Investigative detention triggers right to counsel

Mike Novakowski
November 30, 2009
By Mike Novakowski
Addressing an issue it would not answer in R. v. Mann, Canada’s highest court now holds that a person subjected to an investigative detention has the right to a lawyer, as guaranteed in s.10(b) of the Charter. In R. v. Suberu, 2009 SCC 33, two men tried to buy a $3 bottle of beer using a $100 gift certificate purchased with a stolen credit card earlier that day at another Liquor Control Board of Ontario (LCBO) store. An employee stalled the men until police arrived. One officer approached Suberu as he walked towards the exit; another spoke to the other man.

Addressing an issue it would not answer in R. v. Mann, Canada’s highest court now holds that a person subjected to an investigative detention has the right to a lawyer, as guaranteed in s.10(b) of the Charter.

In R. v. Suberu, 2009 SCC 33, two men tried to buy a $3 bottle of beer using a $100 gift certificate purchased with a stolen credit card earlier that day at another Liquor Control Board of Ontario (LCBO) store. An employee stalled the men until police arrived.

One officer approached Suberu as he walked towards the exit; another spoke to the other man.

“He did this, not me, so I guess I can go,” Suberu said. The officer followed him out of the store and, as he was getting into the minivan, said “Wait a minute. I need to talk to you before you go anywhere.” The officer asked Suberu where he was from, who the man inside the store was and who owned the van, but didn’t advise him of his right to counsel under s.10(b) of the Charter.

The officer was radioed information that the two suspects bought the certificates with a stolen credit card and Suberu’s van matched the description and plate number of the vehicle involved. He asked Suberu for identification and ownership and, while waiting, spotted a LCBO bag containing liquor, Wal-Mart bags and several boxes of new merchandise behind the front seat.

Suberu was arrested for fraud but protested his innocence. A search of the van turned up a black purse with information about the owner of the stolen credit and debit cards.

At trial in the Ontario Court of Justice the officer said he detained Suberu because he wasn’t sure about the extent of his involvement in the incident, and questioned him to look into what was going on. The trial judge concluded the circumstances of the case involved a, “momentary investigative detention” and the questions were merely preliminary or exploratory to determine if Suberu was involved.

Suberu’s right to counsel under s.10(b) wasn’t triggered until a few minutes into the encounter, he ruled, when the officer determined Suberu was involved and could not be let go – a point which happened to coincide with his arrest. There was no Charter breach and Suberu was convicted of possessing a credit card obtained by crime and two counts of possessing property obtained by crime under $5,000. He was sentenced to 90 days in jail and placed on one year probation.

The Ontario Superior Court of Justice dismissed Suberu’s appeal, finding s.10(b) wasn’t engaged by an investigative detention.

An unanimous Ontario Court of Appeal panel found he had been detained at the outset of the encounter with the officer. However, the court interpreted the words “without delay” found in s.10(b) allowed for a brief interlude between the beginning of an investigative detention and when the detainee is advised of their right to counsel. Police may ask exploratory questions during this time to determine whether more than a brief detention is necessary. Since the officer informed Suberu of his right to counsel without delay – taking into account the permissible interlude – s.10(b) wasn’t violated and Suberu’s appeal was dismissed.

Suberu appealed to the Supreme Court of Canada, which had to determine whether he was detained and, if so, how s.10(b) applied to the circumstances.

h2. Was there a detention?

Suberu argued he was detained some time prior to his arrest, submitting that the officer’s conduct during the initial part of the encounter effectively detained him, thereby triggering his right to counsel under s. 10(b).

In R. v. Grant the Supreme Court, “adopted a purposive approach to the definition of ‘detention’ and held that a ‘detention’ for the purposes of the Charter refers to a suspension of an individual’s liberty interest by virtue of a significant physical or psychological restraint at the hands of the state.”

Because a detention can manifest in both physical and psychological forms, “police actions short of holding an individual behind bars or in handcuffs can be coercive enough to engage the rights protected by ss. 9 and 10 of the Charter.”

However:

(N)ot every interaction between the police and members of the public, even for investigative purposes, constitutes a detention within the meaning of the Charter. Section 9 of the Charter does not dictate that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Likewise, not every police encounter, even with a suspect, will trigger an individual’s right to counsel under s.10(b). ...

