R. v. Brydges, [1990] 1 S.C.R. 190

William Brydges Appellant

v.

Her Majesty The Queen Respondent

indexed as: r. v. brydges

File No.: 20583.

1989: November 10; 1990: February 1.

Present: Lamer, Wilson, La Forest, L'Heureux‑Dubé, Gonthier, Cory and McLachlin JJ.

on appeal from the court of appeal for alberta

Constitutional law ‑‑ Charter of Rights ‑‑ Right to counsel ‑‑ Affordability of counsel ‑‑ Legal Aid and duty counsel -- Accused informed of his right to counsel ‑‑ Accused requesting information about Legal Aid and expressing concerns about being unable to afford a lawyer ‑‑ Accused not informed at that time of the availability of Legal Aid and duty counsel ‑‑ Whether accused's right to counsel infringed ‑‑ Whether police had the duty to inform the accused of the availability of Legal Aid and duty counsel ‑‑ Whether accused waived his right to counsel ‑‑ Canadian Charter of Rights and Freedoms, s. 10(b).

Constitutional law ‑‑ Charter of Rights ‑‑ Right to counsel ‑‑ Whether an accused has the right in all cases to be informed of the availability of Legal Aid and of duty 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 ‑‑ Statements obtained in violation of the Charter ‑‑ Whether accused's statements should be excluded ‑‑ Canadian Charter of Rights and Freedoms, s. 24(2).

The accused, a resident of Alberta, was arrested in Manitoba in connection with a murder which took place in Edmonton. He was charged with second degree murder and informed without delay of his right to retain and instruct counsel. Upon arrival at the police station, the accused was placed in an interview room and, at the beginning of the interrogation, given a second opportunity to call a lawyer. The accused asked the investigating officer if they had Legal Aid in Manitoba because he could not afford a private lawyer. The officer, who was from Edmonton, answered that he imagined that they had such a system in Manitoba. The officer then asked the accused if he felt there was a reason for him to wanting to talk to a lawyer. The accused answered "Not right now, no". During the interrogation which followed, the accused made a number of statements. He later interrupted the questioning and requested a Legal Aid lawyer. The Legal Aid lawyer contacted by the police advised the accused not to say anything more and the interrogation ended. At trial, the judge found that, at the beginning of the interrogation, the accused essentially requested the assistance of counsel but that he was unsure if he could afford one. Because the police did not assist the accused in exercising his right to counsel by determining the availability of Legal Aid at that time, the trial judge held that the accused's rights under s. 10(b) of the Canadian Charter of Rights and Freedoms were violated, and the accused's statements were excluded pursuant s. 24(2) of the Charter. As a result, the accused was acquitted. A majority of the Court of Appeal set aside the acquittal and ordered a new trial.

Held: The appeal should be allowed.

The Court of Appeal erred in reversing the trial judge's finding that the accused was essentially requesting the assistance of counsel but felt that his inability to afford a lawyer was an impediment to the exercise of his right to retain one. This finding was supported by the evidence and should not have been disturbed.

Where an accused expresses a concern that the right to counsel depends upon the ability to afford a lawyer, it is incumbent on the police to inform him of the existence and availability of Legal Aid and duty counsel. This additional duty imposed on the police in these circumstances is consistent with the purpose underlying s. 10(b) of the Charter. A detainee is advised of the right to retain and instruct counsel without delay because it is upon arrest or detention that a detainee is faced with an immediate need for legal advice, especially in respect of how to exercise the right to remain silent. Here, the accused's s. 10(b) rights were violated. The failure of the police to inform the accused of the existence of Legal Aid or duty counsel at the time that he first indicated a concern about his ability to pay a lawyer, was a restriction on the accused's right to counsel in so far as the accused was left with an erroneous impression of the nature and extent of his s. 10(b) rights. While the investigating officer was from Alberta, and understandably was not aware of the specific provisions that Manitoba had set up in respect of duty counsel or Legal Aid, the information was readily at hand at the police detachment from the officers who were from Manitoba, and who were acquainted with the province's Legal Aid scheme.

The accused did not waive his right to retain and instruct counsel when he responded "Not right now, no" to the query about whether there was a reason for him to want to talk to a lawyer. The comment took place immediately after the accused requested information about Legal Aid and expressed his concern about being unable to afford a lawyer. The accused was left with the mistaken impression that his inability to afford a lawyer prevented him from exercising his right to counsel. In this context, the accused did not understand the full meaning of his right to counsel and was not in a position to carefully consider the consequences of waiving his s. 10(b) rights.

The evidence obtained as a result of the s. 10(b) violation was properly excluded by the trial judge. Under s. 24(2) of the Charter, there is no need for an accused to demonstrate a causal link between the Charter infringement and the evidence obtained thereby. A requirement of strict causation is inappropriate under that section. Section 24(2) is implicated as long as a Charter violation occurred in the course of obtaining the evidence. Here, the statements were obtained in the course of the violation of s. 10(b) of the Charter and the admission of this evidence would bring the administration of justice into disrepute. First, the fairness of the trial would be adversely affected since the admission of the statements would infringe on the accused's right against self‑incrimination. Second, the Charter violation was a serious one. Although the conduct of the officer was not flagrant or blatant, it was a serious error not to inform the accused of the existence of Legal Aid or duty counsel especially when he explicitly raised the issue, and in light of the fact that such information was readily at hand. Third, in balancing the admission of the evidence against the exclusion of the evidence, the Crown conceded that the statements represented, at most, evidence of consciousness of guilt and admissions of recent possession of property stolen from the home of the victim. Finally, 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.

