Have you or someone you know been charged with Murder? A Vancouver Criminal Lawyer can be reached at 604-669-8602
The following outlines many of the complexities relating to the law of murder. At La Liberté Cronin we deal with these issues on a daily basis and have vast experience guiding our clients, instructing them on these issues, and making sense of the law for them at a time when an Accused is most fragile, their families are confused and stressed, and their rights and jeopardy are most at risk.
In a murder trial, or any trial for that matter, the Crown may want the Court to consider the statement an Accused gave to the police when they were arrested. In order for such a statement to be admissible, and for the Court to consider the statement as part of the evidence, the statement must be found to be voluntary. An Accused can also make arguments that the statement was not voluntary, or that it was taken in breach of their Charter rights. For instance, it breached their right to remain silent (s. 7 of the Charter) or they were not told why they were arrested (s. 10(a) of the Charter), or they were not provided with the right to obtain legal advice (s. 10(b) of the Charter). A confession can be a very powerful piece of evidence for the Crown. At La Liberté Cronin & Company, we often successfully argue for the exclusion of our client’s statements. Below we have summarized the law as it relates to voluntariness and Charter issues.
The Crown must prove beyond any reasonable doubt that a statement given to a person in authority (for instance, a police officer) is voluntary. If there is a doubt about voluntariness then the statement is not admissible. The Court will consider threats and promises and inducements by the police, and whether or not the Accused had an operating mind. All of these factors are considered together. They are not discrete inquiries. Police trickery is a discrete inquiry – R. v. Oickle, Supreme Court of Canada.
The confessions rule includes the right of the Accused to make a meaningful choice whether or not to speak to police. The right to silence (s. 7 of the Charter) and voluntariness focus on the police conduct and the effect of that conduct on an Accused’s ability to exercise free will to speak. This is an objective test, but considers individual characteristics of an Accused. A voluntariness determination subsumes the s. 7 right to silence issue. In other words, if the statement is voluntary then there is no s. 7 breach, and converse is true. Police persistence continuing an interview, despite repeated requests by an Accused to remain silent, may well raise a doubt that the statement is voluntary. In other words, that the statement was not a product of free will to speak to police – R. v. Singh, Supreme Court of Canada.
There can be an intersection of an Accused’s Charter rights under s. 7, 10(a) and (b) being breached and a finding that a statement is not voluntary. If the Court finds a right to silence (s. 7) breach then the statement is not voluntary (Singh). The purpose of s. 10 is to advise the Accused why they are detained, and to provide the opportunity to receive legal advice about their rights and obligations, given their vulnerable position. The focus is on the Accused’s need for legal advice about exercising their rights, and to protect against self-incrimination. If those Charter rights are violated, then it follows there will be a doubt about a statement being voluntary, a doubt about the Accused making a meaningful choice to speak to the police – R. v. Jensen, British Columbia Supreme Court.
The Court must take a contextual approach and consider all the circumstances surrounding the confession – R. v. Smith, British Columbia Supreme Court.
The Accused bears the burden of establishing any Charter breaches on the balance of probabilities.
There are two rationales for the right to immediately be informed of the reason for arrest, upon arrest. First, so that an Accused can decide whether or not to submit to the arrest, and second is the link between s. 10(a) and (b), the right to counsel. In considering a s. 10(a) breach, the Court must look at the substance of the words used, not whether formal words were used by the police. What an Accused is told, in all the circumstances, must reasonably be interpreted so that an Accused can make a decision to submit to the arrest, or speak to counsel. The purpose of telling an Accused why they are under arrest is so they can immediately defend themselves, submit to arrest, or not, and seek advice of counsel in a meaningful way with an understanding of their jeopardy. Information as to why an Accused is arrested must occur prior to questioning – R. v. Evans, Supreme Court of Canada.
There is a duty on police to tell an Accused of their right to counsel, and to assist in exercising that right without delay. Some circumstances can exist where it is urgent for police to continue their investigation prior to an Accused contacting counsel. Police must not question an Accused until after a reasonable opportunity to contact counsel. The purpose of contacting counsel is to be informed of rights and obligations, and to receive advice about how to exercise those rights – R. v. Manninen, Supreme Court of Canada.
The police must hold off from eliciting incriminating evidence from an Accused once they have indicated they wish to speak with counsel, until the Accused has had a reasonable opportunity to contact counsel. The purpose of s. 10(b) is to protect the right against self-incrimination which is a principle of fundamental justice as embodied in s. 7 – R. v. Prosper, Supreme Court of Canada.
Defence Counsel, upon request, need not be present during an interrogation, but an Accused must be given an additional opportunity to speak with counsel when this becomes necessary during the investigation to serve the purpose underlying s. 10(b) of the Charter. The purpose of s. 10(b) is to ensure the Accused receives legal advice about choosing to cooperate with the investigation, or not. Thus the right for a second consultation with counsel will be necessary when circumstances change, i.e. new procedures involving the Accused arise, a change in jeopardy, or if there is concern the first consultation was deficient. These categories are not exhaustive – R. v. Sinclair, Supreme Court of Canada.
The police need not monitor the quality of legal advice received by an Accused, as this would interfere with the privilege associated with solicitor-client communications. The duties of police to help an Accused contact counsel are triggered once an Accused indicates the desire to speak with counsel. “These duties are triggered immediately upon an individual’s arrest or detention, as ‘the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected.’” – R. v. Willier, Supreme Court of Canada at para. 30.
If you have been arrested, the best course of action is to seek legal advice immediately, and usually to exercise your right to remain silent. Terry La Liberté, Q.C. and Kasandra Cronin, Q.C. are available 24 hours per day to provide you with that advice. If you are facing charges and have already provided a statement to the police, then we can fight for your right to have that statement excluded from the evidence. A confession before a jury or the Court can be devastating for an Accused. Call Terry La Liberté, Q.C. or Kasandra Cronin, Q.C. immediately so that we can help keep your confession out of Court.
– Kasandra Cronin, Q.C.