R. v. Smith, 1989 CanLII 27 (SCC), [1989] 2 SCR 368

R. v. Smith, 1989 CanLII 27 (SCC), [1989] 2 SCR 368

Joey Leonard Smith Appellant

v.

Her Majesty The Queen Respondent

indexed as: r. v. smith

File No.: 21049.

1989: March 21; 1989: September 14.

Present: Dickson C.J. and Lamer, Wilson, La Forest, L'Heureux‑Dubé, Sopinka and Gonthier JJ.

on appeal from the court of appeal for british columbia

Constitutional law ‑‑ Charter of Rights ‑‑ Right to counsel ‑‑ Accused informed of his right to counsel but declined to call his lawyer in the evening ‑‑ Accused indicating his desire to remain silent during questioning until he saw his lawyer in the morning ‑‑ Accused making statement "off the record" ‑‑ Whether accused given reasonable opportunity to contact counsel ‑‑ Whether accused's right to counsel infringed ‑‑ If so, whether statement should be excluded ‑‑ Canadian Charter of Rights and Freedoms, ss. 10(b), 24(2).

The accused was arrested at his home around 7:00 p.m., charged with robbery and informed of his right to retain and instruct counsel. After various stops made to accommodate the accused, the police officers and the accused arrived at the police station at approximately 9:00 p.m. The accused requested the opportunity to communicate with his lawyer and the police gave him a telephone and a telephone book. Because it was late and the only telephone number appearing in the telephone book was his lawyer's office number, the accused decided not to call and advised the police that he would contact his lawyer in the morning. The police suggested that he try to make the call but he refused. He was placed in a police cell for approximately one hour and then taken to an interview room. The accused told the police that he would not answer questions concerning the robbery until he could speak with his lawyer, but the police pursued their questioning and tried to obtain a statement. The accused indicated in two other occasions that he wanted to speak to his lawyer. Finally, he made a statement, specifying that it was made "off the record". At his trial, a voir dire was held to determine the admissibility of this statement. The trial judge ruled that the accused's rights under s. 10(b) of the Canadian Charter of Rights and Freedoms had not been violated and admitted the statement. The accused was subsequently convicted and the majority of the Court of Appeal upheld the conviction. This appeal is to determine whether the accused was given a reasonable opportunity to retain and instruct counsel before the police attempt to obtain a statement from him; and if not, whether the statement should be excluded pursuant to s. 24(2) of the Charter.

Held (Dickson C.J. and Wilson and La Forest JJ. dissenting): The appeal should be dismissed.

Per Lamer and Gonthier JJ.: The accused's s. 10(b) rights were not violated. Under s. 10(b) of the Charter, the police must give the arrested or detained person a reasonable opportunity to exercise the right to retain and instruct counsel and must refrain from attempting to elicit evidence from him until he has had this opportunity. These duties imposed on the police are suspended when the arrested or detained person is not reasonably diligent in the exercise of his rights. Such a limit is essential because without it, it would be possible to delay needlessly and with impunity an investigation and even, in certain cases, to allow for an essential piece of evidence to be lost, destroyed or rendered impossible to obtain. The rights set out in the Charter are not absolute and unlimited rights. They must be exercised in a way that is reconcilable with the needs of society.

Here, it is only two hours after his arrest that the accused expressed the wish to exercise his right to retain counsel. Then he decided that it was useless to try to contact his lawyer even though the police suggested that he try to do so. In acting in such a way, the accused was not reasonably diligent in the exercise of his rights and the duties imposed on the police were suspended. It is impossible to conclude that the accused would not have been able to contact his lawyer when he was arrested or at 9:00 p.m. at the police station. The situation would be different if he had tried to contact his lawyer but had failed in his attempt. The accused, in these circumstances, would have been justified to ask for a delay until the opening of offices in the morning. However, his decision to not even try to contact his lawyer is fatal and prevents him from establishing that he was reasonably diligent in the exercise of his rights. The burden of proving that it was impossible for the accused to communicate with his lawyer when the police offered him the opportunity to do so was on the accused.

Finally, the accused could not require the police to suspend the questioning when he subsequently reiterated his intention to speak with his lawyer. The arrested or detained person who was not diligent in the exercise of his right to retain counsel can always exercise it but he cannot, in the process, require the police to suspend their investigation. The duty imposed on the police to refrain from attempting to elicit evidence from the arrested or detained person until he has had a reasonable opportunity to communicate with counsel is suspended and is not again "in force" when he finally decides to exercise his right. A different conclusion would render meaningless the duty imposed on a detained or arrested person to be diligent in the exercise of his rights. This principle, however, would not apply if the circumstances prevailing when such a person subsequently asks to speak with a lawyer are substantially different from those existing when he first had the opportunity to communicate with a lawyer.

