R. v. Brown, [1993] 2 S.C.R. 918

Albert Raymond Roy Brown Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Brown

File No.: 23103.

1993: June 18; 1993: August 12.

Present: La Forest, L'Heureux-Dubé, Sopinka, Gonthier and Iacobucci JJ.

on appeal from the court of appeal for alberta

Constitutional law -- Charter of Rights -- Fundamental justice -- Right to remain silent -- Trial judge admitting into evidence tape recorded conversations between accused and undercover police officer -- Accused arguing on appeal that evidence should have been excluded in light of Supreme Court of Canada decision rendered after trial -- Whether accused's rights under s. 7 of Canadian Charter of Rights and Freedoms violated.

The accused was convicted of first degree murder. The trial judge admitted in evidence tape recorded conversations between the accused and an undercover police officer. The accused did not object to the admission of this evidence at trial, but on appeal argued that the conversations should have been excluded as they were obtained in violation of his right to remain silent under s. 7 of the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada's decision in R. v. Hebert, in which it was held that a statement elicited from an accused by an undercover officer violated s. 7 of the Charter, was not released until shortly after the trial verdict. The Court of Appeal, in a majority judgment, dismissed the accused's appeal.

Held (L'Heureux-Dubé J. dissenting): The appeal should be allowed.

Per La Forest, Sopinka, Gonthier and Iacobucci JJ.: A new trial should be ordered solely on the ground of the alleged violation of the accused's rights under s. 7 of the Charter. The Crown and the accused will have the right to lead evidence on the issue of whether or not the accused knew that his interrogations were being conducted by police officers such that he waived his right to silence.

Per L'Heureux-Dubé J. (dissenting): Courts have long frowned on the practice of raising new arguments on appeal. Only in those exceptional cases where balancing the interests of justice to all parties leads to the conclusion that an injustice has been done should courts permit new grounds to be raised on appeal. Appeals on questions of law alone are more likely to be received, as ordinarily they do not require further findings of fact. Three prerequisites must be satisfied in order to permit the raising of a new issue, including a Charter challenge, for the first time on appeal: first, there must be a sufficient evidentiary record to resolve the issue; second, it must not be an instance in which the accused for tactical reasons failed to raise the issue at trial; and third, the court must be satisfied that no miscarriage of justice will result. In this case there has been no change in the substantive offence, the issue was not raised at trial, with the result that the record necessary for appellate review of the issue is unavailable, and there has been no denial of justice to the accused. The Court of Appeal therefore properly concluded that no appeal on this new issue should be entertained.

Even if the accused were permitted to raise the issue of a violation of his right to silence, no violation could be established on the evidence adduced at trial in this case. Nor would admission of the evidence bring the administration of justice into disrepute, while its exclusion would do so. The evidence sought to be excluded was not central to the verdict, and was equivocal. Evidence gathered by the police in good faith in complete conformity with acceptable investigative practices as the law stood at the time should not be open to attack after the trial process is over. Finally, the accused fully waived his right to silence under s. 7 by signing admissions that the evidence was admissible.

Cases Cited

By L'Heureux-Dubé J. (dissenting)

R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Broyles, [1991] 3 S.C.R. 595; R. v. Thomas, [1990] 1 S.C.R. 713; R. v. Martineau, [1990] 2 S.C.R. 633; Corporation professionnelle des médecins du Québec v. Thibault, [1988] 1 S.C.R. 1033; R. v. Wigman, [1987] 1 S.C.R. 246; Brown v. Dean, [1910] A.C. 373; Perka v. The Queen, [1984] 2 S.C.R. 232; Brecht v. Abrahamson, 113 S.Ct. 1710 (1993); R. v. Vidulich (1989), 37 B.C.L.R. (2d) 391.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 7, 24(2).

APPEAL from a judgment of the Alberta Court of Appeal (1992), 73 C.C.C. (3d) 481, 127 A.R. 89, 20 W.A.C. 89, affirming the accused's conviction by Holmes J. on a charge of first degree murder. Appeal allowed, L'Heureux-Dubé J. dissenting.

Alexander D. Pringle, Q.C., for the appellant.

Peter Martin, Q.C., for the respondent.

