R. v. Jones [1994] 2 S.C.R. 229: Right against self-incrimination -- Defence counsel requesting psychiatric assessment to determine whether accused mentally ill -- Trial judge finding accused to be dangerous offender on basis of pre-trial psychiatric assessments -- Whether admission in evidence of results of pre-trial psychiatric examinations violated accused's right against self-incrimination

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 BRITISH COLUMBIA

Criminal law -- Dangerous offenders -- Sexual offences -- Defence counsel requesting psychiatric assessment to determine whether accused mentally ill -- Accused later pleading guilty to sexual assault -- Trial judge finding accused to be dangerous offender on basis of pre-trial psychiatric assessments -- Whether admission in evidence of results of pre-trial psychiatric examinations violated accused's right against self-incrimination -- Criminal Code, R.S.C., 1985, c. C-46, ss. 537(1)(b), 755.

Constitutional law -- Charter of Rights -- Fundamental justice -- Right against self-incrimination -- Defence counsel requesting psychiatric assessment to determine whether accused mentally ill -- Accused later pleading guilty to sexual assault -- Trial judge finding accused to be dangerous offender on basis of pre-trial psychiatric assessments -- Whether admission in evidence of results of pre-trial psychiatric examinations violated accused's right against self-incrimination -- Canadian Charter of Rights and Freedoms, s. 7.

Constitutional law -- Charter of Rights -- Right to counsel -- Defence counsel requesting psychiatric assessment to determine whether accused mentally ill -- Accused later pleading guilty to sexual assault -- Trial judge finding accused to be dangerous offender on basis of pre-trial psychiatric assessments -- Whether accused's right to counsel violated when he was not advised that psychiatric investigation could include observations with respect to his future dangerousness -- Canadian Charter of Rights and Freedoms, s. 10(b).

The accused was convicted of rape, gross indecency and attempted rape of three girls in 1982 and was sentenced to five years' imprisonment. In 1986, while on parole, he was charged with three counts of sexual assault with a weapon and three counts of unlawful confinement. His counsel obtained an order under s. 537(1)(b) of the Criminal Code remanding the accused into custody for observation to assess his mental state. The accused was examined by two psychiatrists and one psychologist. He was warned that whatever he told the psychiatrists could be used against him and might be included in a report to the court. He was not specifically told, however, that what he said on the examination could be used to assist in determining whether he was a dangerous offender. One psychiatrist told the accused that he had the right to refuse to answer questions and had the right to consult counsel prior to answering any questions. The accused pleaded guilty to one count each of sexual assault and sexual assault with a weapon. During the dangerous offender proceedings that followed, the trial judge held a voir dire to determine the admissibility of evidence from the two psychiatrists and the psychologist. He rejected defence counsel's argument that admitting the evidence would violate the accused's rights under s. 7 of the Canadian Charter of Rights and Freedoms. He declared the accused to be a dangerous offender and gave him an indeterminate sentence. The Court of Appeal upheld the decision.

Held (Lamer C.J. and Sopinka, Cory and Major JJ. dissenting): The appeal should be dismissed.

Per La Forest, L'Heureux-Dubé, Gonthier, McLachlin and Iacobucci JJ.: Where there is psychiatric evidence legally obtained pursuant to an order under s. 537(1)(b) of the Code relevant to assessing the extent of an offender's dangerousness, it should be admitted at the sentencing stage. The results of the psychiatric observation are not used to "incriminate" the accused at his dangerous offender proceedings, since he has already been found guilty of the offence with which he was charged. Once guilt has been established, the court places greater emphasis on the interests of society in developing a sentence that is appropriate to the guilty party. As with all sentencing, both the public interest in safety and the general sentencing interest of developing the most appropriate penalty for the particular offender dictate the greatest possible range of information on which to make an accurate evaluation of the danger posed by the offender. Dangerous offender sentencing allows the justice system to tailor more precisely the actual time served by the offender to the threat that he poses to society. The overriding aim is not the punishment of the offender but the prevention of future violence through the imposition of an indeterminate sentence. An indeterminate sentence is not an unlimited sentence: the offender faces incarceration only for the period of time that he poses a serious risk to the safety of society. To deny the court access to the earlier findings of the psychiatrists may hinder the effective determination of the true risk posed by the offender. While it is true that under s. 756 the court may remand the offender for observation for the purposes of gathering evidence on his dangerous offender status, the offender may attempt to hide elements of his character or refuse to answer the psychiatrists' questions. As a result, there is a real danger that evidence from the pre-trial psychiatric evaluation which is excluded may not surface in the post-trial phase. While such an exclusion may be acceptable while the guilt of the accused is in question, it cannot be justified after his guilt has been established.

