In a 5-4 decision, the Supreme Court of Canada recently upheld confessions as admissible despite previous Charter breaches. The Court confirmed lower court rulings that one of the two Appellants was provided with a “fresh start” when he was read his Charter rights before he was arrested at the police station. The Court held that while a “fresh start” does not cure a Charter breach, it may sever the causal chain between a Charter breach and a confession in certain cases such that the confession could still be admissible.
Two roommates, Brian Lambert and James Beaver (the “Appellants”) were convicted of manslaughter for the death of their live-in landlord, Sutton Bowers. Lambert called 911 to report the death, stating he and Beaver were in altercations with the deceased before leaving the property and discovered him lying in a pool of blood on return.
The police operator told Lambert that, given the suspicious circumstances, the townhouse where they all lived would be treated as a crime scene. When police arrived, they told the Appellants they were being detained under the Medical Examiners Act, which does not exist.
Lambert was told he had a right to retain and instruct a lawyer, that he could be charged with an offence, and that he had a right to remain silent, though anything he did say could be used in evidence. Lambert understood the caution and advised he wanted to speak with a lawyer, maintaining he was innocent. While being transported to the police station, and after receiving this caution, a police officer asked Lambert what had happened, and Lambert repeated what he had told the 911 operator.
Beaver was told he was under investigative detention and was provided with a similar caution before being transported to the police station. When asked if he wanted to speak with a lawyer, Beaver stated he did not need one. Like Lambert, Beaver was also asked what had happened prior to arriving at the police station. Beaver provided a narrative that was consistent with Lambert’s 911 call.
Once at the station, Lambert spoke with a lawyer by telephone and Beaver declined to do so. Two detectives were assigned to interview each Appellant individually, and both thought the Appellants had been arrested, not detained, and read them each their Charter rights. Lambert’s interview had begun prior to the detective learning that Lambert had not been Chartered or formally arrested. Beaver’s interview had not yet begun. Both men were then formally arrested for suspicion of murder and read their Charter rights.
After a lengthy interrogation, Lambert confessed that the victim had died during a fight with him and Beaver. Beaver initially maintained his innocence, but after being shown video footage of Lambert’s confession, he too eventually confessed.
The Appellants both sought to exclude the confessions under s. 24(2) of the Charter, which allows the court to exclude evidence obtained in a manner that would bring the administration of justice into disrepute if admitted.
The trial judge held that Beaver’s confession was voluntary as he had an operating mind and the police did not obtain his confession through threats, promises, police trickery or oppressive tactics (R v Oickle, 2000 SCC 38). The trial judge further held the police had reasonable and probable grounds to arrest the Appellants for murder.
The Crown conceded, and the trial judge found, that the Appellants each had their Charter rights violated during their detention, because there was no statutory basis to detain them. Lambert’s s. 10(b) Charter right was further infringed when he had been asked by police transporting him to the station what happened, after he had stated he wanted to speak with a lawyer.
The trial judge, however, held that the detectives had “cured” the Charter breaches arising from the Appellants’ unlawful detention by making a “fresh start” and arresting them for murder at the police headquarters. The “fresh start” had “cured” the Charter breaches such that the confessions were not obtained in a manner that breached the Charter. Both men were eventually convicted of manslaughter.
The Alberta Court of Appeal upheld the conviction, agreeing with the trial judge that the “fresh start” meant their confessions were not obtained in a manner that breached the Charter, as s. 24(2) requires. The Court of Appeal found that the police had gathered little evidence of significance while the Appellants were unlawfully detained, there was no causal connection between the Charter breach and the confessions, and that the confessions were given in a completely different context from the initial detention and early general questions.
SUPREME COURT OF CANADA’S ANALYSIS
1. Voluntariness of Beaver’s Confession
Beaver challenged the voluntariness of his confession, arguing it was inadmissible under the common law confessions rule.