The judgment of La Forest, Sopinka, Gonthier and Iacobucci JJ. was delivered by

//Iacobucci J.//

Iacobucci J. -- I am of the opinion that this appeal should be allowed for substantially the reasons given by Harradence J.A. in the Alberta Court of Appeal (1992), 73 C.C.C. (3d) 481, solely on the ground of the alleged violation of the appellant's rights under s. 7 of the Canadian Charter of Rights and Freedoms. Consequently, a new trial should be ordered with the result that I refrain from commenting further on the other questions involved in this case. However, in the new trial, the Crown and the appellant shall have the right to lead evidence going to the issue of whether or not the appellant knew that his interrogations were being conducted by police officers such that he waived his right to silence.

The appellant submitted that the trial judge erred in treating as inculpatory his silence or noncommittal responses to certain accusatory statements by Joan Brown. I am satisfied that the trial judge refrained from relying on such evidence in coming to his conclusion.

I would therefore allow the appeal, set aside the judgment of the Alberta Court of Appeal, set aside the conviction of first degree murder, and order a new trial.

The following are the reasons delivered by

//L'Heureux-Dubé J.//

L'Heureux-Dubé J. (dissenting) -- The appellant in this case was charged and convicted of first degree murder in connection with the death of one Kindrachuk. He now seeks to overturn this conviction on the basis that taped conversations made by an undercover policeman subsequent to his arrest should have been excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms as they were obtained in violation of his right to silence under s. 7 of the Charter.

At trial, the issue of the admissibility of this evidence was raised by the trial judge. The appellant agreed that all of the evidence, which he now impugns, should be admissible and signed a statement which included the following admissions:

All statements made by [the appellant] to persons in authority were freely and voluntarily made and conform with and satisfy the legal rights and obligations contained in the Canadian Charter of Rights and Freedoms.

All conversations recorded between [the appellant] and Constable Harvey JONES are accurate recordings of those conversations; were made freely and voluntarily to an undercover police officer; and satisfy the provisions of S. 184(2)(a) & (b) of the Criminal Code R.S.C. 1985, Chap. C-46 and Duarte v. The Queen 53 C.C.C. (3d).

The defence at that time viewed the tapes as largely exculpatory and, as part of its trial strategy, utilized them as evidence that the accused had not killed the deceased. The appellant was nonetheless found guilty and sentenced to 25 years' imprisonment.

Shortly after the trial, this Court released its decision in R. v. Hebert, [1990] 2 S.C.R. 151, in which it was held that a statement elicited from an accused by an undercover officer after arrest violates the accused's right to silence under s. 7 of the Charter. On appeal, the appellant argued that the evidence should have been excluded, despite his initial agreement that it was admissible. Two grounds were advanced in support. First, the appellant contended that it did not object to the statements because their admission was inevitable based on the law as it stood at the time of trial. Second, defence counsel viewed the statements as exculpatory, as the accused did not admit at any point in the conversations that he killed Kindrachuk. The Court of Appeal dismissed the appeal, Harradence J.A. dissenting, (1992), 73 C.C.C. (3d) 481, on the following grounds. As the issue of the appellant's right to silence had not been raised at trial, there was no evidentiary foundation to establish the presence of a Charter violation, specifically that the statement had been elicited by the undercover officer without the appellant's knowledge. The decision of the appellant's counsel not to object to the admissibility of the taped conversations, taken as a matter of strategy, could not be reversed on appeal. Moreover, the majority of the Court of Appeal per Major J.A., now of this Court, held that, unlike the case in Hebert or R. v. Broyles, [1991] 3 S.C.R. 595, the appellant waived his s. 7 rights when he signed the statements which included the admissions referred to above.

My colleagues would order a new trial on the basis of the alleged violation of the appellant's right to silence under s. 7 of the Charter. For substantially the reasons given by Major J.A. for the majority at the Court of Appeal, I dissent from the majority and would dismiss this appeal. In my view, the main question in this appeal is the extent to which Charter and other arguments which were not raised at trial may be raised on appeal. I will also address the following issues in turn: assuming that a new Charter issue may be entertained on appeal in this case, whether there is a sufficient evidentiary foundation to establish a violation of the appellant's right to silence under s. 7; if so, whether the evidence should be excluded under s. 24(2) of the Charter.

