R. v. Smith (J.L.) (1989), 99 N.R. 372 (SCC)
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Joey Leonard Smith v. Her Majesty The Queen
(21049)
Indexed As: R. v. Smith (J.L.)
Supreme Court of Canada
Dickson, C.J., Lamer, Wilson, La Forest, L’Heureux-Dubé, Sopinka and Gonthier, JJ.
September 14, 1989.
Summary:
The accused was arrested and charged with robbery. He was advised of his right to counsel. He caused a two hour delay getting to the police station. He was given an opportunity to telephone his lawyer but decided to wait until morning. He informed police he would not discuss the robbery until then. He was questioned and subsequently gave an “off the record” statement. He sought to exclude the statement at trial on the ground that his Charter right to counsel was violated.
Following a voir dire, the British Columbia County Court admitted the statement. The accused appealed.
A majority of the British Columbia Court of Appeal, McLachlin, J.A., dissenting, held that the accused’s right to counsel had not been violated and dismissed the appeal. The accused appealed.
The Supreme Court of Canada, Dickson, C.J., Wilson and La Forest, JJ., dissenting, dismissed the appeal.
Civil Rights – Topic 4601
Right to counsel – General – The Supreme Court of Canada stated that the right to counsel imposes a duty on police to inform an accused of his right and to refrain from questioning until the accused has had a reasonable opportunity to exercise the right – However, the accused must be reasonably diligent in the exercise of his right and police are entitled to resume questioning if the accused fails to exercise his right with reasonable diligence – See paragraphs 10 to 20, 22 to 29, 32 to 34.
Civil Rights – Topic 4604
Right to counsel – Denial of – What constitutes – The accused was arrested and charged with robbery about 7 p.m. – He was advised of his right to counsel – He caused a two hour delay getting to the police station – He requested and was given an opportunity to telephone his lawyer at 9 p.m. – He decided to wait until morning and advised police he would not discuss the robbery until he had consulted counsel – He was questioned and subsequently gave an “off the record” statement – The Supreme Court of Canada held that he had not been denied a reasonable time to consult counsel and the statement was admissible – See paragraphs 10 to 20, 22 to 29, 32 to 34.
Cases Noticed:
R. v. Therens, [1985] 1 S.C.R. 613; 40 Sask.R. 122; 59 N.R. 122; 18 C.C.C.(3d) 481; 45 C.R.(3d) 97; 18 D.L.R.(4th) 655; [1985] 4 W.W.R. 286; 32 M.V.R. 153, refd to. [para. 5].
R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192; 58 C.R.(3d) 87; 34 C.C.C.(3d) 385, consd. [paras. 5, 22, 42].
R. v. Leclair and Ross, [1989] 1 S.C.R. 3; 91 N.R. 81, consd. [paras. 11, 22, 44].
R. v. Ross – see R. v. Leclair and Ross.
R. v. Tremblay, [1987] 2 S.C.R. 435; 79 N.R. 153, consd. [paras. 13, 40].
R. v. Baig, [1987] 2 S.C.R. 537; 81 N.R. 87, refd to. [paras. 22, 40].
R. v. Clarkson, [1986] 1 S.C.R. 383; 66 N.R. 114; 69 N.B.R.(2d) 40; 177 A.P.R. 40, consd. [paras. 22, 42].
Oregon v. Elstad, 470 U.S. 298, refd to. [para. 26].
Miranda v. Arizona, 384 U.S. 436, refd to. [para. 26].
United States v. Washington, 431 U.S. 181, refd to. [para. 26].
R. v. Upston, [1988] 1 S.C.R. 1083; 86 N.R. 16, refd to. [para. 28].
R. v. Playford (1987), 24 O.A.C. 161, refd to. [para. 40].
Statutes Noticed:
Canadian Charter of Rights and Freedoms, 1982, sect. 10(b) [paras. 1, 4, 5, 9, 10, 22, 23, 26, 28, 29, 32, 36, 40, 47]; sect. 24(2) [paras. 1, 7, 9, 28, 36, 53].
Authors and Works Noticed:
Jull, Kenneth, Clarkson v. R.: Do We Need a Legal Emergency Department? (1987), 32 McGill L.J. 359 [para. 27].
Counsel:
Henry K. Brown and Ann Cameron, for the appellant;
William F. Ehrcke, for the respondent.
Solicitors of Record:
Henry K. Brown, Vancouver, B.C., for the appellant;
The Ministry of the Attorney General, Vancouver, B.C., for the respondent.
This appeal was heard before Dickson, C.J., Lamer, Wilson, La Forest, L’Heureux-Dubé, Sopinka and Gonthier, JJ., of the Supreme Court of Canada on March 21, 1989. On September 14, 1989, the Supreme Court of Canada filed the following decisions in both official languages:
Lamer, J. (Gonthier, J., concurring) – see paragraphs 1 to 20;
L’Heureux-Dubé, J. – see paragraphs 21 to 30;
Sopinka, J. – see paragraphs 31 to 35;
La Forest, J. (Dickson, C.J. and Wilson, J., concurring), dissenting – see paragraphs 36 to 54.
