R. v. Black, [1989] 2 S.C.R. 138

Cynthia Virginia Black Appellant

v.

Her Majesty The Queen Respondent

indexed as: r. v. black

File No.: 20292.

1989: February 1; 1989: August 10.

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

on appeal from the nova scotia supreme court, appeal division

Constitutional law -- Charter of Rights -- Right to counsel ‑‑ Accused informed of her right to counsel upon arrest on a charge of attempted murder and exercising her right -- Charge later changed to first degree murder -- Accused unable to contact her lawyer a second time and refusing to call another lawyer -- No urgency for interrogation -- Accused making inculpatory statement -- Evidence indicating accused intoxicated and emotionally distraught at the time of the statement -- Whether accused fully exercised her right to counsel -- Whether accused given a reasonable opportunity to retain and instruct counsel -- Whether accused waived her right to counsel -- 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 making inculpatory statement -- Derivative evidence obtained as a direct result of the statement -- Whether statement and derivative evidence should be excluded -- Canadian Charter of Rights and Freedoms, ss. 10(b), 24(2).

The accused was arrested for attempted murder following the stabbing of a neighbour. Upon arrest, she was given the standard police warning and informed of her right to counsel. On her arrival at the police station, she made a request to contact her lawyer and was given the opportunity to do so. The conversation between the accused and her lawyer was brief lasting less than a minute. Two hours later, she was informed that the victim had died and that she would now be charged with first degree murder. The accused became very emotional, screaming, crying and accusing the officers of lying to her. The officers managed to calm her down and gave her a second warning. She immediately requested to speak to her lawyer and refused to speak to another when she was unable to contact him in the middle of the night. After a call to one of her relatives, the accused began to converse with a police officer. The accused was concerned about one of her children and asked the officer whether she would be spending the weekend in jail. He answered in the affirmative. The officer then asked her about the location of the knife and to tell him the whole story. The accused gave a detailed inculpatory statement in writing. She was subsequently taken to a hospital and treated for her injuries. A blood sample was also taken from her and the analysis later revealed that the accused had a very high blood alcohol level. The police escorted the accused to her apartment after she had been treated. There, she pulled out a knife from a kitchen drawer and handed it over to the officers indicating to them that it was the murder weapon.

At the accused's trial for second degree murder, the trial judge excluded the statement pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms on the basis that the accused's right to retain and instruct counsel had been violated. For the same reason, he excluded all evidence surrounding the discovery of the knife. The accused was acquitted of murder and convicted of the lesser charge of manslaughter. The majority of the Court of Appeal allowed the Crown's appeal and ordered a new trial. The Court of Appeal felt that the police in this case had fulfilled their obligations and that the accused had waived her s. 10(b) Charter rights when she gave the statement.

Held: The appeal should be allowed.

(1) Section 10(b) and the Right to Counsel

The accused did not exhaust her rights to counsel when she briefly spoke with her lawyer in relation to the initial charge. The rights accruing to a person under s. 10(b) of the Charter arise because that person has been arrested or detained for a particular reason. An individual, therefore, can only exercise his s. 10(b) rights in a meaningful way if he knows the extent of his jeopardy. When the accused contacted her lawyer, she was under arrest for attempted murder. This is significantly different from a charge of first degree murder. Given the difference in the charges, to conclude that the advice from her counsel would inevitably have been the same is sheer conjecture. It is improper for a court to speculate about the type of legal advice which would have been given had the accused actually succeeded in contacting counsel after the charge was changed.

Section 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. The accused, however, must be reasonably diligent in attempting to obtain counsel if he wishes to do so. Here, the accused was not given a reasonable opportunity to exercise her right to counsel prior to the giving of the inculpatory statement. Upon her arrival at the police station, she made a request to consult her lawyer and she did so again when she was informed of the change in the charge. Since she is entitled to consult with the lawyer of her choice, it was not unreasonable for her to refuse to try to contact another lawyer when, in the middle of the night, she was unable to reach her lawyer. The eight‑hour delay until normal office hours was not so unreasonable as to warrant requiring the accused to choose another lawyer given the seriousness of the charge and the lack of urgency for the interrogation. Once a detainee asserts his right to counsel, the police cannot compel the detainee to make a decision or to 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. Consequently, the police officer breached the accused's s. 10(b) rights when he asked her about the whereabouts of the knife and when he asked her to tell him the whole story.

The accused did not implicitly waive her right to counsel by answering the police officer's questions. The evidence at trial indicates that, at the time she gave her statement, the accused was under the influence of alcohol, emotionally distraught and suffering from certain injuries which required medical attention. She never intended to waive her rights as she was obviously concerned throughout about her legal rights, both upon her arrival at the police station and upon being advised of the change in the charge. It is true that she was the one who initiated the conversation with the police officer, but the conversation she initiated related to the safety of the accused's child and whether she would have to spend the weekend in jail. It was the officer who turned the conversation back to the stabbing in an attempt to extract a confession.