Per Lamer, Wilson, Gonthier and Cory JJ.: As part of the information component of the constitutional guarantee under s. 10(b) of the Charter, a detainee should be informed in all cases of the existence and availability of the applicable systems of duty counsel and Legal Aid plans in the jurisdiction. It is consistent with the purpose underlying s. 10(b) of the Charter to impose such a duty on the police in all cases of detention. This additional duty imposed on the police, however, may have an effect on the consideration of what constitutes "reasonable diligence" of a detainee in pursuing the right to counsel. There would be a transition period of thirty days from the date of this judgment to enable the police to properly discharge their new burden and to prepare new cautions.

Cases Cited

Applied: R. v. Parks (1988), 33 C.R.R. 1; Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383; referred to: R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233; 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; 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. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980; R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138; Miranda v. Arizona, 384 U.S. 436 (1966); Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863; Reference re Manitoba Language Rights, 1985 CanLII 33 (SCC), [1985] 1 S.C.R. 721.

Statutes and Regulations Cited

Canadian Bill of Rights, R.S.C., 1985, App. III.

Canadian Charter of Rights and Freedoms, ss. 7, 10(b), 11(d), 24(2).

International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, Art. 14(3).

Authors Cited

Canada. Statistics Canada. Canadian Centre for Justice Statistics. Legal Aid in Canada 1985. Ottawa: Minister of Supply and Services Canada, 1986.

Wilkins, James L. Legal Aid in the Criminal Courts. Toronto: University of Toronto Press, 1975.

APPEAL from a judgment of the Alberta Court of Appeal (1987), 1987 ABCA 177, 55 Alta. L.R. (2d) 330, 84 A.R. 259, setting aside the accused's acquittal on a charge of murder and ordering a new trial. Appeal allowed.

Richard A. Stroppel, for the appellant.

Jack Watson, for the respondent.

//Lamer J.//

The judgment of Lamer, Wilson, Gonthier and Cory JJ. was delivered by

Lamer J. --

Facts

This case deals with the scope of s. 10(b) of the Canadian Charter of Rights and Freedoms, specifically with respect to the duty of the police when an accused expresses a concern that his right to retain and instruct counsel is contingent on his ability to afford one.

The appellant, William Brydges, was arrested on December 16, 1985 in connection with a murder that took place in March of 1979, in Edmonton, Alberta. Brydges was 16 years old at the time of the offence, and 22 years old when he was arrested. His only previous criminal record consisted of a conviction for impaired driving and failing to appear for fingerprinting in relation to that offence. The arrest took place near the town of Strathclair, Manitoba which is about 65 miles north of Brandon. Brydges, a resident of Alberta, was visiting his stepfather in Strathclair at the time of his arrest. Detective Harris of the Edmonton City Police, accompanied by Corporal Munro, an R.C.M.P. officer stationed near Strathclair, arrested the appellant at his stepfather's residence on a charge of second degree murder. The appellant was advised of his right to retain and instruct counsel without delay upon being arrested. Detective Harris specifically asked the appellant if he wanted to contact a lawyer, to which the appellant, according to the testimony of Detective Harris, responded that he did not.

The officers then transported the appellant to the R.C.M.P. detachment in Brandon. Immediately upon their arrival in Brandon, Detective Harris took the appellant to a room for questioning and secretly recorded the ensuing interrogation using a tape recorder hidden in a brief case. The questioning lasted from 5:15 p.m. to 6:20 p.m. The following key exchange, from the transcript of the tape recording, took place between the appellant (Bill) and the detective (Ron) at the start of the interrogation:

Ron: Okay Bill, this is your copy of that warrant, I was telling you about okay. It says that on or about the twenty- ninth day of March ah, nineteen seventy nine, City of Edmonton, Province of Alberta, did commit second degree murder. On person of Elizabeth MacLeod, contrary to section two one eight of the Criminal Code. Okay your copy. There is a couple things I want to go over with you. (Coughs) Okay first of all ah, you acknowledge the fact that back at your parents home ah, I placed you under arrest for this murder.

Bill: Um hum.

Ron: Ah I informed you there that ah, it was our duty to inform you that you had the right to instruct counsel. And I asked you if you understood what that meant. And you said yes.

Bill: Yeah.

Ron: Okay. Ah . . . You didn't want to phone a lawyer out there. Ah you can phone one from here if you want. If you know one.

Bill: I don't know of any.

Ron: Did you want to try and get a hold of one here.

Bill: Well. Do they have any free Legal Aid or anything like that up here.

Ron: I imagine they have a Legal Aid system in Manitoba. I'm . . .

Bill: (Unintelligible)

Ron: . . . not familiar with it but.

Bill: Won't be able to afford anyone, hey? That's the main thing.

Ron: Okay. You feel ah there's a reason for you maybe wanting to talk to one right now.

Bill: Not right now, no.

Ron: Okay. Ahh. I'm just gonna read from this blue card again.

Bill: Okay.

Ron: Umm. Do you wish to say anything to me. Ah you're not obliged to say anything unless you wish to do so. Okay. But whatever you do say could be given in evidence. Do you understand that.

Bill: Um hum. [Emphasis added.]

The questioning in respect of the appellant's alleged connection with the offence began at that point. During the course of the questioning the appellant made a number of statements that, according to the Crown, represent evidence of consciousness of guilt as well as an admission of recent possession of property stolen from the home of the victim.

