R. v. Smith, [1991] 1 S.C.R. 714

Norman MacPherson Smith Appellant

v.

Her Majesty The Queen Respondent

indexed as: r. v. smith

File No.: 21769.

1991: January 25; 1991: March 28.

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

on appeal from the nova scotia supreme court, appeal division

Constitutional law ‑‑ Charter of Rights ‑‑ Right to counsel ‑‑ Waiver ‑‑ Police informing accused of his right to counsel upon arrest in connection with shooting incident ‑‑ Police failing to specify that victim was dead ‑‑ Accused's right to be informed of reasons for arrest infringed ‑‑ Whether accused properly informed of his right to counsel ‑‑ Whether accused had sufficient information to make his waiver of counsel valid ‑‑ Canadian Charter of Rights and Freedoms, s. 10(b).

Constitutional law ‑‑ Charter of Rights ‑‑ Admissibility of evidence ‑‑ Bringing administration of justice into disrepute ‑‑ Accused arrested in connection with shooting incident ‑‑ Police failing to specify that victim was dead ‑‑ Accused's right to be informed of reasons for arrest infringed ‑‑ Accused making statement ‑‑ Whether accused's statement should be excluded ‑‑ Canadian Charter of Rights and Freedoms, ss. 10(a), 24(2).

Criminal law ‑‑ Murder ‑‑ Charge to jury ‑‑ Whether trial judge's reference to criminal negligence in instructing jury on definition of murder invalidates charge.

The accused was charged with first degree murder. The evidence indicated that, after several hours of drinking with two friends and the victim at the victim's residence, a fight occurred and the accused was severely beaten. The accused left but returned a few minutes later with a shotgun. The victim taunted him. The accused fired, striking the victim in the face and on the chest. The accused left the scene immediately, returned directly to his home, and substituted a rifle and ammunition for the shotgun. He then proceeded to his sister's house. The next morning he called the police and surrendered. In the police vehicle, an officer advised him that he was under arrest "for a shooting incident" at the victim's residence, told him that he had the right to retain and instruct counsel without delay and provided him with the standard police warning. The accused replied that he understood his rights. At the police station, the officer gave the accused a second opportunity to exercise his rights. The accused declined and made a statement in which he admitted the shooting but sought to explain it on the grounds of drunkenness and provocation. The accused was informed that the victim of the shooting had died about an hour after his statement was completed.

It was not disputed at trial that the accused had fired the shot that killed the victim. The main defences were drunkenness and provocation. Defence counsel argued that the accused's statement should not be admitted because it violated ss. 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms, on the ground that the police had not informed the accused upon his arrest of the fact that the victim was dead. The trial judge held that the statement was voluntary and should not be excluded for non‑compliance with the Charter, given that the statements of the police upon arrest were "generally true" and given that it was clear that the accused knew that "he had been involved in a most serious crime". In charging the jury, the trial judge provided instruction with respect to both the elements of first and second degree murder and the meaning of planning and deliberation. Before defining murder, the trial judge also instructed the jury on the matter of criminal negligence and stated that pointing a loaded shotgun at someone while drunk is criminal negligence. The jury returned with a verdict of guilty of second degree murder and the majority of the Court of Appeal upheld the accused's conviction.

In this Court, as in the Court of Appeal, the Crown conceded that the accused's right to be informed promptly of the reasons for his arrest guaranteed by s. 10(a) of the Charter had been infringed. The present appeal is to determine (1) whether the accused had sufficient information to properly appreciate his need for counsel and to make a valid decision as to whether to waive his right to counsel; (2) whether the accused's statement should have been excluded pursuant to s. 24(2) of the Charter; and (3) whether the trial judge's charge to the jury was in error in that it gave the impression that criminal negligence was sufficient to support the mental element required to constitute murder.

Held: The appeal should be dismissed.

The accused's understanding of his situation is relevant in determining whether he has made a valid and informed waiver. This approach is mandated by s. 10(a) of the Charter, which gives a detainee the right to be promptly advised of the reasons for his detention. Regardless of whether the focus is on the sufficiency of the initial s. 10(b) advice or on the waiver, to establish a valid waiver of the right to counsel the trial judge must be satisfied that in all the circumstances revealed by the evidence the accused generally understood the jeopardy in which he found himself and appreciated the consequences of his decision to dispense with counsel. The accused need not be aware of the precise charge faced or of all the factual details of the case. What is required is that he be possessed of sufficient information to allow him to make an informed and appropriate decision as to whether or not to speak to a lawyer. The emphasis should be on the reality of the total situation as it impacts on the understanding of the accused, rather than on technical detail of what the accused may or may not have been told. In this case, the accused possessed sufficient appreciation of the extent of his jeopardy to permit him to validly waive his right to counsel. The evidence supports the trial judge's conclusion that the accused was aware that his situation was one of the most grave seriousness as he must have known, or at least have had a strong suspicion, that he had killed his victim.

