Regina v. Sweeney [Indexed as: R. v. Sweeney]

50 O.R. (3d) 321

[2000] O.J. No. 3534

Docket No. C31452

Court of Appeal for Ontario

Abella, Rosenberg and MacPherson JJ.A.

September 25, 2000

Criminal law -- Appeal -- First time on appeal -- Accused at trial arguing statement involuntary but not alleging breach of Charter rights -- Accused seeking on appeal to rely on breach of s. 7 of Charter and seeking exclusion of statement based on s. 24(2) -- Accused argued admissibility of statement at trial and complete factual record available to appellate court -- Accused's failure to raise Charter argument at trial not tactical choice -- Appropriate to exercise discretion to permit accused to raise new issue on appeal.

Criminal law -- Evidence -- Common law rule in St. Lawrence permitting portions of involuntary statements to be admitted into evidence when confirmed by real evidence -- Police executing search warrant after accused's statement -- Real evidence obtained during search confirming truth of statement -- Trial judge relying on St. Lawrence to admit statement -- Accused successfully arguing on appeal that obtaining statement involuntarily violated s. 7 of Charter -- Common law rule in St. Lawrence modified to give trial judge discretion to exclude involuntary confession notwithstanding its confirmation by real evidence -- Appeal allowed -- Canadian Charter of Rights and Freedoms, ss. 7, 24(2).

Charter of Rights and Freedoms -- Fundamental justice -- Statements -- Admissibility of involuntarily obtained statement confirmed by subsequently obtained real evidence pursuant to common law rule in St. Lawrence -- Accused arguing successfully on appeal that obtaining statement involuntarily violated s. 7 of Charter -- Common law rule in St. Lawrence modified to give trial judge discretion to exclude involuntary statement notwithstanding its confirmation by real evidence -- Canadian Charter of Rights and Freedoms, ss. 7, 24(2).

Charter of Rights and Freedoms -- Remedies -- Exclusion of evidence -- Statements -- Admissibility of involuntarily obtained statement confirmed by subsequently obtained real evidence pursuant to common law rule in St. Lawrence -- Obtaining statement involuntarily violated accused's s. 7 rights under Charter -- Common law rule in St. Lawrence modified to give trial judge discretion to exclude involuntary statement notwithstanding its confirmation by real evidence -- Canadian Charter of Rights and Freedoms, ss. 7, 24(2).

The accused was charged with robbery, assault with a weapon, possession of a weapon for a purpose dangerous to the public peace and possession of a restricted weapon. The police had prepared a warrant to search the accused's family's home. A police officer told the accused that the police would "trash" his mother's home if he did not tell them where the weapon was located. The accused told the officer that the weapon was in a box in his mother's closet and drew a diagram. The police executed the warrant and found the weapon in the location indicated on the diagram. The trial judge held that the accused's statements to the police officer were induced and involuntary, but admissible on the authority of the rule in R. v. St. Lawrence, which provides that, where the discovery of some fact confirms the truth of an involuntary confession, the part of the confession that is confirmed by the discovery of the fact is admissible. The accused was convicted. He appealed, arguing that taking a statement in cir cumstances that would render it involuntary at common law constitutes a violation of s. 7 of the Canadian Charter of Rights and Freedoms, that the statement should be excluded under s. 24(2) of the Charter, and that the St. Lawrence rule is inconsistent with the Charter. The accused did not contest the admissibility of the items located during the search as they would have inevitably been discovered regardless of the breach of his rights.

Held, the appeal should be allowed.

The accused was not objecting to the admissibility of the evidence for the first time on appeal. The Crown was not prejudiced by any lack of opportunity to respond at trial or adduce evidence. Since the application of s. 7 of the Charter turned on the question of the voluntariness of the statements, an issue fully canvassed at trial, there was a sufficient record upon which to make the necessary findings. Raising the voluntariness issue under the rubric of s. 7 of the Charter was not a new strategy raising concerns about finality or uncertainty. This was an appropriate case for the exercise of discretion to permit the accused to raise a new issue on appeal. Therefore, the accused was not precluded from arguing that his statements should have been excluded at trial through the combined operation of ss. 7 and 24(2) of the Charter.

Section 7 of the Charter includes the common law voluntariness rule. If a statement were obtained under circumstances that would render it involuntary at common law, the accused's rights under s. 7 of the Charter would be violated. Whether the confession or any evidence obtained as a result of the confession would be inadmissible would depend upon the application of s. 24(2) of the Charter. In this case, the accused's s. 7 rights were violated because of the police conduct in obtaining a confession through threats or promises. The statements were inadmissible under s. 24(2) of the Charter as they were conscriptive evidence, the admission of which would affect the fairness of the trial.

The St. Lawrence rule is a product of a time when reliability was considered the sole rationale for the confession rule and when a trial judge had no residual discretion to exclude evidence because of the manner in which it was obtained. All of this has been overtaken by constitutional and judicial developments. More recent jurisprudence, especially since the advent of the Charter, has recognized that concern for the fundamental principles of fairness, in particular, the principle against self-incrimination, now forms an integral part of the law governing when statements will be admitted into evidence. It is not open to the Court of Appeal to, in effect, overrule the Supreme Court of Canada and hold that the St. Lawrence rule cannot be applied under any circumstances. However, the rule must be modified to give a judge discretion to exclude an involuntary confession notwithstanding later confirmation by the finding of real evidence. The rationale for the rule has been so undermined that it would only be in highly exceptional circumstances that the trial judge would be entitled to admit the confession.

No exceptional circumstances existed in this case that would justify admission of the involuntary confession.

APPEAL from a conviction for robbery, assault with a weapon, possession of a weapon for a purpose dangerous to public peace and possession of a restricted weapon.

