Chew on This: R v Beaver’s Impact on Manitoban Jurisprudence So Far

Al Borger and N Dueck

Chew on This: Beaver’s Impact on Manitoban Jurisprudence So Far

At some point in our lives, we’ve all felt as though we deserve a second chance. But when do the police? This is the question at the heart of the 2022 Supreme Court of Canada (SCC) decision in R v Beaver, which sought to clarify the parameters of what can constitute a “fresh start” for law enforcement after they have breached the Charter rights of an accused person. Despite the novelty of the decision, Beaver has already been cited in two Manitoban cases — R v Last and R v Moreau, indicating that it will likely play a significant role in our province’s judicial process for similar cases going forward.

This blog post will examine the impact of Beaver in Manitoban jurisprudence so far. It will do so first by summarizing the Beaver decision itself, with an emphasis on its reasoning regarding voluntariness and what can constitute a legitimate “fresh start” following Charter breaches. Second, it will summarize the backgrounds of the Last and Moreau decisions and explain how Beaver was incorporated into the reasonings of both. Finally, it will conclude by speculating on the impact that Beaver might continue to have on Manitoban decisions in the future.

Voluntariness and “Fresh Starts” in Beaver

Beaver followed a manslaughter case in which Beaver confessed to killing his landlord in Calgary following a dispute.[1] However, his confession was only made after a series of Charter breaches by law enforcement — for example, by police arresting him under legislation that did not include detention powers.[2] Upon realizing that they had breached Beaver’s rights, the police attempted to make a “fresh start” by re-arresting and properly informing him of his legal rights and jeopardy, after which he eventually confessed.[3] However, Beaver later argued that the “fresh start” in question was insufficient to ameliorate the Charter breaches he had experienced, citing section 24(2) of the Charter, which forbids the use of evidence “obtained in a manner” that infringes upon Charter rights if doing so would “bring the administration of justice into disrepute.”[4] Ultimately, though, the SCC ruled that the fresh start for Beaver was sufficient to “sever” his confession from the prior Charter breach and that it was therefore admissible as evidence.[5]

Voluntariness in Beaver

In arriving at this decision, Beaver also clarified the role of voluntariness in assessing whether a confession was obtained fairly, writing that “voluntariness is a shorthand for a complex of values engaging policy concerns related to not only the reliability of confessions, but also to respect for individual free will, the need for the police to obey the law, and the fairness and repute of the criminal justice system.”[6] The decision made it clear that this definition of voluntariness was built on the landmark 2000 case R v Oickle, which considered similar issues related to confessions. However, Beaver summarized the “complex of values” that comprise voluntariness with relevance to the Canadian legal context that Oickle failed to provide. More specifically, Oickle only directly discussed the components of voluntariness by quoting the American Supreme Court on the subject, before adding the significant caveat that the “‘complex of values’ relevant to voluntariness in Canada is obviously not identical to that in the United States.”[7] In its definition then, Beaver advanced the legal philosophy in Oickle by providing a “complex of values” to define voluntariness in confessions that are unreservedly relevant to the Canadian context — rather than merely transplanting, with reservation, American jurisprudence north of the 49th parallel. As will be discussed below, the Manitoban court has already made use of Beaver’s “Canadianization” of voluntariness jurisprudence in R v Last.

“Fresh Starts” in Beaver

Beaver also advanced Canadian jurisprudence on the issue of evidence obtained following a Charter breach. More specifically, the majority wrote that:

Evidence will not be ‘obtained in a manner’ that breached the Charter when police made a ‘fresh start’ from an earlier Charter breach by severing any temporal, contextual, or causal connection between the Charter breach and the evidence obtained or by rendering any such connection remote or tenuous. In some cases, the police may make a ‘fresh start’ by later complying with the Charter, although subsequent compliance does not result in a ‘fresh start’ in every case.[8]

By the SCC’s admission, this jurisprudence builds on prior SCC decisions such as R v Mack and R v Wittwer.[9] But neither decision on its own completely encapsulated the reasoning articulated in Beaver. Mack never referenced fresh starts at all[10], and Wittwer merely introduced the concept without explaining what constitutes one in detail.[11] In contrast, Beaver offered six “indicators” of what might constitute a fresh start for future courts to consider.[12] As a result, Beaver can serve as a superior reference case when considering “fresh start” issues — which, as will be discussed, is precisely what happened in R v Moreau.