At a certain point in the interrogation, the appellant interrupted the flow of the questioning, and advised Detective Harris that he felt a need to contact a lawyer:

Bill: I just think that I should talk to someone. Maybe from Legal Aid or something then I. (Pause) Is that gonna be possible for me to get a hold of someone.

Ron: I can try and arrange it, sure.

Bill: I'd, I'd like to try to talk to someone first.

Ron: Okay.

Bill: And that way, I might feel, feel a little bit easier about talking.

Ron: About what happened?

Bill: About everything, yeah.

Ron: Okay, I don't know if I can get a hold of a Legal Aid lawyer.

Bill: I can't afford anyone else.

Ron: But, well, what, I don't think their gonna charge you for advise. (Pause) Do you want me to try and get one.

Bill: Yeah, if you can get a Legal Aid, first.

Ron: Do they have Legal Aid in Manitoba?

Bill: I don't know, I don't know.

Ron: Okay, I'll check. (Noise of chair moving)

At this point, the detective left the room, obtained a list of Legal Aid lawyers in the area and contacted one, who attended at the police detachment and interviewed the appellant. After the conversation with the lawyer, Mervin Hart, the following exchange took place:

Ron: Do you just want to sit over there. (Pause) Okay Bill ah, you got a chance to talk to Mervin here.

Bill: Um hum.

Ron: Okay ah, did you want to continue to tell me what happened?

Bill: No, I, I, got told not to say anything more until I got a hold of someone in Edmonton.

Ron: You talked to a lawyer in Edmonton?

Bill: Yeah.

Ron: Alright. Okay. We'll conclude it there then. (Pause) Ah, I'll just make some arrangements to get you transferred downtown.

Bill: Okay.

The Trial

The appellant was tried by Wachowich J. of the Court of Queen's Bench of Alberta, sitting with a jury, from January 12, 1987 to January 20, 1987. At the trial the Crown led circumstantial evidence implicating the appellant. On the fourth day of the trial, a voir dire was held concerning the statements made by the appellant to Detective Harris on the day of the arrest. After a lengthy voir dire, the learned trial judge held that the appellant's rights under s. 10(b) of the Charter were violated, and the evidence of the statements was excluded pursuant to s. 24(2) of the Charter. After reviewing the facts of the case, and the applicable law in respect of s. 10 of the Charter as it was at that time, the trial judge made the following findings:

On the first reading of the exchange between Detective Harris and the Accused, it appears that the Accused was accorded his rights under Section 10(b). However, a more careful reading of this exchange having listened to the tape recording, and after hearing all the evidence on the voir dire, I find that the Accused's Section 10(b) rights were infringed. I rely on the following passage:

"Ron: Did you want to try and get a hold of one here.

Bill: Well. Do they have any free Legal Aid or anything like that up here.

Ron: I imagine they have a Legal Aid system in Manitoba. I'm . . .

Bill: (Unintelligible)

Ron: . . . not familiar with it but.

Bill: Won't be able to afford anyone hey? That's the main thing."

In my view this response is equivocal. It relates to the subject of affordability. Upon reading these passages, I find that the Accused was essentially requesting the assistance of counsel but that he was unsure if he could afford one. Legal Aid was available from the evidence and merely a phone call away, as it became evident at the end of the interview when there was a direct request by the Accused for a lawyer. At that precise moment, being the exchange to which I have referred to, Detective Harris should have allowed the Accused sufficient opportunity to retain and instruct counsel without delay. [Emphasis added.]

The learned trial judge held that the proper course of conduct for the police officer would have been to assist the appellant in exercising the right to counsel by determining the availability of Legal Aid at that time, as he did later on at the end of the interrogation. In addition, the trial judge rejected the argument that the accused had waived his right to counsel. Once he found a restriction on the appellant's s. 10(b) Charter rights, the trial judge was of the view that the evidence ought to be excluded having regard to the importance of the right to counsel and the seriousness of the charge in this case. After the trial judge's ruling, the Crown closed its case and called no further evidence. Counsel for the appellant then moved that the case be taken away from the jury because there was no evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty. Crown counsel made no submissions in respect of the motion, and the trial judge, after considering the motion, instructed the jury to retire and return with a verdict of not guilty. The jury returned with a verdict of not guilty.

It is obvious that the disposition of this appeal must begin with an assessment of the findings of fact made by the learned trial judge. I should state at the outset that I am of the view that those findings should not be disturbed in this case. In this regard, I am in respectful disagreement with the majority of the Court of Appeal for Alberta. The key finding of the trial judge was that the appellant was essentially requesting the assistance of counsel, but that he considered his inability to afford a lawyer an impediment to the exercise of his right to retain and instruct counsel. It was in that factual context that the learned trial judge concluded that the police had a duty to provide the appellant with information about the availability of Legal Aid so that he could make an informed decision about whether or not he desired the assistance of counsel before proceeding with the interview.

In my view, the findings of fact on which the learned trial judge based his conclusions regarding the issues of the restriction to the right to counsel and the admissibility of the evidence should not be reversed. First, it cannot be said that there was an absence of foundation for his findings. The learned trial judge specifically adverted to the relevant factual background to the arrest, and quoted passages from the transcript of the interrogation. Second, the trial judge had the unique advantage of observing the witnesses who gave testimony on the voir dire, and perhaps more importantly, had the opportunity to listen to the tape recording of the interrogation. As a result, I conclude that the findings of fact made by the trial judge are sufficiently supported by the evidence before him, and therefore my consideration of the legal issues raised in this appeal is predicated on an acceptance of the facts as found by the learned trial judge, more particularly, that Brydges wanted counsel in the form of Legal Aid or duty counsel.