New Issues on Appeal

The appellant argues that he should have the benefit of any change in the law while he is still "in the system" as long as an evidentiary basis exists upon which to make the finding. In doing so, he relies on this Court's judgments in R. v. Broyles, [1991] 3 S.C.R. 595, R. v. Thomas, [1990] 1 S.C.R. 713, R. v. Martineau, [1990] 2 S.C.R. 633, Corporation professionnelle des médecins du Québec v. Thibault, [1988] 1 S.C.R. 1033, and R. v. Wigman, [1987] 1 S.C.R. 246, for the proposition that an appellate court may hear a Charter argument that was not raised on appeal.

Courts have long frowned on the practice of raising new arguments on appeal. The concerns are twofold: first, prejudice to the other side caused by the lack of opportunity to respond and adduce evidence at trial and second, the lack of a sufficient record upon which to make the findings of fact necessary to properly rule on the new issue: see Brown v. Dean, [1910] A.C. 373 (H.L.), and Perka v. The Queen, [1984] 2 S.C.R. 232.

In addition, the general prohibition against new arguments on appeal supports the overarching societal interest in the finality of litigation in criminal matters. Were there to be no limits on the issues that may be raised on appeal, such finality would become an illusion. Both the Crown and the defence would face uncertainty, as counsel for both sides, having discovered that the strategy adopted at trial did not result in the desired or expected verdict, devised new approaches. Costs would escalate and the resolution of criminal matters could be spread out over years in the most routine cases. Moreover, society's expectation that criminal matters will be disposed of fairly and fully at the first instance and its respect for the administration of justice would be undermined. Juries would rightfully be uncertain if they were fulfilling an important societal function or merely wasting their time. For these reasons, courts have always adhered closely to the rule that such tactics will not be permitted.

Despite this general rule, there have been exceptional cases in which courts have entertained issues on appeal for the first time. There are three possible scenarios with regard to the raising of new issues on appeal. An appeal on a new issue may be permitted upon any subsequent change to the procedural or substantive law; denied, despite the change in the law, except in exceptional circumstances; or permitted where a law has been declared unconstitutional, that is to say where there is no longer any legal basis to the conviction.

It is apparent that, if appeals were allowed on any point of law that is reinterpreted after trial, the interests in finality and speedy administration of justice would be seriously eroded. The Crown and also defendants would face the spectre of potentially endless retrials brought about by subsequent appellate court rulings on a vast array of procedural issues which may bear on the constitutionality of criminal trials.

The costs of such an approach should not be underestimated. As Rehnquist C.J. of the United States Supreme Court recently observed, although in a different context, in Brecht v. Abrahamson, 113 S.Ct. 1710 (1993), at p. 1721:

Retrying defendants whose convictions are set aside also imposes significant "social costs," including the expenditure of additional time and resources for all the parties involved, the "erosion of memory" and "dispersion of witnesses" which accompany the passage of time and make obtaining convictions on retrial more difficult, and the frustration of "society's interest in the prompt administration of justice."

Moreover, no confidence is vested in the administration of justice when the retrial of an accused is ordered simply on the ground that the police failed to anticipate a change in the law which affects the conduct of a case. The Crown is prejudiced by evidence that has been rendered worthless in the case, often with no opportunity to successfully gather evidence again, with the result that an accused already found guilty may go free.

Apart from society's interest in preventing limitless appeals, the jurisprudence of this Court does not support the argument that new issues may be raised on appeal wherever there has been an expansion of the Charter rights of the accused or a change to a potentially relevant procedure. With the exception of Broyles, all of the cases cited by the appellant are instances in which the statutory foundation to the conviction had either been struck down or reinterpreted subsequent to the trial. In other words, the legal underpinning for the substantive offence itself had been altered or entirely removed by a ruling prior to the appeal. This is not the case here.

In Broyles, an accused contested the admission of a statement he made after arrest that had been monitored and obtained by police during detention, arguing a violation of his right to silence under s. 7 of the Charter for the first time on appeal. This Court allowed the appeal. However, it is important to note that the issue was not, in fact, new; at trial, the admission of the statement had been challenged unsuccessfully on grounds of voluntariness and the appellant also argued that a positive duty existed under s. 7 for remand centre staff to prevent the access of persons to the accused where the purpose was to allow the police to monitor a conversation. Because the issue had been canvassed before, although in a slightly different format, a complete record, including necessary findings of fact, was available to the Court. The present case does not fall into this category either.

