R. v. Ross, [1989] 1 S.C.R. 3

Brent Mark Leclair and Rodney James Ross Appellants

v.

Her Majesty The Queen Respondent

indexed as: r. v. ross

File No.: 19176.

1988: January 27; 1989: January 19.

Present: Beetz, Estey*, McIntyre, Lamer, Wilson, La Forest and L'Heureux‑Dubé JJ.

on appeal from the court of appeal for ontario

Constitutional law -- Charter of Rights -- Right to counsel ‑‑ Accused informed of right to counsel -- Accused unable to contact their respective lawyers in the middle of the night -- Accused subsequently identified in a line-up -- Whether accused given a reasonable and effective opportunity to retain and instruct counsel -- Whether accused's right to counsel infringed -- Whether accused waived right to counsel by refusing to call another lawyer or by participating in the line-up -- Canadian Charter of Rights and Freedoms, s. 10(b).

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

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

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

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

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

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

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

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

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

Cases Cited

By Lamer J.

Applied: R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233; R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265; referred to: R. v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435; Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383; Marcoux and Solomon v. The Queen, 1975 CanLII 10 (SCC), [1976] 1 S.C.R. 763; R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980.

By L'Heureux-Dubé J. (dissenting)

R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265; R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495.

Statutes and Regulations Cited

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

Criminal Code, R.S.C. 1970, c. C-34, s. 453.4 [ad. c. 2 (2nd Supp.), s. 5].

Identification of Criminals Act, R.S.C. 1970, c. I-1.

APPEAL from a judgment of the Ontario Court of Appeal rendered December 21, 1984 dismissing appellants' appeal from their convictions on a charge of breaking and entering and of theft. Appeal allowed and a new trial ordered, McIntyre and L'Heureux-Dubé JJ. dissenting.

Clayton C. Ruby and Melvyn Green, for the appellant Leclair.

Michael Code, for the appellant Ross.

Brian J. Gover, for the respondent.

//Lamer J.

The judgment of Beetz, Lamer, Wilson and La Forest JJ. was delivered by

LAMER J. -- The appellants were convicted by a jury in Sault Ste. Marie of breaking and entering and of theft. Their appeal to the Ontario Court of Appeal was dismissed. They come to this Court by leave and they appeal on many grounds. As I am of the view that they should succeed in obtaining a new trial on one of those grounds, I need not fully examine the other grounds and furthermore I will limit my narration of the facts to those essential to that ground of appeal.

The Facts

A break and enter occurred on July 18, 1983 into a dwelling-house in Sault Ste. Marie. The owners were not home at the time. A boarder was, but he was asleep and did not witness anything. However, two houses up the street there was a group including four young people, one of whom heard the sound of breaking glass. Upon noticing two figures at the home broken into she yelled and the three others chased the perpetrators. It was around 10:00 p.m. The perpetrators were not caught and they escaped in various directions.

About 2 1/2 hours later the police stopped a vehicle on a nearby street. Inside the car were four persons including the two appellants. When asked their names, the appellants gave false identities which they shortly thereafter corrected. Nothing was found after a search was conducted of the car and the occupants. The three boys, one aged 16 and two aged 17, were arrested and charged with break and enter.

All three were advised of their right to counsel. The appellants each tried to phone their respective counsel but received no answer. It was now around 2:00 a.m. The appellant Leclair was asked if he wanted to call another lawyer and he said "no". He was placed in a police cell. The appellant Ross was also taken to the cells. The police officer's notes did not indicate that the appellant Ross was asked if he wanted to call other counsel.

In the middle of the night, the officers went to a nearby pinball arcade and found 7 people, of similar age to the accused, who could participate in a line‑up. The four young witnesses were then taken to the police station and the line‑up was held at 3:00 a.m. Neither of the appellants were advised that they were under no obligation to participate. At trial the appellant Ross asked that the line‑up evidence be excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms because it was obtained in a manner that infringed or denied his right under s. 10(b) of the Charter and because the admission of this evidence in the proceedings would bring the administration of justice into disrepute.

The appellant Leclair initially joined Ross in this Charter application but it would appear, from a reading of the record, that he abandoned the application. This case was argued in the Court of Appeal and in this Court as if Leclair had not abandoned the application, and the respondent Crown has not raised the matter. I therefore intend to deal with this appeal as if both Leclair and Ross pressed the matter to its conclusion.