Per L'Heureux‑Dubé J.: Section 10(b) of the Charter has not been infringed in this case. The circumstances of time and place as well as the responsible behaviour of the police officers clearly gave the accused more than a reasonable opportunity to communicate with counsel of his choice, or at the very least, to obtain legal advice before answering the questions. The accused elected not to avail himself of this opportunity. When he did not diligently exercise his right to retain and instruct counsel without delay but deferred doing so until the next morning, the right of the police to question him was not thereby suspended. Moreover, the accused did not contend that his statement had not been made freely and voluntarily. The legality of the subsequent conduct of the police, in resuming the questioning after the accused had passed up the reasonable opportunity to contact counsel, is accordingly not at issue here.

The requirements of s. 10(b) are not incompatible with obtaining voluntary statements in response to police questioning. One of the main goals of s. 10(b) is to ensure the fairness of the questioning of suspects by police officers and that goal does not preclude the interrogation of suspects by the police, nor is it inconsistent with the taking by the police of incriminating statements. Far from being prohibited by the Charter, admissions of guilt by wrongdoers, if not coerced, are inherently desirable. Such confessions provide a reliable tool in the elucidation of crime, thereby furthering the judicial search for the truth and serving the societal interest in repressing crime through the conviction of the guilty.

Per Sopinka J.: A person under detention is to be advised promptly of the right to counsel and must be given a reasonable opportunity to retain and instruct counsel. During this period, police questioning is to be suspended. What is a reasonable opportunity is determined by reference to all the circumstances of the case, including the conduct of the accused. Whether an opportunity is reasonable must be judged in part in light of the diligence with which the accused seeks to avail himself of the right. The appellant here was most casual in seeking to avail himself of the opportunity afforded to him to retain and instruct counsel. The courts below took these and other matters into account, applied the law correctly and as a matter of fact concluded that the opportunity afforded to the accused was reasonable. This being principally a question of fact, there is no reason to interfere with the decision of the courts below.

Per Dickson C.J. and Wilson and La Forest JJ. (dissenting): The accused was not given a reasonable opportunity to retain and instruct counsel. He did not waive his right to counsel as he clearly and repeatedly asserted his desire to exercise that right. No urgency justified the police proceeding so precipitously with the interrogation. The robbery took place five months before, and nothing precluded the investigation from proceeding just as effectively the next morning after the accused had had an opportunity to talk to his lawyer. The questioning of the accused by the police following his insistence on speaking to his lawyer, completely disregarded the accused's constitutional rights and their conduct constituted a wilful violation of his rights. The decision of this Court in R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3, was not distinguishable from the present case.

The fact that the accused did not telephone his counsel's office at 9:00 p.m. to get in touch with him does not mean that the accused was not diligently pursuing his rights. An individual in the accused's position might quite realistically think that he could reach a lawyer at his office at that time of night and that even if he did, the lawyer would postpone any meeting to the next day. Where, as in this case, an investigation need not be urgently pursued, an accused should be able to wait and get in touch with his lawyer, rather than with any lawyer. In view of the accused's ongoing assertion of his desire to speak with counsel, the burden of showing a reasonable opportunity was given was on the Crown.

The accused's statement should be excluded pursuant to s. 24(2) of the Charter. The statement was obtained as a direct consequence of the breach of the accused's s. 10(b) rights. Additionally, after the accused had repeatedly asserted his desire to speak to his lawyer, the police did nothing to disabuse him of the notion that he could speak to the police "off the record". On a balancing of the interests of the administration of justice with the accused's rights, the evidence should be excluded.

Cases Cited

By Lamer J.

Applied: R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233; R. v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435; distinguished: R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3; referred to: R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613.

By L'Heureux‑Dubé J.

Referred to: R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3; R. v. Baig, 1987 CanLII 40 (SCC), [1987] 2 S.C.R. 537; R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233; Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383; Oregon v. Elstad, 470 U.S. 298; Miranda v. Arizona, 384 U.S. 436; United States v. Washington, 431 U.S. 181; R. v. Upston, 1988 CanLII 35 (SCC), [1988] 1 S.C.R. 1083.

By La Forest J. (dissenting)

R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3; R. v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435; R. v. Baig, 1987 CanLII 40 (SCC), [1987] 2 S.C.R. 537; R. v. Playford (1987), 1987 CanLII 125 (ON CA), 24 O.A.C. 161; Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383; R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233.

Statutes and Regulations Cited

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

Authors Cited

Jull, Kenneth. "Clarkson v. R.: Do We Need a Legal Emergency Department?" (1987), 32 McGill L.J. 359.

APPEAL from a judgment of the British Columbia Court of Appeal (1988), 1988 CanLII 2918 (BC CA), 43 C.C.C. (3d) 379, 29 B.C.L.R. (2d) 180, dismissing the accused's appeal from his conviction for robbery. Appeal dismissed, Dickson C.J. and Wilson and La Forest JJ. dissenting.

Henry K. Brown and Ann Cameron, for the appellant.

William F. Ehrcke, for the respondent.

