T-2805-83
Arnold Harper Crossman (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Walsh J.—Vancouver, April 10
and 13, 1984.
Crown — Torts — Denial of prisoner's Charter right to
retain and instruct counsel without delay — Crown liable for
tort committed by policeman when interview commenced
although aware of imminent arrival of counsel and latter
denied access to client until interview over — Action allowed,
punitive damages awarded — Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act, 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 10(b), 24(1),(2) —
Criminal Code, R.S.C. 1970, c. C-34, ss. 235, 237 — Crown
Liability Act, R.S.C. 1970, c. C-38 — Canadian Bill of
Rights, R.S.C. 1970, Appendix III.
Constitutional law — Charter of Rights — Action for
damages for denial of prisoner's right to retain and instruct
counsel without delay — Police commencing interview
although aware counsel to arrive shortly and refusing counsel
access to client while interview in progress — No actual
damages suffered by plaintiff as no statement obtained and
guilty plea entered — Right to have counsel present during
interview — Action allowed, punitive damages awarded —
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), ss. 10(b), 24(1),(2) — Criminal Code, R.S.C. 1970, c.
C-34, ss. 235, 237 — Crown Liability Act, R.S.C. 1970, c.
C-38 — Canadian Bill of Rights, R.S.C. 1970, Appendix III.
While in custody at a R.C.M.P. Detachment following his
arrest, the plaintiff telephoned his counsel and requested his
presence. Counsel talked to the investigating officer and told
him he would be there in a few minutes. The officer and others
then proceeded to interview the plaintiff without waiting coun
sel's arrival. When the lawyer arrived a short while later and
requested to see his client, the officer told him that he could not
see him until the interview was over. No statement was
obtained from the plaintiff. He eventually pleaded guilty to the
charge for which he was arrested and was sentenced to three
months' imprisonment and probation for eighteen months. The
plaintiff now sues for damages under provisions 10(b) and
24(1) of the Charter for denial of his right to retain and
instruct counsel without delay.
Held, the action should be allowed and the plaintiff awarded
$500 as punitive damages.
While the plaintiff suffered no actual damages as a result of
the interview, he is entitled to punitive damages for infringe
ment of his right to retain and instruct counsel without delay,
which included, in the circumstances of this case, the right to
have his counsel present during the interview.
On the matter of the assertion of his rights, first, the plaintiff
cannot be presumed to have waived his right by consenting to
the interview. Second, while it may be true that the right to
retain and instruct counsel without delay can only be invoked
by the prisoner himself, once counsel has been retained, he is
entitled to invoke on behalf of his client the right not to be
questioned in the absence of counsel. The defendant cannot rely
on a strict interpretation of paragraph 10(b) to defeat plain
tiffs rights as the clear intent of the Charter is to protect a
prisoner from unfair harassment. The officer clearly committed
a tort against the plaintiff in commencing the interview without
awaiting the arrival of counsel and in refusing counsel access to
his client until the interview was completed, this refusal being a
clear infringement of the plaintiffs civil rights.
The circumstances in which the interview took place would
bring the administration of justice into disrepute and justified
the awarding of damages sufficiently punitive as to act as a
deterrent. However, the fact that the plaintiff eventually plead
ed guilty and that the present case deals with a question which
has not been directly decided before and is not specifically
spelled out in the Charter must be considered in mitigation of
damages.
CASES JUDICIALLY CONSIDERED
APPLIED:
Regina v. Rowbottom (1982), 18 M.V.R. 202; 2 C.R.R.
254 (Nfld. Prov. Ct.); Manninen v. The Queen, judgment
dated November 28, 1983, Ontario Court of Appeal, not
yet reported; Hogan v. Her Majesty the Queen, [1975] 2
S.C.R. 574; R. v. Shields, judgment dated May 10, 1983,
Borins J., County Court, Ontario, not yet reported; Para
gon Properties Limited v. Magna Investments Ltd.,
[1972] 3 W.W.R. 106; 24 D.L.R. (3d) 156 (Alta. S.C.
App. Div.); Kingsmith v. Denton (1977), 3 A.R. 315
(Alta. S.C.T.D.); Rookes v. Barnard, et al., [1964] 2
W.L.R. 269 (H.L.); Regina v. Esau (1983), 20 Man. R.
