R. v. Whittle, [1994] 2 S.C.R. 914

Douglas James Whittle Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Whittle

File No.: 23466.

1994: February 25; 1994: September 1.

Present: Lamer C.J. and La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for ontario

Constitutional law ‑‑ Charter of Rights ‑‑ Right to counsel ‑‑ Waiver ‑‑ Degree of mental capacity required to exercise right ‑‑ Accused suffering from a mental disorder arrested on warrants of committal for unpaid fines and informed of his right to counsel ‑‑ Accused telling police he wanted to talk and admitting he was responsible for a murder and three robberies ‑‑ Police charging accused with these offences and informing him again of his right to counsel ‑‑ Accused indicating that he did not wish to speak to counsel and making additional statements ‑‑ Accused later exercising his right to counsel but continuing to make statements to police ‑‑ Whether statements obtained in violation of accused's right to counsel ‑‑ Whether waiver valid ‑‑ Canadian Charter of Rights and Freedoms, s. 10(b).

Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Right to silence ‑‑ Degree of mental capacity required to exercise right -- Accused suffering from a mental disorder arrested on warrants of committal for unpaid fines and informed of his right to remain silent ‑‑ Accused telling police he wanted to talk and admitting he was responsible for a murder and three robberies -- Police charging accused with these offences and informing him again of his right to remain silent ‑‑ Accused making additional statements to police despite counsel's advice to remain silent ‑‑ Whether statements obtained in violation of accused's right to silence ‑‑ Canadian Charter of Rights and Freedoms, s. 7.

Criminal law ‑‑ Evidence ‑‑ Confessions ‑‑ Voluntariness ‑‑ Mental state of accused ‑‑ Accused suffering from a mental disorder arrested on warrants of committal for unpaid fines ‑‑ Accused telling police he wanted to talk and admitting on several occasions he was responsible for a murder and three robberies ‑‑ Whether accused's statements admissible ‑‑ Operating mind test.

Criminal law ‑‑ Appeals ‑‑ Crown appeal ‑‑ Court of Appeal setting aside accused's acquittal and ordering new trial ‑‑ Supreme Court not precluded from disposing of appeal on question of law alone if Court of Appeal's decision based on mixed law and fact ‑‑ Court of Appeal having jurisdiction under s. 676(1)(a) of Criminal Code to decide Crown's appeal even if it may have exceeded it.

Criminal law ‑‑ Appeals ‑‑ Powers of Court of Appeal ‑‑ Accused's inculpatory statements to police excluded by trial judge ‑‑ Crown declining to call further available evidence after adverse ruling and accused acquitted ‑‑ Statements found to have been wrongly excluded on appeal ‑‑ Court of Appeal concluding that Crown sincerely believed remaining evidence not of sufficient probative force to constitute prima facie case against accused ‑‑ Court of Appeal not erring in applying s. 686(4)(b)(i) of Criminal Code to set aside acquittal and order new trial.

The accused was arrested pursuant to outstanding warrants of committal for unpaid fines and was informed of his right to counsel and cautioned. Prior to the arrest, the police officer had noticed the accused's strange conduct and, at the station, advised the constable in charge of the cells that the accused was mentally unstable. While in his cell, the accused asked to speak to police officers and made several statements indicating that he was responsible for a murder and three robberies. The police, after verifying the accused's information, arrested him for those offences. He was informed of his right to counsel and cautioned. The accused indicated that he understood his rights, but that he did not wish to contact a lawyer. The accused then offered to take the police to where he had discarded the murder weapon. During that trip, he continued to disclose details relating to the murder and the robberies and, on two or three occasions, made unusual comments. On the way back to the station, the accused accepted the police's suggestion that he make a videotaped statement. He was again advised of his rights and, once again, he indicated that he did not wish to speak with a lawyer. The videotaping ceased when the accused decided to consult counsel. The lawyer advised him to remain silent but the accused told him that he needed to talk to the police in order to stop the voices in his head. After speaking with the lawyer, the accused indicated to the police that he still wished to continue with the videotaped statement and confessed to the murder. Over the course of his hour-long statement, the accused also made several bizarre comments. After the videotaped statement, the accused offered to take the police to the place where he had discarded the victim's wallet. The wallet was eventually found in that location. Later, while being transported to a different police station, the accused provided further details of the murder. He had been given another opportunity to consult counsel before being transported. Prior to trial, the accused underwent psychiatric examination the results of which supported his fitness to stand trial. Upon his return from the 30‑day examination, the accused again spoke to the police even though his lawyer had advised him not to do so.

At the accused's trial on a charge of first degree murder, a voir dire was held to determine the admissibility of the statements. Both defence and Crown psychiatrists testified that the accused suffers from schizophrenia and that a common symptom of this illness is auditory hallucination. According to the defence psychiatrist's evidence, the accused was aware of what he was saying and what was said to him and of the court process. He was also fit to instruct counsel but, because of the voices in his head that were telling him to unburden himself, he did not care about the consequences. Ruling on the voir dire, the trial judge found that, based solely on the traditional "operating mind" test, the accused's inculpatory statements were voluntary in the traditional sense but that they should be excluded because the accused's rights under s. 10(b) of the Canadian Charter of Rights and Freedoms had been violated. The trial judge accepted the defence psychiatrist's evidence and concluded that the accused's psychological condition prevented him from an awareness of the consequences which would flow from giving the statements, and that this inability to appreciate what was at stake nullified any alleged waiver of his right to counsel. The statements made by the accused after the psychiatric evaluation were also excluded because they were obtained in violation of s. 10(b). The Crown declined to call further evidence and the accused was acquitted. The Court of Appeal set aside the acquittal and ordered a new trial. The court found that all the statements were admissible, concluding that the trial judge erred in finding that the accused's s. 10(b) rights had been violated.

Held: The appeal should be dismissed.

The accused's statements were voluntary and were not obtained in a manner that breached his rights under ss. 7 and 10(b) of the Charter. The accused had the requisite degree of mental competence to make the choices inherent in the confession rule, the right to silence and the right to counsel. The "operating mind" test, which is an aspect of the confession rule, includes a limited mental component which requires that the accused have sufficient cognitive capacity to understand what he is saying and what is being said. This includes the ability to understand a caution that the evidence can be used against the accused. The same standard applies with respect to the right to silence in determining whether the accused has the mental capacity to make an active choice. In exercising the right to counsel or waiving the right, the accused must possess the limited cognitive capacity that is required for fitness to stand trial. The accused must be capable of communicating with counsel to instruct counsel, and understand the function of counsel and that he can dispense with counsel even if this is not in the accused's best interests. It is not necessary that the accused possess analytical ability. The level of cognitive ability is the same as that required with respect to the confession rule and the right to silence: the accused must have the mental capacity of an "operating mind". On the basis of evidence which the trial judge accepted, the accused's mental condition satisfied the "operating mind" test, including the subjective element, and there was no obligation on the Crown to establish that the accused possessed a higher degree of cognitive capacity. To the extent that the inner voices prompted the accused to speak in apparent disregard of the advice of his counsel and to his detriment, because he did not care about the consequences or felt that he could not resist the urging of the voices, they cannot be the basis for exclusion. Inner compulsion, due to conscience or otherwise, cannot displace the finding of an "operating mind" unless, in combination with conduct of a person in authority, a statement is found to be involuntary. As for the Charter rights asserted, once the "operating mind" test is established, an accused is not exempted from the consequences of his actions absent conduct by the police which effectively and unfairly deprived the suspect of the right.

