File No 31912

IpsofactoJ.com: International Cases [2009] Part 7 Case 7 [SCC]


SUPREME COURT OF CANADA

Coram

Musibau Suberu

- vs -

Regina

McLACHLIN CJ

BINNIE J

LEBEL J

DESCHAMPS J

FISH J

ABELLA J

CHARRON J

17 JULY 2009


Judgment

The Chief Justice and Charron J

(with whom LeBel, Deschamps and Abella JJ, joined)

1. Overview

  1. The facts in this appeal and in the companion case R v Grant, 2009 SCC 32, again give rise to the difficult task of defining the constitutional line where police actions, in the context of dynamic encounters with members of the public, amount to a detention and  effectively trigger the protections afforded to detainees under ss. 9 and 10 of the Canadian Charter of Rights and Freedoms. In turn, defining what constitutes a detention for Charter purposes requires courts to balance individual constitutional rights against the public interest in effective law enforcement.

  2. The specific issue raised in this case is whether the police duty to inform an individual of  his or her s. 10(b) Charter right to retain and instruct counsel is triggered at the outset of an investigative detention – a question left open in R v Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 22. It is our view that this question must be answered in the affirmative. The concerns regarding compelled self-incrimination 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.

  3. However, as this Court held in Mann, not 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). As Iacobucci J. aptly observed, “[t]he person who is stopped will in all cases be ‘detained’ in the sense of ‘delayed’, or ‘kept waiting’. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint” (para. 19).

  4. As we explain in Grant, it 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.

  5. 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.

  6. In the case at hand, the trial judge held that the initial part of the encounter was merely preliminary or exploratory and that it only became incumbent upon the police officer to inform Mr. Suberu of his right to counsel under s. 10(b) of the Charter a few minutes into the encounter when the officer determined that Mr. Suberu was in fact involved in the incident under investigation and that he could not let him go. This moment coincided with Mr. Suberu’s arrest, at which time the officer promptly informed him of his right to counsel. The trial judge therefore concluded that there had been no infringement of Mr. Suberu’s constitutional rights and he dismissed the Charter application. The Court of Appeal upheld this ruling.

  7. We see no basis to interfere with the trial judge’s conclusion that Mr. Suberu’s constitutional rights were not infringed. While Mr. Suberu was momentarily  “delayed” when the police asked to speak to him, he was not subjected to physical or psychological restraint so as to ground a detention within the meaning of the Charter. Mr. Suberu did not testify and, unlike the facts in Grant, the evidence does not support his contention that his freedom to choose whether or not to cooperate with the police was removed during the period of time prior to his arrest. Thus his s. 10(b) right to counsel was not engaged during this period. It was only later, after the officer received additional information indicating that Mr. Suberu was probably involved in the commission of an offence and determined that he could not let him leave, that the detention crystallized and Mr. Suberu’s rights under s. 10 were engaged – a moment which, on the facts of this case, coincided with his arrest. Upon arresting Mr. Suberu, the police officer promptly and properly informed him of his right to counsel. There was no violation of the appellant’s right under s. 10(b) of the Charter, and therefore the appeal is dismissed.

    2. The Factual Context

  8. It was the Crown’s theory on the Charter application that on June 13, 2003 Mr. Suberu and an associate, William Erhirhie, made a one-day shopping trip east of Toronto in order to buy merchandise, pre-paid shopping cards, and gift certificates with a stolen credit card. They bought these items in Wal-Marts and LCBO liquor stores in a number of towns along Lake Ontario. The staff at the LCBO store in Cobourg, Ontario, were on the lookout for the pair, having been alerted by the staff of the LCBO store in a nearby town where the pair had bought $100 gift certificates with the stolen card. When Erhirhie tried to buy a $3 bottle of beer with a $100 gift certificate at the Cobourg LCBO, an employee stalled him while another employee called the police.

