R. v. Harper, (1994) 172 N.R. 91 (SCC)

• Judge: McLachlin, Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: September 29, 1994
• Jurisdiction: Canada (Federal)
• Citations: (1994), 172 N.R. 91 (SCC);118 DLR (4th) 312;33 CR (4th) 61;[1994] SCJ No 71 (QL);[1994] 3 SCR 343;23 CRR (2d) 291;1994 CanLII 68 (SCC);97 Man R (2d) 1;6 MVR (3d) 138;79 WAC 1;172 NR 91;92 CCC (3d) 423

R. v. Harper (1994), 172 N.R. 91 (SCC)

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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Marcel George Harper (appellant) v. Her Majesty The Queen (respondent)

(23160)

Indexed As: R. v. Harper

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-

Dubé, Sopinka, Gonthier, Cory,

McLachlin, Iacobucci and Major, JJ.

September 29, 1994.

Summary:

The accused was charged with assault causing bodily harm. He sought to have an inculpatory statement he made to police excluded, arguing that his s. 10(b) Charter rights (i.e., his rights to counsel) were vio­lated.

The Manitoba Court of Queen's Bench, per Darichuk, J., admitted the inculpatory state­ment, holding that the accused understood his legal rights and that Legal Aid was available. The accused was convicted. The accused appealed.

The Manitoba Court of Appeal, in a deci­sion reported 78 Man.R.(2d) 227; 16 W.A.C. 227, dismissed the appeal, holding that there was no breach of s. 10(b). The accused appealed again.

The Supreme Court of Canada held that the accused suffered a violation of his right to counsel under s. 10(b) because he was not informed of the availability of immediate, free and preliminary legal advice from duty counsel. The court held, however, that his inculpatory statement should not be excluded under s. 24(2) of the Charter. The court dismissed the accused's appeal.

Civil Rights - Topic 4601

Right to counsel - General - The Supreme Court of Canada reiterated that "... a detainee is entitled under the information component of the right to counsel under s. 10(b) of the Charter to be advised of whatever system for free and immediate, preliminary legal advice which exists in the jurisdiction at the time and of how such advice can be accessed" - See para­graph 9.

Civil Rights - Topic 4602

Right to counsel - Denial of - Evidence taken inadmissible - While police were investigating a domestic dispute, the accused was informed of his right to counsel and legal aid (Charter, s. 10(b)) - The accused stated that "... I did that to her ..." - Convicted of assault causing bodily harm - The Supreme Court of Canada held that the accused's counsel rights were violated because police failed to inform him of the availability of im­mediate, free and preliminary legal advice from duty counsel - The court held, how­ever, that the accused's inculpatory state­ment would have been made even if his rights had not been violated - Therefore, admission of the statement would not significantly affect the trial's fairness and the violation was minor - The statement should not be excluded under s. 24(2) of the Charter.

Civil Rights - Topic 4604

Right to counsel - Denial of - What con­stitutes - [See Civil Rights - Topic 4602 ].

Civil Rights - Topic 4609

Right to counsel - Duty of authority to explain right to counsel - [See Civil Rights - Topic 4602 ].

Civil Rights - Topic 4617.1

Right to counsel - Notice - Sufficiency of - [See Civil Rights - Topic 4601 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 4602 ].

Cases Noticed:

R. v. Bartle (K.) (1994), 172 N.R. 1; 74 O.A.C. 161 (S.C.C.), appld. [para. 1 et seq.].

R. v. Baldwin (E.O.M.) - see R. v. Bartle (K.).

R. v. Pozniak (W.) (1994), 172 N.R. 72; 74 O.A.C. 232 (S.C.C.), refd to. [para. 1].

R. v. Matheson (R.N.) (1994), 172 N.R. 108; 123 Nfld. & P.E.I.R. 271; 382 A.P.R. 271 (S.C.C.), refd to. [para. 1].

R. v. Prosper (1994), 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321 (S.C.C.), refd to. [para. 1].

R. v. Brydges, [1990] 1 S.C.R. 190; 103 N.R. 282; 104 A.R. 124; 53 C.C.C.(3d) 330; 74 C.R.(3d) 129; [1990] 2 W.W.R. 220; 71 Alta. L.R.(2d) 145, refd to. [para. 6].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273; 46 C.C.C.(3d) 479; 67 C.R.(3d) 87; 56 D.L.R.(4th) 673; 37 C.R.R. 335; [1989] 1 W.W.R. 385, refd to. [para. 13].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 28 C.R.R. 122; 13 B.C.L.R.(2d) 1, refd to. [paras. 14, 31].

R. v. Schmautz, [1990] 1 S.C.R. 398; 106 N.R. 81; 53 C.C.C.(3d) 556; 75 C.R.(3d) 129; 45 C.R.R. 245; 44 B.C.L.R.(2d) 273, refd to. [para. 17].

Statutes Noticed:

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

Authors and Works Noticed:

Prairie Research Associates, Duty Counsel Systems: Summary Report (April 1993), p. 34 [para. 9].

Prairie Research Associates, Duty Counsel Systems: Technical Report (April 1993), p. 4-95 [para. 9].

Counsel:

Bill Armstrong, for the appellant;

Donna J. Miller, Q.C., for the respondent.

Solicitors of Record:

Bill Armstrong, Winnipeg, Manitoba, for the appellant;

Attorney General of Manitoba, Winnipeg, Manitoba, for the respondent.

This case was heard on March 2 and 3, 1994, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada. The decision of the court was delivered in both official languages on September 29, 1994, including the following opinions:

Lamer, C.J.C. (La Forest, Sopinka, Gonthier, Cory and Iacobucci, JJ.A., concurring) - see paragraphs 1 to 19;

McLachlin, J., concurring - see para­graphs 20 to 25;

Major, J., concurring in the result - see paragraphs 26 to 28;

L'Heureux-Dubé, J., concurring in the result - see paragraphs 29 to 33.