R v Ross [1989] 1 S.C.R. 3: Accused informed of right to counsel - Accused unable to contact their respective lawyers in the middle of the night - Accused subsequently identified in a line-up - Whether accused's right to counsel infringed

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Constitutional law - Charter of Rights - Right to counsel - Accused informed of right to counsel - Accused unable to contact their respective lawyers in the middle of the night - Accused subsequently identified in a line-up - Whether accused given a reasonable and effective opportunity to retain and instruct counsel - Whether accused's right to counsel infringed -Whether accused waived right to counsel by refusing to call another lawyer or by participating in the line-up - 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 subsequently identified in a line-up - Whether line-up evidence should be excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms.

Evidence - Admissibility - Bringing administration of justice into disrepute - Accused's right to counsel infringed - Accused subsequently identified in a line-up - Whether line-up evidence should be excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms.

Appellants L and R were charged with breaking and entering and with theft. Upon their arrest in the middle of the night, they were informed of their right to counsel without delay. They tried to phone their respective counsel but received no answer. The police then asked L if he wanted to call another lawyer and he said "no". Shortly after, the appellants were identified in a line-up. Neither of the appellants were advised that they were under no obligation to participate in the line-up. At trial, appellants' counsel asked that the line-up evidence be excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms as having been obtained in a manner that infringed their right under s. 10(b) of the Charter and because the admission of this evidence in the proceedings would bring the administration of justice into disrepute. On a voir dire, the trial judge dismissed the application. The appellants were subsequently found guilty and the Court of Appeal dismissed their appeal from conviction. This appeal is to determine whether the appellants were given a reasonable and effective opportunity to retain and instruct counsel; and, if not, whether the line-up evidence obtained under the particular circumstances of this case should have been excluded under s. 24(2) of the Charter?

Held (McIntyre and L'Heureux-Dubé JJ. dissenting): The appeal should be allowed and a new trial ordered.

Per Beetz, Lamer, Wilson and La Forest JJ.: Section 10(b) of the Charter imposes at least two duties on the police in addition to the duty to inform detainees of their rights: first, the police must give the detainee who so wishes a reasonable opportunity to exercise the right to retain and instruct counsel without delay; second, 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. Both of these aspects of appellants' right to counsel were infringed here. It was highly unlikely that they would be able to contact their counsel outside the normal office hours and there was no urgency or other compelling reason justifying proceeding with the line-up so precipitously. Once a detainee has asserted his right to counsel, the police cannot, in any way, compel the detainee to make a decision or 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.

The fact that L did not want to call another lawyer cannot be viewed as a waiver of his right to retain counsel. He merely asserted his right to counsel and to counsel of his choice. Accused or detained persons have a right to choose their counsel and it is only if the lawyer chosen cannot be available in a reasonable delay that the detainee or the accused should be expected to call another lawyer. Once L asserted his right to instruct counsel, and absent a clear indication that he had changed his mind, it was unreasonable for the police to proceed as if he had waived his right to counsel. Appellants' participation in the line-up cannot by itself amount to a waiver of the right to counsel.

In this case, the admission of the line-up evidence would bring the administration of justice into disrepute and should have been excluded under s. 24(2) of the Charter. The use of any evidence that could not have been obtained but for the participation of the accused in the construction of the evidence for the purposes of the trial would tend to render the trial process unfair. It is true that, as a general matter, the identity of the accused is not evidence emanating from the accused, nor is it evidence that cannot be obtained but for the participation of the accused. However, the accused is participating in the construction of credible inculpating evidence when he participates in a line-up. Obviously, evidence of a line-up held without the accused is irrelevant to the Crown's case. The accused, therefore, does not participate in the creation of "real evidence" of identity, but does participate in the creation of credible line-up evidence. The use of such evidence goes to the fairness of the trial process. The nature of the Charter violation is also relevant given the seriousness of the breach of rights. The appellants clearly asserted their right to counsel and there was no urgency of any kind to explain the behaviour of the police. Nothing prevented holding the line-up later in the day. This was not a case of a good faith error in police conduct which resulted in an inadvertent denial of the right to counsel.

Per McIntyre and L'Heureux-Dubé JJ. (dissenting): The admission of the evidence of the identification line-up would not bring the administration of justice into disrepute. The fairness of the trial was not affected by the admission of the evidence. The identity of the appellants existed prior to the violation of the Charter, as did the perceptions of the witnesses to the crime. Such evidence comes into existence when an accused is seen committing the crime. The evidence cannot be considered as "emanating" from the appellants simply because it may later be used to establish the credibility of identification evidence. Evidence that could not have been obtained but for the participation of the appellants will not automatically render the trial process unfair.

Section 24(2) of the Charter does not automatically provide for the exclusion of evidence when it has been obtained following a breach of a Charter right. Evidence will only be excluded when: "it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute". Such an assessment must be made on a case by case basis. In this case, given the strength of the Crown's case and given that the line-up was carried out in a fair manner, it is difficult to see how the admission of the evidence could bring the administration of justice into disrepute.

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