(2) Section 24(2) and the Exclusion of Evidence

The accused's inculpatory statement was properly excluded by the trial judge under s. 24(2) of the Charter. The fairness of the trial would be adversely affected since the admission of the statement would infringe on the accused's right against self‑incrimination, a right which could have been protected had the accused had an opportunity to consult counsel. Moreover, the breach of the accused's s. 10(b) rights was a serious one. The police officers continued to question the accused even though she had clearly requested an opportunity to consult her lawyer. Finally, the seriousness of the offence charged does not require the admission of the accused's statement. The mere fact that an accused is charged with a serious offence provides no justification for admitting the evidence where there has been a serious Charter violation and the admission of the evidence would affect the fundamental fairness of the trial.

With the exception of the knife, the evidence relating to the discovery of the knife was properly excluded by the trial judge under s. 24(2). The events leading up to the discovery of the knife were sufficiently tainted by the Charter violation to engage the exclusionary rule found in s. 24(2). First, this evidence was obtained in a manner that infringed the accused's s. 10(b) rights. The events which took place at the accused's apartment were sufficiently proximate to the Charter violation. Indeed, the knife is derivative evidence obtained as a direct result of a statement or other indication made by the accused. Its discovery is causally connected to the breach of the accused's s. 10(b) rights. This breach was ongoing from the time she was advised of the change in the charge. The police continued to seek and did obtain incriminating evidence from her despite the fact that she had asked to speak with her lawyer. She was under the control and supervision of the police throughout. The breach of the accused's s. 10(b) rights and the discovery of the knife, therefore, were inextricably linked and could be said to have occurred in the course of a single transaction. Second, the admission of the evidence relating to the accused's conduct in retrieving the knife, as well as any words she may have uttered, would bring the administration of justice into disrepute. 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.

The knife, however, should not have been excluded by the trial judge. The admission of real evidence will not usually bring the administration of justice into disrepute just because it was obtained as a result of a Charter breach. There is no doubt that the police would have conducted a search of the accused's apartment with or without her assistance and that such a search would have uncovered the knife. In this case there was no issue as to whether it was the accused who stabbed the victim. The only issue was whether the stabbing was an intentional act which the accused knew would kill the victim or cause her grievous bodily harm from which death could result. The admission of the knife itself would not in any way affect the jury's handling of this aspect of the case.

Cases Cited

Applied: 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, aff'g (1983), 1983 CanLII 1726 (ON CA), 8 C.C.C. (3d) 193; R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3; R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265; considered: R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980; referred to: R. v. Anderson (1984), 1984 CanLII 2197 (ON CA), 10 C.C.C. (3d) 417; Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295; R. v. Ancio, 1984 CanLII 69 (SCC), [1984] 1 S.C.R. 225; R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613; Trask v. The Queen, 1985 CanLII 30 (SCC), [1985] 1 S.C.R. 655; R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495; R. v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435.

Statutes and Regulations Cited

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

APPEAL from a judgment of the Nova Scotia Supreme Court, Appeal Division (1987), 1987 NSCA 20, 32 C.C.C. (3d) 425, 77 N.S.R. (2d) 23, 191 A.P.R. 23, allowing the Crown's appeal and ordering a new trial on the charge of second degree murder. Appeal allowed.

Joel E. Pink, Q.C., for the appellant.

John D. Embree, for the respondent.

//Wilson J.//

The judgment of the Court was delivered by

WILSON J. -- This appeal raises a number of issues relating to s. 10(b) of the Canadian Charter of Rights and Freedoms and the application of s. 24(2) of the Charter in the event a violation of s. 10(b) is found to have occurred.

1. The Facts

The appellant was charged with the second degree murder of Deborah Lynn Tufts. At the commencement of the trial a voir dire was held to determine the admissibility of certain incriminating statements made by the appellant to the police. The trial judge excluded the statements under s. 24(2). Later in the trial argument was heard to determine whether evidence regarding the discovery of the alleged murder weapon was admissible into evidence given the trial judge's earlier ruling. The trial judge ruled that the evidence leading to the discovery of the knife was inadmissible.

The evidence at the voir dire disclosed that on October 11, 1985, Halifax police were called to investigate a stabbing at an apartment in Mulgrave Park, Halifax. The officers arrived on the scene between 11:30 and 11:40 p.m. and found a woman who had been stabbed near the throat. Based upon information received from individuals present at the scene, two police officers attended at the apartment of the appellant. They knocked on the appellant's door several times. After some time the appellant opened the door. One of the officers, Constable Small, testified that he advised the appellant that she was charged with attempted murder, that he read her the standard police warning, and that he told her she had the right to call a lawyer. The other officer, Sergeant O'Neil, recalled that the appellant was advised that she was being arrested for a stabbing.

The officers asked the appellant to get dressed and go with them to the police station. They arrived there at approximately 11:58 p.m. The appellant was taken to an interrogation room at which time she said she wanted to contact a lawyer by the name of Mr. Digby. Constable Small telephoned Mr. Digby at his residence, advised him that he was a police officer, and that a person in his custody wished to speak with him. Small then passed the telephone to the appellant and left the room. Constable Small did not inform Mr. Digby of the charge against the appellant. The appellant had a very brief conversation with Mr. Digby lasting about 30 to 40 seconds. Constable Small testified that the appellant appeared to be intoxicated and had a cut lip.

For approximately the next hour and a half the appellant was left alone in the interrogation room. Two officers entered the room around 1:35 a.m. to obtain pictures of the appellant and, in particular, pictures of bite wounds to the appellant's lip, neck and hand. Initially the appellant became quite upset because she thought the identification officer was a member of the press. Once she realized who the officers were and had settled down, pictures were taken and the appellant was given a change of clothes. The officers returned shortly thereafter and retrieved the appellant's clothes. A few minutes later the officers returned and asked the appellant to identify a pair of sandals and a knife. She cooperated by identifying the sandals and saying that she did not recognize the knife.