The accused's statement obtained as a result of the s. 10(a) violation was properly admitted by the trial judge. First, the fairness of the trial was not affected since the admission of the statement did not offend the accused's right against self‑incrimination. The statement was neither incriminating nor prejudicial. Given the eye witnesses to the shooting, there was no doubt about the identity of the killer. The only issues at trial related to the defences of drunkenness and provocation and the statement supported the accused's position on these defences. Further, while the statement itself might not have been made but for the Charter violation, it did not present evidence which was not otherwise available, except in so far as it assisted the accused. Indeed, the statement was not essential to substantiate the charge as there was ample independent evidence as to the shooting and the events that preceded it. Second, the Charter violation was not wilful, deliberate or flagrant. The failure to inform the accused of the death of the victim was an oversight which cannot reasonably be seen as having serious consequences for the accused since it is unlikely that he did not know that the victim was probably dead. Third, the repute of the administration of justice would not be served in this case by excluding the statement.

The trial judge's reference to criminal negligence in instructing the jury on the definition of murder does not invalidate the charge. Read as a whole, the charge properly and completely instructs the jury as to the necessary elements of murder. The mention of the offence of criminal negligence, while unnecessary, was not capable of misleading the jury.

Cases Cited

Applied: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265; distinguished: R. v. Fraser (1984), 1984 CanLII 47 (NS CA), 16 C.C.C. (3d) 250; referred to: R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138; R. v. Greffe, 1990 CanLII 143 (SCC), [1990] 1 S.C.R. 755; Moran v. Burbine, 475 U.S. 412 (1986); Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383; R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980.

Statutes and Regulations Cited

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

Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1)(b)(iii).

APPEAL from a judgment of the Nova Scotia Supreme Court, Appeal Division (1990), 1990 CanLII 5392 (NS CA), 53 C.C.C. (3d) 97, 94 N.S.R. (2d) 361, 247 A.P.R. 361, dismissing the accused's appeal from his conviction on a charge of murder. Appeal dismissed.

Joel E. Pink, Q.C., and Heather McKay, for the appellant.

Kenneth W. F. Fiske, for the respondent.

//McLachlin J.//

The judgment of the Court was delivered by

McLachlin J. -- This case concerns a conviction for second degree murder arising out of a shooting incident in Nova Scotia. It raises a number of issues including the right of a detained person to be informed of the reasons for his detention and of his or her right to retain and instruct counsel.

The Facts

On June 13, 1988, Norman Smith, a fisherman, killed his friend, Larry Goreham, with a shotgun. Smith and Goreham had been drinking with two other men, Earl Hopkins and Ronald Hines, in Goreham's barn. After several hours of drinking an argument erupted between Smith and Hopkins, apparently over their respective abilities as fishermen. The fight became physical. While there is some dispute about exactly what happened, there is no doubt that Smith was beaten quite badly as a result of the altercation. According to Hines, he left the barn pointing his finger at the other men and saying: "I'll get you all." Smith denies this.

Smith returned ten to fifteen minutes later with his loaded 12-gauge shotgun. Upon hearing Smith's vehicle, Hopkins looked out the window to see Smith holding the gun. Smith fired, shattering a barn window. Hopkins ducked out of the way. Goreham was less wise; appearing at the upper doors of the barn, he began taunting Smith. Smith fired. The shot struck Goreham on the face and chest, and he fell back and died. Investigation established that the gun was fired at a distance of about 96 feet and that there were 169 pellet holes in Goreham's body.

Smith got in his vehicle and went home. Substituting a rifle and ammunition for his shotgun, he proceeded to his sister's residence, where he spent the night. Early the next morning he telephoned the police, and at 6:00 a.m. the police came to arrest him. When Smith walked out of the house to surrender, he was met by three officers covering him with rifles; he was directed to his knees, handcuffed and placed in the rear of a police vehicle.