The Court of Appeal

A majority of the Court of Appeal for Alberta allowed a Crown appeal, and ordered a new trial: (1987), 1987 ABCA 177, 55 Alta. L.R. (2d) 330. McClung J.A., for the majority, directed that any voir dire into the admissibility of the appellant's statements in the new trial be confined to the issue of proof of voluntariness exclusive of any s. 10(b) Charter challenge. The majority of the Court of Appeal concluded that the trial judge erred in finding that the accused was requesting the assistance of counsel. Indeed McClung J.A. held that the appellant waived his right to counsel (at pp. 333-34):

The learned trial judge made two essential findings. Firstly, that the accused's response to the recital of his s. 10(b) rights was equivocal, holding that he did not waive his right to consult counsel and was only considering "affordability" of counsel. If it was merely equivocal the accused has not met the evidentiary onus. However, his response "Not right now, no" could not be equivocal. It was, in plain terms, his considered disclaimer of the assistance of counsel as he believed there was no reason for the assistance of counsel at that time. In my view his subsequent statements to Detective Harris escape Charter attack. Clearly the respondent elected to go it alone and continued to do so until the intensity of his interrogation led him to believe that it was time to request counsel. The interview then ceased and legal advice for him was arranged.

Therefore, the majority concluded that there was no restriction on the appellant's s. 10(b) rights.

The second "essential finding" dealt with by the majority concerned the application of s. 24(2) of the Charter in the event that an infringement did occur. McClung J.A. was of the view that before evidence can be excluded under s. 24(2), a causal connection must be established between the violation and the evidence obtained (at p. 334):

Before excluding under s. 24(2) of the Charter he [the trial judge] was obliged to determine if there was a causal link between the Charter infringement he found and the emergence of the ensuing conversation.

Although the majority found that no such causal link was established in this case, it also considered the central question of whether the evidence ought to have been excluded in any event. In this regard McClung J.A. reasoned as follows (at pp. 334-35):

. . . the impact upon the fairness of the trial of admitting the evidence had to be considered. Especially if the statement was otherwise free and voluntary. Was the accused to be denied a fair hearing by receiving the evidence? This was beyond the preliminary issue of whether the conduct of Detective Harris was susceptible of discrediting the criminal justice system. It is difficult to answer either question in the affirmative.

A peace officer pursuing the investigation of a serious crime cannot rationally be expected to double as the legal advisor of his suspect. In an adversary system the police headquarters should not be confused with the legal aid office. The police have clear responsibilities under s. 10(b) of the Charter to bring information to detainees. But the obligation is finite.

I would hold that on the evidence the statement ought not to have been suppressed under the s. 10(b) infringement that was alleged . . . . If there was an infringement it did not create the dialogue between Harris and the respondent which followed. Nor would the admission of the conversation into evidence taint the fairness of the trial, if it is otherwise proven voluntary.

Haddad J.A. agreed with the disposition proposed by his colleague McClung J.A., but added that, in his view, the trial judge misconstrued the criteria to be applied when considering whether an accused does not understand the meaning of the rights accorded to him. For Haddad J.A. that lack of understanding, to trigger the duty on the police to further explain or assist the accused in exercising his rights, must be based on an absence of the capacity to comprehend due to a physical or mental infirmity. In the case at bar, since the record supported no finding that the appellant's capacity to comprehend was impaired, the duty on the police to further assist him never arose.

Harradence J.A. dissented from the majority of the Court of Appeal and would have upheld the trial judge's disposition of the issues. In his view, the case at bar was a case in which the record demonstrated that the appellant did not understand the meaning of the right to counsel. When the appellant expressed his concern about being able to afford a lawyer, it was incumbent on Detective Harris to inquire into the availability of Legal Aid in Manitoba. In this regard, Harradence J.A. observed at p. 337 that

[t]he alacrity with which counsel was produced after the respondent's statement was recorded demonstrates that such information was readily at hand. [Emphasis in original.]

In the view of Harradence J.A., when it became clear that the appellant did not have or know a lawyer, and that he believed his right to retain a lawyer depended on affordability, the police should have advised him of how he could contact a lawyer and should have informed him that if he could not afford one then Legal Aid was available.

On the issue of waiver, Harradence J.A. held that since the appellant did not fully understand the meaning of his Charter rights, it could not be said that he was capable of waiving them, at least as that term was described in Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383. In so far as the statements were obtained as a direct consequence of the violation of the Charter, s. 24(2) was necessarily triggered. In upholding the trial judge's decision to exclude the evidence of the statements, Harradence J.A. described the violation of the appellant's rights as a very serious error on the part of the police. In view of the fact that the evidence was self-incriminating and that there was no urgency in questioning the appellant, Harradence J.A. concluded that to admit the evidence would bring the administration of justice into disrepute. He, therefore, held that the evidence was properly excluded under s. 24(2) of the Charter.