The Judgments

Senior judge Vannini held a voir dire and came to the conclusion that the accused Ross had been informed of and given an opportunity to exercise his right to counsel prior to the line‑up, and found no violation of Ross's right to counsel. He also found that:

Because neither a suspect, nor an accused can be compelled to participate in a police line‑up, Marcoux and Solomon v. The Queen, [1975 CanLII 10 (SCC), [1976] 1 S.C.R. 763], it can be said to be the right of a suspect or of an accused to refuse to participate in a line‑up.

However, it does not follow from this that there is a duty upon the police to inform them of this right, nor does the failure to do so bring the administration of justice into disrepute.

The gist of the Court of Appeal's reasons in relation to the Charter issue are to be found in the following paragraph:

The trial judge held that their rights had not been infringed upon and, in any event, he would not have excluded the evidence. He was satisfied that to admit the evidence, even assuming that there had been a breach of the appellants' rights, would not bring the administration of justice into disrepute. There was no suggestion of bad faith on the part of the officers, and from a view of the line‑up we think the line‑up was eminently fair. Even assuming without deciding that there had been a breach of their rights, we would not interfere with the judge's determination that the evidence with respect to the line‑up should have been admitted.

The Issue

The issue in this case is whether the Ontario Court of Appeal erred in law in holding that the evidence of the identification line‑up ought not to have been excluded pursuant to s. 24(2) and s. 10(b) of the Charter. A determination of this issue requires us to address the following questions:

1. Were the appellants given a reasonable and effective opportunity to retain and instruct counsel?

2. If not, was the line‑up evidence obtained under the particular circumstances of this case to be excluded under s. 24(2)?

The Legislation

The following provisions of the Charter are relevant to this appeal:

10. Everyone has the right on arrest or detention

(a) . . .

(b) to retain and instruct counsel without delay and to be informed of that right;

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(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.

Analysis

1) A Reasonable and Effective Opportunity to Retain and Instruct Counsel

The appellants were obviously detained and that they had the right to retain and instruct counsel is not in dispute. Moreover, the police complied initially with s. 10(b) and advised Ross and Leclair of their right to retain and instruct counsel without delay. As this Court held in R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, s. 10(b) imposes at least two duties on the police in addition to the duty to inform detainees of their rights. The first is that the police must give the accused or detained person who so wishes a reasonable opportunity to exercise the right to retain and instruct counsel without delay. The second is that the police must refrain from attempting to elicit evidence from the detainee until the detainee has had a reasonable opportunity to retain and instruct counsel. I am of the view that in this case the police fulfilled neither duty.

The First Duty: Affording a Reasonable Opportunity

Having been informed of their right to counsel and having clearly indicated their desire to assert that right, both appellants were permitted to telephone lawyers of their choice but were unable to make contact with them. This is hardly surprising since the calls were made at approximately 2:00 a.m. In the circumstances, it was highly unlikely that they would be able to contact their counsel before normal office opening hours.

At this juncture, I would underline the fact that the appellant Leclair was asked if he wanted to call another lawyer and his answer was "no". The Crown's submission was that by giving this answer Leclair waived his right to counsel. I do not agree. Leclair had clearly indicated that he wished to contact his lawyer. The mere fact that he did not want to call another lawyer cannot fairly be viewed as a waiver of his right to retain counsel. Quite the contrary, he merely asserted his right to counsel and to counsel of his choice. Although an accused or detained person has the right to choose counsel, it must be noted that, as this Court said in R. v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435, a detainee must be reasonably diligent in the exercise of these rights and if he is not, the correlative duties imposed on the police and set out in Manninen are suspended. Reasonable diligence in the exercise of the right to choose one's counsel depends upon the context facing the accused or detained person. On being arrested, for example, the detained person is faced with an immediate need for legal advice and must exercise reasonable diligence accordingly. By contrast, when seeking the best lawyer to conduct a trial, the accused person faces no such immediacy. Nevertheless, accused or detained persons have a right to choose their counsel and it is only if the lawyer chosen cannot be available within a reasonable time that the detainee or the accused should be expected to exercise the right to counsel by calling another lawyer.

Moreover, once the appellant asserted his right to instruct counsel, and absent a clear indication that he had changed his mind, it was unreasonable for the police to proceed as if Leclair had waived his right to counsel. As a majority of this court held in Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383, at pp. 394-95:

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).