The accused's rights under s. 10(b) of the Charter were not violated during the psychiatric examinations. Dangerous offender proceedings are part of the sentencing process, and it is the duty of counsel to make an accused aware of the possible sentence he will be facing as a result of being found guilty of a particular crime. Given the accused's past record, counsel should have been aware that dangerous offender proceedings would likely be pursued by the Crown. The accused requested the tests and was made aware that his statements could be used against him. This general warning was sufficient. Further, the accused was not entitled to a second opportunity to exercise his right to counsel.
Given that the examinations of the accused were designed to provide an assessment of his mental health, they fell within the parameters of the s. 537(1)(b) order made by the trial judge. The evidence so obtained is covered by s. 755 and must be heard by the court on the dangerous offender application if, in the opinion of the court, it is relevant. It is admissible under the Charter and there is no basis for reading down s. 755.

Per Lamer C.J. and Sopinka, Cory and Major JJ. (dissenting): Section 7 of the Charter is engaged in this case because of the serious limitation of liberty inherent in dangerous offender proceedings. This Court has recognized implicitly that the principle against self-incrimination is a principle of fundamental justice. The word "incriminate" in this context need not be equated with "tending to prove guilt of a criminal offence". Even if dangerous offender proceedings are characterized as part of the sentencing process rather than as a separate proceeding with new penal consequences, the operation of the principle against self-incrimination is by no means excluded.

Under s. 755 of the Code, in dangerous offender proceedings "the court shall hear the evidence of at least two psychiatrists and all other evidence that, in its opinion, is relevant". A broad interpretation of this section allows evidence gathered from the accused during psychiatric observation ordered to determine if the accused is or was mentally ill to be used for the purposes of dangerous offender proceedings. This allows for self-incrimination and is thus not in accordance with the principles of fundamental justice. It is irrelevant that the accused in this case requested the order remanding him into custody for observation. The accused requested the order for purposes other than a dangerous offender proceeding. Furthermore, s. 537 does not require the consent of the accused and therefore an order can be made under this section for observation against the wishes of the accused. This is sufficient to constitute a limit on the s. 7 right to liberty.

The limitation on the right to liberty arising on a broad interpretation of s. 755 is not justified under s. 1 of the Charter. While the objective of s. 755, which is to protect society from dangerous offenders, is a pressing and substantial concern in our society and is of sufficient importance to warrant limiting a constitutionally protected right or freedom, the means chosen to achieve this objective are unfair in the present case. In order to benefit from the protection afforded by the principles of fundamental justice to the mentally ill against committal or an unfair trial, the accused should not be forced into incriminating him or herself for dangerous offender proceedings. There is also more than minimal impairment of s. 7 here, since observation may be ordered under s. 756 of the Code, which has safeguards for the offender and therefore impairs the s. 7 rights less than s. 537(1)(b). A remand order under s. 756 can only be made once the offender has been convicted, whereas a remand order under s. 537(1)(b) can be made before conviction. The presumption of constitutionality approach to statutory interpretation dictates that s. 755 not be read as rendering evidence gathered during psychiatric observation ordered under s. 537(1)(b) admissible at dangerous offender proceedings.

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