  9. Unaware of these details, Constable Roughley responded to a call about a male person attempting to use a stolen credit card at the Cobourg LCBO. Before Constable Roughley entered the store, an officer who was already inside advised him by radio that there were two male suspects in the store. Constable Roughley entered the store and saw that officer at a cash register talking to a store employee and one male customer (Erhirhie). Mr. Suberu walked past Constable Roughley and said words to the effect of “he did this, not me, so I guess I can go.”  Constable Roughley followed Mr. Suberu outside and said “Wait a minute. I need to talk to you before you go anywhere”, while Mr. Suberu was getting into the driver’s seat of a minivan.

  10. Mr. Suberu was seated in the driver’s seat of the van but turned outwards, facing Constable Roughley, throughout the following brief exchange:

    Q.

    Who’s the guy inside you were with?

    A.

    A friend.

    Q.

    What is your friend’s name?

    A.

    Willy.

    Q.

    Where are you from?

    A.

    Toronto.

    Q.

    How did you come to be in Cobourg today?

    A.

    Willy asked me to drive him.

    Q.

    From Toronto to Cobourg?

    A.

    Yes.

    Q.

    Who’s van is this?

    A.

    My girlfriend’s.

    Q.

    Who is your girlfriend?

    A.

    Yvonne.

  11. Constable Roughley then received further information by radio, including the description and licence plate number of the van driven by the men who had used a stolen credit card to buy gift certificates at another LCBO store earlier that day. The description and the licence plate number both matched that of the van in which Mr. Suberu was sitting. Constable Roughley asked for Mr. Suberu’s ID and for the vehicle ownership documents. While Mr. Suberu retrieved the ownership documents, Constable Roughley looked into the van and saw Wal-Mart and LCBO shopping bags between and behind the front seats.

  12. At this point, Constable Roughley decided that he had reasonable and probable grounds to arrest Mr. Suberu for fraud. Upon arresting Mr. Suberu, he advised him of the reason for doing so. Mr. Suberu made further statements before he was cautioned as to his right to counsel, interrupting Constable Roughley by protesting his innocence, saying that it was his friend, not him, and asking “if he says it was just him can I go?”  Constable Roughley was drawn into a short, explanatory exchange, but soon instructed Mr. Suberu to “just listen” to the caution regarding his Charter rights and in particular his right to counsel. The timing of the caution given to Mr. Suberu upon arrest presents no legal issue on this appeal; the issue is whether Constable Roughley was obliged to caution Mr. Suberu of a right to counsel at the outset of their interaction.

    3. The Proceedings Below

  13. Mr. Suberu brought an application under s. 24(2) of the Charter seeking the exclusion of any statements made by him and of the physical evidence seized at the time of his arrest, on the ground that this evidence had been obtained in a manner that infringed his s. 10(b) right to counsel. Mr. Suberu did not testify on the application but argued that he was detained as soon as he was told to “wait” and was engaged in questioning by the police officer. It was his position that the officer’s failure to inform him of his right to retain and instruct counsel at that point in time constituted a violation of s. 10(b) of the Charter. The trial judge held that “there was, as was entirely necessary, a momentary investigative detention” as contended, but that the officer was not bound to inform Mr. Suberu of his right to counsel before he asked preliminary or exploratory questions “to determine if there was any involvement by this person before him”. Once he concluded there was some involvement, the officer was required to inform Mr. Suberu of his s. 10(b) Charter right, which he did. The application was therefore dismissed.

  14. Mr. Suberu was ultimately convicted at trial on three counts:  possession of property obtained by crime; possession of a stolen credit card; and possession of a stolen debit card. He received sentences totaling 90 days’ imprisonment, followed by probation for one year.

  15. Mr. Suberu appealed his convictions solely on the ground that the trial judge erred in dismissing his Charter application.

  16. The summary conviction appeal court upheld the trial judge’s ruling on a more categorical basis, finding that s. 10(b) is simply not engaged by investigative detentions:  (2006), 142 C.R.R. (2d) 75. On further appeal, the Court of Appeal for Ontario rejected the proposition that investigative detentions do not trigger the s. 10(b) right to counsel: 2007 ONCA 60, 85 O.R. (3d) 127. The court nonetheless upheld the trial judge’s ruling. While Mr. Suberu was detained at the outset of his engagement by the officer, the court found that the words “without delay” in the s. 10(b) guarantee allow for a brief interlude between the beginning of an investigative detention and the advising of the detained person of his right to counsel, during which the police officer may ask exploratory questions in order to determine whether more than a brief detention of the person will be necessary. As Mr. Suberu was informed of his right “without delay” within the meaning of s. 10(b), the court concluded that there was no s. 10(b) infringement.