//La Forest J.//

The reasons of Dickson C.J. and Wilson and La Forest JJ. were delivered by

Reasons of La Forest J. (Dissenting)

LA FOREST J. (dissenting) -- This appeal raises the following issues: whether the appellant's rights under s. 10(b) of the Canadian Charter of Rights and Freedoms were infringed because the police questioned him before he had had a reasonable opportunity to retain and instruct counsel; and if so, whether the evidence thereby obtained should be excluded pursuant to s. 24(2) of the Charter?

Facts

Facts

The appellant was arrested at home at 7:13 p.m. on May 22, 1986 in connection with a robbery that had occurred some five months before. After various stops, some at the appellant's request, he arrived at the police station at approximately 9:00 p.m. He had been informed on arrest of his right to counsel, and was not questioned en route to the police station, the arresting officers having advised the appellant that they did not wish to discuss the robbery before arriving at the station. On arrival there, the accused made a request to communicate with his lawyer and was handed a telephone and telephone book and given the opportunity to call him. He wanted to speak with George Brown. However, he was unable to locate a home telephone number for Mr. Brown, and, it being at 9:00 p.m., he declined the opportunity to telephone the lawyer's office in the event that there might be an answering service. Rather, he advised the police he would contact his lawyer in the morning.

An hour later, the appellant was taken to an interview room for interrogation. He agreed to talk about himself, but would not talk about the robbery. What then transpired is fully set out in the following excerpt from the reasons of McLachlin J.A., as she then was, beginning with an exchange between the appellant and the police at 11:40 p.m.:

Smith:I would like my lawyer present.

Johnson:No problem, but with your lawyer you won't say anything. I need to hear this from you. You can understand, but I need to hear from you.

Further questioning ensued with the second police officer, Constable Dahl, taking over. At one point the subject of Smith's mother was raised and he became emotional and cried. After further questioning, which once again introduced the subject of robbery, the following exchange took place:

Dahl:What is your reason for the robbery?

Smith:I really don't want to say anything. I will talk to you guys, but I will wait for a lawyer.

Dahl:What can a lawyer do for you?

Smith:I can explain to him what went on.

Dahl:Your lawyer is going to tell you not to talk to the police like they always do.

Smith:Yes.

Dahl:What is that going to get you? You have to be honest with yourself if you want your kids to be honest.

Smith:Yeah.

Dahl:If the kids steal something, you would want your kids to be honest?

Smith:Yes.

A short while later, Smith made a statement, stating that it was "off the record".

On the voir dire into the admissibility of this statement, Constable Johnson agreed that the officers had entertained no doubt that Smith wanted to consult his lawyer before discussing the robbery. The officers made a conscious effort to dissuade him from this course, as the following excerpt from Constable Johnson's cross-examination discloses:

Q.Well officer, you agreed with me that you made a conscious effort to persuade him not to involve his lawyer at that point.

A.Yes.

Q.Okay. And you did that because you thought that if this man talked to his lawyer he isn't going to say anything to us?

A.Quite possible, yes.

Q.Well, it was more than possible. It was what you feared, was it not?

A.Well, again he was saying he would like his lawyer present before offering his explanation. It's been my experience that most often a lawyer will counsel their client to say nothing.

Q.And that is what you wanted to avoid, is it not?

A.Yes.

((1988), 1988 CanLII 2918 (BC CA), 43 C.C.C. (3d) 379, at pp. 388-89)

The Courts Below

The Courts Below

The trial judge admitted the statement, and Smith was convicted. A majority of the Court of Appeal upheld the conviction (Hinkson J.A., with Carrothers J.A. concurring, McLachlin J.A. dissenting).

Hinkson J.A. noted that s. 10(b) imposes two duties on the police: the duty to allow a detainee a reasonable opportunity to retain and instruct counsel without delay, and the duty to cease questioning the detainee until he has had a reasonable opportunity to retain and instruct counsel. He then reviewed R. v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435, R. v. Baig, 1987 CanLII 40 (SCC), [1987] 2 S.C.R. 537, and R. v. Playford (1987), 1987 CanLII 125 (ON CA), 24 O.A.C. 161, and concluded as follows (at pp. 386-87):

As soon as the appellant was arrested he was informed of the reason for his arrest, informed of his rights, and told that the robbery was not to be discussed with him until he reached the police station.

It is clear that the appellant understood his right to retain and instruct counsel at that time. He made a request and the police provided him with a telephone and a telephone book to communicate with a lawyer. When he changed his mind the police urged him to make the telephone call in an attempt to communicate with his lawyer. He declined to do so. He was then placed in the cells again for an hour during which time he had an opportunity to reconsider whether or not he would attempt to get in touch with a lawyer that evening. He knew that the police intended to interview him about the details of the robbery. An hour later he had not changed his mind about attempting to get in touch with a lawyer that evening. He was reminded of his rights in the interview room but did not request an opportunity to telephone a lawyer at that time. Looking at the circumstances as they existed up to the point when the interview commenced, it appears to me that the appellant had had a reasonable opportunity to get in touch with a lawyer and had declined to do so. He was not diligently pursuing his rights under s. 10(b) of the Charter.

