Clarkson v. The Queen, 1986 SCC 61

Clarkson v. The Queen, [1986] 1 S.C.R. 383

Lana Louise Clarkson Appellant;

and

Her Majesty The Queen Respondent.

File No.: 18058.

1985: May 16; 1986: April 24.

Present: Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest JJ.

on appeal from the court of appeal for new brunswick

Constitutional law ‑‑ Charter of Rights ‑‑ Right to counsel ‑‑ Right waived by intoxicated person ‑‑ Accused still drunk when interrogated ‑‑ Statements made during interrogation highly inculpatory ‑‑ Whether or not violation of Charter right to counsel ‑‑ Whether or not evidence should be excluded ‑‑ Canadian Charter of Rights and Freedoms, ss. 10(b), 24(2).

Appellant was very intoxicated when she was charged with her husband's murder, given the customary police warning and informed of her right to counsel. She said there was "no point" in having counsel and underwent police questioning while still drunk and very emotional. The interrogation continued in spite of the efforts of an aunt to have it postponed and to convince appellant to stop talking until counsel was present. Appellant's statements, which were highly inculpatory, were not admitted at trial because of appellant's inability to understand the consequence of making them. Given this result, the issue of whether or not appellant's Charter right to counsel had been violated did not have to be addressed. The Court of Appeal rejected the trial judge's test of admissibility of the appellant's inculpatory statements. It found the proper test to be whether or not the accused's remarks were those of an operating mind. It found that they were, allowed the appeal from acquittal and ordered a new trial. At issue here were (1) the proper test of admissibility of the inculpatory statements of an intoxicated accused; (2) the test to be applied to determine the validity of a waiver of the Charter right to counsel; and (3) the consequences of a breach of the accused's Charter right to counsel.

Held: The appeal should be allowed.

Per Estey, Lamer, Wilson, Le Dain and La Forest JJ.: The proper test to be applied in determining the effectiveness of a waiver of the right to counsel at common law did not have to be decided in this case because the appellant's constitutional right to counsel under s. 10(b) of the Charter had been violated.

Any voluntary waiver of the right to counsel in s. 10(b) of the Charter, to be valid and effective, must be premised on a true appreciation of the consequences of giving up that right. The recognized purpose of the right is to ensure that the accused is treated fairly in the criminal process. Accordingly, the court in assessing the validity of a waiver, unlike a confession, cannot be concerned only with probative value and restrict the test to the accused's mere comprehension of his words.

The appellant's waiver of the s. 10(b) right to counsel could not pass the "awareness of the consequences test". The continued questioning of appellant by the police therefore violated her s. 10(b) right. Absent any urgent reason compelling police to act immediately to gather evidence, the interrogation, at a minimum, should have been delayed until the accused was in a condition to properly exercise her s. 10(b) right or appreciate the consequences of waiving it. The admission of this evidence would bring the administration of justice into disrepute, and accordingly, it must be excluded under s. 24(2) of the Charter.

Per McIntyre and Chouinard JJ.: The "operating mind" test and the "knowledge of consequences" test overlap. A non‑operative mind would not only be unaware of its utterances but also of the consequences of those utterances. It would be for either of these reasons that those utterances would be inadmissible. If the mind operated sufficiently to make a conscious statement but could not have the knowledge of the consequences of making the statement, the evidence should as well be excluded.

The test to be applied in determining whether a statement made to a police officer or other person in authority may be rendered inadmissible because of intoxication of the accused involves two questions:

1. Was the accused aware of what she was saying?

and

2. Was she aware of the consequences of making the statement on the particular occasion in question?

To be aware of the consequences in this context simply means to be capable of understanding that her statement could be used in evidence in proceedings to be taken against her. Common sense would dictate that a very high degree of intoxication would be required to render such a statement inadmissible.

Cases Cited

By Wilson J.