  17. Mr. Suberu appeals to this Court.

    4. Analysis

    4.1  Was Mr. Suberu’s Section 10(b) Right to Counsel Violated?

  18. At issue in this appeal is whether the police violated Mr. Suberu’s s. 10(b) right to counsel by failing to inform him promptly of that right upon detention. As we have seen, Mr. Suberu was informed of his right to retain and instruct counsel upon his arrest and there is no issue that there was full compliance with the Charter from that point forward. Mr. Suberu’s s. 10(b) application turns, rather, on the question whether he was detained, as he alleges, sometime prior to his arrest. It therefore becomes necessary to reiterate what constitutes a detention within the meaning of the Charter. Before doing so, Mr. Suberu’s argument, that it would be unfair to revisit the finding of detention as it was conceded in the courts below, must be briefly addressed.

  19. In our view, there is no merit to this contention. The record makes it plain that the question of whether there had been a violation of s. 10(b) of the Charter prior to Mr. Suberu’s arrest was contested throughout. On the facts of this case, this question could only be answered by determining whether Constable Roughley, by his conduct during the initial part of the encounter, effectively placed Mr. Suberu in detention within the meaning of the Charter so as to trigger the right to counsel. The trial judge ruled that there was no need to provide Mr. Suberu with his right to counsel during the initial part of the encounter and that Constable Roughley had not failed to inform Mr. Suberu of his right to counsel at the appropriate time. This conclusion effectively determined as question of law that, for Charter purposes, there had been no detention before the time of arrest. The correctness of that conclusion is key to the issue on this appeal. That it requires a consideration of the facts to be resolved creates no unfairness as contended.

  20. Section 10(b) protects the right of a person in detention or under arrest to obtain legal counsel. It reads:

    10.

    Everyone has the right on arrest or detention ....

    (b)

    to retain and instruct counsel without delay and to be informed of that right; ....

  21. In Grant, we 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. The recognition that detention can manifest in both physical and psychological form is consistent with our acceptance that 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.

  22. 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. As discussed more fully in Grant, this is an objective determination, made in light of the circumstances of an encounter as a whole.

  23. 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. This Court’s conclusion in Mann that there was an “investigative detention” does not mean that a detention is necessarily grounded the moment the police engage an individual for investigative purposes. Indeed, Iacobucci J., writing for the majority, explained as follows (at para. 19):

    “Detention” has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so, the police cannot be said to “detain”, within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be “detained” in the sense of “delayed”, or “kept waiting”. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint. In this case, the trial judge concluded that the appellant was detained by the police when they searched him. We have not been urged to revisit that conclusion and, in the circumstances, I would decline to do so.

    [emphasis added]

  24. As explained in Grant, the 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.

  25. For convenience, we repeat the summary set out in Grant at para. 44:

  26. 1.

    Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

    2.

    In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:

    (a)

    The circumstances giving rise to the encounter as they would reasonably be perceived by the individual:  whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

    (b)

    The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; the duration of the encounter.

    (c)

    The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

  27. Mr. Suberu was not 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”. Thus, the obvious markers of detention are not present and our analysis must consider whether the officer’s conduct in the context of the encounter as a whole would cause a reasonable person in the same situation to conclude that he or she was not free to go and that he or she had to comply with the officer’s request.

  28. To briefly recap the relevant facts, Mr. Suberu walked past Constable Roughley and said, “He did this, not me, so I guess I can go.”  Constable Roughley immediately followed him outside and said, “Wait a minute. I need to talk to you before you go anywhere.”  Mr. Suberu was not legally obligated to comply with the officer’s request. His position is that he was nonetheless detained at this point because a reasonable person in his circumstances would conclude that he had been deprived of his liberty to choose whether or not to engage in a conversation with the officer as requested.