(2d) 230; 147 D.L.R. (3d) 561; 4 C.R.R. 144 (C.A.).
DISTINGUISHED:
Regina v. Vermette (No. 4) (1982), 1 C.C.C. (3d) 477
(Que. S.C.); Re Ritter et al. and The Queen (1983), 8
C.C.C. (3d) 170 (B.C.S.C.).
CONSIDERED:
Regina v. Bond (1973), 14 C.C.C. (2d) 497; 24 C.R.N.S.
273; 6 N.S.R. (2d) 512 (N.S.C.A.); Brownridge v. Her
Majesty The Queen, [1972] S.C.R. 926; Regina v. Settee
(1974), 22 C.C.C. (2d) 193 (Sask. C.A.); Her Majesty
the Queen v. Rodney James Ross, et al., judgment dated
February 23, 1984, I. A. Vannini J., District Court,
Algoma, Ontario, not yet reported.
COUNSEL:
Dennis N. Claxton for plaintiff.
Mary Humphries for defendant.
SOLICITORS:
Cable, Veale, Cocso, Morris & Claxton,
Whitehorse, Yukon, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
WALSH J.: This action was heard on an agreed
statement of facts reading as follows:
1. On 25 October, 1983 at approximately 10.00 a.m. the
Plaintiff was arrested without warrant in the City of White-
horse, Yukon Territory by members of the Royal Canadian
Mounted Police.
2. At approximately 11.40 a.m. on the same day while in
custody at the Royal Canadian Mounted Police Detachment,
the Plaintiff contacted his counsel by telephone and requested
that his counsel attend at the Royal Canadian Mounted Police
Detachment so that he might receive legal advice and instruct
his counsel.
3. The Plaintiff's counsel also had a conversation with the
investigating officer, Constable Jacklin, at this time and
advised Constable Jacklin that he would be at the Detachment
in a few minutes to see the Plaintiff.
4. At approximately 12.03 p.m. on the same day the Plaintiff's
counsel arrived at the Royal Canadian Mounted Police Detach
ment and requested to see the Plaintiff.
5. At approximately 12.15 p.m. on the same day the Plaintiff's
counsel was advised by Constable Jacklin that the Plaintiff was
being interviewed by them and was not available to talk to his
counsel and that his legal counsel would not be permitted to see
the Plaintiff until their interview was completed.
6. At approximately 1.03 p.m. on the same day the Plaintiff's
counsel received a telephone communication from Constable
Jacklin advising that the Plaintiff was now available for
interview.
7. No statements were obtained from the Plaintiff during the
interview or at any other time.
8. On the 15th December, 1983 the Plaintiff entered a guilty
plea to a charge under Section 245.3 of the Criminal Code and
was sentenced to three months imprisonment and probation for
eighteen months.
In his action for damages and costs the plaintiff
claims that he was denied by the defendant his
right to retain and instruct counsel without delay,
relying on paragraph 10(b) and subsection 24(1)
of the Canadian Charter of Rights and Freedoms
[being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11
(U.K.)], which read respectively as follows:
10. Everyone has the right on arrest or detention
(b) to retain and instruct counsel without delay and to be
informed of that right; and
24. (1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
While both parties referred extensively to juris
prudence and authorities, the decided cases deal
mainly with refusal of the right to retain and
instruct counsel or failure to inform the prisoner of
that right, rather than with the precise point in
issue here of commencing the questioning of the
prisoner without awaiting the arrival of his counsel
even though the police are aware that he is on his
way and that his arrival will involve no undue
delay. Most of the jurisprudence on the issue
involved has been the admissibility at a criminal
trial of statements improperly obtained because of
the prisoner not having been allowed to retain and
instruct counsel without delay in not having been
informed of his right to do so. In the present case
no actual statement was taken as such but the
prisoner was questioned in the absence of his
counsel. Since he eventually pleaded guilty to the
charge laid against him, there is no question of the
introduction into evidence of any information
obtained by the police as a result of his having
been interviewed by them, so the question of
whether he was properly warned or not before
being so interviewed, and the distinction between
an "interview" and the taking of a statement for
subsequent use in the proceedings against him is
not an issue. Moreover, he apparently suffered no
actual damages as a result of this interview since
in due course he pleaded guilty in any event, so the
only damages which could be claimed are of an
exemplary or punitive nature if it is found that the
interview and the circumstances in which it took
place in the absence of his lawyer was improper
and constituted a tort committed by Constable
David Jacklin in the course of his duties, engaging
the responsibility of the Crown by virtue of the
provisions of the Crown Liability Act [R.S.C.
