R. v. Terry (R.S.),

• Jurisdiction: Federal Jurisdiction (Canada)
• Judge: McLachlin, Iacobucci and Major, JJ.
• Citation: (1996), 197 N.R. 105 (SCC),[1996] SCJ No 62 (QL),76 BCAC 25,30 WCB (2d) 524,[1996] 2 SCR 207,48 CR (4th) 137,1996 CanLII 199 (SCC),135 DLR (4th) 214,JE 96-1142,36 CRR (2d) 21,197 NR 105,125 WAC 25,106 CCC (3d) 508,[1996] CarswellBC 2299
• Court: Supreme Court (Canada)
• Date: 30 May 1996

R. v. Terry (R.S.) (1996), 197 N.R. 105 (SCC)

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[French language version follows English language version]

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

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Robert Scott Terry (appellant) v. Her Majesty The Queen (respondent) and The Attorney General of Canada (intervenor)

(24335)

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

Supreme Court of Canada

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

Dubé, Sopinka, Gonthier, Cory,

McLachlin, Iacobucci and

Major, JJ.

May 30, 1996.

Summary:

The accused was convicted of second degree murder following a jury trial. The accused appealed.

The British Columbia Court of Appeal, in a judgment reported 46 B.C.A.C. 185; 75 W.A.C. 185, dismissed the appeal. The accused appealed.

The Supreme Court of Canada dismissed the appeal and affirmed the conviction.

Civil Rights - Topic 4604

Right to counsel - Denial of or interfer­ence with - What constitutes - The accused, arrested in the U.S. on a "cross-Canada" warrant, was interviewed by U.S. detectives at the R.C.M.P.'s request - American authorities complied with Amer­ican law (Miranda warning before ques­tioning), but did not advise the accused of his right to counsel when first detained, as required in Canada under s. 10(b) of the Charter - The accused argued that his s. 10(b) rights were violated, mak­ing the evidence obtained subject to exclu­sion under s. 24(2) of the Charter - The Supreme Court of Canada held that foreign police, even if acting as "agents" of Cana­dian authorities, were not subject to the Charter's requirements (territorial limita­tions) - Since there could be no breach of s. 10(b) and s. 24(2) applied only if there was a Charter breach, the evidence could not be excluded under s. 24(2) - The court stated that an accused subjected to abusive evidence-gathering abroad could have a remedy if admission of the evidence would render his trial unfair (s. 11(d)) or if the process violated the principles of funda­mental justice (s. 7) - See paragraphs 12 to 27.

Civil Rights - Topic 8306

Canadian Charter of Rights and Freedoms - Application of - Territorial limits - An accused submitted that "all evidence ten­dered in Canada ought to be treated as though the Charter applies to it, regardless of where it was obtained, with the conse­quence that a failure of foreign police to observe the requirements of the Charter constitutes a violation sufficient to engage s. 24(2) of the Charter." The Supreme Court of Canada stated that "the main dif­ficulty this argument en­counters is that s. 24(2) of the Charter applies only if a breach of the Charter is established. In order to find a Charter breach, it is neces­sary to find that in detaining [the accused] under the auth­ority of a U.S. warrant, the [foreign] police were subject to the Char­ter. Such a finding would run counter to the settled rule that a state is only compe­tent to enforce its laws within its own ter­ritorial boundaries. ... This court has re­peatedly affirmed the territorial limitations imposed on Canadian law by the principles of state sovereignty and international com­ity." - See para­graphs 13 to 16.

Civil Rights - Topic 8306

Canadian Charter of Rights and Freedoms - Application of - Territorial limits - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Supreme Court of Canada stated that "s. 24(2) is not an independent source of Charter rights; it is merely a remedy for their breach" - See paragraph 23.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 4604 and first Civil Rights - Topic 8306 ].

Evidence - Topic 340

Circumstantial evidence - Proof of identity - A poem said to be in the accused's handwriting, found among his belongings and describing a murder similar to that with which the accused was charged, was admitted at trial - The British Columbia Court of Appeal held that the reading of the poem by Crown counsel in his address did not inflame the jurors' emotions so that they would overlook the possibility the poem had an innocent explanation - The Crown emphasized it was only circum­stantial evidence - The judge reminded the jury of the defence's position - Thus the evidence's potential probative value out­weighed any prejudice - The evidence was properly admitted and properly dealt with by both the Crown and judge - The Supreme Court of Canada held that evi­dence of the poem was properly admitted - See paragraphs 28 to 30.

Cases Noticed:

Ship Exchange, Re (1812), 11 U.S. (7 Cranch) 116 (S.C.), refd to. [para. 14].

Ship Lotus, Re (1927), 10 P.C.I.J. Ser. A. 20, refd to. [para. 15].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1; 17 D.L.R.(4th) 422; 14 C.R.R. 13; 12 Admin. L.R. 137, refd to. [para. 16].

R. v. Finta, [1994] 1 S.C.R. 701; 165 N.R. 1; 70 O.A.C. 241; 112 D.L.R.(4th) 513, refd to. [para. 16].

R. v. Libman, [1985] 2 S.C.R. 178; 62 N.R. 161; 12 O.A.C. 33; 21 C.C.C.(3d) 206, refd to. [para. 16].

Tolofson v. Jensen and Tolofson, [1994] 3 S.C.R. 1022; 175 N.R. 161; 77 O.A.C. 81; 51 B.C.A.C. 241; 84 W.A.C. 241; [1995] 1 W.W.R. 609, refd to. [para. 16].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161, refd to. [para. 17].

R. v. Filonov (1993), 82 C.C.C.(3d) 516 (Ont. Gen. Div.), refd to. [para. 18].

R. v. Shafie (1989), 31 O.A.C. 362; 47 C.C.C.(3d) 27 (C.A.), refd to. [para. 20].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1; 77 C.R.(3d) 145; 57 C.C.C.(3d) 1; [1990] 5 W.W.R. 1; 47 B.C.L.R.(2d) 1, refd to. [para. 25].

R. v. R.J.S., [1995] 1 S.C.R. 451; 177 N.R. 81; 78 O.A.C. 161; 36 C.R.(4th) 1; 96 C.C.C.(3d) 1, refd to. [para. 25].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 11(d), sect. 24 [para. 7].

Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985 (4th Supp.), c. 30, generally [para. 18].

Treaty between the Government of Canada and the Government of the United States on Mutual Legal Assistance, 1990 Can. T.S., No. 19, art. VII, sect. 2 [para. 18].

Authors and Works Noticed:

O'Connell, D.P., International Law (2nd Ed. 1970), vol. 2, p. 603 [para. 17].

Williams, Sharon A., and Castel, J.-G., Canadian Criminal Law: International and Transnational Aspects (1981), p. 320 [para. 19].

Counsel:

Charles Lugosi and Russell Walter Corn­ett, for the appellant;

William F. Ehrcke and Oleh Kuzma, for the respondent;

S. David Frankel, Q.C., and Kimberly Prost, for the intervenor.

Solicitors of Record:

Lugosi & Co., Prince George, B.C., for the appellant;

Attorney General of British Columbia, Prince George, B.C., for the respondent;

Attorney General of Canada, Ottawa, Ontario, for the intervenor.

This appeal was heard on February 20, 1996, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.

On May 30, 1996, McLachlin, J., delivered the following judgment in both official languages for the Supreme Court of Canada.