R. v. Jones (S.), (1994) 43 B.C.A.C. 241 (SCC)

• Judge: Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 12, 1994
• Jurisdiction: Canada (Federal)
• Citations: (1994), 43 B.C.A.C. 241 (SCC)

R. v. Jones (S.) (1994), 43 B.C.A.C. 241 (SCC);

    69 W.A.C. 241

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Scott Jones v. Her Majesty The Queen

(23157)

Indexed As: R. v. Jones (S.)

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.

May 12, 1994.

Summary:

The accused appealed the determination that he was a dangerous offender.

The British Columbia Court of Appeal, in a decision reported 16 B.C.A.C. 161; 28 W.A.C. 161; 75 C.C.C.(3d) 327; 11 C.R.R.(2d) 65, dismissed his appeal. The accused appealed.

The Supreme Court of Canada, Lamer, C.J.C., Sopinka, Cory and Major, JJ., dissent­ing, dismissed the appeal.

Civil Rights - Topic 681

Liberty - Principles of fundamental justice - General - An accused, with a prior record for serious sexual offences, was charged with sexual assaults with a weapon - At his counsel's request, he was remanded for psychiatric evaluations to determine his mental health and fitness to stand trial - He was advised that what he said was not confidential - He challenged the use of the psychiatric evaluations in dangerous offender pro­ceedings - The Supreme Court of Canada held that admission of the pretrial psy­chiatric evaluations did not offend the accused's s. 7 Charter rights - The court stated that a sentencing judge should have access to the fullest possible range of information in order to develop the appro­priate sentence - See paragraphs 32 to 47.

Civil Rights - Topic 4302

Protection against self-incrimination - Right to remain silent - The Supreme Court of Canada, in holding that pretrial psychiatric evaluations were admissible in dangerous offender proceedings, stated that "ss. 7 to 14 Charter protection has a more limited scope when applied to the sentenc­ing process. Once guilt has been estab­lished, our fundamental principles of jus­tice dictate a focus on the most appropriate sentence for the guilty party. To assume that s. 7 post-trial protection should be identical to pretrial and trial protection ignores a rather critical intervening fact: the accused has been found guilty of a crime. Having so found, the court places greater emphasis on the interests of society in developing a sentence that is appropriate to the guilty party" - See paragraphs 39 to 41.

Civil Rights - Topic 4302

Protection against self-incrimination - Right to remain silent - The accused was charged with sexual assaults with a weapon - At his counsel's request, he was remanded for psychiatric examination to determine if he was mentally ill and whether he was fit to stand trial - He was informed that what he said was not confi­dential - A hearing was held to determine whether the accused was a dangerous offender - The accused argued that the doctors' evidence was inadmissible because of violation of his right to silence (Charter, s. 7) - The Supreme Court of Canada held that his s. 7 Charter right was not violated - See paragraphs 21 to 47.

Civil Rights - Topic 4451

Protection against self-incrimination - Where inapplicable - Pretrial psychiatric tests - The accused was charged with sexual assaults - He had a prior record for rape, attempted rape and gross indecency against young girls - At his counsel's request, he was remanded for a psychiatric assessment as to his mental health and fitness to stand trial - He was informed that what he said was not confidential - After his conviction, dangerous offender proceedings were held - The Supreme Court of Canada affirmed that admission of the pretrial psychiatric evidence in the dangerous offender proceedings did not violate the accused's s. 7 Charter right against self-incrimination - See para­graphs 21 to 47.

Civil Rights - Topic 4604

Right to counsel - Denial of, or inter­ference with - What constitutes - The accused was charged with sexual assaults with a weapon - Prior record for rape, gross indecency and attempted rape of three young girls - At his counsel's request, he was remanded for psychiatric examination to determine if he was men­tally ill and whether he was fit to stand trial - He was warned that what he said was not confidential - The accused claimed that the doctors' evidence was inadmissible in dangerous offender pro­ceedings, alleging breach of his s. 10(b) Charter right to counsel by their failure to fully inform him of the extent of his jeop­ardy - The Supreme Court of Canada held that his right to counsel was not breached - See paragraphs 48 to 50.

Civil Rights - Topic 4604

Right to counsel - Denial of, or inter­ference with - What constitutes - The accused was charged with sexual assaults with a weapon - Prior record for rape, gross indecency and attempted rape of three young girls - At his counsel's request, he was remanded for psychiatric evaluation to determine if he was mentally ill and whether he was fit to stand trial - The accused objected to the admission of the doctors' evidence in dangerous offender proceedings, arguing that he should have been re-advised of his right to counsel when the focus of the psychiatric exami­nations changed to the dangerousness of his behaviour - The Supreme Court of Canada held that the accused's right to counsel was not breached - See para­graphs 51 to 53.

Criminal Law - Topic 6501

Dangerous offenders - Detention - Gen­eral - The Supreme Court of Canada, stated that dangerous offender proceedings were part of the sentencing process and did not constitute a separate charge against the accused - "A conclusion that the indi­vidual is a dangerous offender does not constitute a separate finding of culpability any more than any particular sentence generates a distinct culpability" - See paragraphs 21 to 31.

