R. v. Leclair and Ross, (1989) 91 N.R. 81 (SCC)

• Judge: Beetz, Estey, McIntyre, Lamer, Wilson, La Forest and L'Heureux-Dubé, JJ.
• Court: Supreme Court of Canada
• Case Date: Wednesday January 27, 1988
• Jurisdiction: Canada (Federal)
• Citations: (1989), 91 N.R. 81 (SCC);AZ-89111024;1989 CanLII 134 (SCC);[1989] SCJ No 2 (QL);67 CR (3d) 209;[1989] 1 SCR 3;46 CCC (3d) 129;[1989] CarswellOnt 67;[1989] ACS no 2;37 CRR 369

R. v. Leclair (1989), 91 N.R. 81 (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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Brent Mark Leclair and Rodney James Ross v. Her Majesty the Queen

(No. 19176)

Indexed As: R. v. Leclair and Ross

Supreme Court of Canada

Beetz, Estey, McIntyre, Lamer, Wilson, La Forest and L'Heureux-Dubé, JJ.

January 19, 1989.

Summary:

The accused were charged with breaking and entering and with theft. The accused were advised of their right to counsel but were unable to contact their respective counsels of choice. Shortly after, the accused were identified in a line-up. At trial, the accused sought to exclude the line-up evidence on the ground that the accused's right to counsel under the Charter was infringed.

Following a voir dire, the trial judge held that there was no denial of the right to counsel and refused to exclude the line-up evidence. The accused were convicted by a jury. The accused appealed.

The Ontario Court of Appeal dismissed the appeal. The accused appealed.

The Supreme Court of Canada allowed the appeal and ordered a new trial. The court held that the accused's right to counsel was denied and that admission of the line-up evidence would bring the administration of justice into disrepute under s. 24(2) of the Charter.

L'Heureux-Dubé, J., McIntyre, J., concurring, dissenting, agreed with the majority that the accused's right to counsel was denied, but would have admitted the line-up evidence.

Civil Rights - Topic 4601

Right to counsel - General - The Supreme Court of Canada held that the right to counsel means that an accused cannot be questioned until he has had a reasonable opportunity to retain and instruct counsel - It also means that once an accused or detained person has asserted that right, the police cannot, in any way, compel the detainee or accused to make a decision or participate in a process which would ultimately have an adverse effect in the conduct of an eventual trial until that person has had a reasonable opportunity to exercise that right - See paragraph 17.

Civil Rights - Topic 4602

Right to counsel - Denial of - Evidence taken inadmissible - Arrested after midnight, the accused were advised of their right to counsel - At 2:00 a.m. each unsuccessfully tried to telephone their lawyers - One accused rejected an offer to call another lawyer - At 3:00 a.m. the accused were identified from a line-up, without benefit of advice that they were not legally obliged to participate - There was a direct link between the violation of their right to counsel and the identification evidence - The violation of the right was immediately prior to the discovery of the line-up evidence - Because the identification evidence could not have been obtained but for the participation of the accused in the line-up, the trial process was rendered unfair - There was a serious breach of the accused's rights, since there was no urgency of any kind to explain the police's behaviour - There was no good faith error by police resulting in an inadvertent denial of the right - The Supreme Court of Canada excluded the line-up evidence, because to admit it would bring the administration of justice into disrepute - See paragraphs 21 to 28.

Civil Rights - Topic 4605

Right to counsel - Denial of - Due to lack of time or opportunity - Arrested after midnight, the accused were advised of their right to counsel - At 2:00 a.m. each tried unsuccessfully to telephone their lawyers - One accused rejected a police offer to call another lawyer - At 3:00 a.m. the accused were identified from a line-up, without benefit of advice that they were not legally obliged to participate - The Supreme Court of Canada held that the accused were denied a reasonable and effective opportunity to retain and instruct counsel - The court further held that the police breached their duty to refrain from attempting to elicit evidence before the accused had a reasonable opportunity to retain and instruct counsel - See paragraphs 12 to 15.

Civil Rights - Topic 4612

Right to counsel - Waiver or abandonment of - Arrested after midnight, the accused were advised of their right to counsel - At 2:00 a.m. each tried unsuccessfully to telephone their lawyers - One accused rejected a police offer to call another lawyer - At 3:00 a.m. the accused were identified from a line-up, without benefit of advice that they were not legally obliged to participate - The Supreme Court of Canada held that the accused did not waive his right to counsel by the mere fact that he did not want to contact another lawyer - See paragraphs 13 to 14 - The court further held that the fact that the accused did not refuse to participate in the line-up could not by itself constitute a waiver of the right to counsel - See paragraph 20.

Civil Rights - Topic 4614

Right to counsel - Instructing counsel - General - The Supreme Court of Canada stated that although an accused or detained person has the right to choose counsel, a detainee must be reasonably diligent in the exercise of these rights - Reasonable diligence in the exercise of the right to choose one's counsel depends upon the context facing the accused or detained person - Accused or detained persons have a right to choose their counsel and it is only if the lawyer chosen cannot be available in a reasonable delay that the detainee or accused should be expected to exercise the right to counsel by calling another lawyer - See paragraph 13.

Civil Rights - Topic 8368

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

Criminal Law - Topic 5246

Evidence - Witnesses - Identification - Line-up - General - The Supreme Court of Canada referred to the twofold purpose of a police line-up - See paragraph 25.

Criminal Law - Topic 5247

Evidence - Witnesses - Identification - Line-up - Refusal by accused to enter - Evidence of - The Supreme Court of Canada held that there is no legal obligation to participate in a police line-up, however, failure to voluntarily participate in a line-up can have legal consequences respecting the evidence that might be admitted at trial - See paragraph 19.

Cases Noticed:

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192; 34 C.C.C.(3d) 385, appld. [para. 11].

R. v. Tremblay, [1987] 2 S.C.R. 435; 79 N.R. 153, refd to. [para. 13].

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. 14].

R. v. Marcoux, [1976] 1 S.C.R. 763; 4 N.R. 64, refd to. [para. 19].

R. v. Strachan (1988), 90 N.R. 273, appld. [para. 21].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 33 C.C.C.(3d) 1; 38 D.L.R.(4th) 508, appld. [paras. 22, 32].

R. v. Simmons (1988), 89 N.R. 1, refd to. [para. 32].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 10(b) [paras. 5, 9-11]; sect. 24(2) [paras. 5, 9-10, 21, 27, 30-31, 33].

Criminal Code, R.S.C. 1970, c. C-34, sect. 453.4 [para. 19].

Identification of Criminals Act, R.S.C. 1970, c. I-1, generally [para. 19].

Counsel:

Clayton C. Ruby and Melvyn Green, for the appellant, Leclair;

Michael Code, for the appellant, Ross;

Brian J. Gover, for the respondent.

Solicitors of Record:

Ruby & Edwardh, Toronto, Ontario, for the appellants;

Ministry of the Attorney General, Toronto, Ontario, for the respondent.

This appeal was heard before Beetz, Estey, McIntyre, Lamer, Wilson, La Forest and L'Heureux-Dubé, JJ., of the Supreme Court of Canada on January 27, 1988. On January 19, 1989, the Supreme Court of Canada filed the following decisions in both official languages:

Lamer, J. (Beetz, Wilson and La Forest, JJ., concurring) - see paragraphs 1 to 29;

L'Heureux-Dubé, J. (McIntyre, J., concurring), dissenting - see paragraphs 30 to 36.

Estey, J., took no part in the judgment.