Analysis

Section 10(b) of the Charter reads as follows:

10. Everyone has the right on arrest or detention

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

This Court has on numerous occasions stated that the proper approach to interpreting the meaning of the rights and freedoms guaranteed by the Charter is to adopt a purposive analysis: 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. In respect of s. 10 of the Charter, this Court has made clear that the right to counsel is, to cite the words of Wilson J. in Clarkson, supra, at p. 394, aimed "at fostering the principles of adjudicative fairness", one of which is "the concern for fair treatment of an accused person". It is of note that the right to counsel is triggered "on arrest or detention". Fair treatment of an accused person who has been arrested or detained necessarily implies that he be given a reasonable opportunity to exercise the right to counsel because the detainee is in the control of the police, and as such is not at liberty to exercise the privileges that he otherwise would be free to pursue. There is a duty then, on the police to facilitate contact with counsel because, as I stated in R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, at pp. 1242-43:

The purpose of the right to counsel is to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights . . . . For the right to counsel to be effective, the detainee must have access to this advice before he is questioned or otherwise required to provide evidence.

As a result, s. 10(b) of the Charter imposes at least two duties on the police in addition to the duty to inform the detainee of his rights. First the police must give the accused or detained person a reasonable opportunity to exercise the right to retain and instruct counsel, and second, the police must refrain from questioning or attempting to elicit evidence from the detainee until the detainee has had that reasonable opportunity. The second duty includes a bar on the police from compelling the detainee to make a decision or participate in a process which could ultimately have an adverse effect in the conduct of an eventual trial until the person has had a reasonable opportunity to exercise the right to counsel: R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3, at p. 12.

It is the case, however, that the rights set out in the Charter are not absolute. Indeed, this Court has held that the right to retain and instruct counsel must be exercised diligently by the detainee. If the detainee is not diligent, then the correlative duties on the police are suspended: R. v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435. What constitutes reasonable diligence on the part of the detainee has been considered by this Court in R. v. Ross, supra, 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.

A detainee may, either explicitly or implicitly, waive his right to retain and instruct counsel, although the standard will be very high where the alleged waiver is implicit. A majority of this Court in Clarkson, supra, concluded as follows in respect of a waiver of the right to counsel at pp. 394-95, a passage that has been cited with approval in subsequent cases dealing with s. 10(b):

. . . 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 is 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.]

This then, briefly stated, is a summary of the principles developed thus far by this Court in respect of the scope of s. 10(b) of the Charter.

In applying these principles to the case at bar, I must once again state that I accept the findings of fact made by the trial judge. The learned trial judge concluded that the appellant was essentially requesting the assistance of counsel, but felt that his inability to afford a lawyer was an impediment to the exercise of his right to retain one. As I noted above, the trial judge had the unique advantage of hearing from witnesses on the voir dire, and more importantly, listened to the tape recording of the interrogation of the accused. In light of these circumstances, I am of the view that the learned trial judge's findings should not be disturbed. The majority of the Court of Appeal took a different view. McClung J.A. held that the appellant waived his right to retain and instruct counsel when he responded "Not right now, no" to the query about whether there was a reason for him to want to talk to a lawyer. McClung J.A. stated that the appellant "elected to go it alone and continued to do so until the intensity of his interrogation led him to believe that it was time to request counsel" (p. 334). The extract referred to by the majority of the Court of Appeal must, however, be read having regard to the entire context of the interrogation. The comment referred to takes place immediately after the appellant requested information about Legal Aid, and expressed his concern about being able to afford a lawyer. In that context, the appellant specifically stated that "the main thing" was that he was unable to afford counsel. The trial judge found that this amounted to a request for counsel. The appellant, however, was left with the mistaken impression that his inability to afford a lawyer prevented him from exercising his right to counsel. I agree with Harradence J.A. in dissent that in this context the appellant did not understand the full meaning of his right to counsel. In this respect, it can hardly be said that the appellant was in a position to carefully consider the consequences of waiving that which he did not understand. I am therefore of the view that the appellant, given the standard for waiver set out by this Court in Clarkson and subsequent cases, did not waive his right to retain and instruct counsel.

Once the appellant in effect requested the assistance of counsel it was incumbent on the police officer to facilitate contact with counsel by giving the appellant a reasonable opportunity to exercise his right to counsel. On the specific facts of this case, the Court is faced with the following question: when an accused expresses a concern that his inability to afford a lawyer is an impediment to the exercise of the right to counsel, is there a duty on the police to inform him of the existence of duty counsel and the ability to apply for Legal Aid? In my view there is. I say this because imposing this duty on the police in these circumstances is consistent with the purpose underlying the right to retain and instruct counsel. A detainee is advised of the right to retain and instruct counsel without delay because it is upon arrest or detention that an accused is in immediate need of legal advice. As I stated in Manninen, supra, at p. 1243, one of the main functions of counsel at this early stage of detention is to confirm the existence of the right to remain silent and to advise the detainee about how to exercise that right. It is not always the case that immediately upon detention an accused will be concerned about retaining the lawyer that will eventually represent him at a trial, if there is one. Rather, one of the important reasons for retaining legal advice without delay upon being detained is linked to the protection of the right against self-incrimination. This is precisely the reason that there is a duty on the police to cease questioning the detainee until he has had a reasonable opportunity to retain and instruct counsel.

