R. v. Strachan (1988), 90 N.R. 273 (SCC)
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
…………………….
Joseph Colin Strachan v. R.
(19749)
Indexed As: R. v. Strachan
Supreme Court of Canada
Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson, Le Dain, La Forest and L’Heureux-Dubé, JJ.
December 15, 1988.
Summary:
The police knew that the accused had narcotics at his apartment and obtained a search warrant naming four officers authorized to search. At the last minute two of the officers were unable to go, so one of the other two obtained a telephone authorization from the judge to substitute two other officers. When they went to the accused’s apartment, he was home with two other men. The accused was immediately arrested and read his Charter rights. He attempted to call his lawyer, but the officer in charge (one of the original four named in the warrant) refused to let him call until they found two weapons known to be in the apartment and identified the two other men. However, the accused was not permitted to call his lawyer until the search (which revealed narcotics) was completed. The accused was charged with possession of a narcotic.
The British Columbia County Court acquitted the accused after excluding evidence resulting from the search on the ground that the accused’s right to counsel was denied. The County Court upheld the validity of the warrant and the search, ruling that the search was not invalidated by the participation of two officers unnamed in the warrant. The Crown appealed.
The British Columbia Court of Appeal in a judgment reported 25 D.L.R.(4th) 567; 24 C.C.C.(3d) 205; 45 C.R.(2d) 289, allowed the appeal and ordered a new trial. The court held that although the accused’s right to counsel was denied, the evidence should not be excluded under s. 24(2) of the Charter, because there was no causal connection between the denial of rights and the evidence found. The accused appealed.
The Supreme Court of Canada dismissed the appeal. The court ruled that no causal connection between the denial of rights and evidence need be shown to engage s. 24(2) of the Charter, but that such a causal connection was relevant in determining whether the evidence should be excluded. The court held that admitting the evidence would not bring the administration of justice into disrepute, because (1) no incriminating statements resulted from the denial; (2) the denial of rights was not part of a police pattern of denial and (3) exclusion would bring the administration of justice into disrepute.
With regard to the search warrant the court held that an officer named in a search warrant may be assisted by unnamed officers provided a named officer is in charge, participates in the search and is present throughout, as was the case here.
Civil Rights – Topic 4604
Right to counsel – General – Denial or interference with – What constitutes – Police officers executed a search warrant at an accused’s apartment to search for narcotics – When they arrived, the accused and two other men were present – The police knew the accused had two registered restricted weapons – The accused was arrested and read his rights – The accused tried to call his lawyer, but was denied permission until the police had “matters under control”, meaning that they wanted to find the weapons and identify the two men – The accused was not permitted to call his lawyer until after the search was completed and he was taken to the police station – The Supreme Court of Canada opined that the police were justified in refusing to permit the accused to call his lawyer until the situation was stabilized, but that he should have been permitted to call after the weapons were found and the two men had left; denial of counsel began at that point – See paragraphs 33 to 34.
Civil Rights – Topic 8368
Canadian Charter of Rights and Freedoms – Denial of rights – Remedies – Exclusion of evidence – The Canadian Charter of Rights and Freedoms, s. 24 (2), provided that evidence “obtained in a manner that infringed or denied any rights” under the Charter must be excluded, if its admission “would bring the administration of justice into disrepute” – An accused, who was arrested and read his Charter rights at his home, was not permitted to call his lawyer until a search of his home was completed – Narcotics were found – The Supreme Court of Canada held that, although his right to counsel was denied, the evidence found should not be excluded, because admitting the evidence would not bring the administration of justice into disrepute because (1) no incriminating statements resulted from the denial; (2) the denial of rights was not part of a police pattern of denial and (3) exclusion would bring the administration of justice into disrepute – The court held that the application of s. 24(2) did not depend upon a causal connection between the denial of rights and the obtaining of the evidence, but that such a causal connection was relevant on the issue of whether the evidence should be excluded – Hence, the evidence was obtained in a manner which infringed the Charter within the meaning of s. 24(2) whether or not the evidence was found as a result of the denial of right to counsel, but the lack of a nexus between the denial and the finding of the evidence was a factor in deciding not to exclude the evidence.
Civil Rights – Topic 8550
Canadian Charter of Rights and Freedoms – Interpretation – Particular phrases – Bring the administration of justice into disrepute – [See Civil Rights – Topic 8368 above].
Civil Rights – Topic 8559
Canadian Charter of Rights and Freedoms – Interpretation – Particular phrases – Obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter – [See Civil Rights – Topic 8368 above].
Criminal Law – Topic 3053
Search warrants – Persons authorized to search – The Supreme Court of Canada held that officers named in a search warrant under s. 10(2) of the Narcotic Control Act may lawfully be assisted by officers who are not named, provided that the named officers closely supervise those unnamed, are in control, participate in the search and are present throughout – See paragraphs 21 to 32.
