Charter Breaches and the Concept of “Fresh Start”: SCC Grants Leave in James Andrew Beaver v R and Brian John Lambert v R
When can courts admit evidence obtained following breaches of an accused’s rights and freedoms under the Canadian Charter of Rights and Freedoms [Charter]? In R v Beaver, 2020 ABCA 203 [Beaver], the Court of Appeal of Alberta (“ABCA” or “Court of Appeal”) ruled that courts can admit such evidence if a proper “fresh start” occurred between the breaches and the gathering of the evidence. Brian Lambert and James Beaver, the accused parties and the appellants in this case, disagreed with the Court of Appeal’s holding on what constituted a “fresh start” and appealed to the Supreme Court of Canada (“SCC”). On May 20, 2021, the SCC granted leave to appeal, and on February 22, 2022, the SCC heard the appeal. After exploring the facts and the ABCA’s decision, this case comment will reflect on the significant implications that the concept of “fresh start” could have on accused parties and the criminal justice system as a whole.
Facts and Background
On the morning of October 9, 2016, Mr. Lambert called 911 and told the operator: “there’s a guy in a puddle of blood … inside our house” (R v Beaver, 2019 ABQB 125 [Beaver ABQB] at para 5). The “guy” he was referring to was Sutton Bowers, his roommate and landlord. Mr. Lambert informed the operator that there had been altercations all week between himself and Mr. Bowers. Mr. Lambert specifically noted an incident on October 8, 2016, when Mr. Bowers had people over at their residence and told him to “get the hell out” when he attempted to drop off his dogs at the house in the evening. Due to Mr. Bowers’ hostility, Mr. Lambert and his other roommate, Mr. Beaver, left the residence for the night (Beaver ABQB, para 5).
Shortly after the 911 call, police and emergency personnel arrived at the residence and observed Mr. Bowers’ body. Police officers eventually detained Mr. Lambert and Mr. Beaver separately at the scene under the “Medical Examiners Act,” a non-existent statute (Beaver, para 3). While the officers advised both men of their Charter rights and their right to silence—also known as a “Charter and caution”—the ways the accused were detained was questionable. The officer who detained Mr. Lambert asked him questions about his relationship with Mr. Bowers despite his request to speak to a lawyer, while the officer who detained Mr. Beaver was casual in her interactions, stating at one point: “I am investigatively [sic] detaining you for uh, whatever is going on in there [chuckles]” (Beaver, para 3).
The police transported Mr. Lambert and Mr. Beaver to police headquarters (Beaver, para 4). Shortly after they arrived, the primary investigator learned that the officers had improperly detained the appellants by providing a “Charter and caution” under a non-existent statute. Moreover, one could not be arrested for an “investigative detention” (Beaver ABQB, para 26). The police subsequently arrested the appellants for “murder”; these arrests occurred about two hours after the initial detentions (Beaver, para 4). Again, the police made mistakes and acted questionably in their execution. The arresting officers did not “Charter and caution” Mr. Beaver and gave mixed signals to both appellants about the seriousness of the jeopardy they were facing (Beaver, para 4).
After their arrests, the appellants were interviewed for many hours, and in the early hours of October 10, they confessed to killing Mr. Bowers. Mr. Lambert was the first to confess, admitting that Mr. Bowers had died in a physical confrontation with him and Mr. Beaver. When presented with the recording of Mr. Lambert’s confession, Mr. Beaver also confessed that he was involved in the physical confrontation that killed Mr. Bowers (Beaver, para 5).
At the trial level, the Alberta Court of Queen’s Bench held a voir dire (a hearing to decide whether specific evidence is admissible) to address the numerous alleged Charter breaches by the police and whether it should admit the confessions of the accused as evidence. Although the Crown conceded to some Charter breaches that occurred before the arrests at the police headquarters, the Crown argued that the confessions should be admissible because the arrests “cured” those previous Charter breaches (Beaver, para 6). The trial judge agreed with the Crown and dismissed Mr. Lambert and Mr. Beaver’s objections (Beaver, para 7).
The ABCA’s Decision
Mr. Lambert and Mr. Beaver appealed the voir dire decision to the ABCA, and the Court of Appeal explored three grounds of appeal raised by the appellants.
Did the police have reasonable grounds to arrest the appellants for murder at the police headquarters?
The appellants challenged the validity of the arrests, arguing that the police did not have reasonable grounds to arrest them. At the trial level, the trial judge accepted the primary investigator’s testimony that he “subjectively believed he had reasonable and probable grounds to arrest the appellants at that time” (Beaver, para 8). The ABCA agreed with the trial judge that the appellants’ arrests were “objectively reasonable” based on the evidence (Beaver, para 8).
Did the arrests at the police headquarters constitute a “fresh start” and “cure” the earlier Charter breaches?
Mr. Lambert and Mr. Beaver also took the position that because of the Charter breaches, their confessions to the police should be excluded pursuant to section 24(2) of the Charter. The appellants took issue with the trial judge’s ruling that the arrests at the police headquarters constituted a “fresh start” which “cured” the Charter breaches (Beaver, para 11). Mr. Lambert argued that the trial judge over-emphasized the concept of “fresh start”, which usually has a “narrower application,” and Mr. Beaver argued that his arrest did not constitute a “fresh start” as the police relied on evidence obtained through the breaches to form grounds for his arrest (Beaver, para 11).
