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R.G. Kirkham, for the Crown. M.Brayford, for the Accused. |
¶ 1 WIMMER J.:— Robert Latimer faces a charge of first degree murder arising from the death of his twelve-year-old daughter. A jury is yet to be selected for the trial.
¶ 2 Section 645 subsection (5) of the Criminal Code authorizes the trial judge, before empanelling a jury, to deal with any matter that would ordinarily be dealt with in the absence of the jury. Commencement of the trial is some weeks away, but counsel have asked for a ruling now on the admissibility of incriminating statements elicited from Latimer as well as the admissibility of real evidence uncovered as a result the statements.
¶ 3 The child died at the family farm on Sunday, October 24, 1993. Members of the Royal Canadian Mounted Police from Wilkie, Saskatchewan, began an investigation of the death. They became aware that she died of carbon monoxide poisoning. They also determined that on that Sunday morning she was in her father's care while the rest of the family attended church. The police knew that the child had cerebral palsy, was bedridden, and required constant care. From this, they inferred the possibility of a motive, and they believed Latimer had a role in her death. They turned to members of the General Investigation Section at North Battleford for assistance. Events then unfolded quickly.
¶ 4 A meeting took place on November 3, 1993, between members of the Wilkie detachment and members of the General Investigation Section. They discussed possible courses of action. By the end of the day there was a plan for members from North Battleford to attend at the Latimer farm, take Mr. Latimer into custody, interview his wife and execute a search warrant. The plan was to do this the following morning.
¶ 5 One of the principal investigators, Corporal Lyons, described what took place at the farm.
At 8:28 that morning, Sergeant Conlon and I went to the residence. ... |
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We went to the door. We rapped on it; waited a couple of minutes. Robert Latimer came to the door. He was -- appeared to have just been in the process of getting up. He was in a housecoat; hair messed a little bit. Sergeant Conlon introduced ourselves to him, identified us of course. We shook hands. Sergeant Conlon told him that we were from North Battleford, and we are assisting Wilkie in the investigation of Tracy's death, being his daughter, and told Mr. Latimer that we'd like to speak to him. He went into a bedroom and got dressed; came out a couple of minutes later. We were waiting in the kitchen. Sergeant Conlon said that we'd like to speak to him outside. There was no response. He put on rubber -- his rubber boots and a jacket, and went outside to the car with us. We had an unmarked police vehicle ... I went into the driver's seat, Sergeant Conlon on the passenger side, and Mr. Latimer in the back seat behind me. ... |
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At 8:32, I turned in the bucket seat of the car and I looked directly at him. I said, as Sergeant Conlon explained, we were assisting Wilkie detachment in the investigation of his daughter's death. I said I realize that this is a very trying time for him and his family, and I said what I am about to say has very serious consequences and he should listen very closely. He nodded to me. I said, "You are being detained for investigation into the death of your daughter Tracy." I then said, "You have the right to retain and instruct counsel without delay. You may call any lawyer you wish. Legal Aid duty counsel is available to provide legal advice to you without any charge and can explain the Legal Aid plan to you." I asked, "Do you understand?" He replied, "Yes." I asked, "Do you wish to call a lawyer now?" He replied, "Not really, no." I then warned him the standard police warning, "You need not say anything. You have nothing to hope from any promise of favour, nothing to fear from any threat, whether or not you say anything. Anything you do say may be used as evidence." I asked, "Do you understand?" And he replied, "Yes." At that point, Sergeant Conlon told him that we would be going to North Battleford for the purpose of speaking to him. Mr. Latimer raised no objection. He simply asked if he could change his clothes. |
He did change his clothes, but because he was in custody the police officers went with him.
¶ 6 Corporal Lyons went on to describe what happened after arriving at North Battleford.
At 9:22 we went into the office. There was a regular desk in it. ... Sergeant Conlon went behind the desk in a normal writing position. I provided a chair for Mr. Latimer on the opposite side of the desk, and I placed a chair on the same side of the desk as Mr. Latimer. ... |
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I told Mr. Latimer again that I wanted him to listen very carefully; that this is a serious matter. I told him that what I had told him in the car earlier about being able to contact a lawyer and that he wasn't obliged to say anything at all, but what he did say could be used in Court still applied. He nodded. I asked, "Do you have any questions at all about that?" He replied, "No." I asked, "Do you want to call a lawyer?" He shook his head and also replied "No" at the same time. ... |
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I started talking to Mr. Latimer. I started by saying that we were not here to judge him. I said we deal with situations like this frequently where people find themselves in difficulty, and things that wouldn't ordinarily happen do. I understand the situation you are in, and we empathize with you. We have no choice but to do the job we have to do, but at the same time, we will assist him in getting through the situation as best we could. I told him that, as he knew, we were assisting Wilkie. We have reviewed all of their investigative material. We have spoken to several people. Everyone said the same thing; that you were a very caring person, a good person. At the same time, we know that this was not a natural death. Your daughter was in a great deal of pain. "Bob, after considering all that is known, I have no doubt you caused your daughter's death." There was no response from him at that point. I noticed that his eyes were heavy, glassy with tears, and I went on. "This is not something you wanted or planned to do. You loved your daughter very much." At this point he became - - he started nodding his head yes. "This is something that you felt you had to do out of love for your daughter, isn't it, Bob?" There was no reply. I said, "I imagine this is very difficult for you, and I feel bad." I repeated the loving, caring father aspect to him, and I said, "You only did what you felt was best for her out of love for your daughter." Again there was no reply, and I repeated it, "Isn't that right, Bob?" There was no response. I noted that he was close to crying. I said again, "That's what happened, isn't it, Bob? Isn't that right?" He replied, "My priority was to put her out of her pain." |
Latimer went on to make a full confession which was reduced to writing after he was again reminded of his right to counsel and of his right to remain silent. He was also told that there would be criminal charges, and that he could be charged with murder. He continued nevertheless. After the statement was completed he was told that he was being held for murder.
