the authorities casts some doubt as to the accused's having been induced to make a possibly unreliable statement. In such circumstances, there may be a concern that the trier of fact could be misled, or an innocent person convicted, as a result of the authorities' activities. These circumstances potentially affect the fairness of the actual adjudicative process, and therefore relate to the first set of factors to be considered under Collins. The admission of evidence whose reliability may be suspect as a result of state activity would almost inevitably bring the administration of justice into disrepute. The second principle is the Fairness Principle. This principle is engaged whenever the state uses methods to advance its case against an accused in a manner that undermines values that are fundamental to a free and democratic society. Judicial condonation of acts that violate this principle undermine the integrity of the justice system, and could bring the administration of justice into disrepute. Thus, where the objection to the admission of unconstitutionally obtained evidence is not so much that it could mislead a trier of fact but pertains rather to the manner in which the evidence was obtained, this objection relates to the Fairness Principle. All considerations relating to the Fairness Principle are better considered within the rubric of the second branch of the Collins test: the impact of the seriousness of the rights violation on the reputation of the justice system. Analysis under this branch of Collins must be undertaken "having regard to all of the circumstances". Whether or not the evidence could have been discovered "but for" the rights violation is a serious, albeit not determinative, consideration within this set of factors. Finally, under the third branch of the Collins test, courts must ensure that there is a sense of proportionality between the competing interests and effects at issue in the s. 24(2) determination.

In this case, the "proximate connection" between the s. 10(b) violation and the accused's voluntary statement to his girlfriend is sufficient to bring that statement within the purview of a s. 24(2) examination. The mere fact that the statement is proximately connected to the rights violation or may not have been made but for the violation does not, however, inevitably lead to the conclusion that it must be excluded since its admission would render the trial unfair. Although the accused was incarcerated at the time, the statement was freely and voluntarily made with no element of state compulsion to taint it with the possibility of unreliability, and therefore with the possibility of unfairness to the trial.

Turning to the impact of the seriousness of the rights violation on the reputation of the justice system, it is noted that the direct and intended fruits of the officers' unconstitutional conduct were properly excluded by the trial judge. The voluntary statement to a third party was, however, an evidentiary windfall, and its admission is therefore less likely to bring the administration of justice into disrepute over the long term. Admittedly, if this statement would not otherwise have been made by the accused, then it could affect the integrity of the judicial system to admit such a statement at trial. This consideration is not, of itself, determinative of the question of exclusion. In this case, having regard to the seriousness of the offence and the fact that it was incidental to the officer's unconstitutional conduct, the exclusion of this reliable evidence would bring the administration of justice into greater disrepute than its inclusion.

The impugned statement tends to connect the accused more closely with the crime, and could give rise to an inference of consciousness of guilt. That its admission may create a danger that the trier of fact will be misled does not relate to "trial fairness" in any way that is relevant to s. 24(2). Trial fairness will only be connected to the rights violation, and therefore subject to special scrutiny under the first branch of the Collins analysis, when there is some possibility that the evidence is unreliable or otherwise likely to lead to the conviction of an innocent person, and when this unreliability is somehow attributable to the state's unconstitutional conduct. Such was not the case here. Under the circumstances, there was no reasonable possibility of unreliability in the statement. If there is nonetheless a possibility that the statement is prejudicial in the evidentiary sense, in that it could mislead a trier of fact by causing it to follow an inappropriate chain of logic, then that problem must be addressed within the context of the traditional balancing test which inquires into whether the probative value of the evidence outweighs its prejudicial effect. Since the voluntary statement to the third party was admissible under s. 24(2) of the Charter, the admission of the gun and the fact of finding the gun would not bring the administration of justice into disrepute.

Section 24(2) of the Charter and the curative provision of the Criminal Code, s. 686(1)(b)(iii), are not co-extensive. First, s. 686(1)(b)(iii) only requires that the appellate court consider the particular circumstances before it, whereas s. 24(2) involves long-term considerations in any determination made as to admissibility.

Second, the French version of s. 24(2), on which the Collins framework is based, requires that evidence be excluded "if its admission could bring the administration of justice into disrepute". A conclusion that the administration of justice could be brought into disrepute by the admission of certain evidence does not necessarily mean that its admission led to a "substantial wrong" or "miscarriage of justice". Third, the two provisions further different objectives and so have different focuses. The primary purpose of s. 24(2), which focuses on whether the inclusion or exclusion of evidence obtained in violation of the Charter would bring the administration of justice into further disrepute, is protection of the integrity of the judicial system. By contrast, the primary purpose of s. 686(1)(b)(iii), which focuses on the outcome of the particular proceedings, is to enable appellate courts to feel unhindered in clarifying errors of law committed by the trial judge. It reflects a careful balancing of collective interests in the effective and efficient conclusion of litigation against the right of the individual accused to a full and fair trial.

Given the strength of the Crown's case, the curative provisions of s. 686(1)(b)(iii) could be properly invoked notwithstanding a finding that evidence should have been excluded under s. 24(2). Moreover, the trial judge warned the jury as to the limited probative value of both the gun and the impugned statement. There is no reasonable possibility that the verdict would have been different had the impugned evidence been excluded under s. 24(2) of the Charter. A stay of proceedings was not appropriate because the conduct of the authorities, while contemptible, did not amount to one of the "clearest of cases" of abuse of process. The Crown, however, did act with male fides by charging the accused with first degree murder notwithstanding the fact that the Crown was aware that the police had misled the accused and that he had fulfilled his half of the bargain in full reliance of the deal offered by the police. This conduct violates basic principles of decency and fair play. The principle of fundamental fairness under s. 7 of the Charter was therefore breached. It would be appropriate and just under s. 24(1) of the Charter to require the Crown to uphold its half of the "deal"; a conviction for the lesser included offence of second degree murder should be substituted for the present conviction of first degree murder.

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