The trial judge's decision to exclude the statements was based on an erroneous view that the evidence which he accepted did not satisfy a separate "awareness of the consequences" test. Had he applied the correct instruction in law, he would have found that the test with respect to the requisite state of mind of the accused had been met. In the result, the statements were admissible in that they satisfied the criteria of the confession rule and the accused either waived or availed himself of the right to counsel and chose to speak to the police. With respect to waiver, all the other necessary requirements were met by the Crown and the sole issue was whether the mental element was satisfied. The mental element was satisfied in each of the statements at issue.

Cases Cited

Referred to: Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383; R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613; R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151; R. v. Banas and Haverkamp (1982), 1982 CanLII 2107 (ON CA), 65 C.C.C. (2d) 224; R. v. Chaulk, 1990 CanLII 34 (SCC), [1990] 3 S.C.R. 1303; R. v. Taylor (1992), 1992 CanLII 7412 (ON CA), 77 C.C.C. (3d) 551; Ibrahim v. The King, [1914] A.C. 599; R. v. Fitton, 1956 CanLII 28 (SCC), [1956] S.C.R. 958; Ward v. The Queen, 1979 CanLII 14 (SCC), [1979] 2 S.C.R. 30; Horvath v. The Queen, 1979 CanLII 16 (SCC), [1979] 2 S.C.R. 376; Nagotcha v. The Queen, 1980 CanLII 30 (SCC), [1980] 1 S.C.R. 714; R. v. Santinon (1973), 1973 CanLII 1532 (BC CA), 11 C.C.C. (2d) 121; R. v. Lapointe and Sicotte, 1987 CanLII 69 (SCC), [1987] 1 S.C.R. 1253, aff'g (1983), 1983 CanLII 3558 (ON CA), 9 C.C.C. (3d) 366; Godinez v. Moran, 113 S.Ct. 2680 (1993); R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869; R. v. Power, 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601.

Statutes and Regulations Cited

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

Criminal Code, R.S.C., 1985, c. C‑46, ss. 2 "unfit to stand trial" [ad. 1991, c. 43, s. 1], 16 [rep. & sub. 1991, c. 43, s. 2], 672.23 [ad. 1991, c. 43, s. 4], 676(1)(a), 686(4)(b)(i).

Authors Cited

Weiner, Barbara A. "Mental Disability and the Criminal Law". In Samuel Jan Brakel, John Parry and Barbara A. Weiner, The Mentally Disabled and the Law, 3rd ed. Chicago, Ill.: American Bar Foundation, 1985, 693.

APPEAL from a judgment of the Ontario Court of Appeal (1992), 1992 CanLII 12777 (ON CA), 59 O.A.C. 218, 78 C.C.C. (3d) 49, allowing the Crown's appeal from the accused's acquittal on a charge of first degree murder and ordering a new trial. Appeal dismissed.

James Lockyer, for the appellant.

David Finley, for the respondent.

The judgment of the Court was delivered by

Sopinka J. -- This appeal concerns the admissibility of statements to the police by an accused person who is alleged to suffer from mental incapacity. Broadly stated, the issue is whether the principle of awareness of the consequences should be applied to exclude statements to the police on the ground of incapacity when that incapacity is not relied on as affecting the accused's fitness to stand trial or on the issue of innocence or guilt.

Facts

On December 22, 1989 Durham Regional Police Forces ("DRPF") investigated the death of Frank Dowson. Police described the incident as accidental, but suspicious. However, after inspecting the scene and interviewing the appellant and another person who resided in the same home as the deceased, the investigation was discontinued and no charges were laid.

On February 6, 1990, at approximately 5:20 p.m., Constable Trimm of the DRPF noted that the appellant had startled two passers-by while he was panhandling on a street in Oshawa. Trimm stopped his vehicle and questioned the appellant who identified himself as Doug Whittle. The officer then conducted a computer check through the Canadian Police Information Centre and discovered three outstanding committal warrants against the appellant which related to unpaid fines for provincial offence convictions. Trimm suspected from the appellant's conduct that he was schizophrenic and the appellant confirmed this when questioned about it. Trimm cautioned the appellant as to his rights and arrested him on the basis of the outstanding warrants. The appellant did not exercise his right to consult counsel. The appellant was then taken by Trimm to a DRPF station where he was placed in a cell. Constable Trimm told the cell officer that the appellant was mentally unstable and noted "very mentally unstable" on the arrest report.

Since the outstanding warrants emanated from the Metro Toronto jurisdiction, the appellant was transported to Metro Police Station, 42 Division at around 6 p.m. Before being placed in a cell at that location, the appellant again declined to make any phone calls. Over the course of the next two hours, the appellant made several statements to the station operator and to the staff sergeant at 42 Division. The first statements indicated that the appellant had been involved in some heavy matters about which he wished to clear the slate. In later conversations with these officers, the statements became more specific, with the appellant indicating that he had been involved in a number of robberies in Windsor. At the point when the statements became more specific, two Metro police detectives were asked by the station operator to speak with the appellant.

Detective Constable Orban spoke with the appellant in his cell. During the course of this conversation, the appellant indicated that he had killed Frank Dowson just before Christmas in 1989 by hitting him on the back of the head with an axe. In addition, the appellant stated that he had been involved in three robberies in Windsor approximately five years earlier. Orban testified that he had dealt with the appellant on prior occasions when the appellant had been ejected from donut shops and found sleeping in abandoned cars. Orban characterized the appellant as a "loon", a person whose actions were abnormal, based on the appearance, dress, conduct and manner of speaking of the appellant on prior occasions. Relying on this impression of the appellant, Orban asked his partner that evening, Detective Constable Gillespie, to speak with the appellant, referring to him as "the loon" in the cells. On speaking with Gillespie, the appellant repeated the same facts which he had relayed to Orban. Orban and Gillespie then left the cells in order to attempt to verify the occurrences.

At approximately 8:20 p.m. Orban spoke with someone from the DRPF who indicated that a Frank Dowson had died under suspicious circumstances in Whitby just prior to Christmas. With this confirmation in hand, Orban and Gillespie proceeded to the cells, cautioned the appellant as to his right to counsel and to remain silent, and arrested him for the murder of Frank Dowson. The appellant indicated that he understood his rights, but that he did not wish to contact a lawyer. After Gillespie confirmed the Windsor occurrences, at about 9:10 p.m., he arrested the appellant in relation to those robberies. Again, the appellant was cautioned as to his rights, but he indicated that he did not wish to speak with anyone other than the officers.