R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613; Korponay v. Attorney General of Canada, 1982 CanLII 12 (SCC), [1982] 1 S.C.R. 41, applied; McKenna v. The Queen, 1961 CanLII 17 (SCC), [1961] S.C.R. 660; R. v. Santinon (1973), 1973 CanLII 1532 (BC CA), 11 C.C.C. (2d) 121; Ward v. The Queen, 1979 CanLII 14 (SCC), [1979] 2 S.C.R. 30; Ibrahim v. The King, [1914] A.C. 599; R. v. Williams, [1959] N.Z.L.R. 502; R. v. Phillips, [1949] N.Z.L.R. 316; Horvath v. The Queen, 1979 CanLII 16 (SCC), [1979] 2 S.C.R. 376; R. v. Doyle (1887), 12 O.R. 347; Hogan v. The Queen, 1974 CanLII 185 (SCC), [1975] 2 S.C.R. 574; R. v. Wray, 1970 CanLII 2 (SCC), [1971] S.C.R. 272; R. v. Ireland (1970), 126 C.L.R. 321; Lawrie v. Muir, [1950] S.C. (J.C.) 19; Adams v. United States, 317 U.S. 269 (1942); Minor v. United States, 375 F.2d 170 (1967), certiorari denied 389 U.S. 882 (1967); Von Moltke v. Gillies, 332 U.S. 708 (1948), referred to.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 10(b), 24(2).

Authors Cited

Cross, Sir Rupert. Evidence, 5th ed., London, Butterworths, 1979.

APPEAL from a judgment of the New Brunswick Court of Appeal (1983), 1983 CanLII 3554 (NB CA), 9 C.C.C. (3d) 263, 50 N.B.R. 226, 131 A.P.R. 226, allowing an appeal from acquittal by Stevenson J. and ordering a new trial. Appeal allowed.

C. David Hughes, Q.C., and Sherron Hughes, for the appellant.

Glendon J. Abbott, for the respondent.

The judgment of Estey, Lamer, Wilson, Le Dain and La Forest JJ. was delivered by

1. Wilson J.‑‑This case raises an issue as to the admissibility of a confession made by an accused while in an intoxicated state and without the benefit of counsel.

2. The Facts

3. The appellant, in an apparently intoxicated state, telephoned her sister in the early morning hours of December 8, 1982 to tell her that her (the appellant's) husband had been shot. The sister initially quoted the appellant as having said "I did it. I shot him," but upon cross‑examination acknowledged that the appellant had been in a rather inarticulate state and could have said something like "Somebody shot him," or "James has been shot". In any event, several of the appellant's family members arrived at her house soon after the phone call and from there they called the police. The appellant was found crying and screaming in a hysterical condition. Her husband, James Clarkson, lay sprawled out on a living room chair with a bullet hole in his head at the right temple. A rifle, on which no fingerprints could be found, was located near the deceased's body.

4. The police arrived on the scene and after some initial investigation charged the appellant with murder. She was given the customary police warning and duly informed of her right to retain and instruct counsel before being driven to a Fredericton hospital accompanied by her aunt, Lorna Estey. While en route to the hospital the police overheard a conversation between the appellant and Mrs. Estey which, according to the police, contained admissions of guilt on the appellant's part. These conversations, along with a number of other casual remarks made by the appellant to Mrs. Estey and others and overheard by the police, were ruled inadmissible at trial. Upon arrival at the hospital the appellant was physically examined and, upon consent, provided a blood sample which showed her to have a blood alcohol level of 210 mg. per 100 ml. of blood notwithstanding that nearly four and a half hours had passed since the initial telephone call. Again, a number of comments made by the appellant during the medical examination were held inadmissible at trial.