R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151, 47 B.C.L.R. (2d) 1, 110 N.R. 1, [1990] 5 W.W.R. 1, 49 C.R.R. 114, 57 C.C.C. (3d) 1, 77 C.R. (3d) 145; R. v. Jones, 1994 85 (SCC), [1994] 2 S.C.R. 229, 114 D.L.R. (4th) 645, 21 C.R.R. (2d) 286, 89 C.C.C. (3d) 353, 30 C.R. (4th) 1; R. v. Stillman, 1997 384 (SCC), [1997] 1 S.C.R. 607, 185 N.B.R. (2d) 1, 144 D.L.R. (4th) 193, 209 N.R. 81, 472 A.P.R. 1, 42 C.R.R. (2d) 189, 113 C.C.C. (3d) 321, 5 C.R. (5th) 1; R. v. Whittle, 1994 55 (SCC), [1994] 2 S.C.R. 914, 116 D.L.R. (4th) 416, 170 N.R. 16, 23 C.R.R. (2d) 6, 92 C.C.C. (3d) 11, 32 C.R. (4th) 1, apld R. v. St. Lawrence, 1949 100 (ON SC), [1949] O.R. 215, 93 C.C.C. 376, 7 C.R. 464 (H.C.J.); R. v. Wray, 1970 2 (SCC), [1971] S.C.R. 272, 11 D.L.R. (3d) 673, [1970] 4 C.C.C. 1, 11 C.R.N.S. 235, revg 1969 37 (ON CA), [1970] 2 O.R. 3, [1970] 3 C.C.C. 122, 9 C.R.N.S. 131 (C.A.), consd Other cases referred to R. v. Calder, 1996 232 (SCC), [1996] 1 S.C.R. 660, 27 O.R. (3d) 258n, 132 D.L.R. (4th) 577, 194 N.R. 52, 34 C.R.R. (2d) 189, 105 C.C.C. (3d) 1, 46 C.R. (4th) 133; R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, 13 B.C.L.R. (2d) 1, 38 D.L.R. (4th) 508, 74 N.R. 276, [1987] 3 W.W.R. 699, 28 C.R.R. 122, 33 C.C.C. (3d) 1, 56 C.R. (3d) 193; R. v. G. (B.), 1999 690 (SCC), [1999] 2 S.C.R. 475, 174 D.L.R. (4th) 301, 240 N.R. 260, 63 C.R.R. (2d) 272, 135 C.C.C. (3d) 303, 24 C.R. (5th) 266; R. v. Harper, 1994 68 (SCC), [1994] 3 S.C.R. 343, 97 Man. R. (2d) 1, 118 D.L.R. (4th) 312, 172 N.R. 91, 79 W.A.C. 1, 23 C.R.R. (2d) 291, 92 C.C.C. (3d) 423, 33 C.R. (4th) 61, 6 M.V.R. (3d) 138; R. v. Harrer, 1995 70 (SCC), [1995] 3 S.C.R. 562, 128 D.L.R. (4th) 98, 186 N.R. 329, 32 C.R.R. (2d) 273, 101 C.C.C. (3d) 193, 42 C.R. (4th) 269; R. v. Hodgson, 1998 798 (SCC), [1998] 2 S.C.R. 449, 163 D.L.R. (4th) 577, 230 N.R. 1, 127 C.C.C. (3d) 449, 18 C.R. (5th) 135 (sub nom. R. v. H. (M.C.)); R. v. Horvath, 1979 16 (SCC), [1979] 2 S.C.R. 376, 93 D.L.R. (3d) 1, 25 N.R. 537, [1979] 3 W.W.R. 1, 44 C.C.C. (2d) 385, 11 C.R. (2d) 206, 7 C.R. (3d) 97; R. v. Lam Chi-ming, [1991] 3 All E.R. 172 (P.C.); R. v. Logan, 1990 84 (SCC), [1990] 2 S.C.R. 731, 74 O.R. (2d) 644n, 41 O.A.C. 330, 73 D.L.R. (4th) 40, 112 N.R. 144, 50 C.R.R. 152, 58 C.C.C. (3d) 391, affg (1988), 1988 150 (ON CA), 67 O.R. (2d) 87, 30 O.A.C. 32, 57 D.L.R. (4th) 58, 45 C.R.R. 201, 46 C.C.C. (3d) 354, 68 C.R. (3d) 1 (C.A.); R. v. R. (R.) (1994), 1994 8728 (ON CA), 19 O.R. (3d) 448, 91 C.C.C. (3d) 193, 30 C.R. (4th) 293 (C.A.); R. v. Rees (1994), 1994 1372 (ON CA), 19 O.R. (3d) 123, 72 O.A.C. 199, 22 C.R.R. (2d) 269 (C.A.); R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577, 4 O.R. (3d) 383n, 48 O.A.C. 81, 83 D.L.R. (4th) 193, 128 N.R. 81, 6 C.R.R. (2d) 35, 66 C.C.C. (3d) 321, 7 C.R. (4th) 117; R. v. Vidulich (1989), 1989 231 (BC CA), 37 B.C.L.R. (2d) 391 (C.A.); R. v. Warsing, 1998 775 (SCC), [1998] 3 S.C.R. 579, 59 B.C.L.R. (3d) 47, 233 N.R. 319, [1999] 6 W.W.R. 372, 130 C.C.C. (3d) 259, 21 C.R. (5th) 75; (R. v. White, 1999 689 (SCC), [1999] 2 S.C.R. 417, 174 D.L.R. (4th) 111, 240 N.R. 1, 63 C.R.R. (2d) 1, 135 C.C.C. (3d) 257, 42 M.V.R. (3d) 161, 24 C.R. (5th) 201 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 10(b), 24(2)

Howard J. Borenstein, for appellant. Renee M. Pomerance and Dana L. Venner, for the Crown, respondent.

The judgment of the court was delivered by

[1] ROSENBERG J.A.: -- The principal issue in this appeal concerns the continued vitality of the so-called St. Lawrence rule (R. v. St. Lawrence, 1949 100 (ON SC), [1949] O.R. 215, 93 C.C.C. 376 (H.C.J.)). That rule provides that, where the discovery of some fact confirms the truth of an involuntary confession, the part of the confession that is confirmed by the discovery of the fact is admissible. The appellant submits that this common law rule is inconsistent with values under the Canadian Charter of Rights and Freedoms and with the present understanding of the rationale underlying the confession rule. The Crown respondent argues that the rule can be modified to make it consistent with Charter values. A complication in dealing with this issue lies in the fact that the St. Lawrence rule has been approved by the Supreme Court of Canada in R. v. Wray, 1970 2 (SCC), [1971] S.C.R. 272, [1970] 4 C.C.C. 1. All of the other holdings in the Wray case have been over turned by the Charter or by the Supreme Court of Canada. It remains to consider whether this last vestige of the case has survived.

[2] I have reached the following conclusions concerning the appellant's appeal from conviction:

(a) Admitting the involuntary confession in accordance with the common law St. Lawrence rule violated the appellant's rights under s. 7 of the Charter.

(b) In view of the violation of the appellant's s. 7 rights, the entire confession should have been excluded under s. 24(2) of the Charter.

(c) The common law St. Lawrence rule must be modified in light of subsequent decisions of the Supreme Court of Canada to give the trial judge a discretion to exclude those parts of the confession confirmed by the finding of the evidence.

(d) It would only be in the most exceptional circumstances that a trial judge would be entitled to exercise a discretion in favour of admitting the involuntary confession and such circumstances do not exist in this case.

(e) Without the appellant's confession there is no evidence upon which a properly instructed jury could convict and the appeal must be allowed, the convictions quashed and acquittals entered.

THE FACTS RELATING TO THE OFFENCES

[3] On December 31, 1996 a taxi driver picked up two men and drove them to a townhouse complex in Toronto. One man, allegedly the appellant, sat in the front passenger seat. The other, alleged to be the appellant's brother, sat in the rear. Once they reached their destination, the front passenger switched off the ignition. The rear passenger put his arm around the driver's neck. The front passenger pointed a gun at the victim, threatened to kill him and demanded money. As the victim was reaching for the money, the front passenger struck him in the head with the gun. The perpetrators stole the money and fled. The driver called his dispatcher and the police arrived. The driver gave a description of the two men. The description of the front seat passenger varied in several important respects from the appearance of the appellant.

[4] Within an hour of the robbery, a police dog arrived on the scene and tracked a scent from the taxi to the rear entrance of the appellant's family's townhouse. As the appellant left the townhouse, he was arrested. Sometime later, the appellant's younger brother left the residence and he too was arrested. The appellant's brother was a young person and was tried separately in youth court.

[5] As a result of his alleged involvement in the robbery, the appellant was charged with four offences: robbery, assault while using a weapon, possession of a weapon for a purpose dangerous to the public peace and possession of a restricted weapon. He was convicted of all these offences following a trial before Humphrey J. and a jury.

THE VOIR DIRE

[6] Humphrey J. conducted a voir dire to determine the admissibility of two sets of statements made by the appellant to the police. Trial counsel for the appellant (not Mr. Borenstein) stated that the defence was contesting admission of the statements on the basis of voluntariness, not s. 10(b) of the Charter. Counsel made no mention of s. 7 of the Charter.