1970, c. C-38].
At an early stage in the proceedings plaintiff
discontinued his action against Constable Jacklin
and the style of cause should therefore be amended
accordingly, but this does not affect plaintiff's
claim against Her Majesty the Queen.
On the question of liability one of the cases
referred to by plaintiff was that of Regina v.
Rowbottom (1982), 18 M.V.R. 202; 2 C.R.R. 254,
decided in the Newfoundland Provincial Court on
November 2, 1982, in which the judgment states
[C.R.R. at page 261, M.V.R. at page 212]:
Although the accused did have a contact with one lawyer, he
had not received any legal advice and his situation was known
to the police. The decision of the police not to wait after only an
hour had passed, to allow the accused to contact another
lawyer, infringed the accused right to retain and instruct
counsel.
The next paragraph of that judgment refers to the
fact that the two-hour limit in sections 235 and
237 of the Criminal Code [R.S.C. 1970, c. C-34]
(the limit imposed for demanding a breath sample
on suspicion of having committed an offence
within two hours before the demand) had not run
its course and, in the circumstances, further time
should have been given to await a call from the
counsel so the accused could have the benefit of
meaningful contact with counsel.
In the Manninen v. The Queen case in the
Ontario Court of Appeal, in a judgment dated
November 28, 1983, the accused was read the
warning including his right to counsel and then
stated he would not say anything until he had seen
his lawyer. The police then immediately com
menced questioning him. It was not until six hours
after his arrest that his lawyer communicated with
him. On page 12 the judgment states:
On the appellant's claiming his right to remain silent and to
see his lawyer under the circumstances recited, the constables
should have offered him the use of the telephone so that he
might exercise his right. If he had declined such an offer,
different considerations might apply but those are not the facts
of this case. His answers to the questions, when he could have
remained silent, were not in any sense, in my view, a waiver of
his right to consult his lawyer without delay and it is not
seriously argued that he, by his conduct, had waived his rights.
At page 13 in reference to the Canadian Charter
of Rights and Freedoms the judgment states:
This basic right to counsel, as part of the supreme law of
Canada, must be taken seriously by law enforcement officers
and facilitated "without delay" always having regard to the
circumstances of the particular case.
While this was a case dealing with the com
mencement of questioning before the accused had
been given an opportunity to telephone his lawyer,
also at issue was the admissibility of the statement
made as a result of the questioning. The comments
on page 17 might well be applied to the somewhat
different facts of the present case. That page
stated:
The breach of the appellant's rights can only be described as
wilful and deliberate. It was more than a mere blunder or
technical transgression. Having carefully read the appellant his
rights twice and heard him express his desire to exercise those
rights, the police immediately proceeded to question him as if
the reading and the exercise had never taken place. This
conduct went beyond being "unfortunate, distasteful or inap
propriate". (R. v. Rothman (1981), 59 C.C.C. (2d) at page 74).
There was no quality of inadvertence or ignorance to the timing
of the questions nor their content. As already stated, there was
no suggestion of an emergency situation or urgency pressed
upon us as justification for the asking of the questions and, in
particular, for the form of the question which presumed the
guilt of the appellant.
In the case of Hogan v. Her Majesty the
Queen,' the majority judgment dismissed the
appeal in a case where a breath sample test was
taken in connection with an impaired driving
charge after the accused had asked to see his
lawyer before taking the test and being refused
this right. The majority judgment makes it clear,
however, that even if the evidence had been
improperly or illegally obtained, there was no
grounds for excluding it at common law and that
whatever the constitutional impact of the Canadi-
an Bill of Rights [R.S.C. 1970, Appendix III] it
did not result in a finding that whenever there had
been a breach of one of its provisions it would
justify the adoption of the absolute exclusion rule.
In a strong dissenting judgment Chief Justice
' [1975] 2 S.C.R. 574.
Laskin [then a puisne Judge] refers to the Canadi-
an Bill of Rights as a "quasi-constitutional instru
ment". It is clear that the present Canadian
Charter of Rights and Freedoms is a constitution
al instrument. He goes on to say at pages 597-598:
It does not embody any sanctions for the enforcement of its
terms, but it must be the function of the Courts to provide them
in the light of the judicial view of the impact of that enactment.