At 1:40 a.m. Detective Benjamin and Constable Ross entered the interrogation room. Detective Benjamin testified that the appellant was nervous, upset and under the influence of alcohol. They advised her of the death of Ms. Tufts and that she, the appellant, would now be charged with first degree murder. The appellant became very emotional, screaming, crying and accusing the officers of lying to her. The officers eventually managed to calm her down. Constable Ross read the appellant the following caution:

I wish to give the following warning. You must clearly understand that anything said to you previously should not influence you or make you feel compelled to say anything at this time. Whatever you felt influenced or compelled to say earlier you are not now obliged to repeat nor are you obliged to say anything further but whatever you do say may be given in evidence. Do you understand that which has been said to you?

The appellant once more became quite upset and again requested to speak with Mr. Digby. Detective Benjamin and Constable Ross left the room and Ross attempted on several occasions to contact Mr. Digby at his residence. On each occasion the line was busy. Ross returned to the interrogation room, advised the appellant that the line was busy, and asked her if she wished to speak with another lawyer. The appellant responded "no" and reiterated that she wanted to speak with Mr. Digby as she had spoken with him earlier.

The appellant then asked to call another person, her elderly grandmother. This call was made in the presence of Constable Ross. It lasted for five or six minutes and during it the appellant became more relaxed. After the conversation the appellant began to converse with Ross. The appellant asked whether she would be spending the weekend in jail as she was concerned about one of her children. The constable advised that she would be kept in the police cells over the weekend. He then asked her about the location of the knife. Ross testified that the appellant grinned and said that the knife was at home. He then asked her to tell him the whole story. According to Ross, the appellant agreed to give a statement. He left the room briefly to obtain the official Halifax Police Department statement forms. When Ross returned the appellant gave a long inculpatory narrative which Ross wrote out and which the appellant signed.

The appellant claimed that she only gave the statement because Ross had promised that she would receive bail and be allowed to go home if she did. She testified that she made up the story so that she could be released.

After the appellant gave the statement she was taken to a hospital and treated for her injuries. While the appellant was at the hospital a blood sample was taken from her. Subsequent analysis revealed that the appellant had a very high blood alcohol level. After the treatment at the hospital the two police officers escorted the appellant back to her apartment. According to the police officers, the appellant went to a kitchen drawer, pulled out a knife and handed it over to the officers indicating to them that it was the murder weapon.

On January 9, 1986 the appellant was charged with unlawfully causing the death of Deborah Lynn Tufts by stabbing her with a knife and thereby committing second degree murder.

2. The Courts Below

(a) The Trial: Kelly J.

At the commencement of the trial Kelly J. held a voir dire to determine the admissibility of the inculpatory statement given by the appellant. He first rejected the appellant's argument that the statement ought to be excluded because Ross had promised the appellant she would receive bail if she confessed. He preferred Ross's version of the discussion over the appellant's.

Kelly J. then set out to determine whether the statement was voluntary under the common law test of voluntariness. Having accepted the veracity of the police officers' testimony, Kelly J. concluded that the statement was obtained without threats or inducements. He also concluded, despite the fact that the appellant had only a grade four education and was under the influence of alcohol and emotionally distraught at the time of questioning, that the statement given by the appellant was "an utterance of an operating mind". He concluded, therefore, that the appellant's statement was given voluntarily.

The learned trial judge moved next to the question whether the statement was extracted as a result of a violation of the appellant's right under s. 10(b) of the Charter to retain and instruct counsel without delay. While he expressed dissatisfaction with the fact that the appellant was not advised of her rights in the words of the Charter at the time of her arrest, he focussed in on the question whether the appellant should have been or was given a proper opportunity to consult counsel after she was told that Ms. Tufts had died and that the charge would be changed from attempted murder to first degree murder. Kelly J. stated:

I have no difficulty in finding that these factors brought about such a significant change to her legal position that she was entitled to a further opportunity to consult counsel under the provisions of section 10(b) of the Canadian Charter of Rights and Freedoms if she requested such an opportunity.

With respect to the obligation on police officers when an accused asks to contact counsel, Kelly J. adopted the four propositions espoused by Tarnopolsky J.A. in R. v. Anderson (1984), 1984 CanLII 2197 (ON CA), 10 C.C.C. (3d) 417 (Ont. C.A.), at p. 422:

(1)Upon arrest or detention there is an obligation upon a peace officer to communicate clearly to the accused that he has a right to retain and instruct counsel. In many circumstances, a question as to whether the accused understands that right ends the officer's obligation.

(2)A peace officer has to go further in explaining the right if there is something in the circumstances which suggests that the accused does not understand, such as a state of shock or drunkenness.

(3)If the accused in any manner chooses to invoke or exercise his right to retain and instruct counsel, the peace officer has two obligations: (a) to provide the opportunity without delay, and (b) to cease any questioning of the accused until after that opportunity has been provided.

(4)If the accused or arrested individual exercises the choice of not requesting an opportunity to retain and instruct counsel and speaks to the peace officer, the statement obtained is not inconsistent with the Charter.

