R. v. Black (C.V.), (1989) 93 N.S.R.(2d) 35 (SCC)

• Judge: Lamer, Wilson, La Forest, L'Heureux-Dubé and Sopinka, JJ.
• Court: Supreme Court (Canada)
• Case Date: August 10, 1989
• Jurisdiction: Canada (Federal)
• Citations: (1989), 93 N.S.R.(2d) 35 (SCC)

R. v. Black (C.V.) (1989), 93 N.S.R.(2d) 35 (SCC);

    242 A.P.R. 35

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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Cynthia Virginia Black (appellant) v. Her Majesty the Queen (respondent)

(20292)

Indexed As: R. v. Black (C.V.)

Supreme Court of Canada

Lamer, Wilson, La Forest, L'Heureux-Dubé and Sopinka, JJ.

August 10, 1989.

Summary:

The accused was charged with second degree murder. Following a voir dire the trial judge ruled that an inculpatory statement and evidence by the accused as to location of the alleged murder weapon were inadmissible. The trial judge held that the accused's right to counsel was denied and admission of the evidence would bring the administration of justice into disrepute. The jury returned a verdict of guilty of manslaughter and the accused was sentenced to four years' imprisonment. The Crown appealed, submitting that the trial judge erred in finding an infringement of the accused's right to counsel and in excluding the evidence. The Crown also appealed against sentence.

The Nova Scotia Supreme Court, Appeal Division, Jones, J.A., dissenting, in a judgment reported 77 N.S.R.(2d) 23; 191 A.P.R. 23, allowed the appeal and ordered a new trial on the second degree murder charge. The court held that there was no denial of the right to counsel and, in any event, admission of the evidence would not bring the administration of justice into disrepute, therefore, the evidence should not have been excluded. The accused appealed.

The Supreme Court of Canada allowed the appeal and restored the verdict of the jury. The court held that the accused's right to counsel was denied and the inculpatory statement was properly excluded from evidence under s. 24(2) of the Charter. The court held that the physical evidence of the alleged murder weapon itself was admissible.

Civil Rights - Topic 4601

Right to counsel - General - The Supreme Court of Canada stated that the right to counsel under s. 10(b) of the Charter of Rights and Freedoms gave an accused or detained person the right to consult with counsel of his choice - Only where that choice caused an unreasonable delay was the accused obligated to accept another lawyer - See paragraph 29.

Civil Rights - Topic 4604

Right to counsel - Denial of - What constitutes - An accused arrested for attempted murder was advised of and exercised her right to counsel - The victim died - The accused was told she would now be charged with second-degree murder - The Supreme Court of Canada stated that considering the significant difference in the charges, the first consultation with counsel respecting the first charge did not constitute a full exercise of her right to counsel with respect to the more serious charge - The court stated that it would be sheer conjecture to conclude that the subsequent legal advice would inevitably be the same - See paragraphs 22 to 26.

Civil Rights - Topic 4605

Right to counsel - Denial of - Due to lack of time or opportunity - The Supreme Court of Canada stated that police must give an accused a reasonable opportunity to retain and instruct counsel without delay - The police must not attempt to elicit evidence from the accused until the accused has had a reasonable opportunity to retain and instruct counsel - The court stated that "the accused must be reasonably diligent in attempting to obtain counsel if he wishes to do so", otherwise the correlative duty on police to refrain from questioning the accused is suspended - See paragraphs 27 to 28.

Civil Rights - Topic 4605

Right to counsel - Denial of - Due to lack of time or opportunity - An accused arrested for attempted murder was advised of and exercised her right to counsel in relation to that charge - The victim died - The accused was advised she would be charged with second-degree murder and was again advised of her rights - Several attempts to recontact her lawyer at 1:40 a.m. were unsuccessful, as the line was busy -Police believed the phone was off the hook - The police then sought and obtained an inculpatory statement and evidence of the location of the murder weapon - The Supreme Court of Canada held that the accused's right to counsel was denied - The court stated that given the seriousness of the charge and the lack of urgency, it was not unreasonable to delay for eight hours until the lawyer's normal office hours - See paragraphs 22 to 30.