In this case the attending police officers did not commit any impropriety nor were they unfair with the appellant. When he did not diligently exercise his right to retain and instruct counsel without delay but deferred doing so until the next morning, the right of the police to question him was not thereby suspended.

McLachlin J.A. dissented. In her view, the issue was simply whether, barring waiver, the accused was given a reasonable opportunity to retain and instruct counsel before the police attempted to elicit evidence from him. She noted that in the circumstances of this case, it could not be said that the accused had waived the right to counsel. She then turned to the question of what constituted a reasonable opportunity to retain and instruct counsel. She noted the importance of fairly balancing the rights of the individual with the interests of society. "Reasonable opportunity" was composed of two aspects. First, the detainee must be given the means of contacting counsel. Second, he must be given a reasonable time within which to do so. What is a reasonable time depends on the circumstances of each case.

On the basis of Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383, and R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, McLachlin J.A. concluded that in circumstances where it is not urgent that the police proceed immediately with questioning the detainee, the reasonable time for contacting a lawyer may extend beyond the interval immediately following arrest. In the absence of urgency or other compelling circumstances, the time permitted to the accused to contact a lawyer should not be arbitrarily curtailed to meet the convenience of the authorities or to facilitate their desire to obtain an incriminating statement. In the result, she found this case to be indistinguishable from Manninen. Similarly, R. v. Playford, supra, also supported her position. There, police questioning conducted fifteen hours after arrest was held to have deprived the accused of his right to retain and instruct counsel in view of the lack of urgency of the investigation and the fact that the accused had been taken into custody on a Sunday night when it might reasonably be anticipated that there would be some difficulty in the accused being able to promptly retain and instruct counsel.

Having regard to the facts that the robbery in question had taken place five months earlier, that the accused had every reason to suppose that his lawyer would be unavailable at that time of night, and that the accused repeatedly reaffirmed his desire to speak with a lawyer, McLachlin J.A. held that there was no possibility of finding waiver, and in the circumstances a reasonable time for contacting counsel had not elapsed. Finding, therefore, a violation of the accused's rights, McLachlin J.A. excluded the evidence.

Analysis

Analysis

The Court of Appeal delivered its reasons before this Court had handed down judgment in R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3. But even without reference to that case, I find the reasons of McLachlin J.A. compelling. In light of that case, I do not see how the Crown can succeed. I nonetheless turn to the arguments raised by the parties.

The appellant argues that he did not waive his right to counsel. Following Clarkson, supra, this cannot be successfully disputed. The accused positively and repeatedly asserted his desire to exercise his right to counsel. Answering the questions put to him does not constitute a waiver of his right to counsel in these circumstances. It is clear that these answers were given after he had asserted his desire to speak with his lawyer. It is also clear that he believed they were given "off the record", and the police did nothing to disabuse him of that notion. In these circumstances, it could not be said that there was an awareness of the consequences of speaking in the absence of his lawyer.

The case, as I see it, really turns on whether the appellant had a reasonable opportunity to contact counsel. In my view, the appellant did not have that opportunity. What the evidence discloses is that the appellant was advised of his right to retain and instruct counsel, and that he initially requested a telephone to speak with his lawyer. He decided not to make the call thinking, quite reasonably in the view of McLachlin J.A., that at that time of night there would be no one in the lawyer's office. He said he would call his lawyer in the morning. From that point on, he continually asserted his intention not to speak about the robbery in the absence of his lawyer. The evidence also discloses that the police actively dissuaded the accused from his resolve not to speak until he had talked with his lawyer.

The Crown submits, however, that the appellant did not diligently pursue his s. 10(b) rights. I cannot accept this position. The appellant wanted his lawyer, George Brown. It is true that he did not telephone Mr. Brown's office at 9:00 p.m. to get in touch with him, but that does not persuade me that the appellant was not diligently pursuing his rights. An individual in the appellant's position might quite realistically think that he could not reach a lawyer at his office at that time of night and that even if he did, the lawyer would postpone any meeting to the next day.

I should add that the appellant should be able to wait and get in touch with his lawyer, rather than with any lawyer. If the investigation needed urgently to be pursued, the position might be different, but it cannot be said that there was any urgency in this case. There was nothing that would preclude the investigation from proceeding just as effectively the following morning. The alleged crime had taken place five months before.

The Crown attempted to distinguish Manninen, supra, from this case on the ground that here the police did not question the accused until after he had made the decision not to telephone his lawyer. The distinction, however, is irrelevant. The essential point in both cases is that the accused asserted and continued to assert his right to counsel. The Crown also attempted to distinguish Ross, supra, on the basis that the arrest in this case took place at 9:00 p.m., whereas that in Ross occurred at 2:00 a.m. I do not find this distinction persuasive either. It may be harder to obtain the services of a lawyer at 2:00 a.m., but it is by no means easy to get a specific lawyer at 9:00 p.m. either. To make a distinction such as this is at once to interpret the Charter in a grudging way and to give the police, who must administer the law, very unclear guidelines.