(I)t is clear that an individual may be detained within the meaning of the Charter without being subject to actual physical restraint. Where the subject is legally required to comply with a demand or direction that interferes with his or her liberty, detention is usually easily made out. Where there is no legal obligation to comply but a reasonable person in the subject’s position would conclude that he or she had been deprived of the liberty of choice, a detention is also established.

Even when an encounter clearly results in a detention, for example when the person is ultimately arrested and taken in police custody, it cannot simply be assumed that there was a detention from the beginning of the interaction. Given the immediacy of the s.10(b) obligation to inform a detainee of his or her right to counsel, it is important to determine if and when an encounter between the police and an individual effectively crystallizes in a detention. It will depend on the circumstances. It is for the trial judge, applying the proper legal principles to the particular facts of the case, to determine whether the line has been crossed (paras. 3-5).

The court continued:

While a detention is clearly indicated by the existence of physical restraint or a legal obligation to comply with a police demand, a detention can also be grounded when police conduct would cause a reasonable person to conclude that he or she no longer had the freedom to choose whether or not to cooperate with the police... (T)his is an objective determination, made in light of the circumstances of an encounter as a whole.

However, this latter understanding of detention does not mean that every interaction with the police will amount to a detention for the purposes of the Charter, even when a person is under investigation for criminal activity, is asked questions or is physically delayed by contact with the police...

(T)he meaning of “detention” can only be determined by adopting a purposive approach that neither overshoots nor impoverishes the protection intended by the Charter right in question. It necessitates striking a balance between society’s interest in effective policing and the detainee’s interest in robust Charter rights. To simply assume that a detention occurs every time a person is delayed from going on his or her way because of the police accosting him or her during the course of an investigation, without considering whether or not the interaction involved a significant deprivation of liberty, would overshoot the purpose of the Charter (paras. 22-24).

The obvious markers of detention were not present in this case. Suberu wasn’t physically restrained prior to his arrest, nor would he have been subject to legal sanction for refusing to comply with the officer’s request that he “wait” – but would “the officer’s conduct in the context of the encounter as a whole… cause a reasonable person in the same situation to conclude that he or she wasn’t free to go and that he or she had to comply with the officer’s request”? The court stated:

(I)n a situation where the police believe a crime has recently been committed, the police may engage in preliminary questioning of bystanders without giving rise to a detention under ss. 9 and 10 of the Charter. Despite a police request for information or assistance, a bystander is under no legal obligation to comply. This legal proposition must inform the perspective of the reasonable person in the circumstances of the person being questioned.

The onus is on the applicant to show that in the circumstances he or she was effectively deprived of his or her liberty of choice. The test is an objective one and the failure of the applicant to testify as to his or her perceptions of the encounter is not fatal to the application. However, the applicant’s contention that the police by their conduct effected a significant deprivation of his or her liberty must find support in the evidence.

The line between general questioning and focused interrogation amounting to detention may be difficult to draw in particular cases. It is the task of the trial judge on a Charter application to assess the circumstances and determine whether the line between general questioning and detention has been crossed. (The trial judge’s) findings on the facts, supported by the evidence, lead to the view that a reasonable person in the circumstances would have concluded that the initial encounter was preliminary investigative questioning falling short of detention (paras. 28-29).

Using the three factors of assessing a psychological detention, absent a legal obligation to comply, the court held the trial judge’s findings supported the view that Suberu wasn’t under detention.

(1) Circumstances of the encounter

  • The initial part of the encounter was of a preliminary or exploratory nature;

  • The officer was engaged in a general inquiry;

  • The officer had not yet zeroed in on Suberu as someone whose movements must be controlled;

  • A possible crime had just occurred and the police had arrived to investigate; and

  • The officer engaged Suberu in an attempt to orient himself to the unfolding situation.

(I)t would be absurd to suggest that (the officer) should give everyone present their right to counsel before proceeding to sort out the situation... (I)t would also be unreasonable to require that the right to counsel be given the moment the police approach any suspect in the process of sorting out the situation.

In the circumstances here, one man appeared to be involved in the matter under investigation and another, (the accused), had attracted attention. (The officer) was engaging him to determine... ‘if there was any involvement by this person’... (I)t occurred to (the officer) that this man might be involved. However... he did not at that time believe he had sufficient information to act on his suspicion by detaining (the accused). It was only after he received additional information over the radio linking the (accused), the van and the contents of the van to an offence that he believed the (accused) was involved in a criminal act such that he could not allow the (accused) to leave the scene.