[7] The appellant made the first statement to Detective Frisch. Frisch told the appellant that if he could tell the police where the gun was, there would be no need to execute a search warrant. The appellant said that he had thrown the gun out the window. The police went to the home, but could not find the gun where the appellant claimed to have thrown it. The trial judge excluded this statement on the basis that it was the product of an inducement and involuntary. It played no further part in the proceedings.

[8] The appellant gave the second set of statements, an oral utterance and a diagram, to P.C. Stubbs. Stubbs had prepared a warrant to search the appellant's family's home. He told the appellant that the police would "trash" his mother's home if he did not tell them where the gun was located. When the appellant hesitated, the officer said, ". . . your mom is already upset. Just be a man and make this easier for her." The appellant told Stubbs that the gun was in a box in his mother's closet and he drew a diagram. He said that he does not really live at his mother's home, but stays there from time to time and sometimes stays in his mother's room. The officer concluded the interview by telling the appellant, "Thanks for owning up to this."

[9] The police executed the warrant and found the gun in the location indicated on the diagram. The police also found a wallet containing some bills of the same denominations as had been stolen from the victim. The wallet had identification in the name of the appellant's brother.

[10] At the conclusion of the voir dire, counsel for the appellant confirmed that he was only challenging the statements to Constable Stubbs on voluntariness grounds. In the course of submissions by Crown and defence counsel, the trial judge indicated that even if the statements were induced, they might be admissible in accordance with the St. Lawrence case.

[11] The trial judge held that the statements to Stubbs were induced and involuntary, but admissible. He gave the following reasons:

Now, the second statement where he drew up Exhibit B was induced. There was no aura of oppression, no torture, it was almost a gentlemen's agreement, if you will. They had the search warrant, they said, "Here is the search warrant, now, do you want to tell us where the gun is or do you want us to trash your parents' apartment?" He hesitated for a number of reasons, one of them being he did not want to be accused of cooperating with the police but obviously he was concerned about his family and his mother and he reluctantly said, "All right, I'll tell you where it is." They drew the map and they executed the search warrant and the gun was exactly where he said it was. That is admissible. The authority of the St. Lawrence case decided years ago.

[12] As a result of the ruling, Constable Stubbs testified before the jury and related the entire oral statement and introduced the diagram.

THE DESCRIPTIONS OF THE FRONT PASSENGER

[13] The victim described the front passenger as between 15 and 16 years of age, 5'10", 150 pounds and black, but with a light complexion. He was wearing a cream-coloured shirt, dark pants and a light-coloured cap. The police officers involved in the arrest described the appellant as black, 6'2", 180 pounds, and 17 years of age. After searching the townhouse, the police did not find clothing matching the description given by the victim. They did, however, seize a hat that the appellant had been wearing at the time of his arrest. This hat was similar to the description given by the victim. The victim was unable to identify his assailants in a photo line-up and did not identify the appellant in court.

THE PROCEEDINGS ON APPEAL

[14] This appeal was argued in two stages. When the appeal was first argued, Mr. Borenstein submitted that, inter alia, the St. Lawrence case should no longer be followed. This argument, as originally framed, was untenable, since the Supreme Court of Canada had approved of the St. Lawrence rule in R. v. Wray. The court accordingly adjourned the case to permit counsel to reformulate his position. Counsel were permitted to file supplementary factums and the court heard further oral submissions. The court also received further written submissions concerning the appropriate disposition if the statements to Constable Stubbs should not have been admitted.

THE ISSUES

[15] The appellant appeals his convictions and the sentence of six years' imprisonment imposed by Humphrey J. The issues raised by the appellant on the conviction appeal may be summarized as follows:

1. Taking of a statement in circumstances that would render it involuntary at common law constitutes a violation of s. 7 of the Charter and the statement should be excluded under s. 24(2) of the Charter.

2. The St. Lawrence rule is inconsistent with the Charter.

3. Even if the St. Lawrence rule is still valid, the trial judge erred in admitting the entire statement.

4. The trial judge misdirected the jury on identification evidence.

[16] The Crown takes the following positions:

1. It is not open to the appellant to raise the admissibility of the statements under ss. 7 and 24(2) of the Charter for the first time on appeal.

2. The St. Lawrence rule, with some minor modification to give a trial judge a discretion to exclude the statement, is still valid. Under the modified rule, the statements made by the appellant are admissible.

3. In any event, admission of the statements did not result in any substantial wrong or miscarriage of justice.

4. The trial judge did not misdirect the jury on the identification evidence.

ANALYSIS

1. Admissibility of the statements under ss. 7 and 24(2) of the Charter

[17] This aspect of the case raises three subissues:

(i) To what extent does s. 7 of the Charter include the common law voluntariness rule?

(ii) If the appellant's rights under s. 7 of the Charter were infringed because of the police conduct, should the statements be excluded?

(iii) Is the appellant precluded from raising this argument for the first time on appeal?

[18] I will deal with those issues in that order. Before doing so, however, I wish to very briefly review the holdings in Wray because they form the background for much of the analysis to follow. Wray had been charged with non-capital murder as the result of the shooting of a service station attendant. The police came to suspect that Wray was involved in the killing and he was asked to accompany a police officer to police headquarters. He was then interrogated by the officer and a private investigator retained by the police and he eventually gave a statement. In the statement, Wray told the police that he had thrown the murder weapon in a swamp and agreed to help the police retrieve it. He accompanied the officers to the swamp and, as a result of his directions, the weapon was recovered. The trial judge found that the statement was involuntary. The judge not only excluded the entire statement, but also the evidence as to the accused's involvement in finding the murder weapon. The accused was acquitted.

[19] A Crown appeal from the acquittal was dismissed by this court 1969 37 (ON CA), [1970] 2 O.R. 3, [1970] 3 C.C.C. 122. Aylesworth J.A., speaking for the five-person court at p. 4 O.R., p. 123 C.C.C., held that a trial judge "has a discretion to reject evidence, even of substantial weight, if he considers that its admission would be unjust or unfair to the accused or calculated to bring the administration of justice into disrepute." Thus, notwithstanding the St. Lawrence rule, it was open to the judge to exclude the evidence of the accused's involvement in the finding of the murder weapon.

[20] A further appeal by the Crown to the Supreme Court of Canada was allowed and a new trial ordered. Martland J. wrote the reasons for the majority. His holdings may be summarized as follows:

(a) Aside from the long-established rules concerning the admissibility of confessions, a judge has no discretion at common law to exclude evidence because of the manner in which it was obtained.

(b) The St. Lawrence rule should be affirmed and thus, where the discovery of the fact confirms the otherwise inadmissible confession, that part of the confession that is confirmed by the discovery of the fact is admissible.

(c) The judge may only exclude evidence that is gravely prejudicial to the accused where that evidence is of tenuous admissibility and its probative force in relation to the main issue before the court is trifling. It is only in this sense that a judge has a discretion to exclude evidence that operates unfairly to the accused.

[21] Accordingly, Martland J. held that the trial judge erred in law in excluding evidence as to the facts leading up to the finding of the weapon and in excluding those parts of the confession as were confirmed as true by the discovery of the weapon.

(i) Section 7 and the common law voluntariness rule

[22] In R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151, 57 C.C.C. (3d) 1, the Supreme Court of Canada dealt with the content of s. 7 in the context of statements by detainees to persons in authority. Section 7 guarantees everyone the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. All the members of the court agreed that s. 7 recognizes and protects a right to remain silent. The issue in Hebert was the extent to which, in the context of statements to persons in authority, the s. 7 right to remain silent went beyond the common law confession rule. In particular, could police conduct that would not render a statement inadmissible at common law nevertheless violate s. 7? In Hebert, the accused had made the statement to an undercover police officer who had been placed in his jail cell.