  29. As discussed more fully in Grant, in 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.

  30. The line between general questioning and focussed 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. While the trial judge in this case did not have the benefit of the test refined in Grant, his 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.

  31. The trial judge characterized the factual situation at issue as “an exploratory investigation in which Constable Roughley was fully justified and duly [sic] bound to pursue a cursory questioning of Suberu”. He went on to observe that “the introductory and preliminary questions were merely to determine if there was any involvement by this person before him.”. As the trial judge put it:  “One must ask a number of preliminary questions to determine how to proceed thereafter. Until that information was obtained as to a possible criminal offence and who the party was, no detention or arrest or rights to caution, in my view, were required.”

  32. The trial judge’s finding that the initial part of the encounter was of a preliminary or exploratory nature on its face does not support the contention that Mr. Suberu was under detention within the meaning of the Charter at this point. It suggests rather that Constable Roughley’s conduct indicated that he was engaged in a general inquiry and had not yet zeroed in on the individual as someone whose movements must be controlled. Looking at the matter through the lens of the detention analysis proposed in Grant, the trial judge’s conclusion that the circumstances did not trigger the right to counsel cannot be said to be in error. There was no right to counsel because there was no detention.

  33. The first factor directs us to the circumstances giving rise to the encounter, as reasonably perceived by an individual in Mr. Suberu’s position. The evidence indicates that Constable Roughley engaged Mr. Suberu in an attempt to  orient himself to the situation as it was unfolding in front of him. A possible crime had just occurred, and the police had arrived to investigate the matter. However, as Binnie J. aptly observes (para. 62), it would be absurd to suggest that Constable Roughley should give everyone present their right to counsel before proceeding to sort out the situation. In our view, it 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, Mr. Suberu, had attracted attention. Constable Roughley was engaging him to determine, in the trial judge’s words, “if there was any involvement by this person”. The evidence was that it occurred to Constable Roughley that this man might be involved. However, on the officer’s evidence, he did not at that time believe he had sufficient information to act on his suspicion by detaining Mr. Suberu. It was only after he received additional information over the radio linking the appellant, the van, and the contents of the van to an offence that he believed the appellant was involved in a criminal act such that he could not allow the appellant to leave the scene. As a whole, the circumstances of the encounter support a reasonable perception that Constable Roughley was orienting himself to the situation rather than intending to deprive Mr. Suberu of his liberty. Further, as noted, Mr. Suberu did not testify or call evidence on that matter. In summary, the circumstances, as revealed by the evidence, do not suggest detention.

  34. Further light is shed by considering the police conduct, the second factor in the Grant detention analysis. The question is whether the police conduct, taken as a whole, supported a reasonable  conclusion that Mr. Suberu had no choice but to comply. As Mr. Suberu walked past Constable Roughley, he said, “He did this, not me, so I guess I can go.” Constable Roughley followed him to his van and as Mr. Suberu entered it, said, “Wait a minute, I need to talk to you before you go anywhere.”  In the context, these words admit more than one interpretation. They might be understood as, “I need to talk to you to get more information”. They might also be construed as an order not to leave, suggestive of putting Mr. Suberu under police control. In interpreting these words, it is relevant to note that Constable Roughley made no move to obstruct Mr. Suberu’s movement. He simply spoke to him as he sat in his van. Further, while the exact duration of the encounter is not clear on the record, it was characterized by the Court of Appeal as a “very brief dialogue” (para. 17). Taken as a whole, the conduct of the officer viewed objectively supports the trial judge’s view that what was happening at this point was preliminary questioning to find out whether to proceed further.

  35. The third factor to consider is the individual’s personal circumstances as they bear on the dynamics of the encounter. As already indicated, the test is objective, incorporating the perspectives of the person spoken to in the dynamic context of the evolving situation. The question is whether a reasonable person in the circumstances thus viewed would have concluded by reason of the state conduct that he or she had no choice but to comply. As discussed above, the fact that a person is delayed by the police is insufficient to ground a reasonable conclusion that he or she was not 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 Constable Roughley, who testified 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 was not “strained”.

