Section 10(b) Charter Violation Conceded by the Crown by Incriminatory Statements admitted by the Trial Court, and upheld by the Court of Appeal

Published On: Feb 07,2020

Section 10(b) Right to Counsel violation but evidence not excluded under Section 24(2)
2020, Section 10(b) Right to Counsel violation but evidence not excluded under Section 24(2)

Tritely put, the Canadian Charter of Rights and Freedoms (the “Charter”) is the fundamental law in Canada.  It espouses various protections such as the right to counsel.  While it affords robust protection against state encroachments and violations against private citizens, there are limits.  Not all violations of the Charter will result in the exclusion of evidence. For example, In Regina v. Gignac, 2020 ONCA 42 (RD), the Court of Appeal upheld the accused’s convictions for offences related to drugs that were found in a safe in the house where he lived with his wife, despite a breach of his right to counsel under Section 10(b) of the Charter.  With regard to the facts, the when accused was arrested by the Police, he indicated that he did not want to give a statement until after he had consulted counsel. The officer that conducted the arrest continued to read from a pre-printed card to ask twice whether the accused wished to make a statement. The accused indicated that he did not. Thereafter, the accused was handcuffed and placed in a police van.  While detained, he asked the officer whether his wife was going to be arrested. The officer told the accused that there was a search warrant being executed at the accused’s home and that he “couldn’t really give an answer as to whether or not [the accused’s] wife was actually going to be arrested.” At that juncture, the accused then made an incriminatory statement.

The court held that the officer breached the accused’s right to counsel under s.10(b) of the Charter. The officer committed the error described in Regina v.  G.T.D., 2018 SCC 7, [2018] 1 S.C.R. 220, by querying the accused two (2) times as to whether he wished to make a statement after the accused said he wanted to speak to counsel.  This is case where the Crown properly conceded that the temporal connection between the admitted Charter violations and the appellant’s incriminatory statements is sufficient to require a consideration of s. 24(2) of the Charter.  However, the court rejected the accused’s submission that the officer’s truthful response to his question breached his s.10(b) Charter rights because it amounted to an elicitation of a statement.

The court also held that there was a temporal connection between the Charter breaches and the incriminatory statement. This was sufficient to engage s.24(2) of the Charter. Despite the dicta in Regina v. Pino, 2016 ONCA 389, the court refused to exclude the statement under s.24(2). The court noted the following: the officer acted in good faith; although the officer’s pre-printed card, which indicated what was to be read to an accused person, raised concerns about systemic failures to protect Charter rights, there was “a degree of legal uncertainty on this issue that tempered the seriousness of the breach” (at para. 13); there was no causal connection between the Charter breaches and the accused’s statement; the statement was voluntary; and it was reliable evidence. The court concluded that admitting the statement would not bring the administration of justice into disrepute.

If you have been charged with a Criminal Offence, call Mr. J. S. Patel, Barrister to arrange a consultation at 403-585-1960.