5. The police proceeded to take the appellant to the police station where, in the presence of Mrs. Estey, an interrogation was conducted. Once again she was instructed of her right to counsel and ap‑ parently nodded in the affirmative when asked if she understood the question. She responded in a similar fashion when asked by the police if it was all right to use a tape recorder during the interview. At this point Mrs. Estey made the first of her interjections, asking whether it was proper for the appellant to be questioned without her lawyer being present. The police responded by pointing out that the appellant had been read those rights of which she was required to be informed and then proceeded with the interrogation. At several points during the questioning Mrs. Estey attempted to have the interrogation halted and to convince the appellant to stop answering questions until she had a lawyer present. It would seem, however, that the appellant waved off Mrs. Estey's suggestion, stating that there was "no point" and that she did not need the help of a lawyer. The police questioning continued and the overall effect of the appellant's responses was to provide the police and the Crown with a statement that was highly inculpatory.

6. The Courts Below

7. At trial in the Court of Queen's Bench of New Brunswick the appellant testified that she remembered nothing from the applicable time period but that she did not think that she could have shot her husband because, regardless of how drunk she may have been, she loved him too much to commit such a deed. Her statements and responses at the police interrogation were all ruled inadmissible on a voir dire. Stevenson J. indicated that, although the statements were voluntary in the traditional sense of not having been induced by fear of prejudice or hope of advantage, the fact that they were made while intoxicated rendered them inadmissible. In determining the effect of drunkenness on the admissibility of a confession Stevenson J. formulated the test as a single question:

...was the accused so intoxicated that the words she uttered were not her statement in the sense that she did not comprehend her statement and was not capable of making a rational judgment as to whether she ought, under the circumstances, to answer questions the answers to which would ultimately be used at her trial on a charge of murder?

Since the appellant was found by Stevenson J. not to have appreciated the consequences of making the statements and the use to which they could be put, the test of admissibility so formulated was not met.

6. The trial judge went on to state that, with respect to the appellant's right to counsel, Mrs. Estey's protest against the taking of the statement by the police and her efforts to obtain counsel for the appellant would have to be seriously considered. He indicated that, if confronted squarely with such a question, a court might well conclude that the taking of a statement from an accused in the appellant's state of intoxication amounted to an infringement of her right to counsel despite her purported waiver of the right. As the statements had already been ruled inadmissible, however, it was unnecessary to address the issue any more fully. In the absence of the inculpatory statements the Crown was left with a weak and essentially circumstantial case and the appellant was acquitted by the jury.

7. The Crown's appeal to the New Brunswick Court of Appeal was allowed by the majority. Angers J.A. (with whom Stratton J.A. concurred) stated that it was an error of law for the trial judge to focus the test of admissibility on the appellant's appreciation of the consequences of her statements. Rather, the proper test of admissibility was to ask merely whether the utterances of the appellant were those of an "operating mind". The relevant question to be answered was: was the appellant's mind, despite her impairment from alcohol, in a sufficiently functional state to give probative value to her words? He found that it was.

8. Ryan J.A., in his dissenting opinion, disagreed. He stated that the test of admissibility enunciated by Stevenson J. at trial was the correct one and that the inquiry had to go beyond the appellant's comprehension of her own words and extend to her understanding of the consequences of making the statements to the police. Accordingly, he concluded that the decision of the trial judge to exclude the confession was premised on an application of the proper legal test to the facts of the case. He would have dismissed the appeal against acquittal.

9. Admissibility of the Intoxicated Confession

10. The debate over the test of admissibility of (for want of a better phrase) an intoxicated confession may be succinctly stated as being between a standard in which an accused must be capable of comprehending what he or she is saying and a standard in which an accused must comprehend the consequences of saying it. Although, as Angers J.A. points out in his majority judgment, a survey of the relevant case law tends to point in the direction of the former test, the jurisprudence on the issue provides no clear answer. The pattern revealed in the cases dealing with the admissibility of the confessions of intoxicated or otherwise incapacitated persons is one of conflicting decisions with the "consequences" test being alternately rejected and adopted by the highest authorities.

