R. v. Bain, [1992] 1 S.C.R. 91

The police arrested appellant for sexual assault and informed him of his rights to counsel and to silence. The appellant's father had been unable to retain a lawyer when appellant was taken into custody and was to call when he had retained one. The lawyer, who was retained shortly afterwards, telephoned the police. The police told him of the circumstances of the investigation and that the appellant would probably be released later that day; he in turn told the police officer not to take any statement from the appellant until he was present. Appellant testified that he asked the officer whether his father had called, that he was told that he had not and that he could contact his father later. The officer did not inform the appellant that his father had retained a lawyer or that the lawyer had telephoned. The police officers initiated an interrogation of the appellant. The admissibility of evidence--first, that allegedly given in the police car and, second, that given later during the interrogation conducted after a lawyer had been retained--was disputed. Only the former was admitted at trial.

Appellant was tried before a judge and jury. Following arraignment, but before the first prospective juror was asked to step forward, the court ruled, on a motion by appellant's counsel, that both the Crown and the defence each be limited to four peremptory challenges and that the Crown be denied the power to stand jurors by. The court noted the Crown's objection. The jurors were then selected with both the defence and the Crown exercising their four peremptory challenges.

The jury acquitted the appellant. The Court of Appeal, however, allowed the Crown's appeal and ordered a new trial. The appellant appealed as of right and two constitutional questions were stated: whether ss. 562 and 563 of the Criminal Code were inconsistent with s. 11(d) or s. 15 of the Canadian Charter of Rights and Freedoms and, if so, whether ss. 562 and/or 563 were justified by s. 1. Also at issue was whether the trial judge erred in excluding the statements made after the lawyer had been retained.

Held: The appeal should be allowed. Sections 563(1) and (2) of the Criminal Code were inconsistent with s. 11(d) of the Charter; this violation was not justified under s. 1.

Per Lamer C.J., La Forest and Cory JJ at 104.: The declaration of invalidity resolves all future problems. However in order to avoid a hiatus the declaration should be suspended for a period of six months. This will provide an opportunity to Parliament to remedy the situation if it considers it appropriate to do so.

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