Gillespie then questioned the appellant in relation to the axe which he had mentioned in his earlier statement. The appellant told the officers that he had sawed the axe in half and thrown it in a field near Brock St. and Highway 401. The appellant then accompanied Orban and Gillespie to the location which he described where they met with two other officers from DRPF. During the 15-minute car trip to that location, the appellant "talked continuously" about the Windsor offences and the occurrence in Whitby. Although the search was unsuccessful at that point, the axe handle was located during a subsequent search of that area. On the return trip from the area, the appellant continued to disclose details relating to the murder, including the fact that he had disposed of his shoes after the incident and took precautions to avoid leaving fingerprints at the scene. Interspersed with this running discussion by the appellant were a series of two or three incidents in which the appellant stopped talking and made reference to someone being in his brain or having fog in his head. After this, he would continue talking about the incidents in question, as if these digressions had never occurred. Detective Constable Orban testified that it was more what the appellant said than how he said it which indicated to him that certain of the appellant's statements were divorced from reality.

During the return trip from the 401 location, Gillespie suggested that the appellant make a video statement and the appellant indicated that he liked that idea. They proceeded to 4 District Headquarters where videotape facilities were available and Gillespie again advised the appellant of his rights under the Canadian Charter of Rights and Freedoms. Once again, the appellant indicated that he did not wish to speak with a lawyer. Taping of the first video commenced at 11:40 p.m. on February 6, 1990. At the outset, the appellant confirmed that he had made statements relating to the commission of serious criminal offences earlier in the evening. Gillespie then questioned the appellant as to whether he wished to consult counsel and, after some discussion, the appellant indicated that he did wish to consult counsel.

Following on this request, Gillespie contacted a defence attorney, Robert Nuttall, on behalf of the appellant. Gillespie spoke first with Nuttall and told him that the appellant had confessed to several serious crimes. Nuttall agreed to speak with the appellant and testified that he had advised the appellant to "keep his mouth shut". He also testified that the appellant had told him that he had voices in his head, that he had to talk, that he had a pain in his head and that he could see dead babies' faces in cement. The appellant told Nuttall that he needed to talk to the police in order to stop the voices. After speaking with the appellant, Nuttall was convinced that the appellant would speak with authorities against his advice. When the appellant turned the phone over to Gillespie, Nuttall indicated that he agreed with Gillespie's characterization of the appellant as a "loon" or a "nutbar" and that he was sure that the appellant would speak with the authorities, in spite of Nuttall's advice to the contrary. Nuttall also told Gillespie that any other officers who wished to speak with the appellant should contact Nuttall before doing so.

As predicted by Nuttall, the appellant indicated that he still wished to continue with the video statement. In the result, a second video statement was initiated at 12:21 a.m. on February 7, 1990. This statement lasted approximately one hour. At the outset, the appellant stated that he had not committed the offences described in the committal warrants and alleged "somebody has used my name". He described his reason for coming to the police as the result of "crackin' in [his] mind" and his resulting inability to live in society any longer. When reminded of the exercise of his right to counsel, the appellant acknowledged that he was informed that he had the right not to speak with the police, but that he wanted to talk to them anyway. Further, he indicated that he understood that it would be up to a judge whether or not his statements would be used in making a decision about him. After some prompting by Gillespie, the appellant repeated the details relating to the death of Frank Dowson which he had relayed earlier. Throughout the video statement the appellant made comments such as "I'm just ah, feel like I got snow in my head", "I feel like I got [other people's] brains on me . . . So they're always tryin' a' think out a' me ... And every time I say somethin', unless I been asked a question, I can't think above them . . . we're both bein' punished", and "I managed to, ah, come up with this idea to walk backwards to New Brunswick . . . That would exercise me back to normal". When asked whether he had been forced to say anything, the appellant indicated that he was uncertain whether he had been manipulated into it in that "somebody maybe plotted murder in this life and they picked me to do it for them, right?". The appellant also stated that he had always wanted to die, but that he had never been able to and that he intended to stay on his tippy-toes regardless of whether anyone liked it.

After the video statement was taken the appellant volunteered to take Detective Constables Orban and Gillespie to the place where he claimed to have disposed of the wallet of Frank Dowson. Although the wallet was not located on the trip to the ravine that night, it was located by Orban and Gillespie in that area some time over the next two days. When found the wallet contained $800 in cash and at least one credit card bearing the name Frank Dowson.

Orban and Gillespie transported the appellant back to 42 Division, Metro Toronto Police Force. At about 4:10 p.m., Detective Constables Carroll and Chambers of the DRPF spoke with the appellant in an interview room at 42 Division. The appellant was arrested for the first degree murder of Frank Dowson and cautioned as to his Charter rights, which the appellant indicated that he understood. The appellant did not exercise his right to counsel. Although there had been some indication by members of the Metro Toronto Police Force that Chambers and Carroll should contact the appellant's lawyer, they proceeded to transport the appellant back to 17 Division DRPF in Oshawa without doing so. During the drive back to 17 Division, the appellant responded to questioning by Chambers, providing the details of the death of Frank Dowson, including what Dowson was wearing, the amount of cash in his wallet and the fact that the appellant had hit him in the head with the blunt side of an axe. The appellant also indicated that after he hit Dowson, he went to a friend's house to purchase drugs.

The appellant's lawyer, Robert Nuttall, testified that he saw the appellant on or about February 8 and 16, 1990. At this point, the behaviour of the appellant was judged by Nuttall to be quite bizarre. As a result, Nuttall consented to the appellant being remanded to the Metropolitan Toronto Forensic Service ("METFORS") facility for psychiatric examination in order to determine whether he was fit to stand trial.

The next contact which Chambers and Carroll had with the appellant was on March 16, 1990 when the appellant was being returned from a 30-day psychiatric assessment. Chambers and Carroll met the appellant on the back stairs of the court house and followed him to the cell block there. The appellant indicated that he wanted to speak to them even though his lawyer had advised him not to. The appellant then stated that there had been no blood around Dowson's mouth after he had hit him, but that when he returned to the scene, Dowson was laying on the floor with blood around his mouth. He also indicated the name and address of the person from whom he claimed to have purchased drugs after the incident in question.

Prior to trial, the appellant underwent psychiatric examination the results of which supported his fitness to stand trial. Apparently for this reason no issue was raised by either the prosecution, the defence or the court as to the appellant's fitness to stand trial. At the commencement of the trial, Crown counsel proposed to introduce into evidence all of the statements made by the appellant to various police officers. In order to deal with the admissibility of this evidence a voir dire was held, during which a number of expert witnesses were called. Perhaps the most central testimony came from Dr. Malcolm, who testified for the defence, and Dr. McDonald, who testified for the Crown. Dr. McDonald is a forensic psychiatrist with METFORS who examined the appellant during his 30-day psychiatric assessment in February and March 1990. Dr. Malcolm is also a forensic psychiatrist. Both gave the opinion that the appellant suffers from schizophrenia and that a common symptom of this illness is auditory hallucination. However, Dr. Malcolm testified that the appellant's condition would have been florid at the time of the video statement and that although the appellant may have been rationally aware of the consequences of giving the statement, he was driven to make the statements by the voices in his head. In contrast, Dr. McDonald testified that it was possible that the appellant had been experiencing auditory hallucinations at the time of the video statement, but that there was no specific evidence of that in the tape itself.

Ruling on the voir dire, the trial judge concluded that the exculpatory statement made by the appellant on December 22, 1989 was admissible, but that the inculpatory statements made on February 6, 7 and March 16, 1990 were inadmissible. Crown counsel then advised that no further evidence would be called on behalf of the Crown. The trial judge then instructed the jury to deliver a verdict of acquittal and a "not guilty" verdict was returned. The respondent Crown successfully appealed the acquittal of the appellant. The Court of Appeal set aside the acquittal and ordered a new trial which would include all of the statements made by the appellant.

