Asking an accused if he wished to say anything after he expressed a desire to speak to a lawyer breached s. 10(b) of the Charter and his subsequent statement was excluded as evidence.
By Mike Novakowski
In R. v. G.T.D., 2018 SCC 7, the accused was arrested for the sexual assault of his previous intimate partner. When police arrested him, an officer read the standard caution. The officer informed G.T.D. of his right to speak with a lawyer, the availability of free duty counsel, and the option of applying for legal aid. G.T.D. stated he understood and when asked if he wished to speak to a lawyer, he said he wanted to consult counsel.
The police then read a further standard caution, advising G.T.D. of his right to silence. The officer asked, “Do you wish to say anything?” G.T.D. immediately responded that he “did not think it was rape,” because he and the complainant had a prior relationship. G.T.D. was transported to the police station where he then called a lawyer.
In Alberta Provincial Court the arresting officer testified he read the text of the two cautions, which had been provided by his police department, in accordance with his training. The judge found there was no Charter breach respecting G.T.D.’s right to counsel. And, even if there was a breach, it was minor and G.T.D.’s statement was nevertheless admissible. The officer acted in good faith in reading the standard caution, there was minimal impact on G.T.D.’s rights, and the admission of his spontaneous and voluntary statement would not bring the administration of justice into disrepute. G.T.D. was convicted of sexual assault.
G.T.D. appealed his conviction to Alberta’s top court. He argued that once he indicated he wished to consult counsel, the police officer had an implementational duty under the Charter to hold off on any questions until he was given a chance to do so. In asking the question, “Do you wish to say anything?” G.T.D. asserted the officer breached his s. 10(b) rights.
After reviewing the historical context of the police caution, a majority of the Alberta Court of Appeal found the positive question (“Do you wish to say anything?”) breached G.T.D.’s right to counsel.
Under s. 10(b), the majority recognized there were three duties imposed on the police when arresting or detaining an accused. First, the police must inform the detainee of their right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel. Second, if a detainee has indicated a desire to exercise this right, the police must provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances). Finally, the police must refrain from eliciting evidence from the detainee until they have had that reasonable opportunity (except in cases of urgency or danger).
In this case, asking the question (“Do you wish to say anything?”) after G.T.D. had asserted a desire to contact counsel breached the third duty to “refrain from eliciting evidence.” Even though the officer had no expectation that G.T.D. would say anything at all and had no intention of following up if he remained silent, the question nonetheless amounted to a breach.
“Once the detained person asks to speak to counsel, the implementational duty on the police is to ‘refrain from eliciting evidence,’” said the majority. “If nothing else, this wording risks prompting an incriminating response before the accused has had an opportunity to consult counsel. If this caution is to be used, the alternative ending ‘Do you understand?’ is the one that is consistent with the Charter.”
Despite the finding of a Charter breach, the majority admitted G.T.D.’s statement under s. 24(2). His appeal from conviction was dismissed.
Justice Veldhuis, in dissent, agreed G.T.D.’s s. 10(b) right had been violated. In her view, the open-ended question (“Do you wish to say anything?”) breached the police duty to hold off eliciting evidence.
“The officer concluded by asking the [accused] whether he wanted to say anything,” Veldhuis said. “Many, if not most, detainees would treat this concluding question as the arresting officer’s invitation to respond to the allegations that led to their arrest.”
She would, however, have excluded G.T.D.’s statement as evidence, set aside his conviction and ordered a new trial.
G.T.D. then appealed to Canada’s highest court. He again argued that his statement ought to have been excluded as evidence. A five-member panel of the Supreme Court of Canada all agreed that the question (“Do you wish to say anything?”) breached G.T.D.’s s. 10(b) Charter right.
“The right to counsel under s. 10(b) of the Charter obliges police to ‘hold off from attempting to elicit incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel’,” said Justice Brown in a short oral judgment.
Asking, “Do you wish to say anything?” at the conclusion of the standard caution used by the police after G.T.D. had already invoked his right to counsel, violated the police duty to “hold off” because it elicited a statement.
The Supreme Court, however, was divided on whether the breach in this case warranted the exclusion of G.T.D.’s statement. Four justices found the statement should be excluded, substantially for the reasons stated by Veldhuis at the Alberta Court of Appeal. The majority of the Supreme Court therefore excluded G.T.D.’s statement, allowed his appeal and ordered a new trial.
Chief Justice Wagner, on the other hand, would have dismissed the appeal on the basis that the breach did not warrant the exclusion of G.T.D.’s statement. In his view, the question was accompanied by clear information about G.T.D.’s choice to speak to the police, which attenuated the impact of the state conduct on G.T.D.’s Charter-protected interests and the admission of the statement would not bring the administration of justice into disrepute.
Mike Novakowski is Blue Line’s case law columnist. He can be contacted at firstname.lastname@example.org.