On the facts of the case at bar, it is clear that the advice the appellant received from the Legal Aid lawyer he spoke to was to the effect that, and this was a situation which is not always the case, he should rest on his right not to make any more statements until he spoke to a lawyer in Edmonton. In retrospect, had the appellant been informed of the availability of duty counsel or Legal Aid at the time that he first raised a concern about affordability, the subsequent interrogation may never have taken place. In this regard I refer to the case of R. v. Parks (1988), 33 C.R.R. 1, an oral judgment by Watt J. of the Ontario High Court. In that case, the accused entered a police station and reported that he had killed two people. He was bleeding profusely from both hands and was taken to hospital so that he could be tended to. The accused was advised of his right to retain and instruct counsel and that he had a right to remain silent. The police then conducted two taped interviews with the accused. In the second interview, in response to the police officer's questions, the accused indicated that he had a lawyer but that he did not want the officer to contact the lawyer because he could not afford to pay him. The second interview continued despite the accused asserting that he had nothing further to say. The officer, although he was aware of the existence of the Ontario Legal Aid Plan and the availability of duty counsel, did not advise the accused of these. The accused testified that had he received the advice of counsel, he might not have continued with the second interview. I reproduce the start of the second interview in order to contextualize the facts:

Adair: Okay you indicated ah, earlier, that you didn't want me to try and contact ah, legal counsel for you. Ah, would you tell me now who you(r) counsel is? Do you have a lawyer?

Parks: No.

Adair: You don't have one. You don't want me to make any . . .

Parks: Not in this case no.

Adair: Not in this case?

Parks: Like I have a lawyer for my, my other case.

Adair: What's his name?

Parks: Gary McNeilly.

Adair: Gary McNeilly, you don't want me to attempt to notify him?

Parks: No, I can't afford to pay him.

Adair: Okay. Is there anything else you want to discuss at this time.

Parks: No sir. [Emphasis in original.]

After that exchange the interview continued. Watt J., in his reasons in respect of an alleged s. 10(b) violation, analyzed the events as follows (at p. 13):

A careful examination of the discussion of counsel in the second interview . . . satisfies me that special circumstances then arose which demonstrated a failure of understanding on the part of the accused of the nature and scope of his sub-s. 10(b) rights and obliged investigating officers to furnish further information and explanation of what is meant by the right to counsel in sub-s. 10(b).

The accused, in the condition earlier described, apprised the officers that he had a lawyer for his other case, an allegation, apparently, of fraud. He identified counsel at the request of the officer and, in answer to a somewhat leading question, namely, ". . . you don't want me to attempt to notify him?", responded, "No. I can't afford to pay him". In the singular circumstances here apposite, the investigating officer should have apprised the accused of the Ontario Legal Aid Plan and, more particularly, the availability, irrespective of means and whether legal aid is ultimately given, of duty counsel to advise the accused persons in circumstances such as those in the present case. I do not suggest that such obligation arises in the majority of cases, a fortiori, as an inexorable consequence of the information component of the constitutional guarantee of sub-s. 10(b). Nor do I suggest that the investigating officers should double as the accused's legal adviser. In the present circumstances, however, it was incumbent upon the investigating officer to provide further information of the nature earlier described to render adequate and constitutionally sufficient the accused's understanding of his right to retain and instruct counsel. It may well be that, apprised of such information, the accused would, nonetheless, choose not to speak with counsel but continue to answer police questions. He was not, however, given the wherewithal to make such a decision. He should have been and, in my respectful view, the failure to do so infringed his right to be informed of the nature and extent of his sub-s. 10(b) rights. [Emphasis added.]

In my view, the reasoning of Watt J. is sound and is equally applicable to the facts of the case before this Court. In both cases the accused expressed the belief that an inability to afford counsel acted as an impediment to the exercise of the right to retain and instruct counsel. In Parks, the officer was aware of the existence of Legal Aid and of duty counsel. In the case at bar, the investigating officer was from out of province, and understandably was not aware of the specific provisions that Manitoba had set up in respect of duty counsel or Legal Aid. As Harradence J.A. observes in dissent, however, the information was readily at hand at the police detachment from the officers who were from Manitoba, and who were acquainted with the province's Legal Aid scheme. In my view, Watt J. is correct in concluding that in circumstances where an accused expresses a concern that the right to counsel depends upon the ability to afford a lawyer, it is incumbent on the police to inform him of the existence and availability of Legal Aid and duty counsel. It is interesting that Watt J. refers specifically to the link between the accused's right to a full understanding of the right to counsel and the accused's decision regarding whether he should continue to answer questions from police. This link is directly related to one of the purposes underlying the right to counsel that I mentioned earlier, namely the immediate need for access to counsel upon detention so the detainee can receive advice in respect of the existence of the right to remain silent and how to exercise that right. It is especially noteworthy in this context, that the function of duty counsel has been described by James Wilkins in his book Legal Aid in the Criminal Courts (1975), at p. 12, as "intended to provide the accused with immediate but temporary legal advice and assistance". (Emphasis added.) The decision to retain counsel is, of course, one that remains with the detainee.

The case at bar is one, like Parks, where the accused was clearly interested in obtaining counsel, but mistakenly believed that his right to retain a lawyer was contingent on affordability. The failure of the police to inform the appellant of the existence of Legal Aid or duty counsel at the time that he first indicated a concern about his ability to pay a lawyer, was a restriction on the appellant's right to counsel, in so far as the appellant was left with an erroneous impression of the nature and extent of his s. 10(b) rights. As a result, I would conclude, along with the trial judge and Harradence J.A. in dissent at the Court of Appeal, that the appellant's s. 10(b) rights were violated.

