Saskatchewan’s highest court has ruled that s. 10(b) of the Charter does not impose an obligation on a police officer to ask a detainee whether they want to speak to a lawyer.
By Mike Novakowski
In R. v. Knoblauch, 2018 SKCA 15, a police officer on patrol stopped the accused for a possible seatbelt violation. The officer noted the driver, Knoblauch, had a mouthful of sunflower seeds and an odour of alcohol emanating from the vehicle. Knoblauch also admitted to consuming “a couple” of drinks, meaning two or three beers. He had a staggered walk and glassy and droopy eyes.
As a result, the officer made an approved screening device (ASD) demand and Knoblauch registered a fail. He was arrested for impaired driving, advised of his s. 10(b) Charter right to counsel and asked if he understood. Knoblauch said, “Yep, yes.”
However, the officer never asked Knoblauch if he wanted to speak to a lawyer. The officer made a breath demand and gave a police warning, which Knoblauch indicated he understood. After attending to other duties at the scene, the officer transported Knoblauch back to the detachment where he provided two breath samples well over the legal limit. He was charged with impaired driving and over 80 milligrams of alcohol in 100 millilitres of blood.
Relying on the officer’s testimony and patrol car video, a Saskatchewan Provincial Court judge found that the officer never asked Knoblauch if he wanted to call a lawyer. Nevertheless, the judge held that Knoblauch had been properly informed of his right to counsel under s. 10(b). Knoblauch was informed that legal advice was immediately available, including free legal advice through a toll-free number.
The judge concluded that Knoblauch understood his right to counsel but did not assert it. There was no s. 10(b) breach and the certificate of analysis was admitted as evidence. Knoblauch was convicted of driving a motor vehicle while over the legal limit.
Knoblauch’s conviction was overturned on appeal to the Saskatchewan Court of Queen’s Bench. The appeal judge found Knoblauch’s s. 10(b) right had been violated. In his view, a police officer is obligated to inquire whether a detainee wants to exercise their right to counsel.
“The prospect of the implementational duty being triggered obliges the state authority to ascertain the detainee’s wishes about retaining counsel,” said the appeal judge. “The requirement of immediacy obliges the state authority to do so in as timely a way as possible.”
The best way for police to ascertain whether a detainee wants to invoke their right to counsel is for a police officer to ask a detainee the question, “Do you want to speak to a lawyer?” The certificate of analysis was excluded and, without the certificate, there was no evidence of Knoblauch’s blood alcohol level. He was acquitted.
The Crown then appealed to the Saskatchewan Court of Appeal arguing, in part, that the Saskatchewan Court of Queen’s Bench judge erred in concluding that a police officer complying with the informational component of s. 10(b) has a duty to ask a detainee whether they want to consult with a lawyer.
Justice Ryan-Froslie, writing the Court of Appeal judgment, agreed. She found no such duty existed. She noted that s. 10(b) imposes three duties on police officers when arresting or detaining individuals:
• First, the police must inform a detainee, without delay, of their right to retain and instruct counsel including the existence and availability of legal aid and duty counsel (Informational).
• Second, if a detainee has indicated a desire for counsel, the police must provide the detainee with a reasonable opportunity to exercise the right — except in urgent and dangerous circumstances. (Implementational).
• Third, the police must refrain from questioning or otherwise attempting to elicit evidence from a detainee until they have had a reasonable opportunity to consult and retain counsel — except in urgent and dangerous circumstances. (Implementational).
The second and third duties, however, are not triggered unless and until a detainee indicates a desire to exercise their right to counsel.
In this case, Ryan-Froslie found the appeal judge erred in imposing a duty on the police officer to ask Knoblauch whether he wished to exercise his right to counsel for the following reasons:
• The purpose or wording of s. 10(b) does not mandate an officer to ascertain whether a detainee wishes to exercise their right to counsel. Rather, a police officer’s obligation is to impart knowledge of the right;
• Following the fulfilment of the informational duty, a police officer has no further obligation unless and until the detainee asserts the right to counsel; and
• Several courts, including the Supreme Court of Canada, have consistently found the failure of the police to not ask a detainee if they wished to call a lawyer did not breach s. 10(b).
The Court of Appeal concluded that a police officer does not have a duty under s. 10(b) to ascertain whether a detainee wishes to invoke their right to counsel. Thus s. 10(b) is not breached by a police officer who, after properly informing the detainee of their right to counsel, fails to ask whether they wish to consult with a lawyer.
The Court of Queen’s Bench judge, in concluding a detainee must unequivocally waive their right to counsel before the police can elicit evidence from them, erred.
While Knoblauch’s silence did not amount to a waiver of his s. 10(b) right to counsel, it also did not equate to an assertion of that right. In this case, the officer properly fulfilled his informational duty by informing Knoblauch of his right to counsel and no further duties were imposed on the officer unless and until Knoblauch invoked that right. Since he did not invoke it, his s. 10(b) right was not infringed and since there was no Charter breach, s. 24(2) was not engaged. The Crown’s appeal was allowed, Knoblauch’s acquittal was set aside and his conviction was restored.
Mike Novakowski is Blue Line’s case law columnist. He can be contacted at firstname.lastname@example.org.