In my view, given the jurisprudence of our Court, because of the social costs and the potential to impede the administration of justice, the general rule respecting new issues on appeal should be respected. Only in the clear instances in which, after balancing the interests of both parties, it would otherwise be unjust to the accused not to deal with the issue should courts permit argument on a new issue on appeal. The principles stated by Lambert J.A. in R. v. Vidulich (1989), 37 B.C.L.R. (2d) 391 (C.A.), at pp. 398-99, properly frame the approach in such situations:

It is perfectly proper to raise a supplementary argument on appeal that was not raised at trial, if the supplementary argument goes to an issue or ground that was itself raised at trial. But it requires leave of the court before an altogether new and independent issue or ground can be raised on appeal that was not raised at trial.

The decision whether to grant leave is a matter for the discretion of the court. The exercise of the discretion will be guided by balancing the interests of justice as they affect all the parties....

An accused must put forward his defences at trial. If he decides at that time, as a matter of tactics or for some other reason, not to put forward a defence that is available, he must abide by that decision. He cannot expect that if he loses on the defence that he has put forward, he can then raise another defence on appeal and seek a new trial to lead the evidence on that defence.

The result is that it is only in those exceptional cases where balancing the interests of justice to all parties leads to the conclusion that an injustice has been done, that a new ground is likely to be permitted to be raised on appeal. Such a new ground is more likely to be permitted where it raises an issue of law alone than where it requires the leading of evidence either in the appeal court or at a new trial. [Emphasis added.]

As Lambert J.A. correctly points out, appeals on questions of law alone are more likely to be received by the courts, as ordinarily they do not require further findings of fact. For this reason, appeals on issues not raised at trial will normally be confined to those which relate to a change in the law of the underlying offence rather than evidential matters.

In summary, the following three prerequisites must be satisfied in order to permit the raising of a new issue, including a Charter challenge, for the first time on appeal. First, there must be a sufficient evidentiary record to resolve the issue. Second, it must not be an instance in which the accused for tactical reasons failed to raise the issue at trial. Third, the court must be satisfied that no miscarriage of justice will result from the refusal to raise such new issue on appeal.

In the present case, none of these conditions are satisfied. There has been no change to the substantive offence. The issue was not raised at trial, with the consequence that the record necessary for appellate review of the issue is unavailable. As I will discuss in more detail below, because of the manner in which the trial was conducted, there has been no denial of justice to the appellant. In my view, the Court of Appeal properly concluded that no appeal on this new issue should be entertained.

Section 7 Right to Silence

The appellant submits that a sufficient evidentiary foundation presently exists to establish a breach of s. 7 in this case. Even if the accused were to be permitted to now raise the issue of a violation of his right to silence under s. 7, which I have concluded he may not, in my opinion, no violation could be established on the evidence adduced at trial in this case.

As this Court held in Hebert, supra, at p. 186:

The essence of the right to silence is that the suspect be given a choice; the right is quite simply the freedom to choose -- the freedom to speak to the authorities on the one hand, and the freedom to refuse to make a statement to them on the other.

The right to silence does not preclude an accused from deciding to speak to the police. Therefore, in order for the appellant's right to silence to have been violated, there must be a finding that the statement must have been elicited from him unwillingly in the face of his asserted desire to remain silent.

In this case, the question crucial to this determination remains unanswered: whether the appellant knew, at the point when the officer engaged him in conversation about the events on the night that the deceased disappeared, that the statement was being given to a police officer. If the appellant was aware at that time that his cellmate was a police officer and chose to make the largely exculpatory statements he made for purposes such as "seeding" a defence, there was no violation of his right to silence.