In the police vehicle, Constable Terry Faye advised Smith that he was under arrest "for a shooting incident at the residence of Larry Goreham". Constable Faye then instructed Smith that "[you have] the right to retain and instruct counsel without delay". The officer asked Smith if he understood what that meant and he replied: "It means I can get a lawyer doesn't it?" The officer answered: "Yes, it does". Constable Faye then provided Smith with the standard police warning and asked him if he understood the warning. Smith replied: "I can tell you fellas what went on or I don't have to". The officer then advised Smith to say nothing until they reached the police station.

Smith arrived at the R.C.M.P. detachment in Barrington, Shelburne County, Nova Scotia, at 6:25 a.m. Once inside an interview room, Constable Faye stated: "I just want to refresh your memory back there in the car about what I told you. First of all, I told you you were under arrest and that you could contact a lawyer. Lastly, I read you the police warning and you said that you understood that. Norman, do you want the opportunity to exercise those rights about anything I have said to you so far?" Smith responded: "No". The officer then said to Smith, "O.K. Norman I'd like to get your side of the story. We've heard the other side and I think it's only fair that we get your side." Between 6:33 a.m. and 7:47 a.m. the police then took a statement from Smith, in which Smith admitted the shooting but sought to explain it on the grounds of drunkenness and provocation.

While the statement was being taken, Constable Faye was able to detect a very slight odour of alcohol on Smith's breath. He also observed that Smith's left eye was almost completely swollen shut and that there was some bruising on his face. During the interview, Constable Faye also became aware that Smith did not know that Mr. Goreham had died. The police had only told Smith that he was being arrested for "a shooting incident". Although the police knew that they were investigating a murder, at no time during the interrogation did they inform Smith of this fact. Smith was not informed of Goreham's death until some time after 8:37 a.m., after Smith had finished his statement and had been fingerprinted, photographed and placed in a cell. At that time, Constable Faye also told Smith that he would be discussing the matter with the Crown prosecutor but that Smith should "think the worst". Smith was charged with first degree murder.

At trial, after a voir dire at which the appellant testified, the appellant's statement was held to be admissible in evidence. Smith also testified at trial in support of the defences of drunkenness and provocation. In charging the jury, the trial judge provided instruction with respect to both the elements of first and second degree murder and the meaning of planning and deliberation. Prior to defining murder, the trial judge also instructed the jury on the matter of criminal negligence and stated that pointing a loaded shotgun at someone while drunk is criminal negligence. On the question of provocation, the trial judge instructed the jury that if they found that the appellant had the capacity to form the requisite intent, they could convict Smith for murder, subject to their consideration of the defence of provocation. The jury returned with a verdict of guilty of second degree murder.

Proceedings below

Smith was tried before MacDonald J., sitting with a jury. It was not disputed that Smith had fired the shot that killed Goreham. The defences were drunkenness and provocation. The evidence included the viva voce evidence of various witnesses and Smith's statement to the police, which the trial judge ruled admissible after a voir dire. The defence argued that the statement should not be admitted because it violated ss. 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms, on the ground that the police had not informed Smith upon his arrest of the fact that Goreham was dead, saying they were arresting him in connection with a "shooting incident." The trial judge held that the statement was voluntary and should not be rejected for non-compliance with the Charter, given that the statements of the police upon arrest were "generally true" and given that it was clear that Smith knew that "he had been involved in a most serious crime." He stated:

I don't know how an understanding could be any better expressed than what was expressed by his answers. There was a homicide and the officers refer to it as a shooting incident. Their description of the events fell far short of the actual event. However, it was generally true. And what is surprising to me is that Mr. Smith never questioned what the shooting incident was.

Counsel for the Crown also suggest that I should not make any inference out of the fact that Mr. Smith . . . was met by three officers covering him with rifles when he came out of the house of Kathleen Cameron I believe it was. In this Voir Dire, I am the trier of the facts and I am entitled to draw inference from the evidence presented. On that and all the evidence I have heard, I am satisfied that Mr. Smith well knew that he had been involved in a most serious crime.

On appeal to the Appeal Division of the Supreme Court of Nova Scotia (1990), 1990 CanLII 5392 (NS CA), 53 C.C.C. (3d) 97, the Crown admitted that the police had violated s. 10(a) of the Charter by not telling the accused immediately that Goreham was dead. The Court of Appeal, Macdonald J.A. dissenting, rejected the appeal on the other issues. On the issue of the statement, Jones J.A., for the majority, stated he was unable to find any element of unfairness in the procedure followed by the police. He continued (at p. 112):

Informing him that they were arresting him for a shooting was sufficient to apprise him of the serious consequences of making a statement. On the facts of this case it is highly unlikely that the appellant did not know that Goreham was dead. That is apparent from the statement and the fact that he probably intended to avoid arrest.

