Keith A. Joyce

The Crown appealed a Court of Appeal decision that had excluded a murder confession and ordered a new trial after finding multiple Charter breaches.

Police executed a search warrant at the respondent's home, transported him to the police station and interviewed him for over three hours without advising him of his right to counsel.

Three weeks later, after arrest and a brief Legal Aid consultation, the respondent asked mid-interview to call his father to obtain legal counsel; police refused and he subsequently confessed.

The majority held the respondent was psychologically detained on the day of the warrant execution contrary to s. 10(b), and that police committed a further s. 10(b) breach by refusing a second consultation when there was objective reason to question whether the initial Legal Aid advice had been understood.

The majority further held that admission of the evidence would bring the administration of justice into disrepute under s. 24(2) given the seriousness of the breaches and their significant impact on the respondent's Charter-protected interests, particularly in light of his youth, Indigenous background, and minimal prior exposure to the police.

The appellant was convicted of sexual assault after the trial judge dismissed his application under s. 276.1 of the Criminal Code to cross-examine the complainant on prior sexual activity.

The Alberta Court of Appeal found that the trial judge erred in dismissing that application, but the majority applied the curative proviso under s. 686(1)(b) to affirm the conviction, while the dissenting judge would have ordered the complainant's evidence supplemented.

On further appeal, the Supreme Court of Canada unanimously held that the trial judge's error did not lead to a miscarriage of justice and fell within the curative proviso, as the remaining evidence was otherwise overwhelming and a conviction was inevitable.

The Court also expressly declined to endorse the majority's application of s. 683(1), a remedy neither party had sought before the Court of Appeal and which all parties before the Supreme Court urged it to reject.