R. v. Willier (S.J.) (2010), 406 N.R. 218 (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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Temp. Cite: [2010] N.R. TBEd. OC.004
Stanley James Willier (appellant) v. Her Majesty The Queen (respondent) and Attorney General of Ontario, Attorney General of British Columbia, Director of Public Prosecutions of Canada, Criminal Lawyers’ Association of Ontario, British Columbia Civil Liberties’ Association and Canadian Civil Liberties Association (intervenors)
(32769; 2010 SCC 37; 2010 CSC 37)
Indexed As: R. v. Willier (S.J.)
Supreme Court of Canada
McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
October 8, 2010.
Summary:
An accused was acquitted of murder following a voir dire ruling that his statement to police was obtained in violation of his s. 10(b) Charter right to counsel and was excluded under s. 24(2). The Crown acknowledged that it was unable to prove the offence without the statement. The Crown appealed.
The Alberta Court of Appeal, in a judgment reported (2008), 429 A.R. 135; 421 W.A.C. 135, allowed the appeal and ordered a new trial. The accused’s right to counsel was either waived or not denied and, in any event, the statement should not have been excluded under s. 24(2). The accused appealed.
The Supreme Court of Canada dismissed the appeal.
Civil Rights – Topic 4604
Right to counsel – General – Denial of or interference with – What constitutes – An accused arrested for murder spent a total of four minutes in two phone conversations with a Legal Aid lawyer twice – The accused submitted that he received inadequate legal advice and that the lack of competent advice, by itself, violated his s. 10(b) Charter right to counsel – The Alberta Court of Appeal rejected the submission – The police had no way of knowing that inadequate advice was obtained – The court stated that “the telephone calls are privileged, and the police are not entitled to listen in on them, or to ask the detained person what advice was given. Even if the detained person blurted out the advice, it would be inappropriate for the police to second-guess that advice, as that undermines the relationship between the detained person and counsel. … Even if the advice was inadequate, that is not something for which the police are responsible. The legal system cannot tolerate a disincentive for an accused to consult competent counsel, or an incentive for competent counsel to give incompetent advice. … The police are required to notify the detained person that he has a right to counsel, not to audit that advice once given. The police should not be expected to stand by the interview room with a stopwatch, and insist that the detained person and counsel stay on the line for some minimum amount of time. For one thing, it is impossible to know what the minimum amount of time might be. Secondly, even if the conversation was lengthy, there is no assurance (and no way the police would know) that the advice given was appropriate, not just verbose. … Whatever other remedies might accrue to the [accused], the quality of the advice, or lack thereof, is not per se a basis for the exclusion of a statement under s. 10(b) of the Charter.” – The Supreme Court of Canada agreed – The police had no duty to monitor the quality of the legal advice given – See paragraphs 37 to 45.
Civil Rights – Topic 4605
Right to counsel – General – Denial of – Due to lack of time or opportunity – The accused was arrested for murder on Saturday – He was taken for emergency medical treatment and not advised of his right to counsel until later that day – He was told he could speak with counsel of his choice, a Legal Aid lawyer or a lawyer from the free legal advice service – The accused said that he would wait until Sunday to talk with a lawyer – No statement was sought or obtained – Upon his release and arrival at the R.C.M.P. detachment around midnight, the accused spoke with Legal Aid duty counsel for three minutes and indicated he was satisfied with the advice – The next morning, the accused asked to speak with a named lawyer of his choice – A call to the lawyer resulted in a message left on his answering machine – The police advised that unless the lawyer checked his messages on the weekend, he would probably not get to speak with him until the next day (Monday) – The police reiterated the accused’s right to talk with the Legal Aid lawyer, which the accused chose to do – The accused was not told that he could not wait to contact the lawyer of his choice – The call lasted one minute – The accused told the officer that the lawyer told him to say nothing – The officer waited almost one hour after the message was left before questioning the accused – The accused was again told of his right to remain silent and that any time he wished to stop and call a lawyer to just tell the officer – The accused then gave a statement – The Alberta Court of Appeal allowed the Crown’s appeal from the trial judge’s exclusion of the statement – The accused spoke with a Legal Aid lawyer twice and understood his right to remain silent – He spoke to the police without a further request to wait until speaking with counsel of choice, which he had been advised he had a right to do – The accused clearly waived his right to remain silent and speak with counsel of choice – The Supreme Court of Canada agreed – There was no need for a Prosper warning where the accused was unsuccessful in contacting counsel of choice and chose to consult with another lawyer rather than waiving his s. 10(b) rights – The court stated that “if [the accused] maintained any continuing desire to speak with [the lawyer of his choice], or wait for him to call back, he was not diligent in exercising that right. There is little more that the police could have done in the circumstances to afford [the accused] a reasonable opportunity to exercise his rights under s. 10(b)” – See paragraphs 37 to 45.
