R. v. Clarkson (1986), 69 N.B.R.(2d) 40 (SCC);
69 R.N.-B.(2e) 40; 177 A.P.R. 40
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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R. v. Clarkson
(No. 18058)
Indexed As: R. v. Clarkson
Répertorié: R. v. Clarkson
Supreme Court of Canada
Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest, JJ.
April 24, 1986.
Summary:
Résumé:
The accused was charged with murdering her husband and acquitted following a jury trial. The intoxicated accused waived her right to counsel. The trial judge ruled that statements given to police by the accused were inadmissible because she was so intoxicated that she did not appreciate the consequences of making the statements and the use to which they could be put. The Crown appealed.
The New Brunswick Court of Appeal, Ryan, J.A., dissenting, in a judgment reported 50 N.B.R.(2d) 226; 131 A.P.R. 226, allowed the appeal and ordered a new trial. The court held that the trial judge erred in determining admissibility using an “awareness of the consequences” test; that the statement was admissible on the less strict “operating mind” test. The accused appealed.
The Supreme Court of Canada allowed the appeal. The court held that choosing between the two tests for determining admissibility did not need to be resolved, because the accused’s waiver of her right to counsel was invalid where she did not appreciate the consequences of the waiver; therefore the accused’s right to counsel under s. 10(b) of the Charter of Rights and Freedoms was violated and the evidence was to be excluded under s. 24(2) of the Charter to avoid bringing the administration of justice into disrepute.
McIntyre, J. (Chouinard, J., concurring), agreed with the result, but would have found the statement inadmissible on the ground that the “operating mind” and “awareness of the consequences” tests were the same and the accused was too intoxicated to possess the “operating mind” necessary to make a voluntary statement.
Civil Rights – Topic 4612
Right to counsel – Waiver of – By intoxicated accused – The Supreme Court of Canada stated that an intoxicated accused’s waiver of the right to counsel under s. 10(b) of the Charter of Rights and Freedoms was invalid unless the accused was aware of the consequences of making a statement – The court stated that in assessing the validity of a waiver, unlike a confession, the court cannot be concerned only with the probative value and restrict the test to the accused’s mere comprehension of his words – See paragraphs 17 to 20.
Civil Rights – Topic 4612
Right to counsel – Waiver of – By intoxicated accused – An intoxicated accused waived her right to counsel before being questioned about her husband’s shooting death – The accused stated that there was “no point” in having counsel – The accused’s aunt repeatedly requested that the questioning be delayed until the accused consulted counsel – The police ignored her request – The Supreme Court of Canada held that the accused’s right to counsel under s. 10(b) of the Charter of Rights and Freedoms had been denied, because the waiver was invalid where the accused was too intoxicated to be aware of the consequences of making the statement – The court stated that at a minimum police should have delayed questioning until the accused was sufficiently sober to properly exercise her right to counsel or be fully aware of the consequences of waiving that right – See paragraph 21.
Civil Rights – Topic 8368
Canadian Charter of Rights and Freedoms – Denial of rights – Remedies – Exclusion of evidence – Charter of Rights and Freedoms, s. 24(2) – An intoxicated accused made an invalid waiver of her right to counsel under s. 10(b) of the Charter; therefore her right to counsel was denied – The police questioned the accused over her aunt’s objections – The Supreme Court of Canada stated that the police flagrantly violated the accused’s rights by extracting a statement which they feared they might not obtain if she were sober and appreciated the need for counsel – The court stated that the “exploitation” by the police required the exclusion of the evidence under s. 24(2) to avoid bringing the administration of justice into disrepute – See paragraph 22.
Criminal Law – Topic 5340
Evidence and witnesses – Confessions and voluntary statements – Admissibility – Mental capacity of accused – Effect of – The Supreme Court of Canada discussed the two tests used to determine the admissibility of a statement made by an intoxicated accused – The “operating mind” test required that an accused understand what he said – The “awareness of the consequences” test required an accused to understand the consequences of giving a statement – The court opined that the “awareness of the consequences” test would apply if fair treatment of an accused prevailed over the obtaining of evidence without too much regard for the adjudicative process – The Supreme Court of Canada found it unnecessary to choose between the two tests where the statement was excluded from evidence for a violation of the accused’s right to counsel under s. 10(b) of the Charter of Rights and Freedoms – See paragraphs 9 to 16.
Cases Noticed:
McKenna v. R., [1961] S.C.R. 660, refd to. [para. 10].
R. v. Santinon (1973), 11 C.C.C.(2d) 121 (B.C.C.A.), refd to. [para. 10].
R. v. Ward, [1979] 2 S.C.R. 30; 25 N.R. 514, refd to. [para. 10].
Ibrahim v. R., [1914] A.C. 599, refd to. [para. 11].
R. v. Williams, [1959] N.Z.L.R. 502, refd to. [para. 11].
R. v. Phillips, [1949] N.Z.L.R. 316 (C.A.), refd to. [para. 11].
R. v. Horvath, [1979] 2 S.C.R. 376; 25 N.R. 537, refd to. [para. 13].
R. v. Doyle (1887), 12 O.R. 347, refd to. [para. 14].
R. v. Hogan, [1975] 2 S.C.R. 574; 2 N.R. 343, refd to. [para. 14].
R. v. Wray, [1971] S.C.R. 272, refd to. [para. 14].
R. v. Ireland (1970), 126 C.L.R. 321 (Aust. H.C.), refd to. [para. 14].
Lawrie v. Muir (1950), S.C. (J.C.) 19, refd to. [para. 14].
R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, appld. [para. 17].
R. v. Korponay, [1982] 1 S.C.R. 41; 44 N.R. 103, appld. [para. 18].
Adams v. United States (1942), 317 U.S. 269, refd to. [para. 19].
Minor v. United States (1967), 375 F. 2d 170, refd to. [para. 19].
Von Moltke v. Gillies (1947), 332 U.S. 708, refd to. [para. 19].
Statutes Noticed:
Canadian Charter of Rights and Freedoms, 1982, sect. 10(b), sect. 24(2).
Authors and Works Noticed:
Cross on Evidence (5th Ed.), p. 545 [para. 11].
Counsel:
C. David Hughes, Q.C., and Sherron Hughes, for the appellant;
Glendon J. Abbott, for the respondent.
This appeal was heard on May 16, 1985, before Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest, JJ., of the Supreme Court of Canada.
On April 24, 1986, the judgment of the Supreme Court of Canada was delivered and the following opinions were filed:
Wilson, J. (Estey, Lamer, Le Dain and La Forest, JJ., concurring) – see paragraphs 1 to 23;
McIntyre, J. (Chouinard, J., concurring) – see paragraphs 24 to 29.