Since the evidence reveals that Leclair asserted his right to counsel, the burden of establishing an unequivocal waiver is on the Crown. Here, the Crown has failed to discharge the onus.

In the case of the appellant Ross, there is no evidence that the police even asked whether he wanted to call another lawyer. Once Ross had tried and failed to reach his lawyer, it would appear that the police assumed their obligation to provide a reasonable opportunity to retain counsel was at an end. One can reasonably infer that they also misconstrued the nature of their obligation as concerned the appellant Leclair. Obviously, there was no urgency or other reason justifying that the police proceed forthwith and it cannot be said that the appellants had a real opportunity to retain and instruct counsel. This therefore leads us to consider the second duty.

The Second Duty: Refraining from Taking Further Steps

Having seen that the appellants got no answer to their phone calls, the police officers placed them in police cells and a few minutes later, the appellants were told to participate in a line-up, which they did.

The police were mistaken to follow such a procedure. As this Court held in Manninen, the police have, at least, a duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel. In my view, the right to counsel also means that, once an accused or detained person has asserted that right, the police cannot, in any way, compel the detainee or accused person to make a decision or participate in a process which could ultimately have an adverse effect in the conduct of an eventual trial until that person has had a reasonable opportunity to exercise that right. In the case at bar, it cannot be said that the appellants had a real opportunity to retain and instruct counsel before the line-up was held. Nor can it be said that there was any urgency or other compelling reason which justified proceeding with the line-up so precipitously.

The Crown urged upon us that it was necessary to hold the line-up immediately, while the memories of the witnesses were fresh and undisturbed. I cannot accept this submission. While it may be desirable to hold a line-up as soon as possible, this concern must generally yield to the right of the suspect to retain counsel, which right must, of course, be exercised with reasonable diligence. Here, the line-up was held with utmost, indeed highly unusual dispatch. There is nothing to suggest that the line-up could not have been held a few hours later, after the appellants had again attempted to contact their lawyers during normal business hours.

The respondent also submitted that there was no violation of the right to counsel because the appellants did not have the right to have their lawyers present during the line-up. This submission is without merit. Even if the appellants could not have their lawyers present during the line-up, this does not imply that counsel is of no assistance to a suspect. Identification evidence obtained through a line-up is usually strong evidence susceptible of influencing trial deliberations. The question as to whether a suspect has a positive right to refuse to participate in a line-up has not been decided in our law and was not raised in the courts below or by counsel before this Court. It would thus be inappropriate to resolve this question here. However, it is clear that there is no legal obligation to participate in a line-up. There is certainly no statutory obligation to participate in a line-up equivalent to s. 453.4 of the Criminal Code which, together with the Identification of Criminals Act, R.S.C. 1970, c. I-1, obliges an accused person to appear before a police officer for the purposes of fingerprinting. Nor have the courts ever imposed an obligation to participate in a line-up. Since there is no such legal obligation, it is clear that counsel has an important role in advising a client about participating voluntarily in a line-up. In Marcoux and Solomon v. The Queen, 1975 CanLII 10 (SCC), [1976] 1 S.C.R. 763, this Court considered the case of an accused who refused to participate in a line-up. The police subsequently had a witness confront the accused directly and the witness made a positive identification. Evidence that the accused refused to participate in the line-up was admitted to meet the contention that the police failed to conduct a proper line-up. This case illustrates that while an accused or detained person has no obligation to participate in a line-up, failure to do so can have legal consequences respecting the evidence that might be admitted at trial. In the case at bar, had the appellants been allowed access to their lawyers, they could have been advised that they were under no statutory obligation to participate in the line-up, although failure to do so might have certain prejudicial consequences. They could have been advised, for example, not to participate unless they were given a photograph of the line-up, or not to participate if the others in the line-up were obviously older than themselves. In short, they could have been told how a well-run line-up is conducted, even though there is no statutory framework governing the line-up process. It was this advice, not the presence of their lawyers at the line-up, of which the appellants were deprived.

