R. v. Anderson, (1984) 2 O.A.C. 258 (CA)

• Judge: Houlden, Cory and Tarnopolsky, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: Tuesday February 07, 1984
• Jurisdiction: Ontario
• Citations: (1984), 2 O.A.C. 258 (CA);1984 CanLII 2197 (ON CA);1984 CanLII 2197 (NS CA);45 OR (2d) 225;7 DLR (4th) 306;10 CCC (3d) 417;39 CR (3d) 193;2 OAC 258;9 CRR 161

R. v. Anderson (1984), 2 O.A.C. 258 (CA)

MLB headnote and full text

R. v. Anderson

Indexed As: R. v. Anderson

Ontario Court of Appeal

Houlden, Cory and Tarnopolsky, JJ.A.

March 2, 1984.

Summary:

The accused was charged with break, enter and theft contrary to s. 306(1) of the Criminal Code of Canada. The Crown's case consisted of a confession by the accused. Following a voir dire re the admissibility of the confession, the trial judge held that the confession was inadmissible because the accused's right to counsel was denied. Without sufficient evidence upon which to found a conviction, the charge was dismissed. The Crown appealed the acquittal.

The Ontario Court of Appeal allowed the appeal and ordered a new trial. The Court of Appeal held that the accused's right to counsel was not denied.

Civil Rights - Topic 4604

Right to counsel - Denial of - What constitutes - Upon arrest, the accused was advised that he had the right to contact a lawyer and could do so upon arriving at the police station - At the station, before being questioned, he was informed of his right to retain and instruct counsel without delay - The accused replied that he understood - There was no evidence that the accused at any time asked to call counsel, or that special circumstances existed suggesting that the accused did not understand his rights - The Ontario Court of Appeal held that the accused's right to counsel was not denied - See paragraphs 3 to 10, 32 to 42.

Civil Rights - Topic 4608

Right to counsel - Right to be advised of - The Ontario Court of Appeal set out the extent of the requirement in s. 10(b) of the Canadian Charter of Rights and Freedoms that the accused has the right to be informed of the right to retain and instruct counsel without delay - See paragraphs 14, 32 to 33.

Civil Rights - Topic 4608

Right to counsel - Right to be advised of - Under s. 10(b) of the Canadian Charter of Rights and Freedoms, the accused has the right to be informed of the right to retain and instruct counsel without delay - The Ontario Court of Appeal held that the right did not impose a requirement on the police to inform the accused of how he could contact a lawyer and that if he could not afford a lawyer, legal aid was available - See paragraph 38.

Civil Rights - Topic 4620

Right to counsel - Evidence and proof - The Ontario Court of Appeal held that absent proof that the accused did not understand his right to retain counsel when he was informed of the right, the accused must prove that he asked for the right but it was denied or he was denied any opportunity to even ask for it - See paragraph 42.

Criminal Law - Topic 4860

Appeals - Indictable offences - Grounds of appeal - Question of law alone - The Ontario Court of Appeal held that a trial judge's finding that a Charter right was denied was a question of law and therefore appealable by the Crown pursuant to s. 605(1)(a) of the Criminal Code of Canada - See paragraphs 11 to 12.

Cases Noticed:

R. v. Stevens (1983), 7 C.C.C.(3d) 260 (Ont. C.A.), folld. [para. 12].

R. v. Cohen (1983), 148 D.L.R.(3d) 78 (B.C.C.A.), appld. [para. 12].

R. v. Heaslip et al. (1984), 1 O.A.C. 81 (Ont. C.A.), folld. [para. 12].

R. v. Nelson (1982), 3 C.C.C.(3d) 147 (Man. Q.B.), consd. [para. 21].

R. v. Manninen (1984), 1 O.A.C. 199 (Ont. C.A.), consd. [para. 29].

Brownridge v. The Queen (1972), 7 C.C.C.(2d) 418 (S.C.C.), consd. [para. 40].

R. v. Jumaga (1976), 9 N.R. 102; 68 D.L.R.(3d) 639 (S.C.C.), consd. [para. 40].

R. v. Morin (1980), 64 C.C.C.(2d) 90 (Alta. C.A.), consd. [para. 41].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 10(b) [paras. 11 to 16, 21, 30, 32 to 34, 37 to 38, 41].

Counsel:

S. Casey Hill, for appellant;

Harvey A. Swartz and Anne E. Freed, for respondent.

This appeal was heard before Houlden, Cory and Tarnopolsky, JJ.A., of the Ontario Court of Appeal on February 7, 1984. The decision of the Court of Appeal was delivered by Tarnopolsky, J.A., and released on March 2, 1984.