At page 598 he adds:
We would not be justified in simply ignoring the breach of a
declared fundamental right or in letting it go merely with words
of reprobation. Moreover, so far as denial of access to counsel is
concerned, I see no practical alternative to a rule of exclusion if
any serious view at all is to be taken, as I think it should be, of
this breach of the Canadian Bill of Rights.
This case, again, dealt with refusal of the right to
consult counsel, but the facts were somewhat simi
lar to those of the present case. At page 587,
Justice Laskin (as he then was) states:
In this case, the accused was confronted by a police officer at
about 1.35 a.m. and then asked to go to the police station, and
they arrived there at 1.55 a.m., whereupon steps were taken to
administer a breath test. The accused had asked his female
companion to get in touch with his lawyer, and the latter had
come immediately to the police station and the accused heard
his voice in an adjoining room. The record is clear that he asked
to see and consult with the lawyer but was categorically refused
an opportunity to do so. The demand that he submit to a breath
test was renewed and the accused submitted to it.
and at page 589 he states:
There is no suggestion here of any physical force in the
ultimate submission of the accused without having had his right
to counsel recognized, but I do not think that any distinction
should be drawn in the establishment of principle according to
whether an accused yields through fear or a feeling of helpless
ness or as a result of polite or firm importuning or aggressive
badgering. I should note also that there was no contention of
waiver by the accused of his right to counsel, assuming that
would be an answer to an alleged breach of any of his rights as
an individual under the Canadian Bill of Rights.
Defendant insists that the present case can be
distinguished from those in which a prisoner was
refused the right to retain or instruct counsel or
that this right was not given to him promptly, in
that, if he was questioned thereafter without his
lawyer being present, there is nothing to indicate
that he objected to this. It was suggested that the
lawyer would, or at least should, have told him to
say nothing until he arrived but this is, of course,
pure speculation. It would be equally possible to
speculate that he merely engaged the lawyer to
represent him who then told him that he would
come right away to interview him. The lawyer also
advised Constable Jacklin that he would be at the
Detachment in a few minutes to see the plaintiff,
as appears in paragraph 3 of the agreed statement
of facts. It would also be improper to speculate as
to Constable Jacklin's motives in immediately
commencing questioning the prisoner without
awaiting the arrival of the lawyer. Under the
circumstances this certainly gives rise to some
concern as to the propriety of his doing so.
Defendant's counsel also states that by consent
ing to the interview or not refusing to speak until
his lawyer arrived, plaintiff waived his right. This
is also an unjustifiable assumption, since as far as
the agreed statement of facts is concerned, it is
possible that he could have been forced to submit
to the interview over his objections. All the agreed
statement of facts states is that by 12:15 p.m.
plaintiff was being interviewed by Constable
Jacklin. While defendant infers that had this been
done despite his objection it would have been
stated in the agreed statement of facts, but it is
questionable whether the absence of such a state
ment and the fact that he was in fact interviewed,
justifies an assumption that he did so willingly
without awaiting the arrival of his lawyer.
Even if one were to accept defendant's conten
tion that no fault is involved in commencing the
interview without awaiting the arrival of counsel,
who arrived 23 minutes after the telephone call—
certainly a very prompt arrival—Constable Jacklin
then compounded the fault by advising plaintiff's
counsel soon after his arrival that as plaintiff was
being interviewed by then he was not available to
talk to his counsel who would not be permitted to
see him until the interview was completed, which
was over three-quarters of an hour later. It is
inconceivable that an accused's lawyer on arriving
at the police station where the accused, his client,
is being interviewed should be told that the inter-
view cannot be interrupted and that he cannot see
his client until the interview is completed. This is
completely unacceptable, and in my view, a clear
infringement of plaintiff's civil rights.
Defendant's counsel raises the argument that
the rights given in paragraph 10(b) of the Canadi-
an Charter of Rights and Freedoms make no
reference to the right to have counsel present when
the prisoner is being interviewed. This might well
be the case if a long delay were involved as for
example when the prisoner, having been permitted
to communicate with his lawyer, finds that the
lawyer is out of town or otherwise will not be
available for a considerable length of time. Each
case must be decided on its own facts, but I believe
that the spirit of the Charter, if not the letter of it,
would indicate that it is not sufficient merely to
permit the prisoner to phone counsel and then
commence questioning immediately the telephone
call is completed, even though the questioning
officer has been told by counsel that he is coming
to the police station right away to see his client
and, in fact, does so.