[23] Sopinka J., speaking for himself and Wilson J., held at p. 199 S.C.R., p. 13 C.C.C. that the right to remain silent "is at least as broad under s. 7 as it is at common law." Thus, s. 7 would at least include the common law voluntariness rule. He pointed out that certain rules of evidence at common law, such as the St. Lawrence rule, prevent the right from being fully protected at common law. He went on to make this important point at p. 199 S.C.R., p. 14 C.C.C.:

The enforcement mechanisms available to judges at common law do not compare to those granted by s. 24 of the Charter, particularly the power to exclude evidence pursuant to s. 24(2). Thus, it is no answer to a violation of the right to remain silent to say that the resulting confession, or the derivative evidence, would have been admitted at common law: we are not here applying the common law. Admissibility is now governed by s. 24(2) of the Charter. To define Charter rights only in accordance with the ultimate effectiveness of their common law and statutory antecedents would be to deny the supremacy of the Constitution.

(Emphasis added)

[24] Thus, if a statement were obtained under circumstances that would render it involuntary at common law, the accused's rights under s. 7 would be violated. Whether the confession or any evidence obtained as a result of the confession would be inadmissible would depend upon application of s. 24(2) of the Charter.

[25] McLachlin J. gave the reasons for judgment of the other members of the court (Dickson C.J.C., Lamer, La Forest, L'Heureux-Dubé, Gonthier and Cory JJ.). On several occasions, she made the point that the right to remain silent protected by s. 7 is broader than the narrow confession rule as recognized in Wray. Put another way, while at common law a court would not be entitled to exclude evidence that was obtained unfairly, that conduct could constitute a violation of s. 7. It is implicit in her reasons that s. 7 is at least as broad as the common law confession rule, at least where the accused was detained at the time he or she made the statement. I take that from the following excerpts of her reasons (at pp. 176-77 S.C.R., p. 35 C.C.C.):

The scheme under the Charter to protect the accused's pre- trial right to silence may be described as follows. Section 7 confers on the detained person the right to choose whether to speak to the authorities or to remain silent.

The guarantee of the right to consult counsel confirms that the essence of the right is the accused's freedom to choose whether to make a statement or not. The state is not obliged to protect the suspect against making a statement; indeed it is open to the state to use legitimate means of persuasion to encourage the suspect to do so. The state is, however, obliged to allow the suspect to make an informed choice about whether or not he will speak to the authorities. To assist in that choice, the suspect is given the right to counsel.

This suggests that the drafters of the Charter viewed the ambit of the right to silence embodied in s. 7 as extending beyond the narrow formulation of the confessions rule, comprehending not only the negative right to be free of coercion induced by threats, promises or violence, but a positive right to make a free choice as to whether to remain silent or speak to the authorities.

(Emphasis added)

At pp. 178-79 S.C.R., pp. 36-37 C.C.C.:

The Charter introduced a marked change in philosophy with respect to the reception of improperly or illegally obtained evidence. Section 24(2) stipulates that evidence obtained in violation of rights may be excluded if it would tend to bring the administration of justice into disrepute, regardless of how probative it may be. No longer is reliability determinative. The Charter has made the rights of the individual and the fairness and integrity of the judicial system paramount. The logic upon which Wray was based, and which led the majority in Rothman to conclude that a confession obtained by a police trick could not be excluded, finds no place in the Charter. To say there is no discretion to exclude a statement on grounds of unfairness to the suspect and the integrity of the judicial system, as did the majority in Rothman, runs counter to the fundamental philosophy of the Charter.

This suggests that the right of a detained person to silence under s. 7 of the Charter should be viewed as broader in scope than the confessions rule as it stood in Canada at the time of the adoption of the Charter. The right must reflect the Charter's concerns with individual freedom and the integrity of the judicial process, and permit the exclusion of evidence which offends these values.

(Emphasis added)

At pp. 181-82 S.C.R., p. 39 C.C.C.:

The common law rules related to the right to silence suggest that the scope of the right in the pre-trial detention period must be based on the fundamental concept of the suspect's right to choose whether to speak to the authorities or remain silent. . . .

The right to choose whether or not to speak to the authorities is defined objectively rather than subjectively. The basic requirement that the suspect possess an operating mind has a subjective element. But this established, the focus under the Charter shifts to the conduct of the authorities vis-à-vis the suspect. Was the suspect accorded the right to consult counsel? Was there other police conduct which effectively and unfairly deprived the suspect of the right to choose whether to speak to the authorities or not?

Such a change, while important, is far from radical. It retains the essentially objective approach of the traditional confessions rule, while increasing the range of police conduct which may be considered in determining the admissibility of a suspect's statement, and it conforms to current trends in the law. Even before the Charter, this court had taken a step away from the traditional "threat- promise" formula by recognizing that the decision to speak to the police must be the product of an operating mind. Moreover, experience in other jurisdictions -- and in ours, I venture to suggest -- has proven the traditional Ibrahim formulation of the confessions rule too narrow. The idea that judges can reject confessions on grounds of unfairness and concerns for the repute and integrity of the judicial process has long been accepted in other democratic countries without apparent adverse consequences.

(Emphasis added)

[26] To summarize, McLachlin J. held that, at a minimum, s. 7 includes protection against conduct that would, at common law, render a statement involuntary. Such conduct deprives the detainee of the right to choose. The fact that the statement would nevertheless be admissible at common law, because the judge had no discretion to exclude evidence on the basis of unfairness because of the pre-Charter decision in Wray, cannot limit the scope of the right to silence as understood under s. 7.

[27] More recently, Sopinka J., speaking for the court, in R. v. Whittle, 1994 55 (SCC), [1994] 2 S.C.R. 914 at pp. 931-32, 92 C.C.C. (3d) 11 at p. 24, reiterated that the confession rule has obtained constitutional status as a principle of fundamental justice:

A decision in this case requires a consideration of elements of the confession rule, the right to silence and the right to counsel. While the confession rule and the right to silence originate in the common law, as principles of fundamental justice they have acquired constitutional status under s. 7 of the Charter. The right to counsel is a specific right expressly recognized in s. 10(b) of the Charter. Although each is a distinct right they are interrelated and operate together to provide not only a standard of reliability with respect to evidence obtained from persons suspected of crime who are detained but fairness in the investigatory process. Although the confession rule in its traditional formulation had as its raison d'être the reliability of the confession, a strong undercurrent developed which also supported the rule in part on fairness in the criminal process. See Hebert, supra, per McLachlin J., at p. 171. A common element of all three rules is that the suspect has the right to make a choice.

(Emphasis added)

[28] Finally, in R. v. Jones, 1994 85 (SCC), [1994] 2 S.C.R. 229, 89 C.C.C. (3d) 353, the court had to consider the admissibility, at post-conviction dangerous offender proceedings, of statements made by the accused to a psychiatrist. Gonthier J., speaking for the majority of the court at p. 286, in considering the application of Hebert, stated:

Full s. 7 protection in the pre-trial phase is essential to ensuring that an accused is not found culpable as a result of non-voluntary statements made against himself.