  36. We conclude that, viewed through the lens of Grant, the trial judge cannot be said to have erred in effectively finding that Mr. Suberu was not detained within the meaning of the Charter when Constable Roughley spoke to him in his van. It follows that there was no violation of the appellant’s right under s. 10(b) of the Charter.

  37. Although our conclusion that Mr. Suberu was not detained prior to his arrest is sufficient to dispose of this appeal, we propose to deal with two other questions that were raised by the parties.

    4.2  The Meaning of “Without Delay” in Section 10(b) of the Charter

  38. Once an individual is detained, s. 10(b) of the Charter is engaged and guarantees an individual the right to retain and instruct counsel without delay, and to be informed of that right. The issue raised on this appeal asks whether the words “without delay” require the police to execute their duties to facilitate a detainee’s right to counsel immediately upon detention, or whether this obligation can be fulfilled at a later point in time.

  39. 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.

  40. The content of the police duties under s. 10(b) is not at issue in this appeal. Instead, the question is 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.

  41. As with “detention”, any interpretation of the phrase “without delay” must be consistent with a purposive understanding of the Charter provision in which it occurs. As this Court noted in R v Therens, [1985] 1 S.C.R. 613, at pp. 641-42, and in R v Bartle, [1994] 3 S.C.R. 173, the 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 regain their liberty, and guard against the risk of involuntary self-incrimination.

  42. 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.

  43. 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.

    4.3  The Applicability of Section 1 of the Charter

  44. Having established that the police must inform an individual of a right to counsel immediately upon detention, we must turn to the Crown’s assertion that a general suspension of the right to counsel during the course of short “investigatory” detentions is necessary and justified under s. 1 of the Charter. The Crown submits that a limit on the appellant’s right to counsel is prescribed by law, deriving from the operating requirements of the common law police power to detain individuals for investigative purposes. It argues that requiring the police to advise an individual subject to an investigative detention of his or her right to counsel is incompatible with the mandate that an investigatory detention be brief. It also argues that the imposition of such duties undermines the ability of the police to respond quickly and effectively to the exigencies of street policing.

  45. The appellant acknowledges that the police must be able to engage with and obtain information from members of the public to do their work and that therefore a s. 1 justification may well be made out. However, counsel for Mr. Suberu submits that a s. 1 exception is only warranted if any incriminating evidence gathered prior to informing an  individual of his or her s. 10(b) right to counsel is inadmissible against him or her. Counsel argues that this general “use immunity” is necessary to meet the proportionality criterion under s. 1.

  46. There is no question that the right to counsel, as any other right guaranteed by the Charter in case of detention, is subject to reasonable limitations as prescribed by law under s. 1. For example, in R v Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3, the fact that there was a detention was not in issue. Indeed, the police directive to pull over coupled with the restrictive demand that the driver perform sobriety tests provided a clear basis to ground a detention. Charter rights were therefore triggered, though ultimately the breach was saved under s. 1 of the Charter. However, we are not persuaded, on this appeal, that a case has been made out for a general suspension of the s. 10(b) right to counsel for investigatory purposes, with or without some form of use immunity. In our view, the invitation by counsel for the Court to consider s. 1 in order to suspend the right to counsel is premised on an unduly expansive notion of the meaning of detention that is inconsistent with the purposive approach to detention taken in Grant. Because the definition of detention, as understood in these reasons, gives the police leeway to engage members of the public in non-coercive, exploratory questioning without necessarily triggering their Charter rights relating to detention, s. 1 need not be invoked in order to allow the police to effectively fulfill their investigative duties.

    5. Disposition

  47. For these reasons, the appeal is dismissed.

    Binnie J

    (dissenting)

  48. I agree with the majority that when s. 10(b) of the Canadian Charter of Rights and Freedoms provides the right to retain and instruct counsel “without delay”, it means “immediately”. The suggestion by the Court of Appeal in this case that the wording of the Charter, construed purposefully, permits “a brief interlude between the commencement of an investigative detention and the advising of the detained person’s right to counsel under s. 10(b) during which the officer makes a quick assessment of the situation” (2007 ONCA 60, 85 O.R. (3d) 127, per Doherty J.A., at para. 50 (emphasis added)), is a practical proposal designed to alleviate the “obvious tension between the requirement to inform detained persons of their right to counsel and the proper and effective use of brief investigative detentions” (para. 41). However, such a proposal sits uncomfortably with the constitutional text.