Judgments Below

Ontario Court, General Division

In his ruling on the voir dire, Clarke J. concluded that the December 22, 1989 statement of the appellant was admissible, but that none of the statements given on February 6, 7 and March 16, 1990 were admissible. With respect to the evidence, he indicated that the opinions of Dr. Malcolm were of greater assistance to him in making sense of the behaviour of the appellant during the video statement since the evidence of Dr. McDonald was more tentative in nature. As such, he stated that to the extent of any conflict between the two doctors, he preferred the evidence of Dr. Malcolm. Turning to the common law of voluntariness, Clarke J. found that the set of statements made in 1990 were voluntary in the "traditional sense", reasoning as follows in that regard:

As to voluntariness, I am of the view that the operating mind' test set out in R. v. Nagotcha [[1980 CanLII 30 (SCC)](https://www.canlii.org/en/ca/scc/doc/1980/1980canlii30/1980canlii30.html), [1980] 1 S.C.R. 714], R. v. Ward [[1979 CanLII 14 (SCC)](https://www.canlii.org/en/ca/scc/doc/1979/1979canlii14/1979canlii14.html), [1979] 2 S.C.R. 30], and specifically applied in R. v. Lapointe and Sicotte, (1983) [1983 CanLII 3558 (ON CA)](https://www.canlii.org/en/on/onca/doc/1983/1983canlii3558/1983canlii3558.html), 9 C.C.C. (3d) 366 (OCA) [aff'd [1987 CanLII 69 (SCC)](https://www.canlii.org/en/ca/scc/doc/1987/1987canlii69/1987canlii69.html), [1987] 1 S.C.R. 1253], will one day be expanded to include a separate consideration of the awareness of consequences' as set out by Madam Justice Wilson in R. v. Clarkson [infra], and not as subsumed into the `operating mind' test as set out in R. v. Lapointe and Sicotte, (supra).

In my view, though, I am bound by the `operating mind' test as set out in R. v. Lapointe and Sicotte, (supra), as directed by Mr. Justice Lacourcière. Particularly since the appeal to the Supreme Court of Canada in R. v. Lapointe and Sicotte, (supra), was heard, and the grounds and reasoning substantially agreed to, after the decision was rendered by the Supreme Court in R. v. Clarkson [infra].

Based solely on the traditional `operating mind' test, I am satisfied beyond a reasonable doubt that the statements on the videos, February 6th and 7th and thereafter are voluntary in the traditional sense.

Clarke J. concluded that when the December 22, 1989 statement was given, the appellant was not "detained" within the meaning of the Charter. As such, he found that that statement was admissible. However, in dealing with the Charter issues relating to the statements given in 1990, he found that the appellant was detained both physically in relation to the outstanding warrants and psychologically given the circumstances of the arrest and his mental state at the time. Moreover, Clarke J. concluded that the psychological condition of the appellant prevented him from an awareness of the consequences which would flow from giving the statements in question. Relying on the reasons of Wilson J. in Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383, Clarke J. concluded that the appellant's inability to appreciate what was at stake nullified any alleged waiver of his s. 10(b) right to counsel. He found that it was incumbent upon the police officers in this case to delay questioning until such time as the appellant was fully aware of the consequences of his statements and could properly retain and instruct counsel. As such, he concluded that the appellant's s. 10(b) rights had been violated and found that, pursuant to s. 24(2) of the Charter, the appellant's statements of February 6 and 7, 1990 should be excluded because the police knew that the appellant was in no condition to insist on his rights and was not aware of the consequences of waiving those rights. In so concluding, Clarke J. relied on the reasons of Estey J. in R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613.

Clarke J. then turned to the statements made to Chambers and Carroll of the DRPF on March 16, 1990. He concluded that there was a continuing onus on the police to approach the appellant with caution, especially in view of the fact that he was returning from a psychiatric assessment relating to his fitness to stand trial on the day in question. In his view, Chambers and Carroll did not take sufficient precaution in relation to the appellant's s. 10(b) rights and he concluded that the statement was taken in violation of s. 10(b) and should also be excluded.

In view of the ruling that only the December 22, 1989 statement was admissible in evidence, the respondent declined to call further evidence and the jury was instructed to, and did, deliver a verdict of acquittal.

Ontario Court of Appeal

Goodman J.A. delivered the reasons of himself, McKinlay and Labrosse JJ.A.: (1992), 1992 CanLII 12777 (ON CA), 59 O.A.C. 218, 78 C.C.C. (3d) 49. After thoroughly reviewing the evidence, including the expert testimony given on the voir dire, the Court of Appeal concluded that during the video statement the appellant did not appear to be acting under any internal or external signs of compulsion. The court reasoned that, based on the expert testimony of Dr. Malcolm that there were no overt signs that the appellant was operating under the compulsion of internal voices during the video statement, the officers in question would not reasonably have been aware if the appellant had been compelled by internal voices. The court noted that the strange utterances of the appellant represented only a small portion of the entire statement and that Dr. Malcolm had testified that in spite of his psychosis, some of the appellant's comments reflected reasonable rationality.

On this basis, the Court of Appeal concurred with the conclusion of Clarke J. that at the time of the video statement the appellant was fully conscious, so that his statements could not be considered involuntary at common law. Moreover, the court concluded that the appellant was fully aware of the consequences of making the statements in question and that even if the appellant was driven by inner voices, this was not compulsion emanating from persons in authority over the appellant. Relying on R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, the Court of Appeal found that the appellant knew the events and circumstances which he wished to relay to police, so that his statement was the product of an operating mind. At the objective level, the court concluded that the police officers cautioned the appellant as to his right to counsel and to silence on numerous occasions and were not aware of any internal compulsion acting upon the appellant.

In relation to the Charter issues, the Court of Appeal concluded that the trial judge erred in relation to two issues. First, the court concluded that the issue of waiver did not arise in relation to the video statements of February 6 and 7, 1990 since the appellant was informed of and exercised his right to counsel at the beginning of the video statement on February 6, prior to making any incriminatory statements. The long statement of February 7, 1990 was made after the appellant had consulted counsel, so that neither his right to be informed of his right to counsel, nor his right to consult counsel had been violated.

Second, the court concluded that Clarke J. erred in finding that the appellant was not aware of the consequences of making a statement because he made a mistake as to the evidence given by Dr. Malcolm. The court found that Dr. Malcolm had testified that the appellant did understand the consequences of making a statement, but that he did not care about them. As such, the Court of Appeal concluded that the trial judge had erred by confusing not caring about the consequences with not understanding them.

The Court of Appeal found that the officers were not obligated to further caution the appellant in relation to his Charter rights prior to confirming that there was some substance to the occurrences described by the appellant in the cells on February 6, 1990. The court concluded that the appellant was properly cautioned as to his right to counsel under s. 10(b) of the Charter once confirmation was received. Moreover, the court concluded that the appellant received secondary cautions on a number of other occasions, prior to the making of further statements on February 6, 7 and March 16, 1990. As such, the court found that Clarke J. had erred in law in excluding the statements on the basis that the appellant had not waived his s. 10(b) right to counsel.