Furthermore, that the accused did not refuse to participate in the line-up cannot by itself amount to a waiver of the right to counsel. The very purpose of the right to counsel is to ensure that those who are accused or detained be advised of their legal rights and how to exercise them when dealing with the authorities. It would contradict this purpose to conclude that a detained or accused person has waived the right to counsel simply by submitting, before being instructed by counsel, to precisely those attempts to secure the detainee's participation from which the police should refrain. Here, the appellants were unable to make an informed decision about participating in the line-up because they were ignorant of their legal position, not having been advised by their lawyers. Nor did the police even give them the choice as to whether they should participate. In the circumstances, therefore, to conclude that the appellants had waived their rights by participating in the line-up would render the right to counsel nugatory.

2) The Exclusion of Evidence Under s. 24(2)

This Court recently decided in R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, that for the purposes of s. 24(2), evidence was "obtained in a manner that infringed or denied . . . rights" guaranteed by the Charter if the violation of one of those rights precedes the discovery of evidence, and if that discovery of evidence was not too remote from the violation. In this case the violation of the right to counsel was immediately prior to the discovery of evidence through the line-up. There is no question of remoteness; in fact there was even a direct link between the violation of the right to counsel and the evidence obtained. As such, what remains to be determined is whether the line-up evidence should be excluded under s. 24(2) of the Charter. Evidence must be excluded under s. 24(2) if, having regard to all the circumstances, it is established that it would (in the sense that it could) bring the administration of justice into disrepute to admit the evidence.

In R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, a majority of this Court found it useful to identify three groups of factors which must be balanced by the Court in determining whether the admission of the evidence into the proceedings would bring the administration of justice into disrepute. The first category of factors relates to the fairness of the trial process, the second relates to the seriousness of the Charter violation and the third relates to the effect of excluding the evidence and, more particularly, to the question as to whether the reputation of the system will be better served by the admission or the exclusion of the evidence.

In this case, there can be no doubt as to the importance of the line-up evidence. As the majority of this Court held in Collins, among the factors relevant to determining the effect of the admission of the evidence on the fairness of the trial is the nature of the evidence obtained as a result of the violation. Any evidence obtained, after a violation of the Charter, by conscripting the accused against himself through a confession or other evidence emanating from him would tend to render the trial process unfair. In Collins we used the expression "emanating from him" since we were concerned with a statement. But we did not limit the kind of evidence susceptible of rendering the trial process unfair to this kind of evidence. I am of the opinion that the use of any evidence that could not have been obtained but for the participation of the accused in the construction of the evidence for the purposes of the trial would tend to render the trial process unfair.

It is true that, as a general matter, the identity of the accused is not evidence emanating from the accused, nor is it evidence that cannot be obtained but for the participation of the accused. A person's identity is pre‑existing "real evidence" inasmuch as a person's physical characteristics exist irrespective of any Charter violation or of any steps taken by the police.

However, the identification evidence obtained through a line-up is not simply pre-existing "real evidence" in this sense. The purpose of a line-up is two-fold. First, a line-up is designed to identify the detainee as the author of the crime. But second, and most important to the discussion here, the procedure of a line-up is designed to reinforce the credibility of identification evidence. In this sense the object of the line-up is to construct evidence that the accused was picked out from among a similar group of people, by a witness who was not prompted in any way to make that choice, and to settle the memory of the witness for the purpose of the trial. When participating in a line-up, the accused is participating in the construction of credible inculpating evidence. Obviously, this piece of evidence could not be obtained without the accused's participation in its construction since the evidence of a line-up held without the presence of the accused is irrelevant to the Crown's case. Thus, while the accused does not participate in the creation of "real evidence" of identity, the accused does participate in the creation of credible line-up evidence. An accused who is told to participate in a line-up before having had a reasonable opportunity to communicate with counsel is conscripted against himself since he is used as a means for creating evidence for the purposes of the trial. Line-up evidence is evidence that could not have been obtained but for the participation of the accused in the construction of the evidence for the purposes of the trial. In my view, the use of such evidence goes to the fairness of the trial process.

The nature of the Charter violation is also relevant given that we are confronted with a serious breach of rights. The appellants clearly asserted their right to counsel and there was no urgency of any kind to explain the behaviour of the police. Nothing prevented them from holding the line-up later in the day. Nor is this a case of a good faith error in police conduct resulting in an inadvertent denial of the right to counsel. The police cannot be excused for misconstruing and misinterpreting the scope of their duty to provide a reasonable opportunity to retain and instruct counsel. Nor is this a case, for example, in which a longstanding precedent favoring the police procedure in question has been overturned or in which a novel constitutional principle has first been introduced. The scope of the right to counsel in the circumstances of this case is clear and well-settled.