11. The seminal case is McKenna v. The Queen, 1961 CanLII 17 (SCC), [1961] S.C.R. 660, in which Kerwin C.J. stated that such statements are admissible unless "the words used by an accused did not, because of his condition, amount to his statement" (p. 663). This was elaborated upon by the British Columbia Court of Appeal in R. v. Santinon (1973), 1973 CanLII 1532 (BC CA), 11 C.C.C. (2d) 121, in which the admissibility of the confession of an insane person was considered. Bull J.A. indicated that the rule allowing for the admissibility of all voluntary confessions must be qualified to the extent that (p. 124):

... if such incapacity is shown that the accused, for example, is so devoid of rationality and understanding, or so replete with psychotic delusions, that his uttered words could not fairly be said to be his statement at all, then it should not be held admissible.

This approach was adopted by Spence J. in Ward v. The Queen, 1979 CanLII 14 (SCC), [1979] 2 S.C.R. 30. He stated that the statement must represent "the utterances of an operating mind" (p. 40). It was this formulation of the test which Angers J.A. employed in finding the appellant's intoxicated statement to the police admissible in this case.

11. These judicial pronouncements, although addressing a different issue from that of voluntariness, disclose a concern similar to that underlying the rule in Ibrahim v. The King, [1914] A.C. 599, on the admissibility of confessions in general. Thus, one explanation for the rejection of the statement of an incapacitated person is that, like the statement of a person acting involuntarily or under some compulsion, it would be so unreliable as to be unsafe to admit it: Cross on Evidence (5th ed., 1979), at p. 545. Indeed, the identity of the concerns underlying the general Ibrahim rule with those underlying the rule for intoxicated confessions has been recognized in express terms by the Supreme Court of New Zealand in R. v. Williams, [1959] N.Z.L.R. 502. In that case, Hardie Boys J. quoted with approval (p. 505) the following passage from the earlier judgment of Finlay J. in R. v. Phillips, [1949] N.Z.L.R. 316 (C.A.), at p. 356:

In broad terms, any circumstance which robs a confession of the quality described by the word "voluntary" will render the confession inadmissible. It may be deprived of that quality by a variety of circumstances. Those circumstances may well cover the whole field of motivation, and are not limited to threats or promises. They may comprehend a defect in consciousness or comprehension.

12. The test emerging from this line of reasoning focuses therefore on whether the accused was coherent enough to understand his or her own words, but does not go beyond this since the question of comprehension is the only one that goes to the probative value of the confession. Any further consideration of the accused's state of mind at the time of the confession, such as an assessment as to whether or not he or she appreciated the consequences of making the statement, is not directed to the reliability of the statement as evidence probative of the truth. Indeed, one might say that the likelihood of truthfulness is increased where the accused is unaware that the statement will ultimately be utilized by the Crown at his or her trial.

13. This approach to the problem may be readily contrasted with the reasoning of Beetz J. in Horvath v. The Queen, 1979 CanLII 16 (SCC), [1979] 2 S.C.R. 376. In that case the issue was the admissibility of a confession made by the accused while under hypnosis. Beetz J. stated at p. 425:

Horvath was in control of his faculties when Sergeant Proke cautioned him at the beginning of the interview but, under hypnosis, he ceased to be in a state of full consciousness and awareness. His awareness of what was at stake in making any statement is very much a matter of doubt.

There was little doubt in this case that the accused was capable of comprehending what he was saying under the influence of what was described as "light hypnosis" so that the broad New Zealand test of a "defect in consciousness or comprehension" did not apply. Indeed, the probative value of the statements may be viewed as having been enhanced by the fact that hypnosis made it unlikely that the accused could consciously lie. Accordingly, the concern expressed by Beetz J. in determining that the evidence was inadmissible was not that the accused did not understand his own statement but rather that he did not understand "what was at stake" in making the statement. This focus reveals 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.