Criminal Law - Topic 6512

Dangerous offenders - Detention - Evi­dence - The accused was charged with sexual assaults with a weapon committed while on parole for serious sexual offences against young girls - On request of his counsel, he was remanded for psychiatric examinations to determine if he was men­tally ill and whether he was fit to stand trial - He was informed that what he said was not confidential - In dangerous offender proceedings, he claimed that admission of the doctors' evidence breached his ss. 7 and 10(b) Charter rights - The Supreme Court of Canada held that the evidence obtained during the pretrial psychiatric evaluations was admissible in the dangerous offender proceedings - See paragraphs 19 to 56.

Criminal Law - Topic 6512

Dangerous offenders - Detention - Evi­dence - At his counsel's request an accused, charged with committing serious sexual assaults while on parole for serious sexual offences, was remanded pursuant to s. 537(1)(b) of the Code for psychiatric evaluation to determine his mental health and fitness to stand trial - The pretrial psychiatric evaluations were admitted in dangerous offender proceedings, where s. 755 of the Code required that psychiatric evidence be tendered at dangerous offender proceedings - The Supreme Court of Canada affirmed that the pretrial psy­chiatric evaluations under the s. 537(1)(b) order were covered by s. 755 and were admissible in the dangerous offender pro­ceedings if the court considered the evi­dence relevant - See paragraph 56.

Criminal Law - Topic 6512

Dangerous offenders - Detention - Pro­tection of the public - Evidence and proof - The Supreme Court of Canada stated that in dangerous offender proceedings "the court should be given access to the widest possible range of information in order to determine whether there is a serious risk to public safety ... The over­riding aim is not the punishment of the offender but the prevention of future vio­lence through the imposition of an indeter­minate sentence. An indeterminate sen­tence is not an unlimited sentence ... The offender faces incarceration only for the period of time that he poses a serious risk to the safety of society" - See paragraphs 43 to 47.

Cases Noticed:

R. v. Langevin (1984), 3 O.A.C. 110; 11 C.C.C.(3d) 336 (C.A.), refd to. [para. 12].

R. v. Wilband, [1967] S.C.R. 14, refd to. [paras. 12, 117].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1; [1990] 5 W.W.R. 1; 57 C.C.C.(3d) 1; 77 C.R.(3d) 145; 49 C.R.R. 114; 47 B.C.L.R.(2d) 1, refd to. [paras. 15, 69].

R. v. Broyles, [1991] 3 S.C.R. 595; 131 N.R. 118; 120 A.R. 189; 8 W.A.C. 189; 8 C.R.R.(2d) 274; [1992] 1 W.W.R. 289; 9 C.R.(4th) 1; 84 Alta. L.R.(2d) 1; 68 C.C.C.(3d) 308, refd to. [paras. 15, 99].

R. v. Black, [1989] 2 S.C.R. 138; 98 N.R. 281; 93 N.S.R.(2d) 35; 242 A.P.R. 35; 50 C.C.C.(3d) 1; 70 C.R.(3d) 97; 47 C.R.R. 171, refd to. [paras. 16, 104].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271; 37 C.C.C.(3d) 1, refd to. [paras. 16, 121].

Estelle v. Smith (1981), 451 U.S. 454 (U.S.S.C.), refd to. [para. 17].

R. v. Potvin (R.), [1993] 2 S.C.R. 880; 155 N.R. 241; 66 O.A.C. 81, refd to. [para. 28].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; 48 C.R.(3d) 289; 23 C.C.C.(3d) 289; [1986] 1 W.W.R. 481, refd to. [paras. 28, 79].

R. v. Wigglesworth, [1987] 2 S.C.R. 541; 81 N.R. 161; 61 Sask.R. 105; 24 O.A.C. 321; 45 D.L.R.(3d) 235; [1988] 1 W.W.R. 193; 60 C.R.(3d) 193; 28 Admin. L.R. 294; 32 C.R.R. 219; 37 C.C.C.(3d) 385, refd to. [paras. 29, 121].

R. v. Brusch, [1953] 1 S.C.R. 373, refd to. [paras. 32, 117].

R. v. Chaulk and Morrissette, [1990] 3 S.C.R. 1303; 119 N.R. 161; 69 Man.R.(2d) 161; [1991] 2 W.W.R. 385; 62 C.C.C.(3d) 193; 1 C.R.R.(2d) 1; 2 C.R.(4th) 1, refd to. [para. 41].

R. v. Wholesale Travel Group Inc. and Chedore, [1991] 3 S.C.R. 154; 130 N.R. 1; 49 O.A.C. 161; 67 C.C.C.(3d) 193; 8 C.R.(4th) 145, refd to. [para. 42].

R. v. Gardiner, [1982] 2 S.C.R. 368; 43 N.R. 361; 68 C.C.C.(2d) 477, refd to. [paras. 47, 119].

Lippé et autres v. Québec (Procureur général) et autres, [1991] 2 S.C.R. 114; 128 N.R. 1; 39 Q.A.C. 241, refd to. [para. 47].

