Police Violated Prosper Duty
- March 14, 2018
- Clayton Rice, Q.C.
He was sitting in the back of a police vehicle in Edmonton, Alberta, arrested for sexual assault of a former intimate partner. The police officer read him his rights. When the officer asked if he wanted to speak with a lawyer, he said: “Uh, yes.” The officer then said: “You may be charged with sexual assault. You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence. Do you wish to say anything?”
The opportunity to talk to a lawyer when arrested is generally called the “right to counsel” under s. 10(b) of the Canadian Charter of Rights. The law has been uncontroversial for almost twenty-five years that when a detainee wants to get legal advice the police are required to “hold off” attempting to elicit incriminating evidence until the detainee has had a “reasonable opportunity to reach counsel”. (See: R v Prosper,  3 SCR 236 per Lamer CJ, at para 34)
But that is not the end of it. The police are not required to hold off interrogation completely. In her dissenting reasons in R v GTD, 2017 ABCA 274, 40 CR (7th) 25, Justice Barbara Veldhuis set out a compendium of police interrogation tactics, at paras 55-6:
“[W]hile a detainee has the right to remain silent, investigators are not required to ‘take no for an answer.’ The police may persistently question a detainee even after he asserts his right to silence: R v Singh, 2007 SCC 48 at paras 42-48,  3 SCR 405. The police may make an emotional appeal to a detainee’s conscience or morality, and may mislead the detainee about the strength of the evidence against him: R v Rothman,  1 SCR 640 at p 697, 20 CR (3d) 97; R v Crawford,  1 SCR 858 at para 25, 37 CR (4th) 197; R v Oickle, 2000 SCC 38 at para 56,  2 SCR 3. While s 10(b) is not an ongoing ‘protective’ right that guarantees legal assistance throughout the course of an interrogation (Sinclair at paras 30-32), a detainee will often need advice at the outset of his detention about the ‘types of police conduct of which he should be wary’: R v McKenzie (2002), 162 OAC 160 at para 37, 3 CR (6th) 317 (CA). A lawyer provides critical advice about why it is important to remain silent, and can help explain strategies for resisting police interrogation tactics: R v Berger, 2012 ABCA 189 at para 24, 533 AR 124. This legal advice helps ensure the detainee can make a meaningful and informed choice about whether to cooperate with the investigation.
Detainees benefit from legal advice even if the police do not use high-pressure interrogation practices, however. Speaking with a lawyer also helps compensate for a detainee’s limited understanding of the law. A detainee may not realize the advantages and disadvantages of making a statement. For example, he may not appreciate how the rules of evidence usually prohibit his lawyer from using his exculpatory statements to help defend him at trial: R v Simpson,  1 SCR 3 at para 24, 62 CR (3d) 137; R v Pasqua, 2009 ABCA 247 at paras 22-23, 457 AR 358. He may not understand how even an exculpatory statement could be used to impeach him if he testifies: R v Calder,  1 SCR 660 at paras 24-25, 46 CR (4th) 133. He may not realize that the Crown cannot use his silence to help prove his guilt: R v Turcotte, 2005 SCC 50 at paras 36-58,  2 SCR 519. Or he may not understand the mens rea of an offence, or recognize his potential liability as an aider or abetter – and therefore believe he is professing innocence when he is actually confessing guilt. Without access to a lawyer who can help explain the risks of giving a statement, a detainee’s basic awareness of his right to silence does not fully address his position of vulnerability. The right to counsel helps ‘level the playing field’ between police and a detainee: Whipple at para 27.”
Let’s get back to the police vehicle.
When the officer asked “Do you wish to say anything?” GTD replied: “Yeah. Like a boss says I’m raping, I didn’t do because I was thinking, like, since we are in a relationship, it’s okay. I didn’t think it would be a raping because we our two boys together.” English was not his first language.
GTD pleaded not guilty. He conceded, at trial, that his statement to the officer was voluntary but argued that it was obtained in a manner that violated his right to counsel. The officer breached the duty to hold off by asking him “Do you wish to say anything?” after he said he wanted to speak to a lawyer. The trial judge ruled that the question did not breach the right to counsel and, if it did, she would not have excluded the statement.
The Alberta Court of Appeal split 2-1 on exclusion but not on breach. The majority, Justices F.F. Slatter and F.L. Schutz, agreed with Justice Veldhius that GTD’s right to counsel was violated but that the evidence should not be excluded. The majority held, at paras 21-6, that it was a case of “first impression” where the police were operating in “unknown legal territory”, the officer had not acted unreasonably and the impact on GTD’s rights was minimal. Justice Veldhuis, however, focused in her dissenting reasons on the institutional failure of the Edmonton Police Service to ensure that its police caution was Charter compliant, at paras 82-3:
“It is not the arresting officer’s behaviour individually that is of greatest concern, however. Instead, any fault lies at the feet of EPS institutionally, because it included the eliciting question at the end of its standard caution, or alternatively, because it failed to train its officers not to read this question when a detainee asked to speak with a lawyer. The arresting officer’s good faith does not significantly mitigate the seriousness of a Charter breach if his good faith misunderstanding of the law was a result of EPS training or policy that did not properly educate the officer about his obligations under the Charter. Instead, such an institutional or systemic Charter breach is more serious than an isolated incident: R v Harrison, 2009 SCC 34 at para 25,  2 SCR 494; R v Heng, 2014 ABCA 325 at paras 10-11, 580 AR 397; R v McGuffie, 2016 ONCA 365 at para 67, 131 OR (3d) 643.
There is every reason to conclude the breach was systemic. The officer read the caution from a standard EPS-issued card. There was no suggestion that the officer’s training (to read directly from the card after every arrest) was unusual. The Crown had ample opportunity to call further evidence about EPS training or policy, but chose not to do so.”
On February 14, 2018, the Supreme Court of Canada reversed in a ruling reported as R v GTD, 2018 SCC 7. Writing for a 4-1 majority, Justice Russell Brown held in brief reasons, at paras 2-3, that the question “Do you wish to say anything?” violated the duty to hold off “because it elicited a statement” that should have been excluded for the reasons of Justice Veldhuis. A new trial was ordered.
What, then, does the law promise? Justice Veldhuis answered that question, at paras 56 and 63. The law promises “the opportunity to receive legal advice before deciding whether to give up [the] right to silence”. It is the opportunity that helps “level the playing field” in the detainee’s “position of vulnerability”. The answer GTD gave to the police officer was really a classic of its kind – a product of his “limited understanding of the law”. But, equally important, detainees must do more than take the opportunity to call a lawyer. They must be resolute in taking the advice that lawyers usually give: “I have nothing to say.”