The Court cited its earlier decision, R v Tessier, 2002 SCC 6, which held that a statement may be involuntary where it is “unreliable and raises the possibility of a false confession, or because it was unfairly obtained and ran afoul of the principle against self-incrimination and the right to silence”. The Court found the application of the confessions rule is “necessarily flexible and contextual” (para 48), and that the presence or absence of a police caution is an important factor in determining whether a confession was voluntary (R v Singh, 2007 SCC 48 at para 33 [Singh]).
The Court found the trial judge made three findings of fact which justified his conclusion that Beaver’s confession was voluntary (at para 58).
First, Beaver was given a police caution and understood he did not have to speak to police. He knew that anything he said could be used as evidence against him. Second, Beaver knew exactly why the police were interviewing him after he was arrested for murder. Third, Beaver confessed because he was confronted with Lambert’s videotaped confession.
2. Admissibility of the Confessions
The Court accepted that the Appellants’ ss. 9, 10(a) and 10(b) Charter rights had been violated when they were unlawfully detained before the arrest at the police station and considered whether to exclude their confessions.
In finding the Appellants’ detention was unlawful, the Court stated that the non-existent Medical Examiners Act could not provide a basis to detain the Appellants and that there was no basis to detain under common law or statute.
Elements of a “Fresh Start”
Excluding evidence under s. 24(2) of the Charter requires first that there be a sufficient nexus between a Charter breach and the evidence. Previous authorities have ruled that in some circumstances, subsequent Charter compliance severs that connection.
The Court provided six indicia of when police have effected a “fresh start” that severs a Charter breach from the evidence (at para 103):
- Whether the police informed the accused of the Charter breach and dispelled its effect with appropriate language;
- Whether the police cautioned the accused after the Charter breach but before the impugned evidence was obtained;
- Whether the accused had the chance to consult counsel after the Charter breach but before the impugned evidence was obtained;
- Whether the accused gave informed consent to the taking of the impugned evidence after the Charter breach;
- Whether and how different police officers interacted with the accused after the Charter breach but before the impugned evidence was obtained; and
- Whether the accused was released from detention after the Charter breach but before the impugned evidence was obtained.
The Court determined that Lambert’s confession was admissible despite the Charter breach as he was provided with a “fresh start”, confirming his conviction for manslaughter.
Specifically, the detective interviewing Lambert told him that “we were going to start from the very beginning”, advised him that this was a “very, very serious matter” and informed him four times that he was under arrest for murder. Lambert’s confession occurred roughly 12 hours after the Charter breach. This gap in time, in addition to the steps detectives took in the intervening moments, severed the temporal connection between the Charter breach and the confession. The Court was satisfied that Lambert confessed “only after he consulted counsel, after he understood his rights, and after he appreciated that he had been arrested for murder”.
By contrast, Beaver never consulted with legal counsel and was not advised of the jeopardy he faced – a “significant departure from Charter standards”.
The Court found, however, that Beaver’s decision to confess was not caused by the Charter breaches arising from his unlawful detention, and that Beaver understood the basis of his interaction with police as they called 911 on themselves. Ultimately, Beaver’s confession was admissible as a matter of public policy.
In a lengthy dissent, the four dissenting Justices found that both the Appellants’ detentions and arrests were unlawful, and that admitting the confessions would bring the administration of justice into disrepute.
For the Dissent, the arresting officer may have had subjective grounds to arrest the Appellants but lacked the reasonable objective grounds. In particular, the stated reason for the Appellants’ detention was a non-existent law, which should have suggested to the arresting officer that the detaining officers had no reasonable grounds to believe the Appellants had committed an indictable offence.
Justice Martin stated that the “string of extremely serious violations of well-established Charter principles…took a back seat to investigative convenience and expediency…” and that the “permissible fresh start” concept in R v. Wittwer 2008 SCC 33 had been elevated to a concept beyond its intended meaning.
In this close 5-4 decision, the Supreme Court revisited the “fresh start” doctrine and found that it would not “cure” a prior Charter breach but would, when effective, sever the causal, contextual or temporal connection between that breach and the evidence sought to be excluded.
While officers should be careful to adhere to established Charter principles in every arrest or situation that could be seen as a detention, recognizing the steps to be taken to effect a “fresh start” may be the difference between admission or exclusion of crucial evidence.