Supreme Court of British Columbia refuses to admit evidence obtained in breach of Charter rights

R v Nakamura, 2011 BCSC 1443 (26 October 2011)


This case concerns a voir dire ruling made by the Supreme Court of British Columbia to exclude from the proceedings an incriminating statement made by one of the two accused on the basis that the accused was not advised upon being detained of the right to counsel. Pursuant to s 10(b) of the Canadian Charter of Rights and Freedoms, everyone has a guaranteed right upon on arrest or detention to retain and instruct counsel without delay and to be informed of that right’. Section 24(2) of the Charter provides for the exclusion of impugned evidence if admission of the evidence would bring the administration of justice into disrepute.


The two accused were charged with aggravated assault and assault with intent to steal. Both gave statements to police which were the subject of the application. The accused Vincent was initially taken to the police station simply for questioning and was informed that he could leave at any time. However, following an aggressive interrogation during which the interviewing officer threatened to go to Vincent’s home with a warrant for arrest, Vincent confessed, implicating the other accused, Nakamura. Vincent was read his Charter rights just prior to having his statement taken.

The accused Nakamura was an Asian male whose second language was English. Upon his arrest, and then again just prior to having his statement taken, Nakamura was advised of his right to counsel and was asked whether he understood this right. He was further advised that he had the right to a reasonable opportunity to contact counsel.


The Court confirmed that the onus is on the accused to establish a Charter breach on a balance of probabilities. The burden of proving certain contested issues, however, shifts to the Crown. For example, once the accused shows that his or her right to counsel was infringed, it is for the Crown to establish that the accused would not have conducted him or herself differently.

The test for valid waiver of the right to counsel is whether the person waiving the right actually knows what he or she is giving up. Where special circumstances exist that would reasonably alert the officer informing the accused of this right that there may be a language comprehension difficulty, the police office must take further steps to ensure a detainee understands their Charter rights.

In respect of the Nakamura statement, it was found that, despite Nakamura’s language difficulties, the circumstances showed that he was “sufficiently proficient” in English to be able to grant a valid waiver of his right to counsel.

In respect of the Vincent statement, it was held that Vincent’s right to counsel accrued upon him being psychologically detained. According to Romilly J, the power imbalance between the police officer who took the statement and the “unsophisticated, short, slightly built 19 year old…was huge”. Moreover, even when the police officer did advise Vincent of his rights, it was done with an “almost indecent hast” and without Vincent being given any time to consider whether he wished to contact counsel. There had been no valid waiver, and therefore Vincent’s statement was obtained in breach of the Charter. Consequently, it was necessary for the Court to consider whether the evidence should be excluded under s 24(2).

On this issue, the Court reaffirmed the approach taken in Grant v Harrison 2009 SCC 34, which involves three lines of inquiry into: (i) the seriousness of the Charter-infringing state conduct; (ii) the impact of the Charter violation on the Charter-protected interests of the accused; and (iii) society’s interest in an adjudication on the merits. In balancing these three lines of inquiry, the Court determined that admitting the illegally obtained evidence would bring the administration of justice into disrepute. Vincent’s statement was thus excluded.

Relevance to Victorian Charter

This case raises important questions concerning the need to preserve the rights of the detained individual while maintaining the integrity of the administration of justice. The public must have confidence that vulnerable citizens are being advised of their rights by state authorities. To admit evidence where proper cautions have not been given would be to undermine the public’s confidence in state authorities and the legal system in the long term.

Application for exclusion of impugned evidence can be made under current law, and unlawfulness arising from breach of the Victorian Charter may be used as a ground in the cause of action.

The Victorian Charter guarantees some protections for accused persons. The minimum rights guaranteed in circumstances of detention and arrest are dealt with separately in ss 21 and 25 respectively. Relevantly, a person charged with a criminal offence is entitled to have adequate time to prepare his or her defence and to communicate with a lawyer or adviser chosen by him or her. If the accused is unrepresented, he or she has the right to be told of the right, if eligible, to legal aid under the Legal Aid Act 1978 (Vic). A detained person does not have the right to retain counsel immediately. The Victorian Charter would arguably be strengthened by the inclusion of the right upon detention to retain and instruct counsel with delay and, importantly, the right to be clearly informed of this right.

This decision can be found online at:

Isabel Waters is a lawyer with the Mallesons Stephen Jaques Human Rights Law Group