Applying those propositions to the case at bar, Kelly J. stated:

Miss Black was unequivocal on her desire to consult counsel and insisting in her choice of counsel, that is, Mr. Digby. She expressed this position subsequent to the "secondary caution" and prior to giving the statement. Constable Ross advises that he made an attempt to reach Mr. Digby and guessed that his telephone was deliberately or otherwise off its cradle or its hook. He did not check if this guess was accurate or advise Miss Black of his opinion. If she had known it was impossible to reach Mr. Digby at that time perhaps she could have made a more reasoned decision to try another counsel instead of then insisting on Mr. Digby. In any event, she did clearly and frequently insist on Mr. Digby and she had a right to counsel of her choice unless such a request was unreasonable in the circumstances. In this case, I find that such a request was not unreasonable.

The evidence discloses, and the police admit, that there was no need for urgency. They could have waited to take the statement later in the same morning when contact with counsel would have been more reasonable and probable. The obligation of police authorities to facilitate access to counsel when requested is greater, in my opinion, under the present circumstances, that is circumstances where there is an unsophisticated, distraught, somewhat "alcohol impaired and injured woman under arrest for the most serious offence under the Criminal Code. The right to counsel is one of our most basic rights and is now the supreme law of Canada. I find in these circumstances that Miss Black, the accused, was denied this right". [Emphasis added.]

The trial judge excluded the statement pursuant to s. 24(2) of the Charter.

Later in the trial the trial judge had to decide whether the evidence concerning the discovery of the knife should also be excluded. He concluded that the discovery of the knife and the appellant's behaviour leading up to the discovery followed upon the breach of the appellant's s. 10(b) rights. For the same reasons as he gave in relation to the confession the trial judge also excluded all evidence surrounding the discovery of the knife. The appellant was acquitted of murder and convicted of the lesser charge of manslaughter. The Crown appealed.

(b)Nova Scotia Supreme Court, Appeal Division

(Jones, Macdonald and Pace JJ.A.)

The majority of the Court of Appeal (Pace J.A. with Macdonald J.A. concurring) allowed an appeal from the trial judge's decision and ordered a new trial: see (1987), 1987 NSCA 20, 32 C.C.C. (3d) 425. Pace J.A. felt that the trial judge had misinterpreted the Ontario Court of Appeal's judgment in R. v. Anderson, supra. In Pace J.A.'s opinion Tarnopolsky J.A. in Anderson did not accept the third of the four principles advanced by Crown counsel in that case as constituting the obligation of a police officer. He stated at p. 435:

It would appear that neither the Ontario Court of Appeal or the British Columbia Court of Appeal have adopted proposition (3) as submitted in Anderson, supra, as being "at least part of the obligation of the police officers under section 10(b) of the Charter". This ruling by the trial judge, in my respectful opinion, was in error as it sets too high an obligation on the police officers and denies the accused the freedom to speak if she so desires.

Pace J.A. also distinguished on its facts the Ontario Court of Appeal's decision in R. v. Manninen (1983), 1983 CanLII 1726 (ON CA), 8 C.C.C. (3d) 193, concluding that in the case at bar "the police did everything possible to facilitate the respondent's right to counsel" (p. 433).

The majority of the Court of Appeal set out what it believed to be the obligations on police officers to ensure the protection of an accused's s. 10(b) rights at p. 434 as follows:

Under s. 10(b) of the Charter there is an obligation imposed upon a peace officer to communicate clearly to the accused that he has a right to retain and instruct counsel without delay and to provide the opportunity to the accused to retain and instruct counsel without delay if the accused so desires. Should the accused voluntarily waive his right to counsel, the peace officer must then ascertain whether the accused did so on a true appreciation of the consequences of giving up the right: see Clarkson v. The Queen, supra. This later determination, in my view, would depend to a large measure on the accused's mental condition at the time, for example, drunk, or under the influence of drugs to such an extent as to be unaware of the consequences of giving up the right.

It would appear that the majority of the Court of Appeal felt that the police in this case had fulfilled their obligations and that the appellant had waived her s. 10(b) rights when she gave the statement. Pace J.A. stated at p. 434:

In the present appeal, unlike Clarkson, the trial judge found the accused was in command of her "intellectual faculties sufficient to make a voluntary statement". In arriving at that conclusion he took into account all of the surrounding circumstances such as the accused's injuries, educational background, degree of intoxication, ability to comprehend, and her emotional and mental state. It must also be remembered that the accused in the present case did consult counsel and was presented with a telephone to make the call she requested. The officers were not requested to wait for counsel nor was there any indication by the accused that she wished to remain silent until counsel was available. In fact, it would appear from the evidence that a good deal of the conversation between the accused and Constable Ross was initiated by the accused who appeared to be concerned about where she would be situate for the week-end and who would be looking after her child. The statement was given in narrative form with a few questions at the end asked by the officer.

The majority therefore found no s. 10(b) violation on the facts of this case. Pace J.A. added, however, that even if he had found a "technical breach" of s. 10(b), he would not have excluded the statement under s. 24(2).