With respect to the statements made to Detective Constables Carroll and Chambers, the Court of Appeal concluded that, but for the invalid ruling on waiver, it was not clear whether Clarke J. would have excluded the statement given on February 7, 1990, after the appellant had consulted with counsel. Finally, the Court of Appeal concluded that the statement of March 16, 1990 was also improperly excluded since there was no obligation on Chambers and Carroll to prevent the appellant from making a statement to them, since the appellant had informed them that he had spoken with counsel who had advised against making further statements to police.

As to the question of whether the respondent Crown unreasonably declined to call further evidence, the Court of Appeal concluded that it had not. Even applying the reasons of Martin J.A. in R. v. Banas and Haverkamp (1982), 1982 CanLII 2107 (ON CA), 65 C.C.C. (2d) 224 (Ont. C.A.), the Court of Appeal found that but for the error of the trial judge the verdict would not necessarily have been the same. As such, the court concluded that, even though there was some evidence available to the respondent Crown apart from the evidence wrongly excluded by the trial judge which would have constituted a prima facie case against the appellant, Crown counsel sincerely believed the remaining evidence was not of sufficient probative force to warrant proceeding with the trial. Thus, the court found that the Crown had not unreasonably declined to call further evidence merely in order to appeal the adverse ruling.

Accordingly, the Court of Appeal allowed the appeal, set aside the verdict of acquittal and ordered a new trial.

Issues

1.Were any of the appellant's statements inadmissible in that:

(i)they were not voluntary within the terms of the confession rule;

(ii)they were obtained in a manner that breached the appellant's s. 10(b) or s. 7 rights under the Charter?

2.Did the Court of Appeal exceed its jurisdiction under s. 676(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46, by making findings of fact that were contrary to the findings of fact made by the trial judge?

3.Did the Court of Appeal err in applying s. 686(4)(b)(i) of the Criminal Code in the circumstances where Crown counsel at trial declined to present substantial evidence resulting in an acquittal?

Analysis

A decision in this case requires a consideration of elements of the confession rule, the right to silence and the right to counsel. While the confession rule and the right to silence originate in the common law, as principles of fundamental justice they have acquired constitutional status under s. 7 of the Charter. The right to counsel is a specific right expressly recognized in s. 10(b) of the Charter. Although each is a distinct right they are interrelated and operate together to provide not only a standard of reliability with respect to evidence obtained from persons suspected of crime who are detained but fairness in the investigatory process. Although the confession rule in its traditional formulation had as its raison d'être the reliability of the confession, a strong undercurrent developed which also supported the rule in part on fairness in the criminal process. See Hebert, supra, per McLachlin J., at p. 171. A common element of all three rules is that the suspect has the right to make a choice.

The preoccupation of the common law and Charter cases in preserving for the suspect the right to choose has been in relation to state action. Did the action of police authorities deprive the suspect of making an effective choice by reason of coercion, trickery or misinformation or the lack of information? The issue in this case is whether, absent any conduct by the police, the suspect is deprived of the ability to choose by reason of mental incapacity. A finding of incapacity would exempt the suspect from participation in the ordinary processes of investigation.

The significance of this issue is placed in context by considering the regime in place for the trial of persons alleged to suffer from mental disability. By virtue of s. 16 of the Criminal Code, persons suffering a disease of the mind in the circumstances defined in that section are exempted from criminal liability and punishment. The section embodies the policy of the law that such persons are sick as opposed to blameworthy and should be treated rather than punished. See R. v. Chaulk, 1990 CanLII 34 (SCC), [1990] 3 S.C.R. 1303, at p. 1336. These persons are not, however, exempt from being tried. Part XX.1 of the Criminal Code contains detailed provisions providing for mental assessments by physicians and for determination of the fitness of persons suffering from mental disorders to stand trial. Section 672.23 provides that where, at any stage of the proceedings, the court believes on reasonable grounds that the accused is unfit to stand trial, it may direct the trial of that issue. The application can be made on the court's own motion or by the accused or the prosecutor. Many accused persons who are found not guilty by reason of a mental disorder are fit to stand trial. The fact that an accused is not criminally responsible within the meaning of s. 16 does not mean that he or she is unfit to stand trial. If the contrary were true there would be little purpose in providing for the plea authorized by s. 16. Most persons who suffered from the mental disorder defined in the section would be exempted from trial and would not get to plead until they had recovered subsequent to the date of the offence.

The test for fitness to stand trial is quite different from the definition of mental disorder in s. 16. It is predicated on the existence of a mental disorder and focuses on the ability to instruct counsel and conduct a defence. That test which was developed under the common law is now codified in s. 2 of the Code as follows:

2. ...

"unfit to stand trial" means unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to

(a) understand the nature or object of the proceedings,

(b) understand the possible consequences of the proceedings, or

(c) communicate with counsel.

It requires limited cognitive capacity to understand the process and to communicate with counsel. In R. v. Taylor (1992), 1992 CanLII 7412 (ON CA), 77 C.C.C. (3d) 551, the Ontario Court of Appeal, after reviewing the authorities, held that the trial judge erred in concluding that the accused must be capable of making rational decisions beneficial to him. At page 567, Lacourcière J.A., on behalf of the court, stated:

The "limited cognitive capacity" test strikes an effective balance between the objectives of the fitness rules and the constitutional right of the accused to choose his own defence and to have a trial within a reasonable time.

Accordingly, provided the accused possesses this limited capacity, it is not a prerequisite that he or she be capable of exercising analytical reasoning in making a choice to accept the advice of counsel or in coming to a decision that best serves her interests.

The rationale that operates to require an accused person to stand trial notwithstanding a disease of the mind has some attraction with respect to pre-trial procedures. If an accused is exempted from participation in normal investigatory procedures by reason of a mental disorder, then the regime that has been established for the treatment of persons who are mentally ill will frequently be by-passed. The question that I must deal with is whether there is any justification for requiring a higher standard of cognitive capacity in making the choices inherent in the confessions rule, the right to silence and the right to counsel than in respect to fitness to stand trial. I will examine each of these rights and endeavour to answer this question.

The Confession Rule

The traditional voluntariness rule articulated in Ibrahim v. The King, [1914] A.C. 599, focused on coercive action by persons in authority. The inquiry into admissibility sought to determine whether the statement was obtained by either fear of prejudice induced or hope of advantage held out by a person in authority. Although all the circumstances surrounding the taking of the statement were to be taken into account, including the mental state of the accused, the sole operation of these factors was to evaluate the influence of the hope or fear aroused by the actions of a person or persons in authority. See R. v. Fitton, 1956 CanLII 28 (SCC), [1956] S.C.R. 958.

In Ward v. The Queen, 1979 CanLII 14 (SCC), [1979] 2 S.C.R. 30, this Court dealt with a confession made in a police cruiser by a person who as a result of an automobile accident had just regained consciousness and was in a state of shock. Spence J., for a unanimous Court, held that the trial judge was right in excluding the confession notwithstanding that it was not obtained as a result of any police action. Indeed, the police officer was unaware of the condition of the accused. Spence J. stated that the inquiry into voluntariness was a two-stage process. At page 40 he stated:

In my view, Manning J. engaged in a consideration of both the mental and physical condition of the accused, firstly, to determine whether a person in his condition would be subject to hope of advancement or fear of prejudice in making the statements, when perhaps a normal person would not, and, secondly, to determine whether, due to the mental and physical condition, the words could really be found to be the utterances of an operating mind.