Civil Rights – Topic 4612
Right to counsel – General – Waiver or abandonment of – [See
Civil Rights – Topic 4605
].
Civil Rights – Topic 4620.4
Right to counsel – General – Duty of accused to act diligently – [See
Civil Rights – Topic 4605
].
Civil Rights – Topic 4620.6
Right to counsel – General – Right to counsel of choice – [See
Civil Rights – Topic 4605
].
Cases Noticed:
R. v. Sinclair (T.T.) (2010), 406 N.R. 1; 293 B.C.A.C. 36; 496 W.A.C. 36; 2010 SCC 35, refd to. [para. 1].
R. v. McCrimmon (2010), 406 N.R. 152; 293 B.C.A.C. 144; 496 W.A.C. 144; 2010 SCC 36, refd to. [para. 1].
R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 27].
R. v. Suberu (M.), [2009] 2 S.C.R. 460; 390 N.R. 303; 252 O.A.C. 340, refd to. [para. 30].
R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278, refd to. [para. 31].
R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321, refd to. [para. 31].
R. v. Tremblay, [1987] 2 S.C.R. 435; 79 N.R. 153; 25 O.A.C. 93, refd to. [para. 33].
R. v. Black, [1989] 2 S.C.R. 138; 98 N.R. 281; 93 N.S.R.(2d) 35; 242 A.P.R. 35, refd to. [para. 33].
R. v. Smith, [1989] 2 S.C.R. 368; 99 N.R. 372, refd to. [para. 33].
R. v. Leclair and Ross, [1989] 1 S.C.R. 3; 91 N.R. 81; 31 O.A.C. 321, refd to. [para. 35].
R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1; 2000 SCC 22, refd to. [para. 41].
Statutes Noticed:
Canadian Charter of Rights and Freedoms, 1982, sect. 10(b) [para. 25].
Counsel:
Lauren L. Garcia and Mary MacDonald, for the appellant;
Goran Tomljanovic, Q.C., and Brian Graff, for the respondent;
John S. McInnes and Deborah Krick, for the intervenor, the Attorney General of Ontario;
M. Joyce DeWitt-Van Oosten, for the intervenor, the Attorney General of British Columbia;
David Schermbrucker and Christopher Mainella, for the intervenor, the Director of Public Prosecutions of Canada;
P. Andras Schreck and Candice Suter, for the intervenor, the Criminal Lawyers’ Association of Ontario;
Warren B. Milman and Michael A. Feder, for the intervenor, the British Columbia Civil Liberties Association;
Jonathan C. Lisus, Alexi N. Wood and Adam Ship, for the intervenor, the Canadian Civil Liberties Association.
Solicitors of Record:
Dawson Stevens & Shaigec, Edmonton, Alberta, for the appellant;
Attorney General of Alberta, Calgary, Alberta, for the respondent;
Attorney General of Ontario, Toronto, Ontario, for the intervenor, the Attorney General of Ontario;
Attorney General of British Columbia, Victoria, B.C., for the intervenor, the Attorney General of British Columbia;
Public Prosecution Service of Canada, Winnipeg, Manitoba, for the intervenor, the Director of Public Prosecutions of Canada;
Schreck & Greene, Toronto, Ontario, for the intervenor, the Criminal Lawyers’ Association of Ontario;
McCarthy Tétrault, Vancouver, B.C., for the intervenor, the British Columbia Civil Liberties Association;
McCarthy Tétrault, Toronto, Ontario, for the intervenor, the Canadian Civil Liberties Association.
This appeal was heard on May 12, 2009, before McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada.
On October 8, 2010, the judgment of the Court was delivered in both official languages and the following opinions were filed:
McLachlin, C.J.C., and Charron, J. (Deschamps, Rothstein and Cromwell, JJ., concurring) – see paragraphs 1 to 45;
Binnie, J. – see paragraphs 46 to 47;
LeBel and Fish, JJ. (Abella, J., concurring) – see paragraph 48.