14. The judicial debate over the proper test of admissibility reflects conflicting concerns prevalent elsewhere in the law of evidence. For example, the pre‑Charter case law dealing with improperly or illegally obtained evidence discloses an inherent tension between the concern for probative evidence and the concern for adjudicative fairness as between the Crown and its agents and an accused person. The traditional common law approach tends to respond to the former concern so that "evidence is admissible so long as the fact so wrongly discovered is a fact‑‑apart from the manner in which it was discovered‑‑admissible against the party": R. v. Doyle (1887), 12 O.R. 347, at p. 353. On the other hand, Laskin J. (as he then was) pointed out in Hogan v. The Queen, 1974 CanLII 185 (SCC), [1975] 2 S.C.R. 574, that the common law acknowledges a discretionary power on the part of trial judges to exclude evidence obtained in a way that violates a principle of adjudicative fairness or fair treatment of the accused at the hands of the police, notwithstanding the otherwise reliable nature of such evidence. Whether this discretion is applied so as to narrow the ambit in which an exclusionary rule can operate, as preferred by Martland J. in R. v. Wray, 1970 CanLII 2 (SCC), [1971] S.C.R. 272, or is perceived as creating a broad discretion to exclude evidence in recognition of the fact that "[c]onvictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price" (per Barwick C.J. in R. v. Ireland (1970), 126 C.L.R. 321 (Aust. H.C.), at p. 335), the process is one of weighing two competing and frequently conflicting concerns. As Lord Cooper stated in the leading Scottish case of Lawrie v. Muir, [1950] S.C. (J.C.) 19, at p. 26:

From the standpoint of principle it seems to me that the law must strive to reconcile two highly important interests which are liable to come into conflict‑‑(a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and (b) the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from Courts of law on any merely formal or technical ground. Neither of these objects can be insisted upon to the uttermost.

15. It seems to me that if it is the concern over fair treatment of an accused which must prevail, then the test of awareness of the consequences as espoused by Beetz J. in Horvath, supra, must displace the more restrictive "operating mind" test as the appropriate standard against which to measure the admissibility of intoxicated confessions. The continued interrogation of an accused who, although not so incapacitated as to be incoherent and uncomprehending of her own words, incriminates herself without being aware that that is what she is doing, is incompatible with the view that the adjudicative process must arrive at the truth in a way which does not reflect an abuse by the police or the Crown of its dominant position vis‑à‑vis the individual. In order to avoid the problem of a person unwittingly inculpating herself in a criminal offence, the police must necessarily hold off their interrogation until their suspect has become sober enough to appreciate the consequences of making a statement.

16. On the other hand, if the paramount concern underlying the admissibility of evidence is perceived as being to probe the truth of the facts in issue without too much regard for the fairness of the adjudicative process, then the "operating mind" test adopted by Angers J.A. in the court below might be viewed as acceptable. As already indicated, the relevant case law has produced two conflicting lines of reasoning which reflect these two underlying concerns and it is difficult, if not impossible, to reconcile them. It is perhaps entirely appropriate then that the common law has left the task of balancing these two concerns to the discretion of the trial judge who has the unique advantage of hearing the entire body of evidence and who can consequently best assess both the probative value and the prejudice to the accused in the overall context of the case. The tension between the concern over the probative value of evidence and the concern over police conduct and fairness in obtaining the evidence may not, however, have to be resolved in this case as the issue may be effectively pre‑empted by the second issue raised by the appellant, namely the alleged violation of her constitutional right to counsel.

17. Waiver of the Right to Counsel

18. The question whether the appellant's right to counsel has been violated may well provide an acceptable alternative approach to the problem posed by the police extraction of an intoxicated confession. This right, as entrenched in s. 10(b) of the Canadian Charter of Rights and Freedoms is clearly aimed at fostering the principles of adjudicative fairness. As Lamer J. indicated in R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, at p. 624, "where a detainee is required to provide evidence which may be incriminating ... s. 10(b) also imposes a duty not to call upon the detainee to provide that evidence without first informing him of his s. 10(b) rights and providing him with a reasonable opportunity and time to retain and instruct counsel". This constitutional provision is clearly unconcerned with the probative value of any evidence obtained by the police but rather, in the words of Le Dain J. in Therens, supra, at pp. 641‑42, its aim is "to ensure that in certain situations a person is made aware of the right to counsel" where he or she is detained by the police in a situation which may give rise to a "significant legal consequence".