Apart from the facts of the case and a statement by Spence J. that there was evidence to support a finding that the accused did not know what he was saying, there is no elaboration as to the degree of cognitive capacity required to satisfy the operating mind test.

In Horvath v. The Queen, 1979 CanLII 16 (SCC), [1979] 2 S.C.R. 376, a statement was taken from the accused after intense questioning while he was in a hypnotic state. A majority of the Court agreed with the trial judge that the statements should be excluded. Spence and Estey JJ. based their conclusion not on the hypnotic state but on the trial judge's conclusion that the accused was in a state of complete emotional disintegration. Beetz J., writing for himself and Pratte J., concluded that a person who has made a statement in a hypnotic state induced by "truth serum" narcotics, administered by the authorities, cannot be considered to have made it voluntarily. In the course of the reasons, after concluding that "he was not either in a state of full consciousness and awareness" and concluding that the involuntariness rule can be extended to causes other than promises, threats, hope or fear, he added, at p. 425:

Furthermore, voluntariness implies an awareness of what is at stake in making a statement to a person in authority.

In my opinion in the circumstances this does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment.

In Nagotcha v. The Queen, 1980 CanLII 30 (SCC), [1980] 1 S.C.R. 714, the accused had been diagnosed as a paranoid-schizophrenic and contended that on that account his statement could not be admitted as voluntary. In delivering the judgment of the Court, Laskin C.J. stated that the fact of insanity does not determine admissibility of a statement. Without referring to it in terms of the operating mind test, the Court (at pp. 716-17) adopted the following statement from R. v. Santinon (1973), 1973 CanLII 1532 (BC CA), 11 C.C.C. (2d) 121 (B.C.C.A.):

In my view, the question of admissibility of a statement of an accused depends on it being established that it was free and voluntary in the limited sense above, of not having been induced or obtained either by fear of prejudice or hope of advantage exercised or held out by a person in authority. That rule must, I think, be qualified to the extent that, having regard to the infinite degrees of insanity, if such incapacity is shown that the accused, for example, is so devoid of rationality and understanding, or so replete with psychotic delusions, that his uttered words could not fairly be said to be his statement at all, then it should not be held admissible. [Emphasis added.]

Although Beetz J. was a member of the Court, no reference is made to Horvath, supra, nor to "awareness of what is at stake".

In Clarkson, supra, this Court dealt with the admissibility of a confession made by the accused when she was intoxicated. Wilson J., concurred with by four other members of the Court, resolved the issue of admissibility under the right to counsel in s. 10(b) of the Charter. Wilson J. did, however, review the authorities under the confessions rule and concluded that awareness of consequences was only a factor if the concern underlying the rule was fairness of the criminal process. On the other hand, with respect to the cases that stressed reliability, the test emerging from them did not require any greater comprehension than an understanding by the accused of what was being said. Any further consideration of cognitive ability such as appreciation of the consequences of making the statement was not relevant. She concluded that it was not necessary to resolve the issue because it was preempted by the issue relating to the right to counsel under the Charter.

McIntyre J., concurred in by Chouinard J., was of the view that a limited form of awareness of the consequences was subsumed in the operating mind test. At page 399, he set out the test with respect to admissibility of a confession by a person in a state of intoxication:

1.Was the accused aware of what she was saying?

and

2.Was she aware of the consequences of making the statement on the particular occasion in question?

To be aware of the consequences in this context simply means to be capable of understanding that her statement could be used in evidence in proceedings to be taken against her. There is no novelty in this approach. It is consistent with the familiar and customary warning derived from the English judges' rules which was to the effect that "you may remain silent but anything you say will be taken down in writing and may be given in evidence". This warning was designed to insure knowledge of the consequences of the statement, that is, its possible use in proceedings against the accused. It must be observed that common sense would dictate that a very high degree of intoxication would be required to render such a statement inadmissible.

Neither Wilson J. nor McIntyre J. referred to the decision of this Court in Nagotcha, supra, due, no doubt, to the fact that the preoccupation was with drunkenness and not mental incapacity by reason of a disease of the mind.

Shortly after Clarkson was decided, this Court dismissed an appeal from a decision of the Ontario Court of Appeal in R. v. Lapointe and Sicotte, 1987 CanLII 69 (SCC), [1987] 1 S.C.R. 1253, aff'g (1983), 1983 CanLII 3558 (ON CA), 9 C.C.C. (3d) 366. In that case, a statement was taken from persons who had a limited facility in the English language. In rejecting the statement, the trial judge held that there was a doubt as to whether the accused person understood the consequences of making the statement. In the circumstances, Lacourcière J.A. in the Court of Appeal stated that appreciation of the consequences was irrelevant once it was found that the statement was voluntary. In dismissing the appeal, this Court in a brief judgment stated that "We are substantially in agreement with the reasons of Lacourcière J.A.".

As Estey J. observed in Rothman, this Court in the post-Wray cases of Horvath and Ward in fact departed from the objective threat-promise formulation and the exclusive concern with the reliability of the statement, when it affirmed that to be admissible a statement must be truly voluntary in the sense of being the product of the accused's operating mind. Where the accused, because of hypnosis in the one case and drunkenness in the other, was not possessed of the requisite mental capacity to make a voluntary decision about whether to speak to the authorities or not, his statement could not be considered voluntary and hence was inadmissible. These decisions clearly affirmed the relevance of the mental element in the choice at issue in the confessions rule, at least in the minimal sense that the suspect must possess the mental capacity to make an active choice.

The Right to Silence

Although Hebert did not address the requisite mental element in respect of a person who exercised this right while insane, in my view the judgment defines the requisite mental element in comprehensive language so as to leave no reason for the exclusion of mental incapacity from it. At pages 181-82, McLachlin J. sums up with respect to the elements of the right:

The right to choose whether or not to speak to the authorities is defined objectively rather than subjectively. The basic requirement that the suspect possess an operating mind has a subjective element. But this established, the focus under the Charter shifts to the conduct of the authorities vis-à-vis the suspect. Was the suspect accorded the right to consult counsel? Was there other police conduct which effectively and unfairly deprived the suspect of the right to choose whether to speak to the authorities or not?

The operating mind test, therefore, requires that the accused possess a limited degree of cognitive ability to understand what he or she is saying and to comprehend that the evidence may be used in proceedings against the accused. Indeed it would be hard to imagine what an operating mind is if it does not possess this limited amount of cognitive ability. In determining the requisite capacity to make an active choice, the relevant test is: Did the accused possess an operating mind? It goes no further and no inquiry is necessary as to whether the accused is capable of making a good or wise choice or one that is in his or her interest.