The defendant also contends that the right of
the accused to be interviewed can only be invoked
by the prisoner himself, and as already indicated,
infers from the fact that he was interviewed that
he made no objection to this. It may well be true
that the right to request permission to retain and
instruct counsel is one that can only be invoked by
the prisoner himself, but once counsel has been
retained, as he was in this case, then counsel is, as
always, entitled to speak on behalf of his client and
he would certainly be justified in invoking on his
behalf the right not to be questioned in the absence
of his counsel. Even if this could not be inferred
from the telephone discussion of counsel with Con
stable Jacklin advising him that he was on his way,
he was certainly entitled on behalf of his client to
insist on the client's right to have him present
during the rest of the interview from the moment
he arrived at the police station, but this right,
which is the right of the client, was categorically
refused by the police officer.
Defendant, in support of her position, also
invoked considerable jurisprudence. Reference was
made to the Nova Scotia Court of Appeal case of
Regina v. Bond (1973), 14 C.C.C. (2d) 497; 24
C.R.N.S. 273; 6 N.S.R. (2d) 512, again a case
involving refusal to take a breathalyser test, which
has to be taken within two hours. The accused
called one lawyer who refused to represent him
and he was then permitted to call another lawyer
who resided at a place some twenty-five to twenty-
eight miles distant. The prisoner was advised by
the constable that he could not wait for the arrival
of his lawyer and also told the lawyer that they
would not wait for him to arrive. After a further
discussion with the second lawyer, the prisoner
refused to take the test. This again was a case
under the former Canadian Bill of Rights. Refer
ence was made in it to the judgment of the
Supreme Court of Canada in the case of Brown-
ridge v. Her Majesty The Queen. 2 In this case the
majority judgment rendered by Laskin J. at page
953 states:
I am content to say for the purposes of this case that the
accused's right under s. 2(c)(ii) would have been sufficiently
recognized if, having been permitted to telephone, he had
reached his counsel and had spoken with him over the tele
phone. I would not construe the right given by s. 2(c)(ii), when
invoked by an accused upon whom a demand is made under s.
223(1), as entitling him to insist on the personal attendance of
his counsel if he can reach him by telephone. I refrain from
enlarging on the matters mentioned in this paragraph of my
reasons because it is better that this be done when particular
cases call for it.
The Brownridge case was discussed at length by
the late Chief Justice Laskin in his dissenting
judgment in the Hogan case (supra) in which he
stated at page 589:
The question that arises, therefore, is whether the vindication
of this right should depend only on the fortitude or resoluteness
of an accused so as to give rise to a Brownridge situation, or
whether there is not also an available sanction of a ruling of
inadmissibility where the police authorities are able to over
come an accused's resistance to a breathalizer test without
prior access to counsel. Nothing short of this would give
reasonable assurance of respect of an individual's right to
counsel by police authorities whose duty to enforce the law goes
hand in hand with a duty to obey it.
In the case of Regina v. Settee, Saskatchewan
Court of Appeal,' the headnote reads in part:
The accused retained counsel who told the police that the
accused was not to be interviewed if he was not present. The
request was not acceded to, the police maintaining that though
he could give whatever instruction he wished to the accused
they must continue their investigation whether he was present
2 [1972] S.C.R. 926.
3 (1974), 22 C.C.C. (2d) 193 (Sask. C.A.).
or not. During the subsequent interviews when the lawyer was
not present, the police kept reviewing for him the evidence
incriminating the accused. The day the inculpatory statement
was given the accused was told by the investigating officer that
it was the last day he could say anything, that he was to be
taken from the police station cells that day. Later that day the
officer returned and asked the accused if he wanted "to talk
business" whereupon the accused admitted the killing. He was
then cautioned and gave a full statement. The accused was
cautioned prior to every interview and at one point when he
said he would not say anything before seeing his lawyer he was
merely returned to his cell.
That case again turned on the admissibility of the
statement and the Court of Appeal held that the
Trial Judge's decision to admit it could not be
interfered with on appeal as there was nothing to
indicate that he had failed to take advantage of his
opportunity to hear the witnesses or that he failed
to consider the proper rule. The Canadian Bill of
Rights in effect at that time was not in issue.