Furthermore, in this case, the appellants were young, 16 and 17 years old, and we can reasonably presume that they were not aware of their rights. Nor did the police inform them that they were not obliged to participate in the line-up. While the police were under no duty to give this information, had they done so this would have been a relevant factor to be weighted under s. 24(2), though probably not a determinative one in this case.

I am therefore of the opinion that, having regard to all the circumstances, the appellants have established that the admission of the line-up evidence into the proceedings would bring the administration of justice into disrepute. Accordingly, the evidence should have been excluded and a new trial should be ordered.

I would accordingly allow the appeal and order a new trial.

//L'Heureux-Dubé J.

The reasons of McIntyre and L'Heureux-Dubé JJ. were delivered by

L'HEUREUX-DUBÉ J. (dissenting) -- The question that arises in this case is whether identification evidence obtained when the police placed the appellants in a line-up should be excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms. Although apprised of their right to counsel immediately upon arrest, and given an opportunity to call counsel, I agree with Justice Lamer that the appellants were not given a reasonable opportunity to exercise this right. As my colleague points out, at approximately 2:00 a.m. it was unlikely that appellants could easily reach their counsel. I also agree that the facts do not support the conclusion that the appellants waived their right to counsel.

I am sympathetic to the Crown's concern that in many instances a line-up may be an urgent necessity in order to take advantage of the fresh memories of witnesses to a crime. One must also not lose sight of the fact that the purpose of a line-up is not necessarily inculpatory, but may also be exculpatory. In the case at bar no urgency or real fear of loss of evidence by the lapse of time has been demonstrated. In my view, there is a need for a flexible approach to the admission or exclusion of evidence. On the facts of this case I am unable to agree with my colleague that the admission of the evidence of the identification line-up would "bring the administration of justice into disrepute". This is the only test of s. 24(2) of the Charter.

The criteria set out in R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, and discussed more recently in R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495, aid in determining what amounts to bringing the administration of justice into disrepute. An examination of the fairness of the trial process is required. I share the view of the Court of Appeal that: "There was no suggestion of bad faith on the part of the officers, and . . . the line-up was eminently fair". I do not see how the admission of this evidence affected the fairness of the trial, particularly since I do not share my colleague Justice Lamer's view that this identification evidence "emanates" from the accused in the same way that a confession does. In Collins, supra, Lamer J. explains that the admission of evidence "emanating" from the accused is made problematic because it "did not exist prior to the violation and strikes at one of the fundamental tenets of a fair trial, the right against self-incrimination" (p. 284). I do not see how this is the case with line-up evidence. The identity of the accused existed prior to the violation, as did the perceptions of the witnesses to the crime. In my view, such evidence comes into existence when an accused is seen committing the crime. The evidence cannot be considered as "emanating" from the accused simply because it may later be used to establish the credibility of identification evidence. Evidence that could not have been obtained but for the participation of the accused will not automatically render the trial process unfair. While this might be so in some cases, it will not necessarily be so in all cases.

It must be stressed that s. 24(2) does not automatically provide for the exclusion of evidence when it has been obtained following a breach of a Charter right. This is made clear by the Chief Justice in Simmons, supra. The evidence will only be excluded when: "it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute." Such an assessment must be made on a case by case basis. On the facts of the present case, I fail to see how such disrepute could occur. I share the opinion of Howland C.J. of the Court of Appeal of Ontario:

The case for the Crown, in the absence of any evidence impugning the identification, was quite overwhelming, and, in our view, there was no miscarriage of justice by reason of the admission of the impugned evidence. We are satisfied that the verdict would have inevitably been the same if this evidence had not been admitted.

Given the strength of the Crown case, and given that the line-up itself was carried out in an manner which was "eminently fair", it is difficult to see how the admission of the evidence could bring the administration of justice into disrepute.

As for the other grounds of appeal, in my view they have no merit and I adopt the reasons of the Court of Appeal in that regard.

In the result, I would dismiss the appeal.

Appeal allowed and new trial ordered, MCINTYRE and L'HEUREUX-DUBÉ JJ. dissenting.

Solicitors for the appellants: Ruby & Edwardh, Toronto.

Solicitor for the respondent: The Ministry of the Attorney General, Toronto.

• Estey J. took no part in the judgment.