R. v. Whittle (D.J.) (1994), 170 N.R. 16 (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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Douglas James Whittle (appellant) v. Her Majesty The Queen (respondent)
(23466)
Indexed As: R. v. Whittle (D.J.)
Supreme Court of Canada
Lamer, C.J.C., La Forest, Sopinka,
Cory, McLachlin, Iacobucci
and Major, JJ.
September 1, 1994.
Summary:
The schizophrenic accused was charged with first degree murder. A voir dire was held to determine the admissibility of certain exculpatory and inculpatory statements made to police. The trial judge ruled that the exculpatory statement was admissible, but that inculpatory statements were inadmissible where the accused’s s. 10(b) Charter right to counsel was denied. The trial judge allowed the accused’s application for a directed verdict and found him not guilty. The Crown appealed.
The Ontario Court of Appeal, in a judgment reported 59 O.A.C. 218, allowed the appeal, set aside the directed verdict and ordered a new trial. The accused appealed.
The Supreme Court of Canada dismissed the appeal. The statements were admissible in that they satisfied the criteria of the confession rule and the accused either waived or availed himself of his right to counsel and chose to speak to police.
Civil Rights – Topic 4317
Protection against self-incrimination – Requirement of accused’s understanding of right – [See both
Criminal Law – Topic 5340
].
Civil Rights – Topic 4604
Right to counsel – Denial of – What constitutes – [See both
Criminal Law – Topic 5340
].
Civil Rights – Topic 4612
Right to counsel – Waiver of – [See both
Criminal Law – Topic 5340
].
Criminal Law – Topic 4951
Appeals – Indictable offences – New trials – Grounds – Misdirection by trial judge – Appeal by Crown from acquittal – The accused was charged with first degree murder – The trial judge directed a verdict of not guilty after ruling inculpatory statements inadmissible – The Crown elected to call no evidence – The accused claimed the Crown was precluded from appealing the acquittal under s. 686(4)(b)(i) of the Criminal Code, because there was no substantial wrong or miscarriage of justice even if the evidence was admissible, where the Crown elected not to introduce other evidence in its possession supporting a conviction – The Ontario Court of Appeal stated that the Crown did not unreasonably decline to present substantial evidence in its possession which would support a conviction merely to appeal an adverse ruling on the admissibility of evidence – The Supreme Court of Canada agreed – See paragraph 65.
Criminal Law – Topic 5045
Appeals – Indictable offences – Dismissal of appeal if error resulted in no substantial wrong or miscarriage of justice – Substantial wrong or miscarriage of justice – What constitutes – [See
Criminal Law – Topic 4951
].
Criminal Law – Topic 5340
Evidence – Witnesses – Confessions and voluntary statements – Admissibility – Effect of mental capacity of accused – A schizophrenic accused was compelled by internal voices to make inculpatory statements – He had been advised of his right to counsel and right to remain silent, was found fit to stand trial, understood what he said, what was said to him and the court process – The accused merely did not care about the consequences of his statements – The Supreme Court of Canada held that the statements were admissible, stating that “the [accused’s] mental condition satisfied the operating mind test including the subjective element … There was no obligation on the Crown to establish that the [accused] possessed a higher degree of cognitive capacity. … 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’ … 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 police.” – See paragraphs 54 to 55.
Criminal Law – Topic 5340
Evidence – Witnesses – Confessions and voluntary statements – Admissibility – Effect of mental capacity of accused – The Supreme Court of Canada discussed the admissibility of confessions by persons with mental disorders, such as schizophrenia – The court stated that “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 applied 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.” – See paragraphs 49 to 51.
Criminal Law – Topic 5355
Evidence – Witnesses – Confessions and voluntary statements – Whether statement made freely and voluntarily – [See both
Criminal Law – Topic 5340
].
Cases Noticed:
R. v. Clarkson, [1986] 1 S.C.R. 383; 66 N.R. 114; 69 N.B.R.(2d) 40; 177 A.P.R. 40; 50 C.R.(3d) 289; 25 C.C.C.(3d) 207; 26 D.L.R.(4th) 493; 19 C.R.R. 209, refd to. [para. 18].
R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; 18 D.L.R.(4th) 655; [1985] 4 W.W.R. 286; 32 M.V.R. 153; 45 C.R.(3d) 97; 18 C.C.C.(3d) 481, refd to. [para. 18].
R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1; [1990] 5 W.W.R. 1; 57 C.C.C.(3d) 1; 77 C.R.(3d) 145; 49 C.R.R. 114; 47 B.C.L.R.(2d) 1, refd to. [para. 22].
R. v. Banas (1982), 65 C.C.C.(2d) 224 (Ont. C.A.), refd to. [para. 27].
R. v. Chaulk and Morrissette, [1990] 3 S.C.R. 1303; 119 N.R. 161; 69 Man.R.(2d) 161; [1991] 2 W.W.R. 385; 62 C.C.C.(3d) 193; 1 C.R.R.(2d) 1; 2 C.R.(4th) 1, refd to. [para. 31].
R. v. Taylor (D.R.M.) (1992), 59 O.A.C. 43; 77 C.C.C.(3d) 551 (C.A.), refd to. [para. 32].
Ibrahim v. The King, [1914] A.C. 599, refd to. [para. 34].
R. v. Fitton, [1956] S.C.R. 958, refd to. [para. 34].
R. v. Ward, [1979] 2 S.C.R. 30; 25 N.R. 514; 14 A.R. 412, refd to. [para. 35].
R. v. Horvath, [1979] 2 S.C.R. 376; 25 N.R. 537, refd to. [para. 37].
R. v. Nagothcha, [1980] 1 S.C.R. 714; 32 N.R. 204, refd to. [para. 38].
R. v. Santinon (1973), 11 C.C.C.(2d) 121 (B.C.C.A.), refd to. [para. 38].
R. v. Lapointe and Sicotte, [1987] 1 S.C.R. 1253; 76 N.R. 228; 21 O.A.C. 176, affing (1983), 1 O.A.C. 1; 9 C.C.C.(3d) 366 (C.A.), refd to. [para. 42].
Godinez v. Moran (1993), 113 S.Ct. 2680, refd to. [para. 47].
R. v. Evans, [1991] 1 S.C.R. 869; 124 N.R. 278; 63 C.C.C.(3d) 289; 4 C.R.(4th) 144; 3 C.R.R.(2d) 315, refd to. [para. 57].
R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269, refd to. [para. 65].
Statutes Noticed:
Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 29]; sect. 10(b), sect. 24(2) [para. 18].
Criminal Code, R.S.C. 1985, c. C-46, sect. 2 [para. 32]; sect. 686(4)(b)(i) [para. 28].
Authors and Works Noticed:
Weiner, B.A., Mental Disability and the Criminal Law, in The Mentally Disabled and the Law (3rd Ed. 1985), p. 696 [para. 47].
Counsel:
James Lockyer, for the appellant;
David Finley, for the respondent.
Solicitors of Record:
Pinkofsky, Lockyer, Kwinter, Toronto, Ontario, for the appellant;
Ministry of the Attorney General, Toronto, Ontario, for the respondent.
This appeal was heard on February 25, 1994, before Lamer, C.J.C., La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.
On September 1, 1994, Sopinka, J., delivered the following judgment of the Supreme Court of Canada in both official languages.
