Jun 18, 2018

The Supreme Court Strengthens the Right to Counsel in light of Systemic Problems

R. v. G.T.D., 2018 SCC 7 (CanLII)

The Facts

After his arrest on charges of sexual assault, the accused was provided his right to counsel and police caution. After providing the police caution, the officer asked “Do you wish to say anything?” The accused the provided in inculpatory statement which was used against him at trial.

During the trial the arresting officer indicated the statement “Do you wish to say anything?” was part of the standard caution which he read from an Edmonton Police Service-issued card. He provided regardless of whether the person wanted to speak with a lawyer or not, asking the accused if he had anything to say was part of the Edmonton Police Service standard practice for the past decade.

The Issue

The Supreme Court had to decide if (1) the accused’s right to counsel under section 10(b) of the Canadian Charter of Rights and Freedoms (Charter) had been breached by the officer’s question and (2) if the inculpatory statement made by the accused should be excluded under section 24(2) of the Charter.

The Decision

With respect to the issue of whether the question violated the accused right to counsel the court found the arresting officer had an obligation to hold off from attempting to elicit incriminatory evidence from the accused until he had a reasonable opportunity to speak to counsel. By asking the question he did, the officer elicited a statement from accused in volition of the duty to hold off.

With respect to the section 24(2) Charter analysis, the court was of the view of the accused statement should be excluded. The court relied upon the reason of Justice Veldhuis at the Alberta Court of Appeal, R v GTD, 2017 ABCA 274, found at paragraph 83:

“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.”

Closing Remarks

While this case garnered little attention at the time of it’s decision, I would consider it a bit of a hidden gem for two reasons.

First, in finding the arresting officer breached the accused right to counsel by not holding off questions, the Supreme Court strengthened detainee’s right to counsel and right to silence.

In R v Fountain, 2017 ONCA 596, the Ontario Court of Appeal dealt with a similar case. In that case upon his arrest the accused was asked if he wanted to speak to his lawyer. The police were unable to reach his lawyer and then asked if he wished to wait until morning to contact counsel, to which he apparently agreed. The interrogating officer cautioned the accused again about his right to silence. The officer then asked the accused questions which elicited an exculpatory statement.

Justice Paciocco wrote in his decision:

“When Mr. Fountain declined the offer to call a legal aid lawyer and chose to wait until the next day to speak to his own counsel, he was accepting an option that Det. Dellipizzi held out. Mr. Fountain had no reason to believe that he was compromising his constitutional rights by making that choice.”

Both these decisions make it clear that despite the police officer giving a prosper warning to the accused, the police actions afterwards must not compromise the accused’s substantive rights.

Secondly, the Supreme Court enforced the need of trial court judges to consider how systemic practices among the police may violate an accused’s rights. As Justice Veldhuis of the Alberta Court of Appeal wrote at paragraph 82:

“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 questionwhen 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.”