The majority concluded that s. 10(b) had not been violated, and that in any event s. 24(2) would justify reception of the statement.

The other major issue on appeal related to the sufficiency of the jury charge, and in particular the judge's instructions on the offence of murder. The majority of the Appeal Division concluded that the charge could not have confused the jury on the issue of the requisite intent for first and second degree murder. It also rejected the argument that the judge's reference to criminal negligence in the charge required a new trial. While the reference was unnecessary, the majority was satisfied that reading the charge as a whole, the jury could not have been confused on the essential issues -- provocation and drunkenness. Additional objections, including those relating to the trial judge's treatment of provocation and his instructions on weighing evidence and assessing credibility, were held to be without merit. Jones J.A. concluded (at p. 113):

None of these objections were raised at the conclusion of the charge and for a good reason. Read as a whole the charge was very fair to the defence. The issues in this case were simple. There was no real dispute over the fact that the appellant shot Goreham. The issue was whether the crime was murder or manslaughter by reason of drunkenness or provocation. The objections to the charge must be viewed in that light.

Macdonald J.A. dissented. He took the view that the appellant's statement was inadmissible in evidence and expressed concern over the directions of the trial judge on murder and provocation.

Macdonald J.A. held that neither ss. 10(a) nor 10(b) was satisfied because, given the "drastic difference" between a shooting incident and homicide, the appellant did not know the extent of his jeopardy when he elected not to contact a lawyer and to give a statement to the police.

Macdonald J.A. went on to hold that reception of the evidence could not be justified under s. 24(2) of the Charter. Referring to judgments of this Court in R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, and R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138, he concluded (at p. 126):

. . . that the admission of the statement given by Mr. Smith would, under the circumstances, bring the administration of justice into disrepute and would render the trial unfair.

With respect to the trial judge's instructions on murder, Macdonald J.A. stated that, in his view, the charge could have given the jury the mistaken impression that criminal negligence would support a charge of murder and thus was erroneous. As to provocation, Macdonald J.A. also was of the view that the trial judge at one point misdirected the jury as to what provocation means in law. Concluding, however, that the appellant suffered no prejudice as a result of the misdirection on provocation, since the trial judge told the jury that in his view provocation did exist, Macdonald J.A. applied the curative provision of s. 686(1)(b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46, with respect to that error. As to the first error in the charge, Macdonald J.A. stated that he was not convinced that the verdict would necessarily have been the same if the error had not occurred and thus did not invoke s. 686(1)(b)(iii) with respect to the criminal negligence reference.

Relevant legislation

Canadian Charter of Rights and Freedoms

10. 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. . . .

(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.

Issues

1. Was the appellant's s. 10(a) right under the Charter violated?

2. Due to the s. 10(a) violation, was the appellant's s. 10(b) right not properly and knowledgeably waived?

3. As a result of the violations of the appellant's ss. 10(a) and 10(b) rights, should his statement have been excluded from evidence pursuant to s. 24(2) of the Charter?

4. Was the trial judge's charge to the jury in error in that it gave the impression that criminal negligence is sufficient to support the mental element required to constitute murder?

5. Is the conviction sustained under s. 686(l)(b)(iii) of the Criminal Code notwithstanding any errors in the conduct of the trial?

Discussion

1. Was the Appellant's s. 10(a) Right Under the Charter Violated?

The Crown concedes that a breach of s. 10(a) is established by the failure of the police to tell the accused Smith upon arresting him that he was being detained, not only in connection with a shooting incident, but in connection with a shooting incident that had caused a death. In view of this concession, it is unnecessary to address the question of whether s. 10(a) was, in fact, violated.

2. Due to the s. 10(a) Violation, was the Appellant's Waiver of his Right to Counsel Invalid?

The Crown submits that while there was a "technical breach" of s. 10(a) because the police failed to tell the accused that the victim of the shooting was dead before he gave his statement, the accused was properly advised of his right to counsel under s. 10(b) and validly waived that right. The accused submits that his right to counsel was violated because: (a) the breach of s. 10(a) vitiated his s. 10(b) right from the outset; and alternatively, (b) the breach of s. 10(a) precluded a valid waiver. Both defence submissions rest on the failure of the police to advise the accused on arrest of the fact that his victim was dead.