As a whole, the circumstances of the encounter support a reasonable perception that (the officer) was orienting himself to the situation rather than intending to deprive (the accused) of his liberty. Further, (the accused) did not testify or call evidence on that matter. In summary, the circumstances... do not suggest detention (para. 32).

(2) Police conduct

  • Did police conduct, taken as a whole, support a reasonable conclusion that Suberu had no choice but to comply?

  • Although the officer said, “Wait a minute, I need to talk to you before you go anywhere,” he did not obstruct Suberu’s movement but rather simply spoke to him as he sat in his van;

  • The encounter was “a very brief dialogue;” and,

  • The conduct of the officer, viewed objectively, supported the view that only preliminary questioning was occurring to find out whether to proceed further.

Characteristics of the individual

  • Would a reasonable person in the circumstances have concluded by reason of the stated conduct that he or she had no choice but to comply?

(T)he fact that a person is delayed by the police is insufficient to ground a reasonable conclusion that he or she wasn’t free to go, or that he or she was bound to comply with the officer’s request for information. Mr. Suberu did not testify on the application and there was no evidence as to whether he subjectively believed that he could not leave.

Nor was there evidence of his personal circumstances, feelings or knowledge. The only evidence came from (the officer)... that he was merely “exploring the situation”. The officer testified that Mr. Suberu never told him that he did not wish to speak with him and that the conversation wasn’t “strained” (para. 34).

As a result, the court concluded that Suberu wasn’t detained prior to his arrest.

h2. Was s.10(b) triggered?

Although, “(t)here was no right to counsel because there was no detention,” the court felt it necessary to decide, “whether the right to retain and instruct counsel ‘without delay’ means that these duties must be executed immediately at the outset of a detention, or whether these duties manifest at some later point subsequent to the start of a detention.”

Section 10(b) protects the right of a person in detention or under arrest to obtain legal counsel. In describing the rights afforded, the court stated:

Once engaged, s.10(b) imposes both informational and implementational duties on the police. The informational duty requires that the detainee be informed of the right to retain and instruct counsel without delay. The implementational obligation imposed on the police under s.10(b) requires the police to provide the detainee with a reasonable opportunity to retain and instruct counsel. This obligation also requires the police to refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach a lawyer, or the detainee has unequivocally waived the right to do so (para. 38).

The court went on to hold that if there is a detention, the police must inform an individual of a right to counsel immediately, even in short investigatory detentions:

The concerns regarding compelled selfincrimination and the interference with liberty that s.10(b) seeks to address are present as soon as a detention is effected. Therefore, from the moment an individual is detained, s.10(b) is engaged and, as the words of the provision dictate, the police have the obligation to inform the detainee of his or her right to counsel “without delay”. The immediacy of this obligation is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s.1 of the Charter (para. 2).

Further:

(T)he purpose of s.10(b) is to ensure that individuals know of their right to counsel and have access to it in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees to regain their liberty and guard against the risk of involuntary self-incrimination.

A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s.10(b) seeks to address are present as soon as a detention is effected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase “without delay” must be interpreted as “immediately.”

If the s.10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises.

To allow for a delay between the outset of a detention and the engagement of the police duties under s.10(b) creates an ill-defined and unworkable test of the application of the s.10(b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding.

An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words “without delay” mean “immediately” for the purposes of s.10(b). Subject to concerns for officer or public safety and such limitations as prescribed by law and justified under s.1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel and a duty to facilitate that right immediately upon detention (paras. 40-42).

The court rejected the Crown’s contention that police could suspend the right to counsel in the course of short investigatory detentions as a reasonable limit under s.1 of the Charter. There are circumstances where police pull over a driver and give a demand for sobriety tests without providing s.10(b) rights, but that breach is saved under s.1.

The Supreme Court wasn’t persuaded that there should be a general suspension of the right to counsel for investigatory purposes, with or without some form of use immunity such that incriminating evidence gathered prior to informing an individual of his s.10(b) right would be inadmissible.

“Because the definition of detention... gives the police leeway to engage members of the public in non-coercive, exploratory questioning without necessarily triggering their Charter rights relating to detention,” the Court said, “s.1 need not be invoked in order to allow the police to effectively fulfill their investigative duties.”

The majority rejected Suberu’s appeal and upheld the convictions.

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