19. Given the concern for fair treatment of an accused person which underlies such constitutional civil liberties as the right to counsel in s. 10(b) of the Charter, it is evident that any alleged waiver of this right by an accused must be carefully considered and that the accused's awareness of the consequences of what he or she was saying is crucial. Indeed, this Court stated with respect to the waiver of statutory procedural guarantees in Korponay v. Attorney General of Canada, 1982 CanLII 12 (SCC), [1982] 1 S.C.R. 41, at p. 49, that any waiver "... is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process" (emphasis in original).

20. There is also a wealth of case law in the United States to the effect that an accused may waive his constitutional right to counsel only "if he knows what he is doing and his choice is made with eyes open": Adams v. United States, 317 U.S. 269 (1942), at p. 279. Thus, an accused must "knowingly intelligently and with a full understanding of the implications, waive his constitutional rights to counsel": Minor v. United States, 375 F.2d 170 (8th Cir. 1967), at p. 179, certiorari denied 389 U.S. 882 (1967). Indeed, the Supreme Court of the United States has gone so far as to indicate that not only must an accused person be cognizant of the consequences of waiving the constitutional right to counsel in a general way, but he or she must be aware of the legal specificities of his or her own case such that there is a presumption against a valid waiver where the accused is not perceived at the time of the waiver to be capable of comprehending its full implications. For instance, it was stated in Von Moltke v. Gillies, 332 U.S. 708 (1948), at p. 724:

To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charge and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.

20. Whether or not one goes as far as requiring an accused to be tuned in to the legal intricacies of the case before accepting as valid a waiver of the right to counsel, it is clear that the waiver of the s. 10(b) right by an intoxicated accused must pass some form of "awareness of the consequences" test. Unlike the confession itself, there is no room for an argument that the court in assessing such a waiver should only be concerned with the probative value of the evidence so as to restrict the test to the accused's mere comprehension of his or her own words. Rather, the purpose of the right, as indicated by each of the members of this Court writing in Therens, supra, is to ensure that the accused is treated fairly in the criminal process. While this constitutional guarantee cannot be forced upon an unwilling accused, any voluntary waiver in order to be valid and effective must be premised on a true appreciation of the consequences of giving up the right.

21. Conclusion

22. The trial judge found as a fact that the appellant's confession could not pass the "awareness of the consequences" test and, if such is the case, then presumably neither could the waiver of the s. 10(b) right to counsel. Accordingly, the test for a valid and effective waiver of the right was not met and the continued questioning of the appellant constituted a violation of s. 10(b) of the Charter. At the very minimum it was incumbent upon the police to delay their questioning and the taking of the appellant's statement until she was in a sufficiently sober state to properly exercise her right to retain and instruct counsel or to be fully aware of the consequences of waiving this right. Accordingly, regardless of the view one takes of the admissibility of the intoxicated confession per se, the conclusion that the appellant's confession was improperly obtained is inescapable.

23. Having come to the conclusion that the constitutional rights of the appellant were infringed by the police in their obtaining of her confession, it remains to be decided whether exclusion of the confession from the evidence is the appropriate remedy. Section 24(2) of the Charter provides:

24. ...

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if 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.

In the case at bar, the Court is confronted with a blatant violation by the police of the appellant's right under s. 10(b) of the Charter. The appellant's drunken assertion that there was "no point" in retaining counsel in face of a murder charge could not possibly have been taken seriously by the police as a true waiver of her constitutional right, especially when viewed in conjunction with the efforts of Mrs. Estey to convince the police to postpone their interrogation until defence counsel could be retained. This was not a situation in which the police were for some urgent reason compelled to act immediately in gathering evidence. Rather, the actions of the police in interrogating the intoxicated appellant seem clearly to have been aimed at extracting a confession which they feared they might not be able to get later when she sobered up and appreciated the need for counsel. In other words, this seems to be a clear case of deliberate exploitation by the police of the opportunity to violate the appellant's rights. In this context the words of Estey J. writing for the majority of this Court in Therens, supra, become highly relevant (pp. 621‑22):

Here the police authority has flagrantly violated a Charter right without any statutory authority for so doing. Such an overt violation as occurred here must, in my view, result in the rejection of the evidence thereby obtained.... To do otherwise than reject this evidence on the facts and circumstances in this appeal would be to invite police officers to disregard Charter rights of the citizens and to do so with an assurance of impunity.