[29] Accordingly, in my view, the appellant's rights under s. 7 were violated because of the police conduct in obtaining a confession through threats or promises. I would point out two matters. In Hebert, McLachlin J. limited her discussion of the content of s. 7 to conduct of the police with respect to persons, like Hebert and this appellant, who are detained. Whether s. 7 embraces the entire confession rule including any involuntary statement to a person in authority need not be decided here. Second, under s. 7, the onus is on the accused to prove, on a balance of probabilities, a violation of the right to remain silent because of the conduct of the police. At common law, the Crown must prove, beyond a reasonable doubt, that a statement is voluntary. That issue does not arise in this case. Only the police officers testified and Humphrey J.'s reasons for finding that the oral statement and the diagram were involuntary did not turn upon the onus of proof.

(ii) Should the statements be excluded under the Charter?

[30] This aspect of the case presents little difficulty. In light of decisions from the Supreme Court of Canada in cases such as R. v. Stillman, 1997 384 (SCC), [1997] 1 S.C.R. 607, 113 C.C.C. (3d) 321, there can be no doubt that the oral and written statements are inadmissible under s. 24(2) of the Charter. The statements are conscriptive evidence and their admission would affect the fairness of the trial as that concept is explained in Stillman. There is nothing in the circumstances to indicate that this conscriptive evidence would not affect the fairness of the trial because it could have been discovered in the absence of the unlawful conscription of the appellant. [See Note 1 at end of document] This is not a case like R. v. Harper, 1994 68 (SCC), [1994] 3 S.C.R. 343, 92 C.C.C. (3d) 423, where the accused had an almost irresistible urge to confess and the statements would have been obtained notwithstanding the violation of the accused's rights. Therefore, subject to the question of whether the accused is precluded from raising this issue, the statements should be excluded without consideration of the other factors referred to in R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, 33 C.C.C. (3d) 1.

(iii) Is the appellant precluded from raising this argument for the first time on appeal?

[31] In my view, the appellant is not precluded from arguing that his statements should have been excluded at trial through the combined operation of ss. 7 and 24(2) of the Charter. In arguing that the appellant should not be able to rely upon s. 7 of the Charter, Ms. Pomerance relies upon decisions from this court, such as R. v. R. (R.) (1994), 1994 8728 (ON CA), 19 O.R. (3d) 448, 91 C.C.C. (3d) 193 and R. v. Rees (1994), 1994 1372 (ON CA), 19 O.R. (3d) 123, 72 O.A.C. 199, holding that an accused will not be permitted to raise a Charter issue for the first time on appeal unless there has been something akin to a dramatic shift in the law between the time of the trial and the time of the appeal. That is obviously not the case here. That s. 7 incorporates the common law confession rule was, as I have explained, established in the 1990 decision of the Supreme Court in Hebert.

[32] In my view, however, the strict test set out in these cases does not apply here. This is not a case where objection to the admissibility of evidence is raised for the first time on appeal. At trial, the appellant expressly argued that his statements were inadmissible because they were involuntary. This is the same argument made before this court on appeal. The only difference is that the appellant seeks to invoke the Charter as a remedy in addition to the common law. The only Charter argument that the appellant expressly disavowed at trial was violation of the right to counsel under s. 10(b) of the Charter. There is no suggestion that the failure to rely upon s. 7 was a tactical decision. There is also no suggestion that the Crown was in any way prejudiced in the sense that different or additional evidence might have been called. Both the Crown and defence relied upon the same evidence: the testimony of the police officers involved in the questioning of the appel lant.

[33] The most recent consideration of the question of when an appellant may raise an issue for the first time on appeal by the Supreme Court of Canada is in R. v. Warsing, 1998 775 (SCC), [1998] 3 S.C.R. 579, 130 C.C.C. (3d) 259. In that case, the British Columbia Court of Appeal had permitted the accused to raise the defence of not criminally responsible on account of mental disorder for the first time on appeal and to support that defence by tendering fresh evidence. The Crown appealed to the Supreme Court of Canada. L'Heureux-Dubé J., speaking for herself and Gonthier and McLachlin JJ., dealt with this issue at pp. 590-91 S.C.R., pp. 271-72 C.C.C.:

The general rule is that courts of appeal will not allow an issue to be raised on appeal for the first time. I stressed in my dissenting opinion R. v. Brown, 1993 114 (SCC), [1993] 2 S.C.R. 918 at p. 923, that the rationale for the severity of that rule is twofold: "first, prejudice to the other side caused by the lack of opportunity to respond and adduce evidence at trial and second, the lack of a sufficient record upon which to make the findings of fact necessary to properly rule on the new issue". (See also Perka v. The Queen, 1984 23 (SCC), [1984] 2 S.C.R. 232, R. v. R. (R.) (1994), 1994 8728 (ON CA), 91 C.C.C. (3d) 193 (Ont. C.A.), R. v. Trabulsey (1995), 1995 1414 (ON CA), 97 C.C.C. (3d) 147 (Ont. C.A.).) I also expressed in Brown, supra, at pp. 923-24, the basis for the general ban against entertaining issues on appeal which were not raised at trial:

The general prohibition against new arguments on appeal supports the overarching societal interest in the finality of litigation in criminal matters. Were there to be no limits on the issues that may be raised on appeal, such finality would become an illusion. Both the Crown and the defence would face uncertainty, as counsel for both sides, having discovered that the strategy adopted at trial did not result in the desired or expected verdict, devised new approaches. Costs would escalate and the resolution of criminal matters could be spread out over years in the most routine cases. Moreover, society's expectation that criminal matters will be disposed of fairly and fully at the first instance and its respect for the administration of justice would be undermined. Juries would rightfully be uncertain if they were fulfilling an important societal function or merely wasting their time. For these reasons, courts have always adhered closely to the rule that such tactics will not be permitted.

See also R. v. Vidulich (1989), 1989 231 (BC CA), 37 B.C.L.R. (2d) 391 (C.A.) at pp. 398-99.

In addition, this rule recognizes the important responsibility of defence counsel to make decisions that represent his or her client's best interests and put forward all appropriate arguments throughout the trial. Counsel too has a responsibility to ensure the finality of the litigation process.

However, the general rule prohibiting new issues on appeal is not absolute. There are a number of exceptions, one of which is the admission of fresh evidence on appeal.

(Emphasis added)

[34] The policy considerations identified by L'Heureux-Dubé J. in her reasons in Warsing, and in the excerpt from her earlier decision in Brown, for not permitting an issue to be raised for the first time on appeal do not apply here. The Crown was not prejudiced by any lack of opportunity to respond at trial or adduce evidence. Since the application of s. 7 of the Charter turns on the question of voluntariness of the statements, an issue fully canvassed at trial, there is a sufficient record upon which to make the necessary findings. Finally, raising the voluntariness issue under the rubric of s. 7 is not a new "strategy" raising concerns about finality or uncertainty.

[35] Major J., speaking for himself and Lamer C.J.C., Cory, Iacobucci, Bastarache and Binnie JJ. on this issue in Warsing at p. 610 S.C.R., p. 286 C.C.C., also held that the Court of Appeal had a discretion to allow a new issue or defence to be raised for the first time on appeal.

[36] Both Major J. and L'Heureux-Dubé J. referred with approval to R. v. Vidulich (1989), 1989 231 (BC CA), 37 B.C.L.R. (2d) 391 (C.A.). In that case, the accused had been charged with offences under the Fisheries Act, R.S.C. 1985, c. F-14. They were convicted and, on appeal to the summary conviction appeal court, raised for the first time the question of the constitutionality of the regulations under which they were charged, in light of aboriginal fishing rights. The summary conviction appeal court directed a new trial at which the accused could lead evidence to support their constitutional argument and the aboriginal fishing rights defence. The Crown appealed in part on the basis that no defence of aboriginal fishing rights was raised at trial and no evidence had been led at trial to support such a defence. The appeal was allowed and the convictions restored because the issue was not raised at trial. Lambert J.A. discussed an appellate court's discretion to permit new issues to be raised on appeal a t pp. 398-99:

It is perfectly proper to raise a supplementary argument on appeal that was not raised at trial, if the supplementary argument goes to an issue or ground that was itself raised at trial. But it requires leave of the court before an altogether new and independent issue or ground can be raised on appeal that was not raised at trial.