In the case of R. v. Shields, an unreported
judgment in Ontario dated May 10, 1983,
Borins J. [County Court] stated at page 12:
Without attempting to establish a precise verbal formula, to
give effect to the right created by s. 10(b), it should be
explained, in easily understood language, to an accused that he
has the right to talk to a lawyer before and during questioning,
that he has a right to a lawyer's advice and presence even if he
cannot afford to hire one, that he will be told how to contact a
lawyer, if he does not know how to do so, and that he has a
right to stop answering questions at any time until he has
talked to a lawyer.
The words I have underlined are significant.
Reference was also made to the case of Her
Majesty the Queen v. Rodney James Ross, et al.
[judgment dated February 23, 1984, I. A. Vannini
J., District Court, Algoma, Ontario, not yet
reported], in which an accused on being arrested
at 1:30 a.m. was advised of his right to retain and
instruct counsel. He was informed of this again at
2:03 a.m. and allowed to make a telephone call but
received no response. He was then informed that
he could call another lawyer but he did not request
to use the phone to call another and was then
placed in a cell. In due course he was told that he
was going to appear in a line-up but was not
specifically advised that he did not have to partici
pate if he did not want to. He did not refuse to,
however. The Court held that there was no duty on
the police to inform the accused of his rights at
every stage of the investigation by the police and
that it is sufficient if in the course of the investiga
tion, barring exceptional circumstances, he is
informed of his right to retain and instruct counsel
without delay. At page 3 the judgment concluded:
Accordingly, I do hold that the voluntary participation in the
line-up by the accused Ross does not constitute an infringement
or denial of the right guaranteed to him by s. 13, and, a fortiori,
of the right guaranteed by s. 11(b) to be presumed innocent
until proven guilty according to law in a fair and public hearing
by an independent and impartial tribunal.
This was submitted in support of the proposition
that plaintiff made no objection to being inter
viewed without the presence of his lawyer, which,
as I have already indicated, is not a valid presump
tion from the agreed statement of facts.
On reviewing the jurisprudence I conclude on
the facts of this case and in the present state of the
law, and in particular with reference to the clear
intent and purpose of the Canadian Charter of
Rights and Freedoms to protect a prisoner from
unfair harassment that defendant cannot rely on a
strict and narrow interpretation of paragraph
10(b) to defeat plaintiff's rights. I conclude that
Constable Jacklin committed a tort against the
plaintiff in commencing to interview him without
awaiting the imminent arrival of his counsel, and
in then refusing immediate access of his counsel to
him after his arrival until the interview was ter
minated. It should be understood that this conclu
sion is based on the facts of this case and should
not be considered as authority for a finding that no
interview of an accused can ever take place in the
absence of his counsel, when the circumstances of
the case require that this should be done without
undue delay, such as when counsel will not be
available for an extended period of time, or delay
will result in the loss of evidence as in the breath-
alyser cases. To decide otherwise would result in
an unacceptable conclusion that once the accused
had been given the right to telephone his counsel,
and has done so, nothing further can then be done
with respect to questioning him until such counsel
chooses to make himself available, which might
involve delays of many hours or even days.
Having decided that a tort was committed the
next question is what sanction or remedy can the
Court impose? This is not a case involving
admissibility of a statement improperly taken from
an accused; in fact no such statement was taken.
Neither is it a case where as a result of the
interview without counsel being allowed to be
present, plaintiff suffered actual damage since, in
due course, he pleaded guilty in any event. How
ever, the failure to impose some sanction would be
to condone the unfair, and in my opinion, illegal
conduct of the police officer in question. Plaintiff
cited the case of Paragon Properties Limited v.
