Case information

Constitutional law - Charter of Rights - Right to counsel - Remedy - Exclusion of evidence - Accused making statement to police after having indicated that he wanted to consult counsel - Trial judge refusing to exclude evidence resulting from statement - Court of Appeal holding that accused’s right to counsel under s. 10(b) of Canadian Charter of Rights and Freedoms breached but admitting evidence - Whether Court of Appeal erred in holding that evidence obtained in violation of Charter should nevertheless be admitted pursuant to s. 24(2).

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The appellant was convicted at trial of sexually assaulting a previous partner. He appealed his conviction, arguing that the trial judge should have excluded a statement that he made to police when he was arrested. It was not disputed that after the appellant had indicated to the arresting officer that he wished to consult counsel, the officer read a standard caution asking if the appellant wished to say anything, prompting a further statement from the appellant. The majority in the Court of Appeal dismissed the appeal. It was of the view that the form of caution read by the police officer generated a breach of the appellant’s right to counsel under s. 10(b) of the Charter, but that the breach was of minimal gravity and that admission of the resulting evidence would not bring the administration of justice into disrepute and did not need to be excluded as a remedy under s. 24(2) of the Charter. Veldhuis J.A., dissenting, would have allowed the appeal, set aside the conviction and ordered a new trial. In her opinion, the trial judge expressly relied upon the appellant’s statement to corroborate the complainant’s evidence; therefore, its admission was not harmless and the statement should have been excluded.