The decision whether to grant leave is a matter for the discretion of the court. The exercise of the discretion will be guided by balancing the interests of justice as they affect all the parties. The rule is no different in criminal cases than it is in civil cases, though the balancing of the interests of justice may have a different emphasis.

An accused must put forward his defences at trial. If he decides at that time, as a matter of tactics or for some other reason, not to put forward a defence that is available, he must abide by that decision. He cannot expect that if he loses on the defence that he has put forward, he can then raise another defence on appeal and seek a new trial to lead the evidence on that defence.

The result is that it is only in those exceptional cases where balancing the interests of justice to all parties leads to the conclusion that an injustice has been done, that a new ground is likely to be permitted to be raised on appeal. Such a new ground is more likely to be permitted where it raises an issue of law alone than where it requires the leading of evidence either in the appeal court or at a new trial.

(Emphasis added)

[37] The argument made in this case is much like what Lambert J.A. referred to as a "supplementary argument" going to an issue that was itself raised at trial. Further, as I have said, I am satisfied that the failure to raise s. 7 was not a tactical decision. Nor was it a "new defence" in any real sense and the issue raised is an issue of law alone that can be resolved without any further evidence.

[38] Finally, this case is not unlike R. v. Logan (1988), 1988 150 (ON CA), 67 O.R. (2d) 87, 46 C.C.C. (3d) 354 (C.A.). [See Note 2 at end of document] In Logan, the accused, who were detained in custody pending trial, sought to exclude statements made to undercover police officers placed in the jail. Their only argument at trial was based on s. 10(b) of the Charter in that the police conduct interfered with the continuing right to counsel. On appeal, one of the accused argued that this conduct also violated s. 7. This court held at p. 104 O.R., pp. 371-72 C.C.C. that the accused could rely on the new argument:

Crown counsel objected to the raising of s. 7 before this court when it was not raised before the trial judge. He argued that the appellant ought not to be permitted to raise s. 7 at the appellate level in the absence of an opportunity for the Crown at trial to have led evidence in response. In respect of Sutcliffe Logan in particular, he submitted, this court ought to foreclose any reliance on an infringement of s. 7 because his evidence at the trial itself was that he knew the two men concerned were police officers.

We agree with Crown counsel that a Charter ground should not be raised for the first time before an appellate court if the issue is dependent upon findings of fact not made by a trial judge, particularly if such issues of fact are not even raised before him. Here, however, the pertinent findings of fact were made in sufficient detail for the purpose of the issues of law before us.

(Emphasis added)

[39] In this case, the issue was raised at trial, albeit in the guise of a common law, rather than Charter, context and the necessary findings of fact were made at trial.

[40] Accordingly, it is my view that this is a proper case for this court to exercise its discretion in favour of permitting the appellant to raise the application of s. 7 of the Charter. I will consider the effect of excluding the appellant's statements after I deal with the other grounds of appeal.

2. The St. Lawrence rule is inconsistent with the Charter

[41] In light of my conclusion on the application of ss. 7 and 24 of the Charter, it is not necessary to resolve the problem of the continued validity of the St. Lawrence rule. However, since we had full argument on the issue, I would make the following comments.

[42] The St. Lawrence rule is an artifact of the decision of the Supreme Court of Canada in Wray. It is a product of a time when reliability was considered the sole rationale for the confession rule and when a trial judge had no residual discretion to exclude evidence because of the manner in which it was obtained. All of this has been overtaken by constitutional and judicial developments.

[43] The holding limiting the common law discretion to exclude relevant evidence to cases where that evidence was gravely prejudicial to the accused, of tenuous admissibility and of trifling probative value was expressly overruled by the Supreme Court of Canada in R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577, 66 C.C.C. (3d) 321. McLachlin J. held at p. 610 S.C.R., pp. 390-91 C.C.C. that the discretion to exclude relevant prosecution evidence depended merely upon the probative effect of the evidence balanced against the prejudice caused to the accused by its admission.

[44] The holding that a court had no power to exclude evidence because of the manner in which it was obtained was, of course, expressly overruled by enactment of s. 24(2) of the Charter where the conduct of the authorities amounted to a breach of constitutional rights. Moreover, the Supreme Court has recognized a power to exclude evidence under s. 24(1) of the Charter even if there was no constitutional infirmity in obtaining the evidence if its admission at trial would violate s. 7 of the Charter: see R. v. White, 1999 689 (SCC), [1999] 2 S.C.R. 417 at pp. 457-59, 135 C.C.C. (3d) 257 at pp. 290-92.

[45] The Supreme Court has also recognized a common law power to exclude evidence that was not obtained by a Charter breach where admission of the evidence would render the trial unfair: see R. v. Harrer, 1995 70 (SCC), [1995] 3 S.C.R. 562 at pp. 577-79, 101 C.C.C. (3d) 193 at pp. 205-06, per La Forest J. and at pp. 585-87 S.C.R., 210-12 C.C.C., per McLachlin J.

[46] Ms. Pomerance, recognizing the erosion of the precedential value of Wray, fairly conceded that the St. Lawrence rule must at least be modified in light of these recent Supreme Court decisions to give the trial judge a discretion to exclude the involuntary statement notwithstanding that its truth was confirmed by the finding of the evidence. However, she argues that this court should go no further and the common law St. Lawrence rule, as so modified, can stand alongside the constitutional right to remain silent.

[47] I agree with the Crown's position to this extent. The St. Lawrence/Wray rule must be modified at least to give a judge discretion to exclude the involuntary confession notwithstanding later confirmation by the finding of the real evidence. However, in my view, the rationale for the rule has been so undermined that it would only be in highly exceptional circumstances that the trial judge would be entitled to admit the confession. On the other hand, I do not believe that it is open to this court to, in effect, overrule the Supreme Court and hold that the St. Lawrence rule cannot be applied under any circumstances. My reasons for that conclusion are as follows.

[48] The decision to admit the parts of the involuntary statement in accordance with the Wray rule is based on the theory that reliability is the only rationale for the confession rule. Cartwright C.J.C. dissenting on other grounds in Wray at pp. 279-80 S.C.R., pp. 6-7 C.C.C. pointed out that there may be another rationale for the confession rule:

The great weight of authority indicates that the underlying reason for the rule that an involuntary confession shall not be admitted is the supposed danger that it may be untrue. If this is the only reason for the rule it is logical that so much of an involuntary confession as is shown by subsequently discovered evidence to be true should be admitted, but why, it may be asked, should an involuntary statement which the accused subsequently admits on his oath to be true be excluded? . . .

. . . If, on the other hand, the exclusion of an involuntary confession is based also on the maxim nemo tenetur seipsum accusare the truth or falsity of the confession does become logically irrelevant. It would indeed be a strange result if, it being the law that no accused is bound to incriminate himself and that he is to be protected from having to testify at an inquest, a preliminary hearing or a trial, he could none the less be forced by the police or others in authority to make a statement which could then be given in evidence against him. The result which would seem to follow if the exclusion is based on the maxim would be that the involuntary confession even if verified by subsequently discovered evidence could not be referred to in any way.

