R. v. Elshaw, [1991] 3 S.C.R. 24 (1991)
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R. v. Elshaw, [1991] 3 S.C.R. 24 (1991)
R. v. Elshaw, [1991] 3 S.C.R.
24William Edward Elshaw Appellant v.Her Majesty The Queen RespondentIndexed as: R. v. ElshawFile No.: 21614.1991: May 9; 1991: September 26.Present: Lamer C.J. and L'Heureux-Dubé, Sopinka, Gonthier, McLachlin, Stevenson and Iacobucci JJ.on appeal from the court of appeal for british columbiaConstitutional law -- Charter of Rights -- Admissibility of evidence -- Bringing administration of justice into disrepute -- Accused making incriminating statement to police officer while being held in van -- Accused's right to counsel violated -- Whether incriminating statement should be admitted into evidence -- Canadian Charter of Rights and Freedoms, s. 24(2).Appellant had been seen in a park with young boys in suspicious circumstances. The police were called and appellant was stopped when he attempted to leave the park by jumping a fence. The officer obtained identification from him, advised him that he was being investigated for possible child molesting, and placed him in the back of a police van. The police then questioned both the adult witnesses and the boys. About five minutes later, one of the officers opened the van door and engaged in a conversation with appellant in which appellant said he sometimes had "these urges, not so much with little boys, but more with little girls", and admitted his need for help. At no time prior to this conversation was appellant informed of his right to retain and instruct counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms, or of his common law right to remain silent. After the conversation, he was driven to the police station, formally charged with vagrancy and advised of his right to retain and instruct counsel. Charges of assault and attempted sexual assault were added later.At trial, a voir dire was held to determine the admissibility of the conversation between appellant and the police officer. Defence counsel sought to have the evidence excluded under s. 24(2) of the Charter on the basis that appellant's s. 10(b) right had been infringed while he was detained in the patrol van. The trial judge admitted the evidence. Neither appellant nor the boys testified at the trial. Appellant was acquitted on the charges of simple assault but convicted on the two counts of attempted sexual assault. The court then granted the Crown's application to have appellant declared a dangerous offender pursuant to Part XXI of the Criminal Code and appellant was given an indeterminate sentence. An appeal to the Court of Appeal was dismissed.Held (L'Heureux-Dubé J. dissenting): The appeal should be allowed and a new trial ordered.Per Lamer C.J. and Sopinka, Gonthier, McLachlin, Stevenson and Iacobucci JJ.: In view of the specific findings of the lower courts that there was a detention in this case, as conceded by the Crown, the sole issues before the Court were (1) the appropriate test under s. 24(2) of the Charter for the admission of a self-incriminating statement obtained following a violation of the accused's s. 10(b) Charter rights and (2) the Crown's alternative argument concerning the availability of the curative provision in s. 686(1)(b)(iii) of the Criminal Code.The factors to be considered in determining whether the admission of evidence in proceedings would bring the administration of justice into disrepute can be divided into three groups based on their effect on the repute of the administration of justice. The first group of factors are those relating to the fairness of the trial. The second group relates to the seriousness of the Charter violations as shown by the conduct of the law enforcement authorities. The third group of factors deals with the possibility that the administration of justice could be brought into disrepute by excluding the evidence even though it was obtained in violation of the Charter. The measure of seriousness is a function of the deliberate or non-deliberate nature of the violation by the authorities, circumstances of urgency and necessity, and other aggravating or mitigating factors.The self-incriminating statement should not have been admitted in this case. The violation of appellant's rights was serious. What was important was the fact that the police obtained evidence from a detained person prior to fulfilling their responsibilities under s. 10(b), not the relatively short period of time during which appellant was detained. The violation of s. 10(b) arose when the police officer began to question appellant without advising him that he could retain a lawyer. The statement obtained under these conditions contributed substantially to his conviction. It was also used to provide a nexus to similar fact evidence regard...See the full content of this document
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