  49. Having rejected the solution proposed by the Court of Appeal, our Court must now, as a practical matter, find another way to permit the police a “brief interlude” to allow them to “make a quick assessment of the situation” backed up, if need be, as in this case, by words of detention. My colleagues’ solution, as I interpret it, requires a court to underestimate the coercive power of police commands, overestimate the resilience of the Canadian population in the face of such commands, and unnecessarily limits the court’s consideration to facts relevant to the encounter to only those facts made evident to the person stopped. My concerns are outlined in the companion case of R v Grant, 2009 SCC 32, and will not be repeated here. I accept that a “brief interlude” to permit the police to make a “quick assessment of the situation” will often be justified, but the way to accomplish this flexibility is to modify the “claimant-centred” approach initiated in R v Therens, [1985] 1 S.C.R. 613, by bringing the police purpose and intention into the initial determination of whether or not a detention exists within the meaning of s. 9 of the Charter, whether or not the police perspective was made evident to the person stopped.

  50. Nevertheless, I believe that Mr. Suberu in this case is entitled to the benefit of the majority’s claimant-centred analysis set out in Grant. Applying that test, I conclude that he was detained.

    I

  51. Generally speaking, the police mean what they say when they direct a citizen to stay put. As Constable Roughley acknowledged in this case, if Mr. Suberu had not heeded the officer’s direction not to leave the parking lot at the crime scene, Constable Roughley would “likely” have pursued him in the patrol car and stopped Mr. Suberu’s van in the street:

    Q.

    So Officer can you tell me, if you got outside in that parking lot, with the information you described you had, and Mr. Suberu had already been driving away in his van, what would you have done?

    A.

    I more than likely would have ah, tried to effect a vehicle stop to ah, investigate ah, as I did in the lot, [to find out] if he was involved and if he was involved, to what extent he was involved.

    Mr. Suberu correctly perceived that the officer was giving him “no choice but to comply” (Grant, at para. 44).

  52. Accordingly, with all due respect to those of a different view, I think the conclusion of the majority in this case that Mr. Suberu was not detained, despite concurrent findings in the courts below that there was an “investigatory detention”, is at odds with the restatement of the test for detention (summarized at para. 44 of Grant and para. 25 herein). The trial judge found that “there was, as was entirely necessary, a momentary investigative detention” but concluded, as did the Court of Appeal, that there was nevertheless at that stage “no need to provide the accused with his rights to counsel”. Applying my colleagues’ formulation of the test for detention in Grant, I agree with both courts below that Mr. Suberu was detained within the meaning of ss. 9 and 10(b) of the Charter at the outset of his encounter with Constable Roughley. It then follows that, pursuant to the approach to s. 24(2) set out in Grant, the incriminatory statements by Mr. Suberu prior to the constable reading him his s. 10(b) rights should be excluded, the appeal allowed and a new trial ordered.

    II

  53. “The question”, Grant says, “is whether the police conduct would cause a reasonable person [in Mr. Suberu’s position] to conclude that he or she was not free to go and had to comply with the police direction or demand” (para. 31).

  54. Having selected the claimant’s perspective (as assessed by the “reasonable person”) as the lodestar, circumstances not reasonably apparent to a reasonable person in Mr. Suberu’s situation do not affect the analysis.   However, it is evident from Mr. Suberu’s opening words to Constable Roughley that he knew clearly enough why the police had suddenly arrived at the Cobourg LCBO and that he was in jeopardy. He was stopped at the alleged crime scene. No rational person in Mr. Suberu’s position would have thought that he was free to walk away or that the police would have let him go, had he tried. The feebleness of his suggestion as he brushed past Constable Roughley (“He did this, not me, so I guess I can go.”) shows that he appreciated that he was in a legal mess.