Civil Rights - Topic 4612

Right to counsel - Waiver or abandonment of - The Supreme Court of Canada stated that because an accused's inculpatory statement, given after a denial of the right to counsel, emanated from an "operating mind" did not mean the accused waived her right to counsel - A waiver occurred only where "it is clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process" - See paragraphs 31 to 35.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Supreme Court of Canada stated that the three groups of factors to consider to determine whether admission of evidence would bring the administration of justice into disrepute were: (1) fairness of the trial; (2) seriousness of the Charter breach as defined by the conduct of law enforcement authorities; (3) whether excluding the evidence would bring the administration of justice into disrepute - The court stated that admission of the accused's inculpatory statement would adversely affect the fairness of the trial and admission of it would bring the administration of justice into disrepute by infringing the accused's right against self-incrimination - The court held that the statement was properly excluded under s. 24(2).

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Police retrieved a murder weapon after the accused disclosed its location - The disclosure followed a denial of the accused's right to counsel - The Supreme Court of Canada held that evidence relating to the accused's conduct in retrieving the knife and any words uttered should be excluded to avoid bringing the administration of justice into disrepute - However, the weapon as a physical entity preexisted the Charter breach and would have been obtained in any event pursuant to a search warrant - Accordingly, the weapon itself was admissible in evidence - See paragraphs 39 to 46.

Civil Rights - Topic 8462

Canadian Charter of Rights and Freedoms - Interpretation - Purposive test - The Supreme Court of Canada stated that "a purposive analysis must be undertaken when interpreting Charter provisions" - See paragraph 22.

Civil Rights - Topic 8550

Canadian Charter of Rights and Freedoms - Interpretation - Bring the administration of justice into disrepute - [See both Civil Rights - Topic 8368 above].

Cases Noticed:

R. v. Anderson (1984), 2 O.A.C. 258; 10 C.C.C.(3d) 417 (C.A.), refd to. [para. 14].

R. v. Manninen (1983), 1 O.A.C. 199; 8 C.C.C.(3d) 193 (C.A.), refd to. [para. 16].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 27 B.L.R. 297; 44 Alta. L.R.(2d) 193; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 11 D.L.R.(4th) 641; 2 C.P.R.(3d) 1; [1984] 6 W.W.R. 577; 41 C.R.(3d) 97; 84 D.T.C. 6467, refd to. [para. 22].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; [1985] 3 W.W.R. 481, refd to. [para. 22].

R. v. Clarkson, [1986] 1 S.C.R. 383; 66 N.R. 114; 69 N.B.R.(2d) 40; 177 A.P.R. 40; 25 C.C.C.(3d) 207; 50 C.R.(3d) 289, refd to. [para. 22].

R. v. Ancio, [1984] 1 S.C.R. 225; 52 N.R. 161, refd to. [para. 24].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; [1985] 4 W.W.R. 286; 18 C.C.C.(3d) 481, refd to. [para. 25].

R. v. Trask, [1985] 1 S.C.R. 655; 59 N.R. 145; 54 Nfld. & P.E.I.R. 221; 160 A.P.R. 221, refd to. [para. 25].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192, consd. [para. 27].

R. v. Leclair and Ross, [1989] 1 S.C.R. 3; 91 N.R. 81; 31 O.A.C. 321, consd. [para. 27].

R. v. Tremblay, [1987] 2 S.C.R. 435; 79 N.R. 153; 25 O.A.C. 93, refd to. [para. 28].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; 33 C.C.C. (3d) 1; [1987] 3 W.W.R. 699, refd to. [para. 36].

R. v. Simmons, [1988] 2 S.C.R. 495; 89 N.R. 1; 30 O.A.C. 241, refd to. [para. 36].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273, refd to. [para. 39].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 10, sect. 24(1), sect. 24(2) [para. 20].

Counsel:

Joel Pink, Q.C., for the appellant;

John D. Embree, for the respondent.

Solicitors of Record:

Stewart, MacKeen & Covert, Halifax, Nova Scotia, for the appellant;

John D. Embree, Halifax, Nova Scotia, for the respondent.

This appeal was heard on February 1, 1989, before Lamer, Wilson, La Forest, L'Heureux-Dubé and Sopinka, JJ., of the Supreme Court of Canada.

On August 10, 1989, Wilson, J., delivered the following judgment for the Supreme Court of Canada in both official languages.