Jones J.A. dissented. He was of the opinion that the finding by the trial judge that the appellant's statement was voluntary did not preclude him from finding a s. 10(b) violation. He thought that Clarkson was decisive in this case and stated at pp. 438-39:

How can it be said on the evidence that it was "clear and unequivocal" that the appellant was waiving her right to counsel on the facts of this case "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"? If fairness required the exclusion of the statements in Clarkson then surely that principle must apply to the facts in this case. With respect it was open to the trial judge to exclude the evidence which he did under s. 24(2) of the Charter and in view of Clarkson he was correct in doing so.

3. The Issues

A resolution of this appeal requires us to answer the following questions:

(1) Did the appellant fully exercise her right to counsel during the course of her telephone conversation with Mr. Digby at 11:58 p.m.?

(2) If not, was the appellant given a reasonable opportunity to exercise her right to counsel prior to the giving of the inculpatory statement?

(3) Did the appellant waive her s. 10(b) rights?

(4) If there was a breach of the appellant's s. 10(b) rights, should the inculpatory statement be excluded under s. 24(2)?

(5) If there was a breach of the appellant's s. 10(b) rights, should evidence regarding the recovery of the knife be excluded?

4. The Applicable Provisions of the Charter

5. Everyone has the right on arrest or detention

(a)to be informed promptly of the reasons therefor;

(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.

5. Analysis

(1)Did the appellant fully exercise her right to counsel during the course of her telephone conversation with Mr. Digby at 11:58 p.m.?

The Crown argued with some force that the appellant fully exercised her rights when she had a brief conversation with a lawyer, Mr. Digby, immediately upon her arrival at the police station. It was the Crown's view that the information subsequently given to the accused that the charge against her would be changed from attempted murder to first degree murder was immaterial to the exercise of the appellant's rights. The Crown argued that there was only one arrest or detention and that arrest or detention was in respect of one occurrence or transaction. Accordingly, the appellant's rights were respected when she was allowed to contact her lawyer upon arrival at the station.

This Court has on numerous occasions stated that a purposive analysis must be undertaken when interpreting Charter provisions: see Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, and R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295. The Court held in Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383, that s. 10(b) was concerned with fostering the principles of adjudicative fairness. Quoting from p. 394:

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".

Moreover, s. 10(b) should not be read in isolation. Its ambit must be considered in light of s. 10(a). Section 10(a) requires the police to advise an individual who is arrested or detained of the reasons for such arrest or detention. The rights accruing to a person under s. 10(b) arise because he or she has been arrested or detained for a particular reason. An individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy.

When the appellant contacted Mr. Digby she had been told that she was under arrest for attempted murder, or, depending upon which evidence one accepts, for a "stabbing". This is significantly different from a charge of first degree murder. First, while the Crown must prove that the accused intended to kill the victim in a charge of attempted murder (see R. v. Ancio, 1984 CanLII 69 (SCC), [1984] 1 S.C.R. 225), such a strict mens rea requirement is negatived in some instances in ss. 212 and 213 of the Criminal Code, R.S.C. 1970, c. C-34, the sections which set forth the elements necessary to sustain a murder conviction. Second, in the case of a "stabbing" or an attempted murder, the victim may be able to testify to either inculpate or exculpate the accused. Obviously, this is not possible in the case of a murder charge. Third, and perhaps most importantly, the psychological impact of a first degree murder charge on an accused will be much more severe than in the case of a charge for attempted murder or "stabbing". There is, after all, no more serious offence known to our law than first degree murder.

The Crown argued that, despite the change in the charge, the preliminary legal advice which the appellant received might well have been unchanged. This may be so. On the other hand, given the differences in the charges as discussed above, to conclude that the advice would inevitably have been the same is sheer conjecture. In my opinion, it is improper for a court to speculate about the type of legal advice which would have been given had the accused actually succeeded in contacting counsel after the charge was changed. If the Crown's argument on this point were sound, each time an accused was asked to blow into a breathalyzer there would be no need to advise the accused of his s. 10(b) rights since it might be assumed that counsel would advise the accused that he should submit to the breathalyzer on the basis that failure to do so constitutes a criminal offence. Such reasoning runs directly afoul of this Court's judgments in R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, and Trask v. The Queen, 1985 CanLII 30 (SCC), [1985] 1 S.C.R. 655. It also totally defeats the purpose of s. 10(b).

I would, therefore, reject the Crown's first line of argument.

(2) If not, was the appellant given a reasonable opportunity to exercise her right to counsel prior to the giving of the inculpatory statement?

The Court of Appeal decision in this case was given prior to this Court's decisions in R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, and R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3. These latter two cases have gone a long way to explain the nature and scope of the s. 10(b) right. In Ross two accused were arrested and each attempted to contact counsel but were unable to do so. At least one of the accused was asked if he wished to contact another lawyer and he said no. The accused were then asked to participate in a line-up. In explaining the nature of the s. 10(b) right Lamer J. stated at p. 10:

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. [Emphasis in original.]

A rider is attached to these police obligations, namely that the accused must be reasonably diligent in attempting to obtain counsel if he wishes to do so. If the accused person is not diligent in this regard, then the correlative duties imposed upon the police to refrain from questioning the accused are suspended: see R. v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435.