    III

  55. As Constable Roughley approached the Cobourg LCBO he was radioed by his partner, Constable Bellemare, that there were two male suspects in the store. The LCBO employees had been procrastinating and delaying the suspects until the police could get there. Mr. Suberu became a person of interest because he was male and standing near the other suspect, William Erhirhie, and an LCBO employee, in conversation with Constable Bellemare, who had arrived moments before. As Constable Roughley entered the store, Mr. Suberu “was walking away from [the] general area” where Constable Bellemare was dealing with Mr. Erhirhie. Mr. Suberu immediately attracted Constable Roughley’s attention, and conveniently linked himself to Mr. Erhirhie, by saying “He did this, not me, so I guess I can go.”  Constable Roughley testified as to his perception on entering the LCBO store:

    Q.

    So when you came in were you expecting to see two suspects?

    A.

    Yes, I was.

    Q.

    And did you see two people who you believed were suspects?

    A.

    I saw two people. Ah, I know that ah, only one person can actually hand over a card. I believed that person to be the person that Officer Bellemare was with. I believed ah, Mr. Suberu, who was walking away, was in his presence at the time of that ah, tendering of the card. I did not know what role Mr. Suberu played in the tendering of that card, if any.

    Q.

    But he was a suspect. Was he a suspect?

    A.

    Those were the words that Officer Bellemare used.

  56. Accordingly, as I view the evidence, the police at this stage were not making “general inquiries”, but were responding to a “specific occurrence”, in which a “particular individual” trying lamely to deflect attention, was actually attracting attention to himself (Grant, at paras. 40-41). The policeman was glad to oblige with an order to stay put.

  57. The verbal exchange between Constable Roughley and Mr. Suberu clearly established an unambiguous police order. When Mr. Suberu walked past Constable Roughley, saying, “He did this, not me, so I guess I can go”, and Constable Roughley replied, “Wait a minute. I need to talk to you before you go anywhere”, it was a command to stay put. Constable Roughley’s words were only ambiguous if one ignores the preceding remark from Mr. Suberu. Constable Roughley was replying to Mr. Suberu, who had essentially said, “Can I leave?”, by essentially  saying, “No”. It was clear to Mr. Suberu that he was not free to go “anywhere” and any reasonable person in that position would have come to the same conclusion. At that point there was, within the meaning of the test in Grant, a detention, in my view, which was unsupported at that stage by any grounds of reasonable suspicion as required by R v Mann, 2004 SCC 52, [2004] 3 S.C.R. 59. My colleagues point out correctly that Constable Roughley did not try physically to obstruct Mr. Suberu’s movement but that is why this is a case of psychological, not physical, detention.

    IV

  58. My colleagues lay stress on the importance of deference to the trial judge’s conclusions on detention issues (Grant, at para. 43) yet here they reverse the conclusion of both the trial judge and the Court of the Appeal with respect to detention. The trial judge found that Mr. Suberu was detained at the outset: “Clearly the [appellant Mr. Suberu] was detained when Roughley told him not to leave, ‘Wait a minute before you can leave. I want to talk to you’”. Elsewhere the trial judge said that there was “a momentary investigative detention”. The trial judge also looked at the situation from the officer’s own perspective. He found that at the outset Constable Roughley had no reason to believe that Mr. Suberu was involved in the suspected offence (“he had no information or grounds whatever” and when Constable Roughley stopped him, “there was really nothing to indicate any particular involvement in the fraudulent purchase by the other party who was then in the Liquor Store”). Constable Roughley moved to question Mr. Suberu about the specific crime (“It is clear Roughley wished to determine if this [person] was involved in any way with that person who passed or used the stolen credit card in the store.”). In other words, while still in an exploratory mode, the officer’s questions invited answers inculpating Mr. Suberu with respect to his association with Mr. Erhirhie, the offence and the van.

  59. In my view the proper legal conclusion from the findings by the trial judge and the majority test in Grant is that Mr. Suberu was subject to a Mann investigative detention. Being unjustified by any ground of reasonable suspicion, the detention was  therefore arbitrary. Constable Roughley took it on himself to detain Mr. Suberu in the parking lot in unambiguous language.  Mr. Suberu had no choice but to comply. If a finding of detention in these circumstances produces an anomalous result then a re-examination of the claimant-centred test is warranted.

