R. v. Latimer [1997] 1 S.C.R. 217 Detention or imprisonment - de facto arrest - Whether accused's detention arbitrary. Right to be informed of reasons for detention. Right to counsel.

1996: November 27; 1997: February 6.
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 SASKATCHEWAN

Constitutional law - Charter of Rights - Detention or imprisonment - Accused detained for questioning by police following death of his severely disabled daughter - Whether accused under de facto arrest - Whether accused's detention arbitrary - Canadian Charter of Rights and Freedoms, s. 9.
Constitutional law - Charter of Rights - Right to be informed of reasons for detention - Accused detained for questioning by police following death of his severely disabled daughter - Whether failure to inform accused that he had been "arrested" and could be charged with murder infringed his right to be informed of reasons for detention - Canadian Charter of Rights and Freedoms, s. 10(a).
Constitutional law - Charter of Rights - Right to counsel - Accused detained for questioning by police following death of his severely disabled daughter - Whether police adequately informed accused of means to access available duty counsel services - Canadian Charter of Rights and Freedoms, s. 10(b).
Criminal law - Trial - Jury - Accused convicted of second degree murder after confessing to killing his severely disabled daughter - Whether Crown counsel's interference with prospective jurors warrants new trial.

The accused was the father of T, a severely disabled child who suffered from extreme cerebral palsy and was quadriplegic. As a result of her physical condition, T was largely immobile and bedridden, and was physically unable to take care of herself. Her family provided her with constant care. T was in constant pain, and despite the administration of medication, experienced five or six seizures a day. T died while in the care of the accused, who advised the RCMP by telephone that she had passed away in her sleep. An autopsy found signs consistent with poisoning, and tests then indicated that T's blood was saturated with carbon monoxide. The RCMP began to treat the matter as a homicide investigation. Two officers went to the accused's farm, where one of them told the accused that what he was about to say had "very serious consequences". The accused was told that he was being detained for investigation into the death of his daughter. He was informed of his right to retain and instruct counsel without delay, of the availability of Legal Aid duty counsel, and of his right to remain silent. The accused was then taken to the police station, where he was interviewed after being again warned that this was a serious matter and reminded of his right to counsel and to remain silent. There was a phone sitting in front of him, with a telephone number on it for Legal Aid. The accused made a full confession. After receiving a further reminder about the right to counsel and the right to silence, the accused then made a written statement. That afternoon, the accused returned with the officers to his farm, where he pointed out the equipment he claimed to have used to end his daughter's life. The tour of the farm was videotaped. During his trial by jury, the accused alleged that he had not been properly informed of the availability of Legal Aid duty counsel in the manner mandated in this Court's judgment in Bartle, which he argued entitled him to be advised of a toll-free number by which free legal advice could be accessed, irrespective of financial need. The trial judge found that the accused was adequately informed of his right to counsel. The accused was convicted of second degree murder and given the mandatory sentence of life imprisonment without eligibility for parole for ten years. The Court of Appeal dismissed his appeal.

Subsequent to the Court of Appeal's judgment, the parties jointly adduced fresh evidence before this Court which demonstrates that Crown counsel at trial had interfered with the jury. The affidavit indicates that trial counsel for the Crown and an RCMP officer prepared a questionnaire asking prospective jurors for their views on a number of issues. This questionnaire was administered by RCMP officers to 30 of the 198 prospective jurors and also led to some unrecorded discussions with prospective jurors, which went beyond the exact questions posed in the questionnaire. At no time did Crown counsel at trial disclose the direct contact with prospective jurors to the trial judge, the defence, or the Sheriff. Of the 30 prospective jurors who were administered the questionnaire, five served on the jury which convicted the accused.

Held: The appeal should be allowed and a new trial ordered.

The accused's detention was not arbitrary. Notwithstanding what their intention may have been, the RCMP officers who attended at the farm put the accused under de facto arrest. A de facto arrest occurred through the use of words that conveyed clearly that the accused was under arrest, the conduct of the officers, and the accused's submission to the officers' authority. Moreover, on the facts of this case, that de facto arrest was entirely lawful because it was based on reasonable and probable grounds that the accused had taken his daughter's life. Those grounds included the carbon monoxide in T's blood, strongly suggesting that she had been poisoned; the fact that it was extremely unlikely that T's death had been accidental; the fact that, because of T's physical condition, her death could not have been suicide; and the fact that the accused had both opportunity and motive. A de facto arrest which is lawful cannot be an arbitrary detention for the purposes of s. 9.

The failure to inform the accused that he had been "arrested" and that he could be charged with murder does not violate s. 10(a) of the Charter. The purpose of the section, which provides the right to be informed promptly of the reasons for one's arrest or detention, is to ensure that a person understands generally the jeopardy in which he or she finds himself or herself. The Charter lays down this requirement for two reasons: first, because it would be a gross interference with individual liberty for persons to have to submit to arrest without knowing the reasons for that arrest, and second, because it would be difficult to exercise the right to counsel protected by s. 10(b) in a meaningful way if one were not aware of the extent of one's jeopardy. On the facts of this case, the trial judge was right in finding that the accused understood the basis for his apprehension by the police and hence the extent of his jeopardy. He knew that his daughter had died, and that he was being detained for investigation into that death. The arresting constable prefaced his comments by stating that what he was about to say had very serious consequences. The accused was informed of the right to counsel and the right to silence, and was told he could not go into his own house by himself to change his clothes. It is clear that the accused knew that he was in an extremely grave situation as regards his daughter's death, and that s. 10(a) cannot be said to have been violated.

The RCMP officers adequately informed the accused of the means to access available duty counsel services as is required by s. 10(b) of the Charter, as interpreted in Bartle. Bartle stands for the proposition that s. 10(b) encompasses the right to be informed of the means to access those duty counsel services which are available at the time of arrest. According to the evidence before this Court, toll-free access to duty counsel in Saskatchewan was offered only outside normal office hours. Since the accused was arrested during normal office hours, no toll-free service was available to him, and the RCMP therefore did not breach the informational component of s. 10(b) by failing to inform the accused of the existence of a toll-free number. Furthermore, the information that was provided to the accused adequately apprised him of the means to contact the duty counsel service which was available at the local Legal Aid Office. The accused was informed of that duty counsel service on two occasions - when he was arrested at his farm, and before the commencement of his interview at the police station. While on neither occasion did the arresting officers verbally give the accused the phone number for the local Legal Aid Office, s. 10(b) did not require them to take that extra step, in the circumstances of this case. Where an individual is detained during regular business hours, and when legal assistance is available through a local telephone number which can easily be found by the person in question, neither the letter nor the spirit of Bartle is breached simply by not providing that individual with the local phone number.

The actions of Crown counsel in interfering with prospective jurors were nothing short of a flagrant abuse of process and interference with the administration of justice. Given the interference with the jury, a new trial must be ordered, as conceded by the Crown.

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