Beaver in Last and Moreau

Last and Moreau can be summarized as follows: in Last, a man accused of causing a fire in Winnipeg that killed a woman was arrested for murder and subsequently made incriminating statements to police, but later claimed that they had been made involuntarily in part because he had allegedly been high on methamphetamine during his interrogation.[13] The issue for the court relevant to this post is whether this alleged drug use compromised the voluntariness of Last’s subsequent statements.[14]

In Moreau, the accused was interviewed regarding the death of his daughter in a manner that the court found to have breached his Charter rights and, nine days later, was re-interrogated after the police had attempted to make a “fresh start” by properly (re-)arresting him.[15] In this second interrogation, however, law enforcement made references to the first interrogation in a successful effort to elicit a second admissible statement.[16] The issue in Moreau for the court relevant to this post was whether the police’s conduct in doing so compromised the legitimacy of the attempted fresh start to the point where Last’s second statement should be excluded.[17]

Beaver and Voluntariness in Last

In Last, the court quoted Beaver at length to define the concept of voluntariness in confessions, rather than Oickle, which it acknowledges “remains the seminal authority” on the subject.[18] Although the court does not explain why it chose Beaver’s articulation of voluntariness over Oickle’s, it may be that, as discussed above, Oickle’s reasoning is compromised by its own admission by the fact that it is based on American judicial philosophy, whereas Beaver is more directly relevant to the Canadian case at hand. Regardless, on the basis of Beaver’s reasoning on voluntariness, the court determined that Last’s statement was voluntary and could therefore be included in legal proceedings.[19] More specifically, explicitly following Beaver, the judge decided that Last’s voluntariness was not “oppressed” by the mere fact that he had taken a shot of methamphetamine prior to his arrest.[20] “Mr. Last was alert, oriented as to time and place, appropriately responsive to questions, lucid, [and] engaged,” he concluded. “His will was not overborne in any way.”[21]

Beaver and “Fresh Starts” in Moreau

In Moreau, conversely, the court referenced Beaver to conclude that the accused’s second statement should be excluded. More specifically, it reasoned that law enforcement failed to effectively ameliorate the prior Charter breach,  — “unlike in Beaver,” the judge concluded, “there was no conscious effort on the part of the police in this case to make ‘a fresh start’ with the second interview.”[22] Perhaps as a result of this failure to do so, Moreau’s interrogators carelessly made repeated references to the accused previous statements that had been obtained in a Charter-breaching manner, for example by asking him “you remember you telling me all this, right?”[23] As a result, the court concluded that this second interview was “more or less a continuation of the first”[24] and that therefore the statements that resulted were inadmissible.

Beaver in Manitoba Tomorrow

Only a year after it was delivered, then, Beaver has already been cited in two serious Manitoban criminal cases for its authority both on the concept of voluntariness in confessions and on what does and does not constitute a fresh start following Charter beaches. But the jury remains out, so to speak, as to whether the decision will come to be considered as more of a boon to prosecutors or defence counsel. On the one hand, it was referenced in support of Moreau’s defence that a fresh start had not been made prior to his confession. On the other hand, it was cited in Last to agree with the Crown that voluntariness is not a fragile concept that can be shattered by the slightest challenge. Perhaps, then, Beaver will come to be seen as a case that can both aid and challenge all criminal lawyers, regardless of which side of the courtroom they stand.

LEGISLATION

Canadian Charter of Rights and Freedoms, s 24(2), Part I of the Constitution Act, 1982.

JURISPRUDENCE

R v Beaver, 2022 SCC 54.

R v Last, 2023 MBKB 65.

R v Mack, 2014 SCC 58.

R v Moreau, 2023 MBKB 85.

R v Oickle, 2000 SCC 38.

R v Wittwer, 2008 SCC 33.

[1] R v Beaver, 2022 SCC 54 at paras 2-4 [Beaver].

[2] Ibid at para 10.

[3] Ibid at paras 24-25.

[4] Canadian Charter of Rights and Freedoms, s 24(2), Part I of the Constitution Act, 1982 [Charter], quoted in Beaver, supra note 1 at para 4.

[5] Ibid at paras 113-15, 116-136.

[6] Ibid at para 47.

[7] R v Oickle, 2000 SCC 38 at para 70 [Oickle].

[8] Beaver, supra note 1 at para 97.

[9] Ibid at paras 96-97.

[10] R v Mack, 2014 SCC 58 [Mack].

[11] R v Wittwer, 2008 SCC 33 paras 2-3 [Wittwer]. The dissent in Beaver makes the same point, describing the reference to fresh starts in Wittwer as “ambiguous” and merely a “colloquial description” and, moreover, arguing that it was so vague that it did not even actually establish that the lack of a fresh start is a legitimate basis to exclude subsequently obtained evidence obtained. Beaver, supra note 1 at paras 195-97.

[12] Beaver, supra note 1 at para 103.

[13] R v Last, 2023 MBKB 65 at para 11 [Last].

[14] Ibid at paras 5-6.

[15] R v Moreau, 2023 MBKB 85 at paras 4-11 [Moreau].

[16] Ibid at paras 74-79.

[17] Ibid at para 4.

[18] Last, supra note 13 at para 9.

[19] Ibid at para 34.

[20] Ibid at paras 11-12.

[21] Ibid at para 12.

[22] Moreau, supra note 15 at para 72.

[23] Ibid at para 77.

[24] Ibid at para 79.