The evidence suggests that this scenario is in fact a live possibility in this case. In an intercepted conversation to his ex-wife 10 days after his arrest, the appellant disclosed that he became aware at some unknown point that he was being housed in the cellblock with an undercover police officer. In the statement to the officer, he admitted that he met with the deceased for the purposes of transacting a drug deal but denied knowing anything about the killing. However, the officer testified that, in his opinion, the accused knew very little, if anything, about cocaine. Moreover, he had previously told his ex-wife that he had been at the garage all night repairing a car. This suggests, as the trial judge found, that there was no air of reality to the appellant's claim that he was involved in a drug transfer at the time.

It must not be forgotten that an accused may waive his right to silence. The precise situation which has occurred in this case was in fact envisioned in Hebert, supra. McLachlin J. held at p. 188:

I would not wish to rule out the possibility that there may be circumstances in which a statement might be received where the suspect has not been accorded a full choice in the sense of having decided, after full observance of all rights, to make a statement voluntarily.

The appellant argues that the validity of his waiver was qualified or removed because he was unaware of the scope of the right to silence that is presently recognized under s. 7 and hence was not aware of the consequences of waiving the right. However, for the reasons I have outlined above regarding the litigation of new Charter issues on appeal, if there is to be any degree of finality and certainty in the adjudication of criminal matters, "awareness of consequences" cannot be construed as the awareness of any potential or future changes to the law. As the respondent points out, such an interpretation would render all such admissions useless and inherently untrustworthy for both the Crown and the defence.

In my view, this requirement must be given its natural meaning, which is that the accused both has an appreciation of the nature of the evidence he is giving and is aware that it may be used against him. There is no question, based on his signed admission that the statements were given voluntarily and in conformity with the Charter, that these conditions are met in this case and that the appellant was aware of the consequences of his actions.

Had the appellant been genuinely concerned about prejudice caused by the admission of the statement, other avenues of attack under the Charter were available. Moreover, the Crown would have been on notice that it should adduce evidence to counter this argument. I agree with the Court of Appeal that the decision not to raise the issue was a deliberate choice taken as a matter of strategy and judged to be in the interests of the appellant at the time which may not now be reversed.

Section 24(2)

As is clear on the wording of the section, the exclusion of evidence under s. 24(2) is not automatic upon finding that it was obtained in violation of a Charter right. Evidence is only excluded when it is established that, "having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute".

The following factors clearly indicate that there has been no unfairness to the parties in this case. Even if the evidence were to have been obtained in violation of the appellant's right to silence under s. 7, in my view, not only does its admission fail to bring the administration of justice into disrepute, but its exclusion would do so.

First, the evidence sought to be excluded was not central to the verdict; moreover, it was equivocal, and as the appellant's strategy at trial demonstrates, is capable of exculpating as well as inculpating the appellant. As the trial judge noted:

... to be fair, in all the accused's conversations with the police upon his arrest and later in the cells with undercover agent Jones, the accused never admitted killing Mr. Kindrachuk. In fact, he consistently denied doing so over and over, notwithstanding considerable psychological pressure was put on him by the investigating authorities to confess; nor did he ever make a direct admission to any other person, including his wife. In other words, there is no direct evidence that the accused killed Mr. Kindrachuk.

While the taped conversations confirmed the fact that the appellant was with the deceased the night he disappeared, there was independent evidence of that fact. In coming to his verdict, the trial judge clearly could not have relied heavily, if at all, on this evidence to establish that the appellant was the murderer of Kindrachuk. Rather, as his reasons reveal, the trial judge convicted the appellant on the totality of the evidence, including substantial circumstantial evidence of motive, previous schemes which demonstrated intent, inculpatory conversations to his then wife shortly after the event which he found tantamount to admissions of guilt, and the appellant's affinity for guns.

Second, the police acted in good faith in complete conformity with acceptable investigative practices as the law stood at the time. As I have discussed above, evidence gathered in this manner which has served to ground a conviction should not be open to attack after the trial process is concluded.

Third, not only did the appellant fail to raise the issue of a breach of s. 7 at trial, he went so far as to make a positive statement that he fully waived his right to silence under s. 7 by signing admissions to that effect. In view of these admissions, I cannot accept the argument that the admission of this evidence now brings the administration of justice into disrepute.

For these reasons, I would dismiss the appeal.

Appeal allowed, L'Heureux-Dubé J. dissenting.

Solicitors for the appellant: Pringle, Renouf & Associates, Edmonton.

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