R v S 1987

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Her Majesty The Queen, Plaintiff, and S, W and Q, Defendants
[1987] O.J. No. 1255
Supreme Court of Ontario - High Court of Justice
Assizes Sittings - Toronto, Ontario
Reid J
. November 5, 1987


S. Berger, for the Plaintiff.
Cynthia Fromstein, for the Defendant, S.
D. Danielson, for the Defendant, W.
T. Boutzouvis, for the Defendant, Q.

REID J.:— The right to remain silent is fundamental in this country. That right was recognized in R. v. Esposito (1985), 53 O.R. (2d) 356 where at p. 362 under the heading, whether the appellant's right to remain silent was infringed, Martin J.A. said:

The right of a suspect or accused to remain silent is deeply rooted in our legal tradition. The right operates both at the investigative stage of the criminal process and at the trial stage.

Recognition of the existence of the right and its application to

Lamer J. in Reference re s. 94 of Motor Vehicles Act, at p. 557 D.L.R., p. 302 C.C.C., p. 503 S.C.R. said that "the principles of fundamental justice are to be found in the basic tenets and principles of our justice system." One of those tenets has often been referred to as the right to remain silent - see for example R. v. Esposito (1985), 24 C.C.C. (3d) 88, 53 O.R. (2d) 356, 49 C.R. (3d) 193 where Martin J.A. said at p. 94 C.C.C., p. 362 O.R. "[t]he right operates both at the investigative stage of the criminal process and at the trial stage." In my view the right must be restricted to police inquiries and the like and the trial proceedings themselves.

That case confirms the view in Esposito, although it restricts the right short of the proceedings that had been taken in that case under the Combines Investigation Act.

The right to remain silent is one of those rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms, which, under the heading of "Life, liberty and security of the person", states:

s. 7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Dupont J. has dealt with that question at length in R. v. Greig (1987), 33 C.C.C. (3d) 40 at p. 49 as follows:

The accused's common law right to remain silent , which is historically linked to the presumption of innocence and the right against self-incrimination, is one of the pillars of the criminal system of justice.

Although the right to remain silent is not specifically enshrined in the Charter, s. 7 provides that:

7.Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The general wording of this section undoubtedly encompasses many rights that exist in the common law which are not specifically dealt with by the Charter and therefore should be interpreted liberally.

A broad interpretation was given to s. 7 of the Charter in Reference re s. 94(2) of Motor Vehicle Act (unreported, released December 17, 1985, S.C.C.) [since reported 23 C.C.C. (3d) 289, 24 D.L.R. (4th) 536, [1985] 2 S.C.R. 486]. In that case, Lamer J. stated on behalf of the majority at p. 17 [pp. 300-1 C.C.C.]:

Sections 8 to 14 are illustrative of deprivations of those rights to life, liberty, and security of the person in breach of the principles of fundamental justice. For they, in effect, illustrate some of the parameters of the "right" to life, liberty and security of the person; they are examples of instances in which the "right" to life, liberty and security of the person would be violated in a manner which is not in accordance with the principles of fundamental justice. To put matters in a different way, ss. 7 to 14 could have been fused into one section, with inserted between the words of s. 7 and the rest of those sections, the oft-utilised provision in our statutes, "and, without limiting the generality of the foregoing (s. 7) the following shall be deemed to be in violation of a person's rights under this section". Clearly, some of those sections embody principles that are beyond what could be characterized as "procedural".

As well, in Mills v. The Queen (unreported, released June 16, 1986, S.C.C.) McIntyre J. of the Supreme Court of Canada addressed his mind to the parameters of s. 7. At p. 73 of his judgment in dealing with the interpretation of S. 11(b) of the Charter, His Lordship makes reference to the ambit of s. 7.

Section 11(b) is designed to protect, in a specific manner and setting, the rights set forth in s. 7, though of course, the scope of s. 7 extends beyond those manifestations of the rights to liberty and security of the person which are found in s. 11.

(emphasis added.) Surely, it can be said that in our criminal law it (is a matter of fundamental justice that the accused's right to remain (silent be preserved.

In the facts of this case, the officers ignored that on two occasions the accused, clearly manifested his intent to refrain from conversing or saying anything to them. The manner in which the statement was read, and the nature of some of the requests, clearly indicate the acts of the police were designed to undermine the accused's intention to remain silent.

In R. v. Perrault and Belleau (1984), 11 C.R.R. 331 (Ont. Co. Ct.), two accused had been arrested and charged with theft. Each accused had been cautioned and informed of his right to counsel and both declined to make a statement. While still in police custody on that charge, the accused were further charged with possession of stolen articles. A police officer informed each of the accused separately of the second charge and of his right to have counsel present. Each accused said he did not wish to make a statement. The officer then immediately asked each where he had obtained the stolen articles, to which each made an inculpatory reply. Vannini D.C.J. in refusing to admit the statements ruled at p. 333 of his judgment:

While the responses that each of the accused made were voluntary in nature, they were obtained in a manner that infringed or denied the right guaranteed them by s. 7 of the Charter to life, liberty and security of the person, except in accordance with the principles of fundamental justice in that they were obtained in contravention of their fundamental right to remain silent ...