In this case I think the appellant was reasonably diligent in attempting to contact counsel. She sought out and spoke to her lawyer as soon as she arrived at the police station and, when she was advised that the charge would be changed from attempted murder or stabbing to first degree murder, she again immediately expressed a desire to consult her lawyer. It is not entirely surprising that her lawyer was unavailable at 1:40 a.m. Nor do I think it was unreasonable for her to refuse to try to contact another lawyer when she could not get Mr. Digby. As was held in Ross, s. 10(b) entitles an arrested or detained person to consult with the lawyer of his choice. It is only if that choice necessitates an unreasonable delay that an obligation arises to accept another lawyer. A delay of approximately eight hours until normal office hours came around would not, in my view, be unreasonable in this case given that the charge was alleged to be first degree murder and given the lack of urgency for the interrogation.

I conclude, therefore, that the duties imposed on the police under Manninen were not suspended because of the appellant's inability to contact her lawyer at l:40 a.m. Consequently, Constable Ross, absent a waiver by the appellant, breached the appellant's s. 10(b) rights when he asked her about the whereabouts of the knife and when he asked her to tell him the whole story. I would respectfully adopt the words of Lamer J. in Ross where he stated at p. 12:

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.

(3)Did the appellant waive her s. 10(b) rights?

The trial decision in this appeal was handed down prior to this Court's consideration of the issue of waiver in Clarkson. Accordingly, Kelly J. did not specifically address the issue of waiver. Rather, he applied the "operating mind test" to determine whether the appellant's statement was voluntary at common law. He stated:

On considering these factors and all the circumstances I have some unease regarding her state of mind but on balance I find that the crown has discharged its burden and satisfied me that the statement was made freely and voluntarily and that at the time that it was made Miss Black was in command of her intellectual faculties sufficient to make a voluntary statement.

The Court of Appeal had the benefit of Clarkson and appears to have concluded that the appellant waived her rights. It did so in light of the trial judge's finding that the appellant's statement was voluntary.

In Clarkson this Court discussed the divergent theories at common law regarding proof of voluntariness in the making of a confession to persons in authority. Writing for the majority I pointed out that the operating mind test was primarily concerned with probing the truth of the facts in issue while the awareness of consequences test was more concerned with ensuring the fairness of the adjudicative process. The two tests were therefore not synonymous. The majority of the Court concluded that the awareness of consequences test was the appropriate test to apply in the context of an inquiry under s. 10(b), given the underlying purpose of that section. Given this, I do not think that, because the trial judge found that the statement of the appellant was one emanating from an operating mind, it necessarily follows that the appellant waived her rights. The facts as found by the trial judge must be considered in light of the Clarkson test, the relevant portions of which are set forth below (at pp. 394-96):

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).

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 . . . . 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.

The appellant did not expressly waive her rights in this case. Any waiver must be implied from her words or conduct. This Court ruled in Manninen at p. 1244 that:

While a person may implicitly waive his rights under s. 10(b), the standard will be very high (Clarkson, supra, at pp. 394-95). In my view, the respondent's conduct did not constitute an implied waiver of his right to counsel. It seems that he did not intend to waive his right, as he clearly asserted it at the beginning and at the end of the questioning. Rather, the form of the questioning was such as to elicit involuntary answers. The police officer asked two innocuous questions followed by a baiting question which led the respondent to incriminate himself. In addition, where a detainee has positively asserted his desire to exercise his right to counsel and the police have ignored his request and have proceeded to question him, he is likely to feel that his right has no effect and that he must answer. Finally, the respondent had the right not to be asked questions, and he must not be held to have implicitly waived that right simply because he answered the questions. Otherwise, the right not to be asked questions would only exist where the detainee refused to answer and, thus, where there is no need for any remedy or exclusionary rule. [Emphasis added.]

Has the Crown met the high standard required by Manninen? I think not. The appellant was known to the police prior to her arrest. She was known to be an alcoholic and a person of limited intelligence. She had only a grade four education. She was under the influence of alcohol at the time she gave the statement. The evidence at trial indicates that she had a very high blood alcohol level one and a half hours after having given the statement. The appellant was emotionally distraught as is evidenced by her behaviour in the interrogation room. The trial judge found that at times she bordered on hysteria. Moreover, the appellant was suffering from certain injuries to her mouth, neck and hand, injuries which required medical attention. The appellant was obviously concerned throughout about her legal rights, both upon her arrival at the police station and upon being advised of the change in the charge. It is true that she was the one who initiated the conversation with Constable Ross after she had spoken to her grandmother. However, that conversation related to the safety of her child and whether she would have to spend the weekend in jail. It was Constable Ross who turned the conversation back to the circumstances underlying the stabbing. True, he was not as coercive as the officers in Manninen but his purpose was the same, to extract a confession.

In light of the above, I am not satisfied that the appellant impliedly waived her rights. I conclude, therefore, that her s. 10(b) rights were violated.

(4)If there was a breach of the appellant's s. 10(b) rights, should the inculpatory statement be excluded under s. 24(2)?

The leading authority on s. 24(2) is this Court's decision in R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265. In that case Lamer J. canvassed the factors to be balanced by the Court in determining whether the admission of evidence in the proceedings would bring the administration of justice into disrepute. He organized these factors into three groups based on their effect on the repute of the justice system. The first set of factors are those relevant to the fairness of the trial. The second set of factors pertain to the seriousness of the Charter violation as defined by the conduct of the law enforcement authorities. The third set of factors raise the possibility that the administration of justice could be brought into disrepute by excluding the evidence despite the fact that it was obtained in a manner that infringed the Charter: see also R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495, at pp. 532-34.