In my view, this case is governed by Ross. There, Lamer J. for the majority, discussed what is meant by a reasonable opportunity. He said, at p. 11:

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.

Lamer J. then went on to discuss Clarkson, supra, and noted that after an assertion of the right to counsel, the burden of establishing an unequivocal waiver is on the Crown. Similarly, in view of the appellant's ongoing assertion of a desire to speak with counsel, I am of the opinion that the burden of showing a reasonable opportunity was given must be on the Crown.

Lamer J. then discussed the issue of urgency. He stated, at p. 12:

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.

Later, at p. 17, he added:

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.

In my view, these observations apply equally to this case. There was no reason to proceed before the appellant had the opportunity to speak with counsel the next morning. As well, as the portions of the transcript set forth in the excerpt from McLachlin J.A.'s judgment cited earlier demonstrate, the police, in questioning the appellant following his insistence on speaking to his lawyer, completely disregarded the appellant's rights.

The only factor I can find in the police's favour in this case is that the appellant did not attempt to call his lawyer. However, I cannot hold it against the appellant that he was willing to spend the night in jail when the likelihood was that he would not have been able to talk to his lawyer that night anyway. All in all, I have no difficulty in holding that the police did not, in the circumstances, give the appellant a reasonable opportunity to retain and instruct counsel. I would go further and say that their conduct constituted a wilful violation of the appellant's rights.

My conclusion that the evidence should be excluded pursuant to s. 24(2) will therefore not be surprising. The appellant's statement was obtained as a direct consequence of the breach of the appellant's rights. Additionally, I am troubled by the fact that after the appellant had repeatedly asserted his desire to speak to his lawyer, the police did nothing to disabuse him of the notion that he could speak to the police "off the record". The Crown argues that on a balancing of the interests of the administration of justice with the appellant's rights, the evidence should nonetheless be admitted. I am of the view that the balance lies the other way.

I would allow the appeal and order a new trial.

//Lamer J.//

The reasons of Lamer and Gonthier JJ. were delivered by

Reasons of Lamer J.

LAMER J. -- The appellant was found guilty of robbery, after a trial by judge and jury. The British Columbia Court of Appeal dismissed his appeal, McLachlin J.A. (as she then was) dissenting. As a result, the appellant appeals in this Court as of right. He argues that his right to retain and instruct counsel without delay, guaranteed by s. 10(b) of the Canadian Charter of Rights and Freedoms, was violated and that the evidence obtained in these circumstances should be excluded, pursuant to s. 24(2) of the Charter, since the admission of it into the proceedings could bring the administration of justice into disrepute.

The Facts

The Facts

The appellant was arrested and charged with robbery. He was arrested shortly after 7:00 p.m. at his home about five months after the commission of the offence for which he is prosecuted. On the way between his home and the police station, he was advised of his rights including his right to retain and instruct counsel. On the way, he made several requests, all of which the police complied with. He asked, among other things, that certain pills be retrieved from his apartment, that his keys be left with a certain woman and that he be allowed to obtain gum and cigarettes. It was only upon his arrival at the police station, at approximately 9:00 p.m., that the appellant expressed his intention to communicate with his lawyer. The police, at this time, gave him a telephone book and gave him access to a telephone. Having noticed that the telephone book only contained the office number for his lawyer, the appellant decided not to make the call and to wait until the morning. The police suggested that he try to make the call but he refused. He was placed in a police cell.

He was questioned approximately one hour later. During this questioning, the appellant advised the police that he would answer questions concerning himself but that he would not make any comments about the robbery he was charged with, until he could speak with his lawyer. The police pursued their questioning and tried to obtain a statement from him. The appellant twice indicated that he wanted to speak to his lawyer. Finally, he made a statement, specifying that it was made "off the record". It is this statement that the appellant asks this Court to exclude.

The Judgments

County Court of New Westminster

The Judgments

McTaggart J. concluded, after having held a voir dire, that the right to retain and instruct counsel guaranteed to the appellant by s. 10(b) of the Charter had not been violated. According to McTaggart J., the appellant was advised of his right to retain and instruct counsel but refused the offer made to him to exercise this right. The appellant was aware that he had this right when he chose to make an incriminating statement.

