R. v. Duguay, Murphy and Sevigny, (1985) 8 O.A.C. 31 (CA)

• Jurisdiction: Ontario
• Judge: MacKinnon, A.C.J.O., Martin and Zuber, JJ.A.
• Citation: (1985), 8 O.A.C. 31 (CA),1985 CanLII 112 (ON CA),1985 CanLII 112 (NS CA),50 OR (2d) 375,18 DLR (4th) 32,18 CCC (3d) 289,45 CR (3d) 140,[1985] OJ No 2492 (QL),17 CRR 203,8 OAC 31
• Court: Court of Appeal (Ontario)
• Date: 28 March 1985

R. v. Duguay (1985), 8 O.A.C. 31 (CA)

MLB headnote and full text

R. v. Duguay, Murphy and Sevigny

Indexed As: R. v. Duguay, Murphy and Sevigny

Ontario Court of Appeal

MacKinnon, A.C.J.O., Martin and Zuber, JJ.A.

March 28, 1985.

Summary:

After a house burglary police officers arrested three 17 year old boys. The police had no evidence that the boys committed the burglary, only a suspicion. The arrests were made in the hope of obtaining evidence. The ploy was successful: confessions were obtained, which led to recovery of the stolen goods and fingerprint evidence. The trial judge acquitted the accused after excluding all of the Crown's evidence under s. 24(2) of the Charter on the ground that it was obtained as a result of the arrest of the boys in violation of s. 9 of the Charter, there being no grounds to arrest them. The Crown appealed.

The Ontario Court of Appeal dismissed the appeal. The court affirmed that the arrest was unlawful as a violation of s. 9. The court further held (Zuber, J.A., dissenting) that exclusion of the evidence was appropriate, because admission of the evidence would bring the administration of justice into disrepute by sanctioning a blatantly illegal arrest.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - Arbitrary detention - What constitutes - Charter, s. 9 - After a house burglary police officers arrested three 17 year old boys - The police had no evidence that the boys committed the burglary, only a suspicion - The arrests were made in the hope of obtaining evidence, a ploy which was successful: confessions were obtained, which led to recovery of the stolen goods and fingerprint evidence - The Ontario Court of Appeal affirmed that the arrest of the boys constituted arbitrary detention within the meaning of s. 9 of the Charter, because there were no grounds to arrest them - The court stated that an unlawful detention is not necessarily arbitrary, but that it was improper and arbitrary to arrest to further an investigation - The court stated that arbitrariness depends on the extent of the departure from the standard of reasonable and probable grounds for arrest and the honesty of belief in the existence of reasonable and probable grounds - See paragraphs 24 to 28.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Ontario Court of Appeal affirmed the exclusion of evidence obtained as a direct result of illegal arrests contrary to s. 9 of the Charter, because to admit the evidence would sanction blatantly illegal police conduct - See paragraphs 29 to 40.

Civil Rights - Topic 8550

Canadian Charter of Rights and Freedoms - Interpretation - Particular phrases - Bring the administration of justice into disrepute - Charter, s. 24(2) - Police arrested three 17 year old boys on the mere suspicion of burglary in the hope of obtaining further evidence, a ploy which was successful: confessions were obtained, which led to recovery of the stolen goods and fingerprint evidence - The Ontario Court of Appeal affirmed the exclusion of the evidence on the ground that it was obtained as a direct result of illegal arrests contrary to s. 9 of the Charter, because to admit the evidence would bring the administration of justice into disrepute - The court considered that the arrests were not made in good faith; the offences were not serious; there was no urgency, because the boys were young, their addresses were known and there was no fear of their flight - See paragraphs 29 to 40.

Civil Rights - Topic 8550

Canadian Charter of Rights and Freedoms - Interpretation - Particular phrases - Bring the administration of justice into disrepute - Charter, s. 24(2) - The Ontario Court of Appeal held that the burden is on the accused to show that the admission of illegally obtained evidence will bring the administration of justice into disrepute - See paragraph 30.

Cases Noticed:

R. v. Dedman (1981), 59 C.C.C.(2d) 97, appld. [para. 27].

R. v. Rothman (1981), 35 N.R. 485; 59 C.C.C.(2d) 30, consd. [paras. 31, 51].

Davis v. State of Mississippi (1969), 89 S. Ct. 1394; 394 U.S. 721, consd. [paras. 35, 39].

R. v. Stevens, 7 C.C.C(3d) 260, consd. [para. 38].

R. v. Simmons (1984), 39 C.R.(3d) 223, consd. [para. 53].

R. v. Gibson (1984), 37 C.R.(3d) 175, consd. [para. 57].

R. v. Collins (1983), 33 C.R.(3d) 130, consd. [para. 69].

R. v. Hamill (1985), 14 C.C.C.(3d) 338, consd. [para. 69].

R. v. Colet (1981), 35 N.R. 227; 57 C.C.C.(2d) 105, consd. [para. 72].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, sect. 9 [para. 4]; sect. 24(2) [paras. 29, 49].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 450(1)(a) [para. 22].

Counsel:

John C. Pearson, for the appellant Crown;

A. Kerekes, for the respondents.

This case was heard on January 10, 1984, at Toronto, Ontario, before MacKinnon, A.C.J.O, Martin and Zuber, JJ.A., of the Ontario Court of Appeal.

On March 28, 1985, the judgment of the Court of Appeal was delivered and the following opinions were filed:

MacKinnon, A.C.J.O. - see paragraphs 1 to 41;

Zuber, J.A., dissenting - see paragraphs 42 to 78.

Martin, J.A., concurred with MacKinnon, A.C.J.O.