In analyzing the first set of factors Lamer J. concluded that, if the admission of the evidence would adversely affect the fairness of the trial, then its admission would tend to bring the administration of justice into disrepute. He was of the opinion that a confession extracted from an accused would generally be excluded. He stated at pp. 284-85:

The use of such evidence [evidence conscripted from the accused through a confession or other evidence emanating from him] would render the trial unfair, for it did not exist prior to the violation and it strikes at one of the fundamental tenets of a fair trial, the right against self-incrimination. Such evidence will generally arise in the context of an infringement of the right to counsel. Our decisions in Therens, supra, and Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383, are illustrative of this. The use of self-incriminating evidence obtained following a denial of the right to counsel will generally go to the very fairness of the trial and should generally be excluded.

In my view, the admission of the appellant's inculpatory statement would adversely affect the fairness of the trial and bring the administration of justice into disrepute. The fairness of the trial would be adversely affected since the admission of the statement would infringe on the appellant's right against self-incrimination, a right which could have been protected had the appellant had an opportunity to consult counsel. Moreover, turning to the second set of factors, the breach of the appellant's s. 10(b) rights was a serious one. Although the conduct of the police officers in this case was less reprehensible than the conduct of the police officers in Manninen, the fact remains that the police officers continued to question the appellant even though she had clearly requested an opportunity to consult her lawyer. Nor do I think that the seriousness of the offence with which the appellant was charged required the admission of the appellant's statement. This Court has repeatedly held that the mere fact that an accused is charged with a serious offence provides no justification for admitting the evidence where there has been a serious Charter violation and the admission of the evidence would affect the fundamental fairness of the trial: see Collins, at pp. 285-86, and Manninen, at p. 1246. I would conclude, therefore, that the inculpatory statement was properly excluded by the trial judge.

(5)If there was a breach of the appellant's s. 10(b) rights, should evidence regarding the recovery of the knife be excluded?

The Crown maintains that even if the police did breach the appellant's s. 10(b) rights so that the inculpatory statement should be excluded, the evidence relating to the discovery of the knife and the knife itself should be admissible. The question on this aspect of the appeal is whether the events leading up to the discovery of the knife are sufficiently tainted by the s. 10(b) breach to engage the exclusionary rule found in s. 24(2). This question has two aspects: first, whether the evidence was "obtained in a manner" that infringed the appellant's rights; and second, whether the admission of the evidence would bring the administration of justice into disrepute. Some guidance on these aspects is found in the recent judgment of this Court in R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980.

In that case, the Chief Justice, speaking for a unanimous court on the first aspect, ruled that the phrase "obtained in a manner" should not be interpreted to impose a strict causal nexus between the Charter breach and the evidence sought to be excluded. He stated at pp. 1003-4:

Imposing a causation requirement in s. 24(2) would generally have the effect of excluding from consideration under that section much of the real evidence obtained following a violation of the right to counsel. Violations of the right to counsel may frequently occur in the course of a valid arrest or, as in the present appeal, in the execution of a valid search power. In these situations, real evidence discovered on the person of the accused or in the course of the search will not, subject to one exception, have a direct causal relationship with the denial of the right to counsel. Derivative evidence, obtained as a direct result of a statement or other indication made by the accused, is the only type of real evidence that may be said to be causally connected to violations of the right to counsel in these situations. With the exception of derivative evidence, infringements of the right to counsel occurring in the course of arrest or execution of a search warrant, can only be causally connected to self-incriminating evidence. R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, is a case in point. A strict causal requirement would tend to preclude real evidence discovered after a violation of s. 10(b) from being considered under s. 24(2) of the Charter. [Emphasis added.]

And at pp. 1005-6:

In my view, it is not useful to create a requirement in the first stage of s. 24(2) that would separate violations of s. 10(b) into two categories based on the role of counsel. Nor is it fruitful to read into the first stage a condition that would limit the scope of s. 24(2) to self-incriminating or derivative evidence for certain s. 10(b) violations. Ordinarily only a few Charter rights, ss. 8, 9 and 10, will be relevant to the gathering of evidence and therefore to the remedy of exclusion under s. 24(2). So long as a violation of one of these rights precedes the discovery of evidence, for the purposes of the first stage of s. 24(2) it makes little sense to draw distinctions based on the circumstances surrounding the violation or the type of evidence recovered. A better approach, in my view, would be to consider all evidence gathered following a violation of a Charter right, including the right to counsel, as within the scope of s. 24(2).

In my view, all of the pitfalls of causation may be avoided by adopting an approach that focuses on the entire chain of events during which the Charter violation occurred and the evidence was obtained. Accordingly, the first inquiry under s. 24(2) would be to determine whether a Charter violation occurred in the course of obtaining the evidence. A temporal link between the infringement of the Charter and the discovery of the evidence figures prominently in this assessment, particularly where the Charter violation and the discovery of the evidence occur in the course of a single transaction. The presence of a temporal connection is not, however, determinative. Situations will arise where evidence, though obtained following the breach of a Charter right, will be too remote from the violation to be "obtained in a manner" that infringed the Charter. In my view, these situations should be dealt with on a case by case basis. There can be no hard and fast rule for determining when evidence obtained following the infringement of a Charter right becomes too remote.