I accept and adopt the reasoning in the above case. It is my view, that the conduct of the police was in direct contravention of the accused's right to remain silent which is protected under s. 7 of the Charter, as well as in breach of s. 10(b) as mentioned above.

All counsel are familiar with this because we have been back and forth through this passage in the argument, but the gist of it is that while not specifically enshrined in the Charter, or for that matter in s. 7 itself, Dupont J. found that s. 7 was broad enough to encompass the right to remain silent. He explicitly adopted the decision in R. v. Perrault and Belleau of the Honourable Judge Vannini of the District Court. Judge Vannini's view was, as well, that the right to remain silent was included in the integrity section of the Charter, s. 7.

Turning to the facts of this case and the relevance of those observations on the law, I find that in this case the accused S Stated on two occasions - the first occasion being at the very beginning of any questioning of him by the police - his desire to consult counsel. I have already covered the fact that that desire was ignored and that that amounted to a denial of S's right to counsel as granted by s. 10 (b) of the Charter. I agree with the observation made by Dupont J. in Greig, supra at p. 46 that the right is a continuing right, it is not one that is exhausted simply because it has not been acknowledged when a claim to it has first been expressed. In denying to the accused S the right to counsel, the police officer, in my opinion, also denied his right to remain silent under s. 7. The two rights seem to me to be intertwined, the right under s. 10 (b) as well being intended or designed to protect the person's right to remain silent. I find, therefore, not just one provision of the Charter, but two provisions have been violated in the case of the accused S.

With respect to the accused Q, the evidence indicates that he made no explicit claim to remain silent, yet his answers to the police questions, and his ultimate refusal to answer create, in my opinion, no inference other than his desire to remain silent. In my opinion, one must examine all the circumstances involved in an issue of the type I have before me, not just the literal words I expressed by accused persons. Thus, the desire to remain silent, and thus invoke s. 7 of the Charter, may be expressed explicitly or it may be implied by words or conduct or both.

That is important when one comes to consider the case of the accused W. W made no explicit claim to remain silent or any explicit claim to consult counsel, yet the inference drawn by an experienced police officer, Sergeant Bell, was that he did not wish to speak further to the police. Sergeant Bell was explicitly asked about that by Mr. Danielson in cross-examination. He was asked words to this effect, "And you knew that W made it clear that he would not talk further to you in the interview room?", and the answer was "yes". It is obvious from the other evidence given by Sergeant Bell and Police Constable Rasbach that the object in introducing the under-cover officer into the cell block was to elicit responses that had not been elicited in earlier questions. I think that Sergeant Bell's inference was the right one to be drawn in all the circumstances.

Therefore, in my opinion there have been violations of s. 7 with respect to all three accused and a violation of s. 10 (b) with respect to S.

The question then arises whether the evidence offered should be excluded pursuant to s. 24 of the Charter, because the mere violation of a Charter right does not in itself require the exclusion of the evidence obtained as a result of the violation of that right. Section 24 (2) provides:

s. 24(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

We have some guidance from the Supreme Court of Canada on the appropriate considerations with respect to the application of s. 24 (2). In R. v. Manninen (unreported, released June 25, 1987, S.C.C.), at p. 13, Lamer J. stated that there must be some relationship or connection between the violation and the evidence. In this case there was, in my opinion, a causal link between the information elicited by Constable Rasbach and the admissions and inculpatory statements made by the accused. The police concede that they would not have received that information had they not resorted to the trick of introducing the under-cover officer. So the introduction of the under-cover officer created the causal link for what was obtained.

The officer was not merely listening. He deliberately, and indeed very capably, carried out his task as he saw it, and indeed he saw it as consistent with the instructions he was given. In my opinion, he directed the conversation in a way that would result in inculpatory statements being made by the accused. In other words, we do not have the situation that we had in R. v. Bolton (1983), 9 W.C.B. 72 (Ont. Co. Ct.) where the officer merely listened. We have direct intervention, and a deliberate plan to deceive and to trap the accused into inculpating themselves, and that was because the police failed to obtain the information through other means. I accept that, as in Bolton, there may be ways of obtaining information by, means of an informer. This case does not require any decision by me on the circumstances of a different case. My decision is confined to the peculiar circumstances of this case, where the extent to which the police intervened appears to be unusual, even when viewed against the other cases to which counsel very helpfully referred me, such as Rothman v. R. (1981), 59 C.C.C. (2d) 30 (S.C.C.), and other cases such as Manninen, supra in which similar, but not exactly similar, circumstances arose.

In short, I do not suggest that s. 7 prevents entirely the use by police of informers. I think, however, in the circumstances of this case, that the deception was such that the method adopted makes the evidence inadmissible. It goes without saying that deceit is disreputable. Here was a deliberate and deceitful trick. The information obtained was damaging. I can come to no other conclusion that the admission of the evidence would bring the administration of justice into disrepute in this case.

It has been suggested that the evidence could be edited, so that only statements not be tied to encouragement or direction by the under- cover officer could be introduced. I think that suggestion is impractical. It is unjustified in light of the fact that the entire exercise was a deliberate deception, and whatever came of it, in my opinion, should not be admitted because to do so would bring the administration of justice into disrepute. I rule, therefore, that the proposed evidence is inadmissible pursuant to section 24 of the Charter.

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