The first question is whether the failure of the police to tell the accused that his victim was dead means that he was never properly advised of his right to counsel. There is no doubt that the accused was told that he had the right to counsel. The argument is that this advice was tainted and rendered deficient by failure to specify that the victim was dead. This argument is based on R. v. Greffe, 1990 CanLII 143 (SCC), [1990] 1 S.C.R. 755. In Greffe, the police told the accused he was being arrested on outstanding traffic warrants when in fact he was suspected of importing heroin. The Crown conceded violations of s. 10(a) and s. 10(b). Lamer J. (as he then was) referred to the conclusion of the trial judge that "[i]mproper advice can vitiate or infringe the charter right to counsel" (p. 776). Accepting for the purposes of argument that this may be so, the question is whether the lack of information as to the circumstances of the offence found in this case is such that the accused's s. 10(b) right to counsel was tainted.

The answer to that question in this case involves the same considerations as the second defence submission, namely, that the failure to advise the accused that his victim had died vitiated his waiver of his right to counsel. The allegation that the accused was never effectively told of his right to counsel because of the lack of information as to the state of the victim subsumes the allegation that the lack of information deprived him of the power to appreciate his need for a lawyer. The argument on waiver likewise rests on the subsumed allegation that the lack of information deprived the accused of the power to appreciate his need for counsel. It may be that in some cases (like Greffe, where waiver never arose because only real evidence was at stake) it is useful to distinguish between the effect of lack of information on the question of whether there was a proper warning, and its effect on waiver. In this case, however, the question comes to the same thing: was the accused possessed of sufficient information to properly appreciate his need for counsel and to make a valid decision as to whether to waive counsel or not?

In the United States, lack of knowledge about the circumstances of the alleged offence does not invalidate a police warning or preclude waiver of the right to counsel. All that is required for a valid waiver is that the accused know that he can stand mute and request a lawyer and that he is aware that the statements may be used to secure a conviction against him. The fact that he does not possess sufficient information to judge the seriousness of his situation is immaterial. As O'Connor J. stated in Moran v. Burbine, 475 U.S. 412 (1986), at pp. 422-23:

But we have never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights. . . . Once it is determined that a suspect's decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State's intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.

In Canada, we have adopted a different approach. We take the view that the accused's understanding of his situation is relevant to whether he has made a valid and informed waiver. This approach is mandated by s. 10(a) of the Charter, which gives the detainee the right to be promptly advised of the reasons for his or her detention. It is exemplified by three related concepts: (l) the "tainting" of a warning as to the right to counsel by lack of information; (2) the idea that one is entitled to know "the extent of one's jeopardy"; and (3) the concept of "awareness of the consequences" developed in the context of waiver.

I have already alluded to the concept of tainting, referred to in Greffe, supra. The right to know the extent of one's jeopardy finds its source in R. v. Black, supra, where this Court unanimously held that in order to meaningfully exercise the right to counsel, the accused must possess "knowledge of the extent of his jeopardy." It is concerned not so much with the initial question of whether the s. 10(b) warning itself was given, as with the ability of the detainee to make a choice as to whether to retain counsel or not, i.e. waiver. Wilson J. stated, at pp. 152-53:

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.

Finally, the issue may be viewed in terms of the concept of "awareness of the consequences." The reference to "awareness of consequences" stems from the judgment of Wilson J. in Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383. There Wilson J. stated, at p. 396, that: "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". Wilson J. explained at pp. 394-95:

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

These cases establish that, regardless of whether the focus is on the sufficiency of the initial s. 10(b) advice or on the waiver, what is required is that the accused understand generally the jeopardy in which he or she finds himself and appreciate the consequences of deciding for or against counsel. They rest on the common sense proposition that sometimes a lawyer is more important than at other times. Many might choose to do without counsel on a traffic charge. Many fewer would make the same decision if faced with murder.

It has never been suggested, however, that full information is required for a valid waiver. Indeed, if this were the case, waivers would seldom be valid, since the police typically do not know the whole story when the accused is arrested. Nor is the failure of the police to precisely identify the charge faced in the words of the Criminal Code necessarily fatal. In the initial stages of an investigation the police themselves may not know the precise offence with which the accused will be charged. Moreover, the words of the Code may be less helpful to a lay person than more common parlance in communicating the extent of jeopardy. Finally, the degree of awareness which the accused may be reasonably assumed to possess in all the circumstances may play a role in determining whether what the police said was sufficient to bring home to him the extent of his jeopardy and the consequences of declining his right to counsel.