R. v. Lippé - see Lippé et autres v. Qué­bec (Procureur général) et autres.

R. v. Clarkson, [1986] 1 S.C.R. 383; 66 N.R. 114; 69 N.B.R.(2d) 40; 177 A.P.R. 40; 50 C.R.(3d) 289; 25 C.C.C.(3d) 207; 26 D.L.R.(4th) 493; 19 C.R.R. 209, refd to. [paras. 49, 103].

R. v. Moore (1984), 10 C.C.C.(3d) 306 (Ont. H.C.), refd to. [para. 52].

Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; 93 N.R. 183, refd to. [para. 75].

R. v. Vaillancourt, [1987] 2 S.C.R. 636; 81 N.R. 115; 10 Q.A.C. 161; 68 Nfld. & P.E.I.R. 281; 209 A.P.R. 281; 60 C.R.(3d) 289, refd to. [para. 79].

R. v. Swain, [1992] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81; 63 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 82].

Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161; 39 O.A.C. 161; 54 C.C.C.(3d) 417; 76 C.R.(3d) 129; 67 D.L.R.(4th) 161; 29 C.P.R.(3d) 97; 47 C.R.R. 1, refd to. [para. 83].

R. v. Marcoux, [1976] 1 S.C.R. 763; 4 N.R. 64, refd to. [para. 97].

Canada v. Amway Corp. et al., [1989] 1 S.C.R. 21; 91 N.R. 18, refd to. [para. 102].

R. v. Dubois, [1985] 2 S.C.R. 350; 62 N.R. 50; 66 A.R. 202; [1986] 1 W.W.R. 193; 41 Alta. L.R.(2d) 97; 48 C.R.(3d) 193; 22 C.C.C.(3d) 513; 23 D.L.R.(4th) 503; 18 C.R.R. 1, refd to. [para. 102].

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. [para. 103].

R. v. Simmons, [1988] 2 S.C.R. 495; 89 N.R. 1; 30 O.A.C. 241; 66 C.R.(3d) 297; 45 C.C.C.(3d) 296, refd to. [para. 103].

R. v. Ross, [1989] 1 S.C.R. 3; 91 N.R. 81; 31 O.A.C. 321, refd to. [para. 104].

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. 105].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 19 C.R.R. 308, refd to. [para. 125].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [paras. 54, 125]; sect. 7 [paras. 18, 71]; sect. 10, sect. 10(b) [paras. 18, 101]; sect. 11(c), sect. 13 [para. 101]; sect. 24(2) [paras. 54, 104].

Criminal Code, R.S.C. 1985, c. C-46, sect. 537(1)(b), sect. 537(3), sect. 537(4) [paras. 18, 71]; sect. 672.11(a), sect. 672(11)(b), sect. 672.21(1), sect. 672.21(2), sect. 672.21(3)(a), sect. 672.21(3)(b), sect. 672.21(3)(c) [para. 71]; sect. 672.65 [para. 138]; sect. 686(1)(b)(iii) [para. 71]; sect. 753, sect. 755(1), sect. 756(1) [paras. 18, 71]; sect. 759(1) [paras. 71, 135]; sect. 759(3), [para. 71]; sect. 759(7) [paras. 71, 135].

Authors and Works Noticed:

Canada, Law Reform Commission, Prin­ciples of Sentencing and Disposition (1974), Working Paper 3, p. 3 [para. 45].

Canada, Report of the Canadian Com­mittee on Corrections, Towards Unity: Criminal Justice and Corrections (1969), p. 15 [para. 45].

Canada, Sentencing Commission, Sentenc­ing Reform: A Canadian Approach (1987), p. 151 [para. 45].

Cross, Rupert and Tapper, Colin, Cross on Evidence (7th Ed. 1990), pp. 418 et seq. [para. 90].

Hor, Michael, The Privilege Against Self-Incrimination and Fairness to the Accused, [1993] Singapore J. Legal Stud. 35, p. 35 [para. 93].

Mewett, Alan W., Law Enforcement and the Conflict of Values (1970), 12 Crim. L.Q. 179, p. 186 [para. 88].

Paciocco, David, Charter Principles and Proof in Criminal Cases (1987), p. 539 [para. 88].

Wigmore on Evidence (McNaughton Rev. 1961), vol. 8, pp. 318 [para. 86]; 342 [para. 90].

Counsel:

Richard P. Anderson, Q.C., and G.D. McKinnon, for the appellant;

Alexander Budlovsky, for the respondent.

Solicitors of Record:

Richard P. Anderson and G.D. McKinnon, Vancouver, British Columbia, for the appellant;

Ministry of the Attorney General, Vancouver, British Columbia, for the respondent.

This appeal was heard on October 12, 1993, 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 May 12, 1994, and the following opinions were filed:

Gonthier, J. (La Forest, L'Heureux-Dubé, McLachlin and Iacobucci, JJ., con­curring) - see paragraphs 1 to 57;

Lamer, C.J.C., dissenting (Sopinka, Cory and Major, concurring) - see paragraphs 58 to 139.