British Columbia Court of Appeal

The British Columbia Court of Appeal (1988), 1988 CanLII 2918 (BC CA), 43 C.C.C. (3d) 379 (Carrothers, Hinkson and McLachlin JJ.A.) concluded that the issue was whether the appellant had had a reasonable opportunity to retain and instruct counsel without delay. Hinkson J.A., with whom Carrothers J.A. concurred, underlined that this Court, in R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, and R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, elaborated on the scope of the right protected by s. 10(b) of the Charter. He noted that according to Manninen, s. 10(b) imposes two duties on the police. The police must give the arrested or detained person a reasonable opportunity to exercise his right to counsel and refrain from questioning this person until he has had this reasonable opportunity. He wrote that in his view (at p. 387):

Looking at the circumstances as they existed up to the point when the interview commenced, it appears to me that the appellant had had a reasonable opportunity to get in touch with a lawyer and had declined to do so. He was not diligently pursuing his rights under s. 10(b) of the Charter.

Consequently, Hinkson J.A. was of the opinion that the right of the police to question the appellant was not suspended and that the right of the latter to retain and instruct counsel was not violated.

McLachlin J.A. dissented. She was of the opinion that the appellant did not waive his right to retain and instruct counsel without delay. In her view, he did not have a reasonable opportunity to retain and instruct counsel since the police did not give him enough time to do so and attempted to dissuade him from exercising this right. Thus, she concluded that the evidence obtained in these circumstances should have been excluded by virtue of s. 24(2) since its admission would bring the administration of justice into disrepute.

The Issue

The Issue

The issue that we must decide is whether the British Columbia Court of Appeal erred in law in holding that the right of the appellant to retain and instruct counsel was not violated and, consequently, that the statement obtained by the police should not have been excluded.

The Legislation

The Legislation

The following provisions are relevant to this appeal:

Canadian Charter of Rights and Freedoms

10. Everyone has the right on arrest or detention

(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

Analysis

The fact that the appellant, in the case at bar, had the right to retain and instruct counsel is not in dispute. The Crown did not contest the fact that the appellant was detained within the meaning of s. 10(b) and, consequently, that he had the rights set out in it. Moreover, the police informed the appellant of these rights when they made the arrest.

Thus, the question raised is whether the police gave the appellant a reasonable opportunity to exercise this right to retain and instruct counsel without delay. This Court, in Manninen, supra, has clearly indicated that the right to retain and instruct counsel imposes this duty on the police and further that they must refrain from attempting to elicit evidence from the arrested or detained person until this person has had this reasonable opportunity. This principle has been recently reaffirmed in R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3.

In the case at bar, the police, on the way between home and the police station, advised the appellant of his right to retain and instruct counsel. The appellant expressed several wishes but never expressed a wish to retain and instruct counsel. It was only upon his arrival at the police station, about two hours later, that the appellant indicated his intention to call his lawyer. The police, at this time, gave him a telephone book and brought him to a telephone. However, the appellant decided not to call because it was 9:00 p.m. and the only telephone number appearing in the telephone book was his lawyer's office number. The police suggested that he try since it was always possible that somebody would be at the office or that an answering machine would indicate a second telephone number where the lawyer could be reached. However, the appellant refused and decided to wait until the morning.

The police officers, in these circumstances, were justified to continue their questioning and to act as they did. This Court, in R. v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435, clearly indicated, at p. 439, that the duties imposed on the police as stated in Manninen, supra, were suspended when the arrested or detained person is not reasonably diligent in the exercise of his rights.

Generally speaking, if a detainee is not being reasonably diligent in the exercise of his rights, the correlative duties set out in this Court's decision in R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, imposed on the police in a situation where a detainee has requested the assistance of counsel are suspended and are not a bar to their continuing their investigation and calling upon him to give a sample of his breath.

This limit on the rights of an arrested or detained person is essential because without it, it would be possible to delay needlessly and with impunity an investigation and even, in certain cases, to allow for an essential piece of evidence to be lost, destroyed or rendered impossible to obtain. The rights set out in the Charter, and in particular the right to retain and instruct counsel, are not absolute and unlimited rights. They must be exercised in a way that is reconcilable with the needs of society. An arrested or detained person cannot be permitted to hinder the work of the police by acting in a manner such that the police cannot adequately carry out their tasks.

The case at bar is a situation where an arrested or detained person was not reasonably diligent in the exercise of his rights. The appellant was arrested and informed of his right to retain and instruct counsel around 7:00 p.m. About two hours had passed before he expressed the wish to exercise his right to retain counsel and, after having expressed this wish, he decided, in view of the above mentioned circumstances, that it was useless to try to contact his lawyer. In acting in such a way, the appellant was not, in my view, reasonably diligent in the exercise of his rights. We are not able to conclude that it would have been impossible for him to contact his lawyer when he was arrested or at 9:00 p.m. when, at the police station, the police gave him a telephone book and brought him to a telephone. The majority of counsel working in the field of criminal law, or the lawyers who are working for them, are usually available outside normal office hours and can be reached in one way or another. A call to their office sometimes enables one to obtain another telephone number where it is possible to reach them, to leave a message or to speak with someone in charge of receiving and transferring messages to them.