(Emphasis added)

[49] Cartwright C.J.C. nevertheless held at p. 280 S.C.R., p. 7 C.C.C. that the court should not overrule the St. Lawrence rule, being a rule that had "stood for 20 years." Judson J. was also of the view that the rule should not be overruled because, as he held at pp. 296-97 S.C.R., p. 20 C.C.C., "The theory for the rejection of confessions is that if they are obtained under certain conditions, they are untrustworthy. This theory has no application whatever to incontrovertible facts, such as the finding of articles." Martland J., speaking for the majority of the court, simply expressed his agreement with Cartwright C.J.C. and Judson J. that the law was correctly stated in St. Lawrence.

[50] So far as I have been able to ascertain, the holding in Wray approving the St. Lawrence rule was last referred to with approval by the Supreme Court of Canada in the reasons of Beetz J. in R. v. Horvath, 1979 16 (SCC), [1979] 2 S.C.R. 376 at p. 433, 44 C.C.C. (2d) 385 at p. 430. I note that in R. v. Lam Chi-ming, [1991] 3 All E.R. 172, the Privy Council, on an appeal from the Court of Appeal of Hong Kong, was faced with the same issue as in Wray. The Judicial Committee decided not to follow the Wray decision and at p. 179 provided policy reasons embracing broader concerns for the administration of justice and fundamental fairness:

But it is surely just as reprehensible to use improper means to force a man to give information that will reveal he has knowledge that will ensure his conviction as it is to force him to make a full confession. In either case a man is being forced into a course of action that will result in his conviction: he is being forced to incriminate himself. The privilege against self-incrimination is deep rooted in English law and it would make a grave inroad upon it if the police were to believe that if they improperly extracted admissions from an accused which were subsequently shown to be true they could use those admissions against the accused for the purpose of obtaining a conviction. It is better by far to allow a few guilty men to escape conviction than to compromise the standards of a free society.

[51] Since the enactment of the Charter, the Supreme Court of Canada has also expressly and repeatedly stated that reliability is no longer the sole basis, if it ever was, for the confession rule. I will briefly refer to some of those holdings.

[52] McLachlin J., in Hebert at p. 173 S.C.R., p. 32 C.C.C.:

I return to the question of what the confessions rule suggests as to the scope of the right to pre-trial silence under s. 7 of the Charter. The foregoing review suggests that one of the themes running through the jurisprudence on confessions is the idea that a person in the power of the state's criminal process has the right to freely choose whether or not to make a statement to the police. This idea is accompanied by a correlative concern with the repute and integrity of the judicial process. This theme has not always been ascendant. Yet, its importance cannot be denied. It persists, both in Canadian jurisprudence and in the rules governing the rights of suspects in other countries.

(Emphasis added)

[53] Sopinka J., in R. v. Calder, 1996 232 (SCC), [1996] 1 S.C.R. 660 at p. 674, 105 C.C.C. (3d) 1 at pp. 12-13:

In light of the recent jurisprudence of this Court, it is evident that while the rule against admission of involuntary statements was initially based primarily on reliability concerns, the law has evolved considerably since that time. In R. v. Whittle, 1994 55 (SCC), [1994] 2 S.C.R. 914, this Court held, at p. 932, that:

Although the confession rule in its traditional formulation had as its raison d'être the reliability of the confession, a strong undercurrent developed which also supported the rule in part on fairness in the criminal process.

It is, therefore, not strictly accurate to distinguish the practices relating to confessions either on the basis that reliability was the sole touchstone of their admissibility or that the circumstances relating to admissibility remained static irrespective of the proposed use.

(Emphasis added)

[54] Cory J., in R. v. Hodgson, 1998 798 (SCC), [1998] 2 S.C.R. 449 at pp. 462-64, 127 C.C.C. (3d) 449 at pp. 461-62:

Historically the insistence that a confession must be voluntary related to concerns about the reliability of the evidence. . . .

There is also strong historical precedent for the proposition that the confessions rule is rooted in a concern for the administration of justice and fundamental principles of fairness, in particular the principle against self- incrimination. . . . Thus, it is apparent that from its very inception, the confessions rule was designed not only to ensure the reliability of the confession, but also to guarantee fundamental fairness in the criminal process.

Of particular significance is the relationship between these two concerns of reliability and fairness. It must be recognized that the purpose of the confessions rule is to exclude putatively unreliable statements, not actually unreliable statements. In other words, the confessions rule excludes statements obtained by force, threat or promises as somehow inherently unreliable, but does not inquire into the actual truth or falsity of the statement. If the concern of the confessions rule were truly the reliability of the statement, then the court's inquiry would focus on objective corroboration of the confession evidence; if additional evidence confirmed the confession was accurate, it should be admitted under a reliability rationale.

Instead, the confessions rule asks only if the statement was voluntary, not if the statement is true.

(Emphasis added)

And at pp. 466-67 S.C.R., pp. 463-64 C.C.C.:

I recognize, as did McLachlin J. in Hebert, supra, at p. 173, Iacobucci J. in R. v. S. (R.J.), 1995 121 (SCC), [1995] 1 S.C.R. 451, at pp. 500-501, and Sopinka J. in R. v. Whittle, 1994 55 (SCC), [1994] 2 S.C.R. 914, at p. 932, that the self-incrimination basis for the confessions rule "must be historically qualified" (S. (R.J.), at p. 499) and that "[i]n Canada, a rationale for the confessions rule extending beyond trustworthiness has not always been easy to locate" (S. (R.J.), at p. 500). Nevertheless, I must recognize, as did my colleagues, that in a modern sense, the confessions rule has clearly been associated with these ideas. Indeed, in the Report of the Federal/Provincial Task Force on Uniform Rules of Evidence (1982), the Task Force concluded at p. 175 that "the clear common law principle that the Crown must establish its case without the assistance of the accused . . . is the primary rationale of the Confessions Rule today".

(Emphasis added)

And at p. 470 S.C.R., p. 466 C.C.C.:

The confessions rule, including the burden on the Crown to prove voluntariness beyond a reasonable doubt, is carefully calibrated to ensure that the coercive power of the state is held in check and to preserve the principle against self- incrimination.

[55] In the same case, L'Heureux-Dubé J. held at p. 490 S.C.R., pp. 480-81 C.C.C. that:

The confessions rule is only concerned with voluntariness, however, where statements are made to persons in authority. This latter concept becomes all the more critical when, as my colleague has properly held, we accept that regardless of reliability, the predominant modern rationales for the confessions rule are individual fairness in the criminal process and state accountability. In my view, these rationales explicitly endorse a focus on the relationship between individuals and the state or its representatives, and should define our notion of "person in authority".

While judicial recognition of these rationales has been cautious thus far, Cory J.'s reasons reflect their cogency and ultimate acceptance. Modern developments of the confessions rule bolster this conclusion. In Clarkson v. The Queen, 1986 61 (SCC), [1986] 1 S.C.R. 383 at p. 391, 25 C.C.C. (3d) 207, 26 D.L.R. (4th) 493, Wilson J. assessed for the majority how the "operating mind" test as a component of the confessions rule logically revealed:

. . . a concern not so much for the probative value of the statement as for adjudicative fairness in the criminal process and for control of police conduct in interrogating accused persons.

(Extra emphasis added)

And at pp. 491-92 S.C.R., p. 482 C.C.C.:

. . . the confessions rule is now primarily directed toward deterring improper use of prosecutorial state authority, which ultimately implies that some presence of the state or its agents is crucial. Therefore, any instances of private coercion fall beyond the scope of the confessions rule. The general unfairness of utilizing involuntary statements resulting from private coercion has never been the focus of the confessions rule, even when the rule was justified by policy concerns for reliability. Its modern rationales explicitly affirm that the rule is concerned only with voluntariness within the relationship between the state and individual.