As Estey J. went on to point out, such action on the part of the police in blatantly violating the right to counsel must result in the inadmissibility of evidence thereby directly obtained, otherwise s. 10(b) would cease to have any meaningful content whatsoever. Accordingly, allowing the appellant's confession to be admitted into evidence would necessarily "bring the administration of justice into disrepute". Whatever the scope of the s. 24(2) test for admissibility of evidence obtained in violation of the Charter, the flagrant exploitation by the police of the fact that to their knowledge the appellant was in no condition to insist on her rights has to be the kind of violation that gives rise to the exclusionary remedy. The decision of the trial judge to exclude this evidence was therefore correct and the jury verdict, based as it was solely on evidence admissible at trial, must be restored.

23. I would accordingly allow the appeal, set aside the order of the New Brunswick Court of Appeal and restore the verdict of acquittal rendered by the jury.

The reasons of McIntyre and Chouinard JJ. were delivered by

24. McIntyre J.‑‑I have read the reasons for judgment of my colleague, Wilson J. She has outlined the facts sufficiently and they need not be repeated. She has as well contrasted what are said to be the two tests for determining the admissibility of a statement made by an accused to persons in authority, described as the "operating mind" test and the "knowledge of consequences" test. She did not find it necessary to decide the issue thus raised but based her judgment on a Charter infringement.

25. I am in agreement with the result she has reached. I do not find it necessary to consider the Charter in reaching this conclusion. In my view, the two tests described above overlap. A non‑ operative mind would not only be unaware of its utterances but also of the consequences of those utterances. It would be for either of these reasons that those utterances would be inadmissible. Thus, if the mind operated sufficiently to make a conscious statement but could not have the knowledge of the consequences of making the statement, the evidence should as well be excluded.

26. The two tests in reality collapse into one when approached in the manner chosen by the trial judge where he said:

...was the accused so intoxicated that the words she uttered were not her statement in the sense that she did not comprehend her statement and was not capable of making a rational judgment as to whether she ought, under the circumstances, to answer questions the answers to which would ultimately be used at her trial on a charge of murder?

There is no real difference between the two tests and under either the result in this case would be the exclusion of the evidence.

27. The test to be applied then in determining whether a statement made to a police officer or other person in authority by an accused person may be rendered inadmissible because of intoxication of the accused involves two questions:

28. Was the accused aware of what she was saying?

and

2. Was she aware of the consequences of making the statement on the particular occasion in question?

To be aware of the consequences in this context simply means to be capable of understanding that her statement could be used in evidence in proceedings to be taken against her. There is no novelty in this approach. It is consistent with the familiar and customary warning derived from the English judges' rules which was to the effect that "you may remain silent but anything you say will be taken down in writing and may be given in evidence". This warning was designed to insure knowledge of the consequences of the statement, that is, its possible use in proceedings against the accused. It must be observed that common sense would dictate that a very high degree of intoxication would be required to render such a statement inadmissible.

28. The trial judge found that, because of drunkenness, the appellant lacked the knowledge of the consequence of making the statement and he excluded the statement. I would not disturb this finding, and would accordingly allow the appeal.

29. I would leave open any question raised as to the application of the Canadian Charter of Rights and Freedoms to this case. I would allow the appeal and dispose of the issue as does my colleague, Wilson J.

Appeal allowed.

Solicitor for the appellant: C. David Hughes, Fredericton.

Solicitor for the respondent: Glendon J. Abbott, Fredericton.