The situation would be very different if, as in the case of R. v. Ross, supra, the appellant had tried to contact his lawyer but had failed in his attempt. The appellant, in these circumstances would have been justified to ask or a delay until the opening of offices in the morning. However, his decision to not even try to contact his lawyer is fatal, in my view, and prevents him from establishing that he was reasonably diligent in the exercise of his rights. The burden of proving that it was impossible for him to communicate with his lawyer when the police offered him the opportunity to do so was on the appellant.

The fact that the appellant subsequently, during the questioning, reiterated his intention to speak with his lawyer before saying anything with respect to the robbery for which he was charged does not change my conclusion. An arrested or detained person who has had a reasonable opportunity to communicate with counsel but who was not diligent in the exercise of this right cannot, subsequently, require the police to suspend, one more time, the investigation or the questioning. This principle, however, does not apply when the circumstances that exist when he asks subsequently to exercise the right are substantially different from those which existed when he had the opportunity to communicate with a lawyer. Such would be the case, for example, where a person believes he is being accused of having disturbed the public peace but learns, during the questioning, that he will possibly be accused of murder.

Apart from these exceptional circumstances, the arrested or detained person who was not diligent in the exercise of his rights can always exercise his rights but cannot, in the process, require the police to suspend their investigation. It is necessary to draw a distinction between the right to retain and instruct counsel and the duty imposed on the police to cease questioning the detained or arrested person until he has had a reasonable opportunity to exercise this right. One who is not diligent in the exercise of his right to retain counsel does not lose this right; one can always exercise it. However, one cannot require that the police respect the duty imposed on them to cease questioning until he has had a reasonable opportunity to exercise his right. The duty imposed on the police to refrain from attempting to elicit evidence from a person until this person has had a reasonable opportunity to communicate with counsel is suspended and is not again "in force" when the arrested or the detained person finally decides to exercise his right. A different conclusion would render meaningless the duty imposed on a detained or arrested person to be diligent in the exercise of his rights. This would enable one to do exactly what this obligation seeks to prevent, that is delaying needlessly and with impunity the investigation and, in certain cases, to allow for an important piece of evidence to be lost, destroyed or, for whatever reasons, made impossible to obtain.

Therefore, because the appellant was not reasonably diligent in the exercise of his rights, he is not justified in arguing that his right to retain and instruct counsel has been violated. Since the statement was not obtained in a manner that infringed or denied a right or freedom guaranteed by the Charter it is not necessary to decide whether the admission of the statement into the procedures could bring the administration of justice into disrepute.

Consequently, I am of the opinion that the appeal be dismissed.

//L'Heureux-Dubé J.//

The following are the reasons delivered by

Reasons of L'Heureux-Dubé J.

L'HEUREUX-DUBÉ J. -- I agree with my colleague Justice Lamer that this appeal should be dismissed.

Section 10(b) of the Canadian Charter of Rights and Freedoms, invoked here by the appellant, guarantees that, upon an arrest or detention, everyone has the right to retain and instruct counsel without delay and to be informed of that right. Our Court has held that the arrested or detained person must be given a reasonable opportunity to communicate with counsel of his or her choice (R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3). It is incumbent upon that person to show that he or she was denied that reasonable opportunity (R. v. Baig, 1987 CanLII 40 (SCC), [1987] 2 S.C.R. 537). We have also clearly stated that s. 10(b) imposes a ban on police questioning until arrested or detained persons have had such an opportunity (R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233), except in those cases where there has been an unequivocal waiver (Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383).

In my view, s. 10(b) of the Charter was not infringed in the present case. The circumstances of time and place as well as the responsible behaviour of the police officers, as set out in Lamer J.'s judgment, clearly gave the appellant more than a reasonable opportunity to communicate with counsel of his choice, or at the very least, to obtain legal advice before answering the questions. The appellant elected not to avail himself of this opportunity.

Moreover, the appellant did not contend that his statements had not been made freely and voluntarily. The legality of the subsequent conduct of the police, in resuming the questioning after the appellant had passed up the reasonable opportunity to contact counsel, is accordingly not at issue here.

I agree with the majority in the Court of Appeal (1988), 1988 CanLII 2918 (BC CA), 43 C.C.C. (3d) 379 which summarized the case as follows (at p. 387):

In this case the attending police officers did not commit any impropriety nor were they unfair with the appellant. When he did not diligently exercise his right to retain and instruct counsel without delay but deferred doing so until the next morning, the right of the police to question him was not thereby suspended.

I would like to make the following additional observations. A main goal of s. 10(b) is to ensure the fairness of the questioning of suspects by police officers. That goal, however, does not preclude the interrogation of suspects by the police, nor is it inconsistent with the taking by the police of incriminating statements. The Charter does not prohibit admissions of guilt. Even in the United States, where suspects benefit from a constitutional right to remain silent, the Supreme Court noted that (Oregon v. Elstad, 470 U.S. 298, at p. 305, citing Miranda v. Arizona, 384 U.S. 436, at p. 478): "Voluntary statements "remain a proper element in law enforcement"". That Court has also remarked that (United States v. Washington, 431 U.S. 181, at p. 187):

. . . far from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable.