¶ 7 That same afternoon, the three men returned to the farm where a videotape was made of Latimer pointing out various items and explaining what he had done. However, before that happened, Latimer was twice told that he did not have to go through with it and if he did it could be used as evidence. He was once more asked if he wanted to call a lawyer. He declined.
¶ 8 The defence argues that Latimer's so-called "detention" violated the right guaranteed by s. 9 of the Canadian Charter of Rights and Freedoms.
| 9. | Everyone has the right not to be arbitrarily detained or imprisoned. |
The argument is that the detention was unlawful and, in consequence, Latimer's statements should be excluded because to allow them to go before the jury would operate unfairly against him.
¶ 9 Lyons and Conlon both testified that they did not go to the Latimer farm with the intention of effecting an arrest. Although they considered there were reasonable grounds to justify an arrest, the investigation was in its infancy and, at that stage, they wanted only to interview him as a suspect. Thus, they told him he was being detained, not that he was under arrest.
¶ 10 In Canada, subject to certain exceptions, there is no authority to detain a suspect for questioning. A police officer may request a person to attend at a police office and answer question, but if that person chooses not to do so, the officer must let him be or effect an arrest based upon reasonable grounds. The position is articulated in the judgment of Martin J.A. in Regina v. Dedman (1981), 59 C.C.C. (2d) 97 at 108.
In carrying out their general duties, the police have limited powers, and they are entitled to interfere with the liberty and property of the citizen only where such interference is authorized by law. It is, of course, a constitutional principle that the citizen has a right not to be subjected to imprisonment, arrest or physical restraint that is not justified by law, ... Although a police officer is entitled to question any person in order to obtain information with respect to a suspected offence, he has no lawful power to compel the person questioned to answer. Moreover, a police officer has no right to detain a person for questioning or for further investigation. No one is entitled to impose any physical restraint upon the citizen except as authorized by law, and this principle applies as much to police officers as to anyone else. |
In R. v. Simpson (1993), 79 C.C.C. (3d) 482, Doherty J.A. points out at p. 495 that this passage has been approved in many later judgments which he lists.
¶ 11 Upon appeal to the Supreme Court of Canada, Dedman v. The Queen, [1985] 2 S.C.R. 2, Chief Justice Dickson, in a dissent, put the position more bluntly at p. 13.
Short of arrest, the police have never possessed legal authority at common law to detain anyone against his or her will for questioning, or to pursue an investigation. |
Insofar as Conlon and Lyons intended to temporarily detain Latimer for questioning as a suspect in the case, as opposed to arresting him pursuant to the powers afforded by the Criminal Code, they were acting beyond the scope of their authority. However, upon the view I take of the evidence, no matter how the two officers wish to characterize their action, what they did, in fact, was to place Latimer under arrest. He was told that he was being detained, that he would be taken to North Battleford to be interviewed, and he was accompanied into his home when he changed his clothes. He was never told he had an option. He was under total and indefinite physical restraint. Call it whatever, he was under arrest. The question is whether the arrest was lawful.
¶ 12 The authority of a peace officer to arrest without warrant is contained in s. 495 of the Criminal Code.
| 495.(1) | A peace officer may arrest without warrant |
| (a) | a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence, |
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| (b) | a person whom he finds committing a criminal offence, or |
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| (c) | a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found. |
Mr. Justice Cory made the point in R. v. Storrey [1990] 2 S.C.R. 241, that the requirement that reasonable grounds must exist to justify an arrest without warrant is there to safeguard the liberty of citizens who might otherwise fall prey to the abuses and excesses of a police state. Not only must the arresting officer subjectively have reasonable grounds for the arrest, those ground must also be objectively justifiable. That is, a reasonable person in the place of the officer must be able to say that reasonable grounds did, in fact, exist. That is not to say there need be a demonstrable prima facie case for conviction. There need only be a reasonable suspicion arising from known facts.
¶ 13 In this case, the police knew the child had died from carbon monoxide poisoning. It was unlikely to have been accidental, and the accused had both opportunity and motive. The arresting officers thought that these factors in combination provided reasonable grounds for believing that the accused had committed an indictable offence, and I am of the view that any reasonable person acting in their stead would see the situation likewise. While they may not have initially intended to effect an arrest, that is what they ended up doing and, in so doing, they acted within the law.