In respect of the exclusion of the statements under s. 24(2) of the Charter, I would note that the majority of the Court of Appeal erred in concluding that the appellant needed to demonstrate a causal link between the Charter infringement and the evidence obtained thereby. This Court has clearly established in R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, that a requirement of strict causation is not appropriate under s. 24(2). Rather, s. 24(2) is implicated as long as a Charter violation occurred in the course of obtaining the evidence. In the case at bar there is no doubt that the statements were obtained in the course of the violation of s. 10(b) of the Charter. As regards the test set out to determine whether the admission of the evidence obtained in violation of the Charter would bring the administration of justice into disrepute, I note the following. First, the nature of the evidence obtained was conscripted or self-incriminatory evidence whose admission would normally render a trial unfair. The fairness of the trial would be adversely affected since, in the words of Wilson J. in R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138, at p. 160, "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". Second, in terms of the seriousness of the violation, although it cannot be said that the conduct of the officer was flagrant or blatant, it was a serious error not to inform the appellant of the existence of Legal Aid or duty counsel especially when the appellant explicitly raised the issue, and in light of the fact that such information was readily at hand. Finally, in balancing the admission of the evidence against the exclusion of the evidence, I note that the Crown concedes that the statements at most represent evidence of consciousness of guilt and admissions of recent possession of property stolen from the home of the victim. In addition, 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 Black, supra, at p. 160, and also Manninen, supra, at p. 1246. I would conclude, therefore, that the evidence obtained as a result of the s. 10(b) violation was properly excluded by the trial judge.

Although my reasons thus far are sufficient to dispose of this appeal in favour of the appellant, I feel compelled to make certain comments on the broader question raised by Watt J. in Parks, supra, namely whether it should be part of the information component of the constitutional guarantee under s. 10(b) that accused persons should be told as a matter of routine in all cases of arrest or detention of the existence and availability of duty counsel and Legal Aid plans. In my view, it is consistent with the purpose underlying s. 10(b) of the Charter to impose that duty on the police in all cases of detention. I find it necessary to address this issue because otherwise, among other reasons, there is an element of uncertainty facing law enforcement officials as a result of the disposition of this appeal. Although in a case like Parks or the case at bar, it is clear that the accused expressed a concern about the inability to afford counsel acting as an impediment to the exercise of the right to counsel, that will not be the case in all situations. For example, there may be cases where the detainee does not explicitly ask for or about Legal Aid, but still expresses a concern about affordability of counsel. Additionally, there may be cases where a detainee says nothing about his inability to afford counsel because he believes it is a forgone conclusion that unless he can afford a lawyer, there is no other way to exercise the right to retain and instruct counsel. Thus, police officers would be put in the difficult position of having to judge, on the spot, whether a person has expressed concerns about affordability or whether there should be further inquiries made of a detainee who does not express concerns about affordability but whom the police officer suspects may be indigent and in need of duty counsel or Legal Aid. In fact, it is most often the indigent and the disadvantaged in our society that are not as aware of the schemes that the State has set up on their behalf. In this respect I quote from the landmark decision of the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966), at p. 473:

The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent -- the person most often subjected to interrogation -- the knowledge that he too has a right to have counsel present. As with the warnings of the right to remain silent and of the general right to counsel, only by effective and express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it.

In my view then, these policy concerns in respect of making police officers' duties under the Charter clear and of ensuring that all detainees are made aware of the existence of duty counsel and Legal Aid, complement each other, and support the view that information about the existence and availability of duty counsel and Legal Aid plans should be part of the standard s. 10(b) caution upon arrest or detention.

I also find support for my view in the nature of Legal Aid plans and delivery systems in Canada. Between 1967 and 1976 every province and territory in Canada has set up a Legal Aid plan. The responsibility for the provision of Legal Aid is divided between the federal government under its authority in matters of criminal law, and the provincial governments under their authority for the administration of justice and for property and civil rights. This joint responsibility for Legal Aid has been confirmed in agreements since 1972 when the federal Department of Justice began cost-sharing Legal Aid for criminal cases. The Legal Aid plans of each province vary somewhat with each province establishing its own financial conditions to be met by applicants, provided that the test is flexible so that the applicant need not be required to hire a private lawyer if in doing so the applicant would have to contract major debts or sell modest assets. Different systems are used to deliver Legal Aid. Judicare systems, in which services are delivered on a fee-for-service basis through private law firms and staff systems, in which professionals are employed directly by the plan are two types of systems that exist in Canada. The systems operate either independently, or as in Manitoba for example, are combined. Legal Aid in criminal matters extends to any eligible person who is charged with any indictable offence against an act of Parliament, and at the discretion of the province, to any eligible person charged with a federal summary conviction offence. The province has the responsibility to take reasonable measures to see that a lawyer is made available to the eligible person without delay.

In addition to the provisions set up for Legal Aid, each province also has, in one form or other, a system of duty counsel for adults and youths in criminal proceedings. As I noted above duty counsel are intended to provide with immediate but temporary advice and assistance those persons who cannot afford a lawyer or those who do not know a lawyer. Indeed, knowledge of the existence and availability of duty counsel is perhaps of primary importance since financial status is generally not considered as a pre-condition to obtaining the services of duty counsel. In fact, it is often duty counsel that is in a position to inform the detainee about making an application for Legal Aid, or his options if he is not eligible. As Wilkins, op. cit., states in his book at p. 137, "[d]uty counsel is prepared to act during any stage of the cases before the court and on behalf of any unrepresented person. However, an important part of his function is to refer the accused to the certificate aspect of the program". This is in addition to the other functions of duty counsel which include advising the detainee of his rights and taking such steps as are necessary to protect his rights such as representing him on an application for remand or on a bail application. (For a more complete account of Legal Aid and duty counsel services, see Legal Aid in Canada 1985 (1986) published by the Canadian Centre for Justice Statistics.)