Narcotic Control – Topic 2029
Search and seizure – Search warrants – Persons authorized to search – [See Criminal Law – Topic 3053 above].
Narcotic Control – Topic 2029
Search and seizure – Search warrants – Persons authorized to search – The Narcotic Control Act, R.S.C. 1970, c. N-1, s. 10(2), respecting search warrants referred to “a peace officer named therein” – The Supreme Court of Canada held that notwithstanding the use of the singular, a search warrant may name more than one officer – See paragraph 22.
Statutes – Topic 2410
Interpretation – Words and phrases – General principles – Plural and singular nouns – [See second Narcotic Control – Topic 2029 above].
Cases Noticed:
R. v. Rao (1984), 4 O.A.C. 162; 40 C.R.(3d) 1, refd to. [para. 12].
R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; [1985] 4 W.W.R. 286; 18 C.C.C.(3d) 481; 45 C.R.(3d) 97; 18 D.L.R.(4th) 655; 32 M.V.R. 153, appld. [paras. 15, 37, 60, 61].
R. v. Duguay (1985), 8 O.A.C. 31; 18 D.L.R.(4th) 32 (Ont. C.A.), consd. [para. 17].
R. v. Fekete (1985), 7 O.A.C. 152; 44 C.R.(3d) 92, folld. [para. 25].
R. v. Heikel and MacKay (1984), 57 A.R. 221, folld. [para. 26].
R. v. Lerocq (1984), 35 Alta. L.R.(2d) 184 (Q.B.), refd to. [para. 26].
R. v. Baylis (1984), 47 Sask.R. 15 (Q.B.), folld. [para. 27].
R. v. Goodbaum (1977), 1 C.R.(3d) 152 (Ont. C.A.), consd. [para. 30].
Campbell v. Clough (1979), 23 Nfld. & P.E.I.R. 249; 61 A.P.R. 249 (P.E.I. S.C.), consd. [para. 30].
R. v. Davidson (1982), 40 N.B.R.(2d) 702; 105 A.P.R. 702 (Q.B.T.D.), consd. [para. 30].
R. and Attorney General of Canada v. Newson (1985), 41 Alta. L.R.(2d) 375 (Q.B.), consd. [para. 30].
Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; [1984] 6 W.W.R. 577; 11 D.L.R.(4th) 641; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; 9 C.R.R. 355; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1, consd. [para. 32].
R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 33 C.C.C.(3d) 1; 28 C.R.R. 122; 13 B.C.L.R.(2d) 1, appld. [paras. 35, 47].
R. v. Cohen (1983), 5 C.C.C.(3d) 156, disapprvd. [para. 41].
R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192; 58 C.R. (3d) 97; 34 C.C.C.(3d) 385, consd. [paras. 43, 61].
R. v. Simmons (1988), 89 N.R. 1 (S.C.C.), consd. [paras. 44, 64].
R. v. Clarkson, [1986] 1 S.C.R. 383; 66 N.R. 114; 69 N.B.R.(2d) 40; 177 A.P.R. 40; 25 C.C.C.(3d) 207; 50 C.R. (3d) 289; 26 D.L.R.(4th) 493, consd. [para. 61].
R. v. Jacoy (1988), 89 N.R. 61 (S.C.C.), consd. [para. 64].
Statutes Noticed:
Canadian Charter of Rights and Freedoms (1982), sect. 1 [para. 60]; sect. 8 [para. 4]; sect. 10(b) [paras. 4, 59]; sect. 24(2) [para. 1].
Interpretation Act, R.S.C. 1970, c. I-23, sect. 26(7) [para. 22].
Narcotic Control Act, R.S.C. 1970, c. N-1, sect. 10(2) [para. 4].
Counsel:
David Roberts, Q.C., for the appellant accused;
S. David Frankel and V. Gordon Rose, for the Crown.
Solicitors of Record:
Campney & Murphy, Vancouver, British Columbia, for the appellant;
Frank Iacobucci, Q.C., Ottawa, Ontario, for the respondent.
This case was heard on January 28-29, 1988, at Ottawa, Ontario, before Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson, Le Dain, La Forest and L’Heureux-Dubé, JJ., of the Supreme Court of Canada.
On December 15, 1988, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:
Dickson, C.J.C. (Beetz, McIntyre, La Forest and L’Heureux-Dubé, JJ., concurring) – see paragraphs 1 to 54;
Lamer, J. – see paragraphs 55 to 56;
Wilson, J. – see paragraphs 57 to 67.
Estey and Le Dain, JJ., did not participate in the judgment.