To address the appellant’s submissions, the ABCA explored section 24(2) of the Charter and explained:
A court must be satisfied of two things before excluding evidence under s.24(2): first, that the evidence was obtained in a manner that infringed or denied any of the rights or freedoms guaranteed by the Charter; and second, that admitting it would bring the administration of justice into disrepute (Beaver, para 13).
The ABCA looked to R v Mack, 2014 SCC 58 [Mack] for guidance on navigating the first branch of the test. In that case, the SCC stated that “[e]stablishing a strict causal relationship between the breach and the subsequent discovery of evidence” was unnecessary and that the “required connection between the breach and the subsequent statement” could be “temporal, contextual, causal, or a combination of the three” (Mack, para 38). Mack also indicated that determining “the strength of the connection between a piece of evidence and a Charter breach is a question of fact,” and therefore, that “a trial judge’s decision under section 24(2) of the Charter is entitled to considerable deference on appeal” (Mack, para 39). An appellate court can only interfere if “the trial judge has failed to consider the proper factors or has made an unreasonable finding” (Beaver, para 21).
The ABCA found that the trial judge reasoned appropriately in his decision; he carefully considered the relevant case law concerning the first branch of the test and was aware of the importance of assessing the circumstances (Beaver, para 22). The trial judge noted that the police provided each appellant with a right to contact and instruct counsel during the arrests (Beaver, para 23). Although the police did not provide Mr. Beaver with an additional caution at the time of his arrest, the trial judge was satisfied with the fact that Mr. Beaver was aware of his right to remain silent from the caution he received from the police during his initial detention. According to the trial judge, Mr. Beaver knew “exactly why” the detective was interviewing him after his arrest (Beaver, para 24). Furthermore, the trial judge pointed out that Mr. Beaver provided an exculpatory narrative for many hours during the interview, only confessing when confronted with the recording of Mr. Lambert’s confession (Beaver, para 24).
Accepting the trial judge’s findings and applying the criteria set out in Mack, the Court of Appeal found that there was “no causal connection” and “arguably no temporal connection,” and that “the context in which the confessions were given was completely different from the initial detention and early general questions” (Beaver, para 26). Therefore, the ABCA ruled that the appellants’ confessions were untainted by the early Charter breaches and dismissed the appellants’ ground of appeal concerning the trial judge’s application of the concept of “fresh start” (Beaver, para 26).
Was Mr. Beaver’s confession made voluntarily?
Lastly, Mr. Beaver argued that he could not “make a meaningful choice” whether to speak to the police because the police failed to warn him sufficiently about his jeopardy (Beaver, para 28). The trial judge acknowledged that Mr. Beaver did not receive a further caution during his arrest, but he opined that the absence of the caution was not determinative of voluntariness (Beaver, para 29). The ABCA agreed with the trial judge and denied Mr. Beaver’s individual ground of appeal (Beaver, para 31). In the end, the ABCA dismissed both Mr. Lambert and Mr. Beaver’s appeals (Beaver, para 32).
Analysis: Implications of the Concept of “Fresh Start”
The lion’s share of the ABCA’s decision focused on whether the arrests of Mr. Lambert and Mr. Beaver at the police headquarters constituted a “fresh start.” The ABCA largely deferred to the trial judge’s reasoning and ruling. As the Court of Appeal pointed out, the trial judge’s consideration of the connection between a piece of evidence and a Charter breach is “entitled to considerable deference” (Beaver, para 21). A trial judge’s decision can “only be interfered with where the trial judge has failed to consider the proper factors or has made an unreasonable finding” (Beaver, para 22 citing Mack, para 39). As the trial judge considered the relevant case law and factors for determining the admissibility of the appellants’ confessions and made no unreasonable factual findings, the Court of Appeal would have had difficulty in overturning his decision on that basis.
However, there could be debate over whether the trial judge and the ABCA reasonably applied the relevant case law and factors to the facts and circumstances. It is clear that the police deliberately attempted a “fresh start” by arresting Mr. Lambert and Mr. Beaver. However, just because the police interpreted the arrests as a “fresh start” does not mean that the appellants interpreted them in the same way. Given the Charter breaches which occurred not long before their arrests and the police’s questionable actions while conducting the arrests, including giving unclear signals about their jeopardy, it would have been fair for the appellants to not necessarily interpret their arrests at the police headquarters as a “fresh start.”
If courts want to use the concept of “fresh start” to cure previous Charter breaches, a high threshold is necessary. Courts must protect the accused from the use of exculpatory evidence potentially obtained by way of Charter breaches and ensure a fair judicial process. In this case, the ABCA arguably seemed to set an low threshold with their reasoning and holding. Most alarmingly, the Court of Appeal seemingly accepted the fact that the police did not properly “Charter and caution” Mr. Beaver during his arrest at the police headquarters because they determined that he was aware of his right to remain silent from his earlier detention. A “fresh start” should have, at the very least, required that the “Charter and caution” was properly completed upon the accused’s arrest.
If the SCC upholds the ABCA’s decision, it may set an unfair threshold for determining issues under section 24(2) of the Charter. In making its decision, the SCC needs to consider the implications that the threshold for the concept of “fresh start” could have on the Crown and, more crucially, the accused.