This brief overview of Legal Aid and duty counsel systems reveals the extent of Canada's recognition of the importance of the right to counsel for all persons detained in connection with criminal offences. This recognition extends beyond our own affirmation of the right in the Canadian Bill of Rights, R.S.C., 1985, App. III, and the Charter to our international commitments. For example, Canada is a signatory to the International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, which contains the following provision:

Article 14

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(d) To be tried in his presence and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

All of this is to reinforce the view that the right to retain and instruct counsel, in modern Canadian society, has come to mean more than the right to retain a lawyer privately. It now also means the right to have access to counsel free of charge where the accused meets certain financial criteria set up by the provincial Legal Aid plan, and the right to have access to immediate, although temporary, advice from duty counsel irrespective of financial status. These considerations, therefore, lead me to the conclusion that as part of the information component of s. 10(b) of the Charter, a detainee should be informed of the existence and availability of the applicable systems of duty counsel and Legal Aid in the jurisdiction, in order to give the detainee a full understanding of the right to retain and instruct counsel.

Having said this, I am not unmindful of the fact that the imposition of this additional duty on the police may cause some concern on their part, but I am of the view that it is the interests of all the participants in the criminal justice system that s. 10(b) of the Charter be given this interpretation. In my view the additional duty is consistent with one of the main purposes underlying the s. 10(b) right which is to facilitate contact with counsel since it is upon arrest or detention that the accused is faced with an immediate need for legal advice especially in respect of how to exercise the right to remain silent. By the same token, however, the immediate need for legal advice means that the right must be exercised with reasonable diligence. The imposition of the additional duty on the police in respect of duty counsel and Legal Aid will, in my view, have implications for the issue of a detainee's reasonable diligence in seeking initial advice of counsel.

As I noted above, in Ross, supra, this Court held that detained persons have a right to retain the counsel of their choice, and it is only if the lawyer chosen is not available within a reasonable time that the detainee should be expected to exercise the right by calling another lawyer. It may appear to some, as it does to me, that the additional duty imposed on the police combined with the increasing presence of duty counsel services, irrespective of a means test, may well have an effect on the consideration of what constitutes "reasonable diligence" of a detainee in pursuing the right to counsel. The purposive approach which leads us to the conclusion that a detainee has the right to be informed of the availability of Legal Aid and of duty counsel also raises questions as to how long the police must wait for counsel of the detainee's choice to become available. Indeed, if the purpose of s. 10(b) is to assist initially persons upon their being detained as regards their rights and as regards their exercise thereof, we might well have to put time limits, not on access to counsel, but on access to counsel of one's choice. It may be that it is unreasonable not to seek the advice of available counsel when the only one available is either duty counsel or a Legal Aid lawyer. We must not, as a Court, lose sight of the realities of crime investigation and the functioning of modern police forces of varying sizes, with shifts, labour agreements and limitations put on overtime for financial considerations of course, but also, if not more important because police officers have a right to a personal and family life. Waiting for eight to ten hours for counsel of the detainee's choice to become available may not be justified in a purposive approach when duty counsel has been available all along. But this issue and these considerations were not before the Court, and were not addressed in this Court nor in the courts below. The Court has not had the benefit of the views of the police, government or the bars as to what would constitute "reasonable diligence" in the exercise of the right to counsel in the light of the additional burden, and of the specific availability of duty counsel. As such, it is not wise for this Court to make pronouncements on that issue. It is sufficient to note that, as a corollary to the obligation imposed on the police to inform detainees of the existence and availability of duty counsel services and Legal Aid plans, there may have to be an adjustment to the meaning of "reasonable diligence".

I wish to also point out that the issue of whether there is a constitutional right to have the assistance or representation of counsel is not before the Court. This issue normally arises when an accused cannot bring himself within the provincial Legal Aid plan and duty counsel cannot, as they usually cannot, furnish a full defence. A consideration of this issue goes beyond an examination of s. 10 of the Charter, to ss. 7 and 11(d). That matter will have to be decided when the facts of the case raise the issue and the matter is fully argued before the Court.

Before concluding, it is my view that in light of the imposition of the additional duty on the police as part of the information component of the s. 10(b) caution, a transition period is appropriate. This transition period is needed to enable the police to properly discharge their new burden, more specifically to take into account the reality that police officers often use printed cards from which they read the caution given to detainees. In my view a period of thirty days from the date of this judgment is sufficient time for the police forces to react, and to prepare new cautions. I note, in passing, that the imposition of a transition period is not unusual. In Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, for example, I stated that a transitional period was appropriate in the context of the application of the principles developed under s. 11(b) of the Charter. In addition, in Reference re Manitoba Language Rights, 1985 CanLII 33 (SCC), [1985] 1 S.C.R. 721, this Court established a period of temporary validity for the Acts of the Manitoba Legislature, in order to allow for the translation, re-enactment, printing and publishing of previously unilingual legislation.

I would, accordingly, allow the appeal and restore the acquittal of the appellant at trial.

//La Forest//

The reasons of La Forest, L'Heureux-Dubé and McLachlin JJ. were delivered by

La Forest J. -- I agree with Lamer J. that on the facts of this case the appeal should be allowed and the acquittal restored, but I find it unnecessary to consider the broader issues raised by my colleague in the latter part of his reasons.

Appeal allowed.

Solicitors for the appellant: Brimacombe, Sanderman & Stroppel, Edmonton.

Solicitor for the respondent: The Attorney General for Alberta, Edmonton.