The question reduces to this: in this case was the accused possessed of sufficient information to make his waiver of counsel valid? To my mind, to establish a valid waiver of the right to counsel the trial judge must be satisfied that in all the circumstances revealed by the evidence the accused generally understood the sort of jeopardy he faced when he or she made the decision to dispense with counsel. The accused need not be aware of the precise charge faced. Nor need the accused be made aware of all the factual details of the case. What is required is that he or she be possessed of sufficient information to allow making an informed and appropriate decision as to whether to speak to a lawyer or not. The emphasis should be on the reality of the total situation as it impacts on the understanding of the accused, rather than on technical detail of what the accused may or may not have been told.

Against this background, I turn to the evidence and the findings in this case. I begin with the findings of the trial judge. After reviewing the evidence, he concluded:

In this Voir Dire, I am the trier of the facts and I am entitled to draw inference from the evidence presented. On that and all the evidence I have heard, I am satisfied that Mr. Smith well knew that he had been involved in a most serious crime. [Emphasis added.]

In my opinion, the trial judge on all the evidence was entitled to conclude that Smith had sufficient awareness of the jeopardy in which he stood and that his waiver of the right to counsel should not be considered invalid. The evidence of witnesses to the shooting established that Smith shot Goreham, and that Goreham immediately fell backward in the doorway to the barn. The evidence also established that the shot was a powerful blast from a powerful gun. It was reasonable to infer from this evidence that Smith must have known, or at least have had a strong suspicion, that he had killed his victim. As Jones J.A. put it in the Court of Appeal: "it is highly unlikely that the appellant did not know that Goreham was dead" (p. 112).

Smith's subsequent conduct is consistent with such knowledge. He returned directly to his home, where he substituted a rifle and ammunition for the shotgun. He then proceeded to his sister's house, where he spent the night. In the early hours of the morning he called the police and advised them of his whereabouts.

Any lingering doubt about the seriousness of Smith's situation would have been erased by the conduct of the police upon arrest. As he came out of the house he was met by three officers covering him with their rifles. He was then made to kneel while handcuffs were affixed.

This evidence, viewed as a whole, is capable of supporting the inference that Smith was aware that his situation was one of the most grave seriousness. In those circumstances, it cannot be said that the trial judge erred in holding that the accused possessed sufficient appreciation of the extent of his jeopardy to permit him to validly waive his right to counsel.

The fact that the accused knew that he was in jeopardy for a most serious offence distinguishes this case from one in which the description given minimizes the legal consequences of the acts committed by the person under detention. In such cases the description by the police may allay the concerns that the detainee might otherwise have. It would then be wrong for the court to conclude that the detainee ought to have inferred from the circumstances the extent of his or her jeopardy.

3. Should the Statement Have Been Excluded Under Section 24(2) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

Given the Crown's concession that s. 10(a) has been violated, I must consider whether a s. 10(a) violation in this case mandates exclusion of the appellant's statement under s. 24(2).

Section 24(2) calls for the exclusion of evidence obtained as a result of a Charter breach where its admission would tend to bring the administration of justice into disrepute.

Three broad categories of factors bearing on a s. 24(2) determination were established in R. v. Collins, supra:

(1) the effect of the admission of the evidence on the fairness of the trial;

(2) the seriousness of the Charter violation; and

(3) the effect of exclusion on the repute of the administration of justice.

I deal first with the fairness of admitting the evidence. Self-incriminating statements obtained as a result of a Charter breach will usually be excluded on the ground that their reception would render the trial unfair. As Lamer J. (as he then was) explained in Collins, at pp. 284-85:

However, the situation is very different with respect to cases where, after a violation of the Charter, the accused is conscripted against himself through a confession or other evidence emanating from him. The use of such evidence 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. . . . 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.

This passage reveals two related factors which may make the statement unfair: (l) the fact that the statement is self-incriminating and (2) the fact that the evidence would not have been available but for the breach.