Bearing the above discussion in mind, I am of the view that the events which took place at the appellant's apartment were sufficiently proximate to cross this first hurdle under s. 24(2). Indeed, the knife in this case is derivative evidence obtained as a direct result of "a statement or other indication" made by the appellant. Its discovery is causally connected to the violation of the appellant's s. 10(b) right. While the Chief Justice suggests in Strachan that "causal connection" is too narrow a test to apply in deciding whether evidence was "obtained in a manner" that infringed the appellant's rights, I do not believe he meant to preclude the use of the causal connection test in cases where such connection was clearly present and the evidence obtained was clearly derivative evidence. The Chief Justice was, I believe, at pains to establish a broader test than "causal connection" and one which, in my view, is also met in this case since the breach of the appellant's s. 10(b) right was an ongoing one from the time she was advised of the change in the charge. From that point on, despite the fact that the appellant had asked to speak with her lawyer, the police sought to obtain incriminating evidence from her. The breach of the appellant's s. 10(b) rights and the discovery of the knife are, in my view, inextricably linked or, in the Chief Justice's words, occurred "in the course of a single transaction". From the time the appellant was advised of the change in the charge, she was under the continuous control and supervision of the police. Immediately upon being advised of the change in the charge the appellant expressed a desire to contact Mr. Digby but was unable to contact him because of the hour. Shortly thereafter, Constable Ross obtained an incriminating statement from her. The taking of the statement commenced at 2:30 a.m. and concluded at 2:53 a.m. After the taking of the statement the appellant was taken by officers Small and Ross to hospital for treatment. The appellant received stitches for her cut lip and a tetanus shot. She also provided a blood sample from which it was determined that at 4:20 a.m. she had a blood alcohol level of 220 mg. per 100 ml. of blood. The appellant was present at the hospital for approximately one hour and then she was taken to her apartment by officers Small and Ross. Upon arrival at the apartment at approximately 5:00 a.m. the appellant turned a knife over to the officers. In my view, this was an "entire chain of events during which the Charter violation occurred". I conclude, therefore, that the events leading up to the discovery of the knife are sufficiently linked to the s. 10(b) breach to bring the situation within s. 24(2).

The question then becomes whether the evidence obtained ought to be excluded because its admission would bring the administration of justice into disrepute. As I mentioned above, evidence will tend to bring the administration of justice into disrepute when it tends to render the trial process unfair. I have no doubt that the evidence relating to the appellant's conduct in retrieving the knife as well as any words she may have uttered ought to be excluded. In coming to this conclusion, I rely on the words of Lamer J. in R. v. Ross, supra, at p. 16:

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.

However, the knife itself is real evidence which existed whether or not the police breached the appellant's s. 10(b) rights and used her to assist in the preparation of the case against her. It did not come into existence as a result of the participation of the accused although the police obtained it as a result of such participation. I have little doubt that the police would have conducted a search of the appellant's apartment with or without her assistance and that such a search would have uncovered the knife. In Collins Lamer J. concluded that the admission of real evidence will not usually, just because it was obtained as a result of a Charter breach, bring the administration of justice into disrepute. He stated at p. 284:

Real evidence that was obtained in a manner that violated the Charter will rarely operate unfairly for that reason alone. The real evidence existed irrespective of the violation of the Charter and its use does not render the trial unfair.

Given Lamer J.'s comments and the fact that the knife would undoubtedly have been uncovered by the police in the absence of the Charter breach and the conscription of the appellant against herself, I do not think that the administration of justice would have been brought into disrepute by the admission of the knife.

It could be argued that Strachan makes the distinction between self-incriminating evidence and real evidence irrelevant once it has been found that both kinds of evidence were yielded through a single chain of events involving an ongoing Charter breach. I do not think that Strachan stands for that proposition. There is nothing in the judgment of the Chief Justice in Strachan to suggest that it was intended to make a major inroad of this kind into the Court's earlier decision in Collins. Quite the contrary. The first stage of the inquiry under Strachan is concerned with the threshold issue of whether there is any connection, subject to considerations of remoteness, between the Charter breach and the evidence obtained. The second stage involves the weighing of a variety of factors to determine whether the admission of the evidence would bring the administration of justice into disrepute. At the second stage, it seems to me, the nature of the evidence becomes relevant under Collins.

I would conclude therefore that the trial judge erred in excluding the knife, that is to say, preventing it from becoming a full exhibit. (The knife had been tendered at trial but not fully exhibited.) However, I do not think that this error advances the Crown's position. In light of my finding that the appellant's conduct and words in relation to the discovery of the knife should not be admitted into evidence, the most that could be said by the police officer who received the knife would be that the knife was located in the appellant's apartment and was sent to police specialists for further examination. The police specialists could then give testimony offering opinion evidence as to whether the knife was the murder weapon. However, there was no issue in this case as to whether it was the appellant who stabbed the victim. The only question was whether the stabbing was an intentional act which the appellant knew would kill the victim or cause her grievous bodily harm from which death could result. The admission of the knife itself would not in any way affect the jury's handling of this aspect of the case.

I would, accordingly, allow the appeal and restore the verdict of the jury.

Appeal allowed.

Solicitors for the appellant: Stewart, MacKeen & Covert, Halifax.

Solicitor for the respondent: John D. Embree, Halifax.