(Emphasis added)

[56] Iacobucci J., in R. v. White, supra, at p. 438 S.C.R., p. 275 C.C.C.:

The definition of the principle against self-incrimination as an assertion of human freedom is intimately connected to the principle's underlying rationale. As explained by the Chief Justice in Jones, supra, at pp. 250-51, the principle has at least two key purposes, namely to protect against unreliable confessions, and to protect against abuses of power by the state. There is both an individual and a societal interest in achieving both of these protections. Both protections are linked to the value placed by Canadian society upon individual privacy, personal autonomy and dignity: see, e.g., Thomson Newspapers, supra, at p. 480, per Wilson J.; Jones, supra, at pp. 250-51, per Lamer C.J.; and Fitzpatrick, supra, at paras. 51-52, per La Forest J. A state which arbitrarily intrudes upon its citizens' personal sphere will inevitably cause more injustice than it cures.

(Emphasis added)

[57] To summarize, the Supreme Court has affirmed that reliability is not the sole basis for the confession rule. The court has identified the policy basis for the rule in broader concerns for the administration of justice, including deterrence of improper police conduct and fundamental principles of fairness such as the principle against self- incrimination. The fact that part of the statement has been confirmed by the finding of evidence cannot justify a rule based on these broader concerns.

[58] Finally, the clearest indication that St. Lawrence rule no longer has the Supreme Court's support is provided by the recent decision in R. v. G. (B.), 1999 690 (SCC), [1999] 2 S.C.R. 475, 135 C.C.C. (3d) 303. In that case, the court had to consider the interpretation of s. 672.21(3) of the Criminal Code, R.S.C. 1985, c. C-46, which provides that a "protected statement" [See Note 3 at end of document] is admissible in certain limited circumstances, for example, to challenge the accused's credibility. Bastarache J., writing for the majority, held that the protected statement could not be used even for the limited purpose of challenging the accused's credibility where it was "tainted" by an earlier involuntary confession to a person in authority. His reasons at pp. 490 and 494 S.C.R., pp. 316-17 and 320 C.C.C. demonstrate a reluctance to permit use of an involuntary confession for any purpose:

The second statement is inadmissible because the first confession contaminated it. Therefore, it is not necessary to decide whether the second statement is a confession made to a person in authority in the present case. This interpretation also meets the requirements of the Charter, which entrenched certain aspects of the confessions rule in s. 7. A confession found to be inadmissible could not be introduced indirectly without affecting the right to silence and the principle against self-incrimination, which is what we would be doing by admitting a statement that was "contaminated" by an inadmissible confession.

To reintroduce an involuntary statement in this way would run counter to the most fundamental aspect of trial fairness. In many cases, as here, the guilt of the accused will depend solely on his or her credibility and on that of the other witnesses. To allow the statement to be used, even for the limited purpose of undermining the credibility of the accused, could lead to abuse and serious injustice. That is why the traditional rule, which is still in force in Canadian law, must be interpreted in such a way that no use may be made of an inadmissible statement at any stage whatsoever of the trial.

(Emphasis added)

[59] If an inadmissible confession cannot be used to challenge the credibility of the accused, it is difficult to justify its use for the purpose of proving knowledge, a more incriminating use, as is permitted by the St. Lawrence rule.

[60] In my view, these comments from the Supreme Court represent a strong indication that using an involuntary confession is inconsistent with fundamental notions of trial fairness and the administration of justice. However, since the Supreme Court of Canada has not expressly overruled this aspect of Wray, in my view, it is not open to this court to disregard the basic holding that parts of an involuntary confession that are confirmed by the discovery of the fact are admissible. This court can only modify the Wray rule in light of the subsequent developments from the Supreme Court of Canada to acknowledge a discretion to exclude the evidence.

[61] Nevertheless, in light of the comments from the Supreme Court, it is my view that it is only in exceptional circumstances that the confession should not be excluded. In fact, because as noted by Bastarache J. admitting an involuntary confession runs counter to fundamental aspects of trial fairness, it is difficult to conceive of a basis for exercising the discretion in favour of admission. As Cory J. said in R. v. Stillman, supra, at p. 651 S.C.R., p. 351 C.C.C., albeit in the context of s. 24(2) of the Charter:

A conviction resulting from an unfair trial is contrary to our concept of justice. To uphold such a conviction would be unthinkable. It would indeed be a travesty of justice. The concept of trial fairness must then be carefully considered for the benefit of society as well as for an accused.

[62] No exceptional circumstances exist in this case that would justify admission of the involuntary confession. The respondent argues that the statement by the officer that the appellant could co-operate or the officers would "trash" his mother's house gave rise to only a technical threat or inducement. I do not agree. A threat to destroy the property of a family member by abusing the authority given to the police by the search warrant is not properly characterized as a technical threat. If the court were to exercise its discretion in favour of admitting the confession, it would be condoning the use of threats to abuse judicial process as a means of obtaining incriminating evidence. In my view, this would raise serious concerns for the administration of justice.

3. Even if the St. Lawrence rule is still valid, the trial judge erred in admitting the entire statement

[63] Again, in light of my earlier conclusion respecting s. 7 of the Charter, it is unnecessary to consider this issue. However, I note that Ms. Pomerance fairly conceded that the trial judge erred in admitting the entire oral statement and that only those parts of the oral statement confirmed by the finding of the gun should have been admitted.

4. The trial judge misdirected the jury on identification evidence

[64] The appellant submits that the description given by the victim was inconsistent with the appearance of the appellant and that this was therefore important exculpatory evidence. He argues that the trial judge undermined the defence theory that the appellant was not the person described by the victim and directed the jury in such a way that they would consider the identification evidence to be a non-issue.

[65] The trial judge's references to the identification evidence were short and generally tended to minimize the importance of that testimony. He did, however, plainly put the defence position that the person described by the victim was not the appellant. He was also entitled to point to the victim's limited opportunity to observe his assailants. I have not been persuaded that the trial judge misdirected the jury.

DISPOSITION

[66] Without the appellant's confession, the Crown's case against the appellant consists of the following. Two persons were involved in the robbery. The appellant's brother was implicated in the robbery. The description of the person alleged to be the appellant does not match the appellant. A police dog was apparently able to track a scent to a residence occupied by members of the appellant's family. The appellant and his brother were known to be in the residence sometime after the robbery. However, without the statements, the items found in his parents' residence and alleged to be from the robbery cannot be tied to the appellant. The appellant was later seen wearing a hat similar in some respects to a hat worn by one of the perpetrators. No other clothing worn by the perpetrator in the front seat (alleged to be the appellant) was found in the residence. In my view, a conviction on this evidence would be unreasonable.

[67] Accordingly, I would allow the appeal, set aside the convictions and enter verdicts of acquittal.

Appeal allowed.

Notes

Note 1: The appellant did not contest the admissibility of the gun and other evidence seized from his parents' home. This evidence would inevitably have been discovered in the execution of the search warrant and thus its admission would not affect the fairness of the trial.

Note 2: The decision of this court was upheld in the Supreme Court of Canada on other grounds and without reference to the statements issue: 1990 84 (SCC), [1990] 2 S.C.R. 731, 58 C.C.C. (3d) 391.

Note 3: A protected statement is a statement made by an accused during the course and for the purposes of an assessment or treatment directed by a disposition made under the mental disorder of the Criminal Code.