The Right to Counsel

In assessing the requisite degree of mental competence required for the exercise of this right, it should be observed that the rights of an accused in the criminal process should as far as possible be harmonized. In respect of each of the rights under discussion, the accused is entitled to make a choice. Unless there is some good reason inherent in the right, it makes little sense to differentiate as to the requisite mental state to make that choice. In Hebert, at p. 176, McLachlin J. stated:

The rights of a person involved in the criminal process are governed by ss. 7 to 14 of the Charter. They are interrelated: Re B.C. Motor Vehicle Act [1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486]. It must be assumed that the framers of the Charter intended that they should be interpreted in such a manner that they form a cohesive and internally consistent framework for a fair and effective criminal process. For this reason, the scope of a fundamental principle of justice under s. 7 cannot be defined without reference to the other rights enunciated in this portion of the Charter as well as the more general philosophical thrusts of the Charter.

In a similar vein in Godinez v. Moran, 113 S.Ct. 2680 (1993), Kennedy J. of the Supreme Court of the United States stressed that different standards of competency should not be applied for different aspects of criminal proceedings. In his opinion, different standards were not applied at common law and were not required under the due process clause. At page 2691 he cites B. A. Weiner, "Mental Disability and the Criminal Law", in The Mentally Disabled and the Law (3rd ed. 1985), 693, at p. 696, as follows:

It has traditionally been presumed that competency to stand trial means competency to participate in all phases of the trial process, including such pretrial activities as deciding how to plead, participating in plea bargaining, and deciding whether to assert or waive the right to counsel.

He then continues:

That the common law did not adopt heightened competency standards is readily understood when one considers the difficulties that would be associated with more than one standard. The standard applicable at a given point in a trial could be difficult to ascertain. For instance, if a defendant decides to change his plea to guilty after a trial has commenced, one court might apply the competency standard for undergoing trial while another court might use the standard for pleading guilty. In addition, the subtle nuances among different standards are likely to be difficult to differentiate, as evidenced by the lack of any clear distinction between a "rational understanding" and a "reasoned choice" in this case.

Although different considerations may apply to states such as drunkenness or hypnosis, in the case of a person suffering from a mental disorder, I can see no reason for a higher standard of competency in exercising the right to counsel before trial than during trial. If an accused is competent to choose a lawyer, instruct the lawyer, decide how to plead, decide to discharge the lawyer and conduct his or her own defence, decide to give or not to give evidence, how can we say that he or she is incompetent to decide whether to seek the assistance of counsel during the investigation? There is nothing in s. 10(b) or related provisions requiring such a result. In my view, therefore, the test is the same as that which obtains in respect of fitness to stand trial which I have set out above.

Conclusion with Respect to Mental Element in Exercising Pre-trial Rights by Persons Suffering from Mental Disorders

The operating mind test, which is an aspect of the confessions rule, includes a limited mental component which requires that the accused have sufficient cognitive capacity to understand what he or she is saying and what is said. This includes the ability to understand a caution that the evidence can be used against the accused.

The same standard applies with respect to the right to silence in determining whether the accused has the mental capacity to make an active choice.

In exercising the right to counsel or waiving the right, the accused must possess the limited cognitive capacity that is required for fitness to stand trial. The accused must be capable of communicating with counsel to instruct counsel, and understand the function of counsel and that he or she can dispense with counsel even if this is not in the accused's best interests. It is not necessary that the accused possess analytical ability. The level of cognitive ability is the same as that required with respect to the confession rule and the right to silence. The accused must have the mental capacity of an operating mind as outlined above.

Application to this Case

The trial judge found that the statements were voluntary in the traditional sense and that the operating mind test was satisfied. He found, however, that with respect to the waiver of counsel there was an additional awareness of the consequences test which was not satisfied. In this regard, he accepted the evidence of Dr. Malcolm, the defence psychiatrist. The following are the relevant passages from that evidence:

Q.Were you aware at that point in time that within the week of his returning from METFORS, when he had been stabilized and on his medication, he told one of [sic] the jail guards specifically that he was out for a section 16 and was going to blow things up to that extent?

A.I don't think I was aware of that.

Q.That's fine. Would that have affected your decision to ask him that question or your feelings when you asked him that question?

A.Well, I was just with him a half an hour. I was just trying to ask him as many questions as I could to see to what extent he was able to comprehend what I was saying. That's of interest to me. It doesn't surprise me terribly because, as I say, such people have a pretty good intellectual capacity. This man would know about section 16. He didn't like jails either. He hated jails. He would prefer not to go there so, therefore, he would be quite capable of comprehending that it would be better for him to be found insane. That doesn't really surprise me. Schizophrenics are quite well able to do that and still be schizophrenic.

Q.And over the course of those four interviews, for example this more recent one, would you have viewed him more psychotic on your most recent interview than he was at the time you have viewed him on the videotapes?

A.The first videotape that I saw, he appeared to be under better control. The second February 7th interviews, he was not so well controlled. In fact, he appeared to be out of control. The first interview that I had, he was in a dilapidated, regressed state. That was the one in which he simply refused to talk and just sat there glaring at me.

Q.And at that point in time, if I may, was much worse than he is in either of the two videotapes that we have seen, correct?

A.Oh yes, he was quite extraordinarily regressed the first time I saw him.

Q.And the second interview?

A.He was a little better at that time and the next interview, better still.

Q.And on the second interview, which is the 7th of July interview, still much worse than we observe him on the tapes, is that correct?

A.I would say so, yes.

Q.And on your - as he's steadily improving, your November meeting was still worse than he is on the tapes?

A.I don't know. This is the kind of qualitative judgement that I really hate getting trapped into because it isn't helpful and I can't do it really. People can be showing signs of going downhill or uphill but I can't put numbers onto things like that at all. It's so much more sort of qualitative than this.

Q.It is not feasible for you to compare his condition at that . . .

A.Well, I've been comparing, obviously.

Q.Yes.

A.I've been trying to co-operate with you but you keep trying to push me into more and more detailed answers and I can't be more detailed. I have to be a little general about it.

Q.That's fair. I don't want to be unfair with the questioning.

A.Okay.

Q.The later interviews are getting close enough to the condition that he was on the tapes that you feel it is unfair to ask whether he's slightly better or slightly worse?

A.Well, the most recent interview was really pretty similar to how he appeared to be on the second pair of tapes that I saw.

Q.Now, it was during your second interview with him, that is the July 7th interview, that you found him to be fit to stand trial; is that fair?

A.Oh, that's simply because that was the first time he would talk to me and I was able to get answers to the series of questions that I routinely ask to try to establish fitness, such as what the various people in the courtroom do, what the charge is, and what his defence person does, and what the judge - and so on.

Q.He had no difficulty describing who the dramatis personae were at that point in time?

A.No, he could understand and instruct counsel, it seemed to me, at that time.

Q.He understood who the judge was in the court and what his function was on the July 7th . . .

A.He satisfied me, and I have asked these questions of many people over a long period of time, that he comprehended his situation, what the charge was, and who the various people in the courtroom were, and I felt he could instruct counsel, and I think he knew the meaning of an oath.

Q.Certainly Mr. Whittle, even at the time of these tapes, as opposed to later on in your interview with him on July the - sorry, July the 15th, I believe, is aware of the role of evidence in the court process?

A.Yes.

THE COURT: Mr. Bellefontaine, just let me ask this while we're at the point. Dr. Malcolm, with the responses that the Crown has just put to you at the bottom of page seven and the top of page eight, would Whittle understand the consequence of giving a statement that may be used against him; that is his own evidence against him at a trial at that stage?