    V

  60. This is one of the cases where taking into account the police perspective – even though it was unknown to Mr. Suberu – might have strengthened the Crown’s case.

  61. Despite Constable Roughley’s insistence that Mr. Suberu not leave, apparently to the extent of being willing to chase Mr. Suberu’s van in the police car if necessary, the trial judge held that from the constable’s perspective he “had to stop the man to find out if he was in any way involved”. The investigation was in an exploratory stage as viewed by Constable Roughley. Mr. Suberu was a person of interest who had to be stopped, but he was not yet a suspect (except from the description by Constable Bellemare).

  62. The fact that a police command is not justified according to law does not make it any less imperative in the eyes of a reasonable person in the circumstances of the person stopped. However, the police purpose and intent, despite the peremptory nature of Constable Roughley’s order, and despite Mr. Suberu’s ignorance of what the police knew and when they knew it, might on my analysis in Grant, mitigate the finding of detention here. Simply put, the policeman did not have enough information to know whether or not Mr. Suberu was implicated in the offence, but he gave a peremptory “stay put” direction anyway. Given the constable’s lack of information – a lack not communicated to Mr. Suberu – the officer needed time to get his bearings before it could be said, objectively, that Mr. Suberu was in reasonable need of the assistance of counsel. In a different case where the words of detention are milder or more ambiguous, (perhaps done deliberately to lull the person questioned into a false sense of security) my preferred analysis would tend to operate in favour of the accused if in such a case the police believed they had the perpetrator and were seeking self-incriminatory statements in relation to a specific crime. Whether the outcome favours the defence or the Crown, the police purpose and factual understanding of the situation (even though unknown to the claimant) is important in the determination of when, if at all, a detention (or merely a delay) occurred. It is the perspective and information of the police, not the claimant, that will often determine whether the liberty interest of the person stopped was truly engaged.

  63. There were several people in the liquor store. It would be absurd to suggest that Constable Roughley could be expected to tell everyone in the store to stay put, call their lawyers and wait until the lawyers called back, as he tried to sort out the situation without their cooperation. However, his direction was not broadcast to everyone, it was only given to Mr. Suberu. The policeman’s direction was unambiguous. On the basis of the claimant-centred approach endorsed by the majority, Mr. Suberu was more than merely delayed. He was detained, in my opinion.

    VI

  64. If the Attorney General believes that the police require additional flexibility to deal with everyday police work, the government will have to attempt to organize a s. 1 justification for a limitation “prescribed by law” on an individual’s s. 10(b) rights that is “reasonable” and “demonstrably justified in a free and democratic society”. This option was raised by the various Attorneys General in this case, but not explored in evidence or in argument to the extent necessary to permit adjudication of the point.

  65. I would allow the appeal. Applying the three avenues of s. 24(2) analysis set out in Grant I would exclude Mr. Suberu’s self-incriminating statements.   However in light of the articles found in the van, the evidence of prosecution witnesses and the Crown evidence against Mr. Suberu, I would not enter an acquittal but would order a new trial on all charges.

    Fish J

    (dissenting)

  66. I agree with the test for detention under ss. 9 and 10 of the Canadian Charter of Rights and Freedoms set out by the Chief Justice and Charron J. in R v Grant, 2009 SCC 32, released concurrently. Applying that test here, I agree with Justice Binnie that Mr. Suberu was detained when he made his incriminating statement to Constable Roughley. As Justice Binnie explains at para. 53, “[n]o rational person in Mr. Suberu’s position would have thought that he was free to walk away or that the police would have let him go, had he tried.”

  67. Upon detention, Mr. Suberu was not given his rights under s. 10 of the Charter. Pursuant to the s. 24(2) analytical framework established by Grant, Mr. Suberu’s statement should have been excluded at trial. Without that statement, his conviction cannot stand.

  68. In view of the remaining evidence, however, I would decline to enter an acquittal and would instead order a new trial.


Representations

P. Andras Schreck (m/s Schreck & Greene, Toronto), for the appellant.

Andrew Cappell and Rosella Cornaviera (m/s Attorney General of Ontario, Toronto), for the respondent.


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