Magna Investments Ltd. 4 as authority for the
proposition that although exemplary or punitive
damages were not claimed in the prayer for relief
in a counterclaim, they may properly be awarded
in answer to a claim for general damages. In the
case of Kingsmith v. Denton (1977), 3 A.R. 315, a
judgment in the Alberta Supreme Court [Trial
Division] dated March 24, 1977, dealing with
damages against a police officer for unjustifiable
assault, $1,500 was awarded as exemplary dam
ages. The conduct of the defendant was found
reprehensible and offensive to the ordinary stand
ards of morality or decent conduct in the commu
nity. This is somewhat akin to subsection 24(2) of
the Canadian Charter of Rights and Freedoms
which excludes the admissibility of evidence
obtained in a manner that infringed or denied any
rights or freedoms guaranteed by the Charter if it
is established that having regard to all the circum
stances the admission of it in the proceedings
"would bring the administration of justice into
disrepute". In the present case we are not dealing
with the admissibility of any statement made but
the circumstances in which the interview took
place would itself bring the administration of jus
tice into disrepute. It is by subsection 24(1) that
the Court may apply such remedy as it considers
appropriate and just in the circumstances.
4 [1972] 3 W.W.R. 106; 24 D.L.R. (3d) 156 (Alta. S.C. App.
Div.).
In commenting on the enforcement of the
Canadian Charter of Rights and Freedoms Tar-
nopolsky, in his text The Canadian Charter of
Rights and Freedoms—Commentary at page 502
states that the remedy available in subsection
24(1) would clearly include damages where suit
able. At page 503 he states that the power to
award damages would, where suitable, cover
exemplary, punitive or moral damages as well as
the strictly compensatory type. He refers to the
judgment of Lord Devlin in Rookes v. Barnard, et
al.,' at page 328 where he states that exemplary
damages are appropriate in cases of "oppressive,
arbitrary or unconstitutional action by servants of
the government".
Defendant, on the question of damages, referred
inter alia to the case of Regina v. Vermette (No.
4), 6 in which it is stated at page 495:
We are of the view that when a court is required to grant a
remedy under s. 24(1) of the Charter, that remedy, in addition
to being appropriate and just, must also be effective.
and also referred to the case of Re Ritter et al. and
The Queen ? in which at page 184 it is stated:
I have therefore concluded that in so far as any right or
freedom guaranteed to the accused by the Charter might be
said to have been breached on the facts as described to be, the
only relief which the accused seek could not, in my view,
possibly be considered an appropriate remedy, nor am I able in
the circumstances to suggest any course which, at this point,
would serve to remedy any such alleged breach.
These are both cases with very unusual facts which
it is not necessary to go into here as they are not
really applicable. The case of Regina v. Esau,'
dealing with an alleged improper search held
[C.R.R.] at page 149 [236 Man. R.]:
Apart from the issue as to the admissibility of illegally
obtained evidence, anyone who has been subjected to unreason
able search and seizure is entitled to apply to a court of
competent jurisdiction for remedial relief. In an instance where
the search is abortive, the damages might be substantial,
particularly if force were used against an innocent citizen. In a
5 [1964] 2 W.L.R. 269 (H.L.).
6 (1982), 1 C.C.C. (3d) 477 (Que. S.C.).
(1983), 8 C.C.C. (3d) 170 (B.C.S.C.).
s (1983), 20 Man. R. (2d) 230; 147 D.L.R. (3d) 561; 4
C.R.R. 144 (C.A.).
case such as this, however, where evidence of illicit drugs is
revealed, and where no force was exercised against the accused,
I would hazard the guess that the remedy would be modest
indeed.
Although counsel for plaintiff argued that it is
improper to take into consideration the fact that
plaintiff eventually pleaded guilty to the charge for
which he was arrested, which has nothing to do
with exemplary or punitive damages to be awarded
for preventing his counsel from being present
during his interview, I do not believe this can be
altogether ignored in fixing the amount of dam
ages to be allowed.
Defendant's counsel suggests that a simple dec
laration that the police officer committed an error
would be sufficient to act as a deterrent to similar
conduct by police officers in future. I do not agree.
The damages to be awarded should be sufficiently
punitive as to act as a deterrent, but on the other
hand the fault is not as serious as it would have
been had plaintiff been refused altogether the right
to retain or instruct counsel without delay or had
not been informed of that right in direct contra
vention of paragraph 10(b) of the Charter. Since
the present case deals with a question which does
not appear to have been directly decided before
and is not specifically spelled out in the Charter, so
that the infringement of plaintiffs rights must be
based by inference on the intention of the Charter
considered in the light of the particularly objec
tionable conduct of the police officer with respect
to the right which I have found plaintiff had to
have his counsel, who was ready and available,
with him during his interview, this must be con
sidered in mitigation of damages.
Under the circumstances damages will be
awarded in the amount of $500 and costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.