THE WITNESS: It sounds to me, from his response there, that he would be aware of the consequences. The only thing is that his whole reason for being in the police station at that time was something that derived from an illness that came from within, and it was these voices telling him to go there and to tell all the right things; and so he didn't care about the consequences. This is very low in his order of priorities at this point. He was concerned about the consequences, though I think if we want to be really detailed about it, he knew what the consequences were, that it would be used in a trial, it could be used against him. I think he knew that.

MR. BELLEFONTAINE: Q. I'm sorry, the night of the statements, February 6th and 7th; is that fair?

A.Yes, I don't think that the police were doing anything to offer him promises or they weren't - and they were not threatening him in any way. He was doing it of his own volition.

THE COURT: At the time of the February 6th and 7th interviews, the tapes, you indicated to us this morning that Whittle would know that he was providing evidence or could be providing evidence against himself. He would know that?

THE WITNESS: He would know that in some intellectual sense, yes.

THE COURT: Yes. Is it putting too fine a point on it to ask whether he would appreciate the consequences of doing that?

THE WITNESS: Well, it's difficult because I think he knew what he was saying and that, in fact, in an intellectual way, it could have repercussions in some future hearing; but I don't think he was even slightly tuned in to the future when he was doing that. I don't think he cared about it. I think he was driven by this urge from within himself to say these things and he wasn't concerned about the consequences, even slightly. If that's useful to the court, I don't know, but I think if we were to become quite specific and ask him these questions directly at the time he would say, "Yes, I know that this is going to be all written down or taped." He knew that it was being taped and that it could appear at some future trial. He is not naive and he is not stupid so he would know that; but my point is that he just didn't care about that because he was driven to say all these things regardless. If he was going to die, it didn't matter. He made that observation. So, that is a mental element, I think, of great significance.

THE COURT: So he is going to say those things no matter what the result?

THE WITNESS: No matter what. He doesn't care what the result is. The result is a thing that might interest the courts or the general population or anybody else but it doesn't interest him.

In summary, the evidence of Dr. Malcolm was that the appellant was aware of what he was saying and what was said to him and of the court process. He was fit to instruct counsel but, because of the voices that were telling him to unburden himself, he did not care about the consequences.

On the basis of evidence which the trial judge accepted, the appellant's mental condition satisfied the operating mind test including the subjective element to which I have referred above. There was no obligation on the Crown to establish that the appellant possessed a higher degree of cognitive capacity. To the extent that the inner voices prompted the appellant to speak in apparent disregard of the advice of his counsel and to his detriment, because he did not care about the consequences or felt that he could not resist the urging of the voices, they cannot be the basis for exclusion. Inner compulsion, due to conscience or otherwise, cannot displace the finding of an operating mind unless, in combination with conduct of a person in authority, a statement is found to be involuntary. As for the Charter rights asserted, once the operating mind test is established, an accused is not exempted from the consequence of his or her actions absent conduct by the police "which effectively and unfairly deprived the suspect of the right . . ." (Hebert, supra, at p. 182).

The decision by the trial judge to exclude the statements was on an erroneous view that the evidence which he accepted did not satisfy a separate awareness of the consequences test. Applying a correct instruction in law to evidence accepted by the trial judge, the statements are admissible. But for an error of law the trial judge would have found that the test with respect to the requisite state of mind of the appellant had been met. In the result, the statements were admissible in that they satisfied the criteria of the confession rule and the appellant either waived or availed himself of the right to counsel and chose to speak to the police. I should add that with respect to waiver all the other necessary requirements were met by the Crown and the sole issue was whether the mental element was satisfied.

The statements in issue are as follows:

(1) On February 6 the appellant, while in a cell at 42 Division, volunteered that he was responsible for the death of Frank Dowson and other crimes. He had previously been informed of the right to counsel and had declined. This statement was admissible. It was voluntary and s. 10(b) was complied with. In the circumstances, there was no reason to reiterate the caution with respect to counsel until either the nature of the investigation or the appellant's jeopardy changed. See R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at p. 893. This did not occur until the police had the opportunity to verify some of the information so as to determine that the appellant's statements should be taken seriously.

(2) On February 6, after verifying certain details with respect to the death of Dowson, the appellant was charged with the murder of Dowson and informed of the right to counsel. The appellant offered to take the officers to where he had discarded the murder weapon. On the way as well as on the return trip he made statements to the officers. These statements were admissible. They were voluntary and the right to counsel was waived.

(3) On February 6 the first video statement was commenced and stopped after the appellant decided that at this point he wanted to speak to counsel. This portion of the videotaped confession was admissible. It was voluntary and the right to counsel had been waived.

(4) On February 7, at 12:21 a.m., after consulting counsel, the appellant advised the officers that he wished to proceed with the video confession and did so. The balance of this video confession was admissible. It was voluntary and the appellant had availed himself of counsel and chose to continue.

(5) On February 7 after the taping session the appellant offered to take the officers to the place where he had discarded Dowson's wallet. The wallet was eventually found at this location. This evidence was admissible. The information was voluntary and the appellant had availed himself of the advice of counsel.

(6) On February 7, the appellant was transported back to 17 Division. He was again informed of his right to counsel and cautioned. The appellant indicated that he understood. On the way to 17 Division, the appellant was asked and responded to several questions about the alleged murder. These statements were admissible. They were voluntary. Although there was no explicit waiver, it is apparent from all of the circumstances that the appellant waived further consultation with counsel. While simply responding to questions after being advised of the right to counsel cannot normally be taken to be waiver of that right, there are a number of other circumstances in this case making it appropriate and indeed necessary to infer waiver. Earlier in the same day, the appellant had begun making statements to the police, but had then requested to consult counsel. When he did so, questioning stopped and a consultation was arranged. After consultation with counsel, he made extensive statements to the police. When he was again cautioned at the time of being transported back to 17 Division, he had exercised his right to counsel and decided to make statements. His decision to respond to questions after having been given his rights once again, in light of the circumstances which had occurred during the day, can only be taken as waiver of any desire to speak again with counsel before responding to the questions put.

(7) On March 16 the appellant was returning to court from a psychiatric assessment at METFORS and spoke to officers. These statements were admissible. They were voluntary and the appellant had availed himself of the advice of counsel.

This disposes of the issues relating to the admissibility of the statements. The two remaining issues require a brief comment. The appellant submits that the Court of Appeal exceeded its jurisdiction under s. 676(1)(a) of the Criminal Code in reversing the trial judge in respect of findings of fact. The appeal by the Crown was based on issues of law. The fact that the Court of Appeal appears to have decided it on the basis of mixed law and fact does not preclude us from disposing of the appeal on a question of law. We are required to decide the case in the manner that the Court of Appeal ought to have done. The Court of Appeal had jurisdiction even if they may have exceeded it.

With respect to the final point we agree with the Court of Appeal that the Crown was not precluded from appealing in the circumstances. The reasoning of the Court of Appeal applies a fortiori in light of the decision of this Court in R. v. Power, 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601.

The appeal is therefore dismissed.

Appeal dismissed.

Solicitors for the appellant: Pinkofsky, Lockyer, Kwinter, Toronto.

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