Toronto criminal defence lawyer Joseph Di Luca will go to the Ontario Court of Appeal this August to deal with an issue he and many of his colleagues feel was left unresolved in the same court earlier this year in R. v. Suberu.
In the case involving a man detained in a liquor store parking lot and later arrested for fraud, Ontario’s top court ruled that police are allowed to ask questions prior to informing an individual of the right to consult a lawyer as guaranteed under s. 10(b) of the Charter of Rights.
“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 to decide whether anything more than a brief detention of the individual may be warranted - is not inconsistent with the requirement that a detained person be advised of his or her right to counsel ‘without delay,’ ” Justice David Doherty wrote in the unanimous Jan. 31 decision.
Di Luca will challenge the use of evidence gathered during an investigative detention in a case called R. v. Nguyen, in which Di Luca’s client was found guilty last year of both producing marijuana and possession for the purposes of trafficking it.
“This fellow gave a statement to police about his home in relation to a marijuana grow-op,” says Di Luca, vice president of the Ontario Criminal Lawyers’ Association.
“The issue is whether he made that statement during the course of an investigative detention and whether his conviction was based only on the evidence seized during that detention.
“If so, that’s unfair.”
He says the law is unclear on when a person detained by police should be given the right to counsel and when that individual has the right to be informed of the reason for the detention.
In Suberu, Doherty referred to, “An obvious tension between the requirement to inform detained persons of their right to counsel and the proper and effective use of brief investigative detentions.”
He added that if there were a requirement for police to always advise a detainee of his or her right to counsel “before asking any questions, and if the person exercises that right, the detention of that person will potentially be considerably longer than it would otherwise have been.”
Three years ago in R. v. Mann, the Supreme Court of Canada stated that, “At a minimum, individuals who are detained for investigative purposes must be advised, in clear and simple language, of the reasons for the detention.”
But Di Luca points out that the Supreme Court specifically left unresolved the issue of whether a person’s right to counsel must be addressed during an investigative detention.
The high court may have the opportunity to revisit that issue if it grants leave to appeal and hears Suberu.
In its decision, the Ontario Court of Appeal found that in many brief detentions for investigative purposes, the right to counsel need not be given, Di Luca says.
“But the court left open the possibility that on a given case, detention may rise to a level where the right to counsel must be given and respected. However, where that line is going to be drawn is for future cases to decide.”
He says the appellate court also raised the question of how to view evidence against a person that emerges during an investigative detention.
“Factors such as the nature of the detention, the kinds of questions asked, and the age of the detained person would be among the relevant considerations.”
Di Luca says the courts have already recognized the inadmissibility of evidence from statements obtained during investigative detentions in impaired-driving cases.
Without clear guidance from the courts, charges that result from investigative detentions when an individual has not received the right to obtain legal advice will likely lead to constitutional challenges, says criminal defence lawyer Phil Downes, an associate with Toronto firm Fenton Smith.
“This will give another basis upon which to bring a Charter motion to trial and potentially delay things.”
Osgoode Hall Law School assistant professor James Stribopoulos says that by giving police the power to conduct investigative detentions, starting with the Simpson case 14 years ago, the courts are “essentially licensing an intrusion on individual liberty.”
“They should be limiting state authority and calling the state to account in circumstances where minimum Charter requirements haven’t been respected,” he says.
“Creating new police powers should be left to Parliament. But as long as the courts do this piecemeal, case-by-case, where there are sometimes years between judgments, we’re not going to have clear rules and won’t have a very good system for regulating police power.”
Alan Young, an associate professor at Osgoode, called for legislative intervention in the 1990 essay All Along the Watchtower. It was referred to in Doherty’s Simpson decision, a case in which a police officer pulled over a car and later arrested one of the passengers found with cocaine and charged him with possession of a narcotic for the purpose of trafficking.
“Doherty quoted me as saying we need to regulate investigative detentions, but excised from his commentary my point that it really is a legislative task,” says Young, co-founder of the York University Innocence Project.
“In 1993, the Simpson decision recognized that police have the power of investigative detention on reasonable suspicion and it took 11 years for the Supreme Court to look at this, though it had at least three opportunities to do so but denied leave to appeal.
“The court finally [got] to address the issue in Mann but, without a very detailed, thoughtful, or sophisticated analysis, approved the power of investigative detention and altered the phrasing in the vernacular for the test to create an extra layer of confusion,” says Young.
Stribopoulos, whose essay on investigative detention after the Mann decision will soon be published in Criminal Law Quarterly, wonders about the obligations facing a detainee.
“They must remain, otherwise the police couldn’t be characterized as having a power. But it’s unclear as to whether they have to identify themselves and have to answer questions. And what are the consequences legally if someone detained doesn’t comply? Is that obstructing a police officer in the execution of his duty? We don’t have the answers yet and it might be decades before we do.”
Meanwhile, Downes worries that in light of new post-Sept. 11 security measures that allow law enforcement officials to detain people without immediately charging them and the unresolved issues surrounding investigative detention, “There may be an erosion of our Charter or constitutional values, and the right to counsel is paramount in that.”
“Are we starting to see a drift towards law enforcement as opposed to civil rights? My concern is that the public outcry about both national security and street crime is putting pressure on the courts to weaken otherwise fairly robust Charter powers.”
On investigative detention, Downes is also concerned with the veracity of such interrogations.
“Unlike a suspect being asked questions in a police station, there’s no recording of an interaction during an investigative detention. You’re dependent entirely on a police officer’s notes versus the word of the person being asked,” he says.
In Suberu, Doherty said it would be “highly artificial to select an arbitrary point in what is a fluid encounter and declare that from that point forward the person was detained and the next words out of the officer’s mouth should have been advice as to the person’s right to counsel.”
But Downes wonders if there isn’t some “middle ground” in which a police officer can, “at least in a very cursory way, tell you, ‘You’re not required to answer my questions.’ ”
“At least that allows a person to make some decisions without legal advice.”
Says Young: “If you’re not getting the right to counsel during a detention, you’re not getting the information you need to make an informed choice as to whether to co-operate with police.”
“Our courts have said people have the right to refuse but have not gone a step further to say police must inform detainees of this right as a right to counsel,” Young says.
“Jurists say you only decide what you need to decide in law. But my position is that, in our constitutional regime, you may have to make pronouncements that extend beyond specific issues of a case.”