Erven v. The Queen, [1979] 1 S.C.R. 926 (1978)

SUPREME COURT OF

CANADA

Erven v. The Queen, [1979] 1 S.C.R. 926

Date: 1978-12-21

Keith Bruce Erven Appellant;

and

Her Majesty The Queen Respondent.

1978: March 9, 10; 1978: December 21.

Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.

ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA, APPEAL DIVISION

Criminal law - Evidence - Rights of the accused - Voir dire - Extent of procedural safeguards neces­sary to have inadmissible statements withheld from the trier of fact.

The appellant was alleged to have been part of a large scale operation to traffic in hashish. The plan was that the hashish was to be cached on the Cape La Have Islands, just off the coast of Nova Scotia, and to be taken from there by helicopter to the mainland for packaging and resale. The appellant was a passenger on one of these flights but there was no direct evidence that he was aware of the nature of the cargo. Subsequent to the flight, appellant and another passenger were ques­tioned by uniformed R.C.M.P. officers and they and others were arrested shortly thereafter. During the time they were in custody they were interviewed by two officers and according to the evidence of one of these officers "as a result of conversation with the accused and with some of the co-accused" they went to a cottage and removed some articles (clothing and toiletries) which they brought to the jail. Some of these were given to the accused "because he requested them". It was clear that the trial judge regarded this evidence as important and he commented that the acceptance of the clothing was unexplained and that the cabin from which the clothes had been taken was where some 1765 1/4 lbs. of cannabis resin had been found. Appellant was con­victed in the County Court Judges Criminal Court, without a jury, on a charge of having in his possession cannabis resin for the purposes of trafficking. The Appeal Division dismissed his subsequent appeal.

The interview when the accused and the other passen­ger were confronted by two uniformed R.C.M.P. officers was admitted into evidence by the judge without a voir dire despite the objection of counsel. Only one of the officers testified and the accused did not. That officer testified that he and his colleague had merely been investigating complaints from a person suspicious of what was going on. The trial judge regarded an affirma­tive response by the appellant to one of the constable's questions as an adoption by him of his companion's false story. Although the exact words were not disclosed the fact of the subsequent conversations regarding the cloth­ing was also admitted without a voir dire again over the objection of counsel.

Held (Martland, Ritchie and Pigeon JJ. dissenting): The appeal should be allowed.

Per Laskin C.J. and Spence, Dickson and Estey JJ.: This appeal affords an opportunity for further clarifica­tion of the question of the admissibility of statements made by an accused to persons in authority. The ques­tion essentially is whether a voir dire is always required in respect of such statements or whether no voir dire is needed if the statement is "obviously volunteered". A voir dire is clearly necessary if the statement in question is made to police during investigation of a crime just as it is necessary for statements made after the accused is in custody, after he has been charged and after a decision to charge him has been reached. The view that a voir dire is unnecessary where the statement is "volun­teered" or obviously volunteered is unsound. Quite apart from doubt as to whether the "voluntariness" test does encourage practical efficiency in the conduct of trials, other interests must be considered viz. the assurance of a full hearing of the evidence of both sides on the issue of voluntariness; the maintenance of the rights of the ac...

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