In the case at bar, these two factors are not compelling. First, the accused's statement was neither incriminating nor prejudicial. Given the eye-witnesses to the shooting, there was no doubt about the identity of the killer. The only issues at the trial related to the defences of drunkenness and provocation. The statement supported the accused's position on these defences. Thus it cannot be said to have offended his right against self-incrimination. Second, while the statement itself might not have been made but for the breach, it did not present evidence which was not otherwise available, except in so far as it assisted the accused. To paraphrase Lamer J. in Collins, the statement was not "essential to substantiate the charge" (p. 286). There was ample independent evidence as to the shooting and the events that preceded it. In these circumstances, it cannot be said that reception of the statement, even if it had been incriminating, would have significantly prejudiced the accused. This undercuts the suggestion that the statement rendered the trial unfair to the accused.

The second set of factors relevant to a s. 24(2) determination relates to the seriousness of the violation. Again, these factors are not compelling in the case at bar. In R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, Dickson C.J. identified the considerations relevant to this inquiry (at p. 1006):

Consideration will focus on the relative seriousness of the violation, whether the violation was committed in good faith or was of a merely technical nature or whether it was willful, deliberate and flagrant, whether the violation was motivated by circumstances of urgency or necessity, and whether other investigatory techniques that would not have infringed the Charter were available.

The breach of s. 10(a) of the Charter by failing to advise the accused upon arrest that the victim was dead, was neither wilful, deliberate nor flagrant. As Jones J.A. stated (at p. 113):

There is no evidence that the police were acting improperly or in disregard of the appellant's rights. The failure to inform the appellant of the death was an oversight.

Nor can the police's oversight in failing to advise that Goreham was dead be reasonably seen as having serious consequences for the accused. As discussed earlier, in the circumstances the accused might reasonably be supposed to have known that his victim was probably dead.

The final question is whether, having regard to the factors just discussed, the repute of the administration of justice would be served by excluding the statement. In my view, it would not. Reception of the statement was not, in all the circumstances, unfair or calculated to prejudice the accused. Nor was the nature of the breach such that exclusion of the statement is required to ensure the integrity of our system of criminal justice.

4. Was the Charge to the Jury in Error?

The issue is whether the trial judge's reference to criminal negligence in instructing the jury on the definition of murder invalidates the charge, requiring a new trial.

The judge, after charging the jury correctly on what constituted an unlawful act, which is the first element of the offence of murder, went on to allude to criminal negligence. He stated:

If you are satisfied with those points which I have addressed to you, beyond a reasonable doubt, then the act was an unlawful act. I will read the criminal negligence section to you, section 202:

"202. (1) Every one is criminally negligent who

(a) in doing anything . . .

shows wanton or reckless disregard for the lives or safety of other persons."

A person who points a loaded shotgun at somebody when he is drunk, I think you could arrive at the conclusion that he is criminally negligent. It is unlawful. It is also an assault. If you find this was a culpable homicide, you will move to the charge of murder.

He went on to complete the legal definition of murder, concluding with a summary of the options open to the jury. Criminal negligence was not among them.

Therefore, to review the options open to you, they are: guilty as charged -- that is, first degree murder -- the homicide which is culpable, which was intended, planned and deliberate. If it was not planned and deliberate, but you find the specific intent which requires a mind capable of forming the intent to kill somebody, as I have described it to you, then it would be second degree murder. If there is no such intent, but the unlawful act of assaulting with a gun, then you will find him guilty of manslaughter. You will consider the drunkenness involved. You will consider the provocation if you find there was provocation, as I described it to you. You must consider all these things in coming to your determination. And you could find him not guilty.

In my view, the trial judge's reference to criminal negligence does not invalidate the charge. Read as a whole, the charge properly and completely instructs the jury as to the necessary elements of murder. The mention of the offence of criminal negligence, while unnecessary, was not capable of misleading the jury. In this respect, the charge can be distinguished from that given in R. v. Fraser (1984), 1984 CanLII 47 (NS CA), 16 C.C.C. (3d) 250 (N.S.C.A.), where the trial judge not only referred to criminal negligence but repeated on several occasions that criminal negligence, if found by the jury, could constitute the underlying unlawful conduct required to sustain a conviction for culpable homicide. Those directives were in error and calculated to mislead the jury into finding that the element of an unlawful act was satisfied on improper grounds. Nothing of the sort occurred in the case at bar.

5. Section 686(1)(b)(iii)

In view of my conclusion on the adequacy of the jury charge, it is not necessary to consider this issue.

Conclusion

I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Stewart, McKelvey, Stirling, Scales, Halifax.

Solicitor for the respondent: The Attorney General of Nova Scotia, Halifax.