¶ 14 Section 29 subsection (2) of the Code requires that a person who is arrested be informed of the reason for the arrest. Section 10(a) of the Charter elevates this requirement to a constitutionally guaranteed right conferred upon everyone arrested or detained. The defence contends that this right was infringed and that Latimer could not, therefore, have made a valid waiver of his right to counsel.
¶ 15 The obligation of an arresting officer to provide reasons for the arrest does not mean that a specific charge must be enunciated at that stage. Indeed, it will often be the case that at the time of an arrest it is not known what exact charge or charges will surface during the investigation. It is enough that a person under arrest have an adequate appreciation of the jeopardy he or she is in so an informed decision can be made about the waiver of the right to counsel.
¶ 16 In R. v. Smith, [1991] 1 S.C.R. 714, Madam Justice McLachlin sets out the position beginning at p. 728:
... what is required is that the accused understand generally the jeopardy in which he or she finds himself and appreciate the consequences of deciding for or against counsel. They rest on the common sense proposition that sometimes a lawyer is more important than at other times. Many might choose to do without counsel on a traffic charge. Many fewer would make the same decision if faced with murder. |
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It has never been suggested, however, that full information is required for a full waiver. Indeed, if this were the case, waivers would seldom be valid, since the police typically do not know the whole story when the accused is arrested. Nor is the failure of the police to precisely identify the charge faced in the words of the Criminal Code necessarily fatal. In the initial stages of an investigation the police themselves may not know the precise offence with which the accused will be charged. Moreover, the words of the Code may be less helpful to a lay person than more common parlance in communicating the extent of jeopardy. Finally, the degree of awareness which the accused may be reasonably assumed to possess in all the circumstances may play a roll in determining whether what the police said was sufficient to bring home to him the extent of his jeopardy and the consequences of declining his right to counsel. |
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The question reduces to this: in this case was the accused possessed of sufficient information to make his waiver of counsel valid? To my mind, to establish a valid waiver of the right to counsel the trial judge must be satisfied that in all the circumstances revealed by the evidence the accused generally understood the sort of jeopardy he faced when he or she made the decision to dispense with counsel. The accused need not be aware of the precise charge faced. Nor need the accused be made aware of all the factual details of the case. What is required is that he or she be possessed of sufficient information to allow making an informed and appropriate decision as to whether to speak to a lawyer or not. The emphasis should be on reality of the total situation as it impacts on the understanding of the accused, rather than on technical detail of what the accused may or may not have been told. |
¶ 17 In the present case, the requirement to be informed promptly of the reasons for the arrest was sufficiently complied with when Latimer was told that he was being detained in connection with the investigation of his daughter's death and that it was a matter of serious consequence. Whether Latimer exercised good judgment is not the question. Given the circumstances, he must have understood the gravity of his situation. He was made aware of his right to counsel, and he made an informed decision.
¶ 18 In a final and alternative submission the defence argues that, in any event, Latimer's statements were not voluntary in the legal sense because they were elicited by means of coercive psychological pressure and, therefore, should be excluded.
¶ 19 The traditional confession rule precluded the admission into evidence of any statement obtained by means of threats or promises held out by persons in authority. The main rationale for the rule was that such statements could not be relied upon as being truthful. Implicit in the rule was a right to remain silent which has now been framed as a constitutional guarantee by s. 7 of the Charter. Thus, not only are courts now concerned with a standard of reliability, but they are also concerned with considerations of fairness in the process.
¶ 20 These concepts are discussed by Madam Justice McLachlin in R. v. Hebert, [1990] 2 S.C.R. 151, and, more recently, by Mr. Justice Sopinka in R. v. Whittle, [1994] S.C.J. No. 69.
¶ 21 The following passage appears in Hebert at p. 181: The common law rules related to the right to silence suggest that the scope of the right in the pre-trial detention period must be based on the fundamental concept of the suspect's right to choose whether to speak to the authorities or remain silent. Any doubt on the question is resolved by consideration of the related rights protected by the Charter, by the Charter's approach to the question of improperly obtained evidence, and by the fundamental purpose of the right to silence and related procedural guarantees. In keeping with the approach inaugurated by the Charter, our courts must adopt an approach to pre-trial interrogation which emphasizes the right of the detained person to make a meaningful choice and permits the rejection of statements which have been obtained unfairly in circumstances that violate that right of choice.
The right to choose whether or not to speak to the authorities is defined objectively rather than subjectively. The basic requirement that the suspect possess an operating mind has a subjective element. But this established, the focus under the Charter shifts to the conduct of the authorities vis-à-vis the suspect. Was the suspect accorded the right to consult counsel? Was there other police conduct which effectively and unfairly deprived the suspect of the right to choose whether to speak to the authorities or not? |
Latimer was well briefed as to his right to counsel. There was psychological pressure brought to bear by the investigators in the hope of obtaining information, but it did not amount to trickery and it did not operate unfairly to deprive Latimer of his right to choose whether to remain silent in the face of questions being put.
¶ 22 On the whole of the evidence, and considering all the circumstances surrounding the investigation, I am unable to find any reason to exclude any of the evidence, including statements, obtained from Latimer on the day in question.
WIMMER J.