In Canada, admissions of guilt are just as desirable as they are south of the border. Confessions are among the most useful types of evidence. Where freely and voluntarily given, an admission of guilt provides a reliable tool in the elucidation of crime, thereby furthering the judicial search for the truth and serving the societal interest in repressing crime through the conviction of the guilty. An effective police investigation may therefore include as one of its aims the obtention of a confession from a suspect, provided of course that any such statement be freely and voluntarily given by the suspect and that the police acts fairly in eliciting the statement. Confessions may also be desirable in some cases from the standpoint of the person making them. They may relieve the guilty person of psychological pressures arising from the commission of the crime. As noted by K. Jull, "Clarkson v. R.: Do We Need a Legal Emergency Department?" (1987), 32 McGill L.J. 359, at p. 373:

There is nothing inherently wrong with the taking of a statement from a person who feels the need to relieve guilt pressures and who therefore waives his right to counsel.

Hopefully, admissions of guilt in such a context may contribute to the person's rehabilitation and reintegration into society as a responsible individual.

That confessions are desirable in Canada is illustrated by the judgment of this Court in R. v. Upston, 1988 CanLII 35 (SCC), [1988] 1 S.C.R. 1083. In that case, there had been two conversations between the accused and the police officers at the accused's residence. Prior to the first conversation, which included incriminating statements, the police had failed to inform the accused, then detained, of his right to counsel. Following this initial conversation, the accused was arrested, cautioned and informed of his rights under s. 10(b). There was at that point a second conversation, also containing incriminating statements. At issue in the appeal before this Court was whether this second conversation should be excluded pursuant to s. 24(2) of the Charter on the basis that the police initially failed to inform the accused of his rights. We held that the evidence should not be excluded. Delivering the reasons for the Court, La Forest J. noted that the second conversation (at pp. 1083-84):

. . . as the trial judge found, was completely voluntary after he [the accused] had been informed of his right to counsel. The evidence was thus not obtained in a manner that infringed or denied a Charter right within the meaning of s. 24 of the Charter and should consequently not be excluded. [Emphasis added.]

Since no Charter breach was alleged as regards the second conversation, these words suggest that the requirements of s. 10(b) are not incompatible with the obtention of voluntary statements in response to police questioning.

These considerations explain in part why, in the context of a pre-trial investigation, once a reasonable opportunity to communicate with counsel has been given, the police questioning may resume in accordance with the law. Any incriminating answer obtained as a result of such questioning may validly be adduced into evidence, provided of course that it was freely and voluntarily given. It falls beyond the purpose of s. 10(b) to negate the societal interest in the detection, prevention and punishment of criminal activity.

For these reasons and those of the Court of Appeal, in accordance with my colleague Lamer J., I would dismiss the appeal.

//Sopinka J.//

The following are the reasons delivered by

Reasons of Sopinka J.

SOPINKA J. -- I have had the opportunity of reading the reasons proposed for delivery herein by my colleagues Justices Lamer, La Forest and L'Heureux-Dubé. I am respectfully of the opinion that the conclusion reached by Lamer J., concurred in by L'Heureux-Dubé J., is the correct one. This is, however, a case close to the line and in view of the cogency of the reasons delivered by my colleague La Forest J., I wish to explain briefly why I have decided as I have.

The right to counsel provided by s. 10(b) is a most important right for a person accused of crime. Its importance is underscored by the inroads that it makes on what was standard police practice before the Canadian Charter of Rights and Freedoms, namely proceeding without delay after arrest to interrogate the person charged. The importance of this right with its correlative restraint on police action demands from the accused that he or she recognize the importance of the right and act accordingly.

In this case the appellant was most casual in asserting his right. He frittered away about two hours worrying about comparatively trivial matters at a time when counsel was more likely to be available. Despite police urging, he would not place a phone call to determine if counsel could be contacted at about 9 p.m. In these circumstances the courts below concluded that the appellant had been afforded a reasonable opportunity to retain and instruct counsel.

In my opinion, this determination is largely a question of fact. The law is clear that the person under detention is to be advised promptly of the right to counsel and must be given a reasonable opportunity to retain and instruct counsel. During this period, police questioning is to be suspended. What is a reasonable opportunity is determined by reference to all the circumstances of the case, including the action of the accused. Whether an opportunity is reasonable must be judged in part in light of the diligence with which the accused seeks to avail himself or herself of the right.

The courts below took these matters into account, applied the law correctly and as a matter of fact concluded that the opportunity afforded to the appellant was reasonable. I see no reason to interfere in that determination and would dismiss the appeal.

Appeal dismissed, DICKSON C.J. and WILSON and LA FOREST JJ. dissenting.

Solicitor for the appellant: Henry K. Brown, Vancouver.

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