As the SCC sets out, in Mann it was held that not all police interactions with the public qualify as detentions, and in R. v. Grant, 2009 SCC 32, this was clarified so that detention would crystallize when a reasonable person in the subject’s position would conclude that he or she had been detained. These are reasonable positions to take, and this post does not seek to quarrel with them.

However, the theoretically objective nature of the Grant standard is one with the potential to be abused (presumably unintentionally) by judges unwilling or unable to consider that the reasonable person standard, when applied to interactions with the police, must address a shift in that standard when accounting for persons of certain races and classes predisposed to not trusting police officers or trusting them less.

In Suberu, the majority fails to address this in the slightest. While we should hope that the system will treat members of all races and classes equally, the truth is that Canada’s policing history is one with significant failures in the realm of race relations and outreach. According to The Toronto Star in 2002, police records demonstrated that white persons were nearly 20% more likely to be released at the scene on a single drug possession charge (rather than be arrested) than black persons, and that blacks were twice as likely as whites to be held for a bail hearing as a white person on the same charge. Blacks have been shown to be nearly twice as likely to have been stopped by police within a two-year period than whites, and three times as likely to have been stopped on multiple occasions within the same timeframe. Blacks and South Asians are much more likely to believe that police treat their racial group worse than others; a majority of all racial groups believe that blacks receive less fair treatment by police than whites. (A good summary of these attitudes can be found in this article as well as this PDF link.)

Similarly, poor people are more likely to feel wary of police than middle-class or rich people. In an article for the Canadian Journal of Criminology, Catherin Kaukinen and Sandra Colavecchia note that people from lower societal classes are less likely to be supportive of the justice system overall.

Given this plethora of data, it is crucially important that judges – who are overwhelmingly likely to be A) white and B) if not born into the upper class, then certainly at least transplanted into it due to their career path – bear in mind that their perception of the “reasonable person” must remain fluid; what the reasonable white person might think when confronted by a police officer is unlikely to be identical (or even only similar) to what the reasonable black or South Asian person might think.

Suberu is an excellent example of the failure of judicial imagination in this regard. At paragraph 33 of the decision, McLachlin C.J. and Charron J. write:

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.

Firstly, it should be noted that the writer of this post is white and male and from a reasonably comfortable background, and therefore overflowing with societal privilege to a great degree – and I’m not entirely comfortable speaking with a police officer when sitting in a car. Police officers take the opportunity to question people in their cars for a reason: speaking while standing to someone who is sitting adds additional authority to the speaker. (This is why students sit in classrooms, while teachers usually stand.) Additionally, sitting in a car reduces mobility and one’s sense of personal liberty (a sense already alarmed when one is conversing with an armed police officer, no matter how polite they might be).

But even ignoring this obvious truth, note that McLachlin C.J. and Charron J. take pains to describe Mr. Suberu’s experience in the most beneficient light. A member of a visible minority group doesn’t hear “I need to talk to you before you go anywhere” and likely think “this police officers needs my input to uphold the law.” To a member of a visible minority group – especially one predisposed to distrust police – that phrase is cause to immediately begin worrying if they are a suspect. Should that not immediately, under the Grant criteria, be grounds to demonstrate reasonable belief of detention?

This, then, is the failure of Suberu – the application of a one-size-fits-all standard that unfortunately appears to be grounded in white privilege. If all that is reasonable when dealing with a police officer is what is reasonable for a white person (or a rich person, for that matter) to believe, then how can it be considered a truly objective standard?

One can understand the difficulty in applying the Grant standard to a minority that considers itself to be persecuted; where a reasonable individual considers themselves detained giving cause for warnings about right to counsel can be an issue that can make the day-to-day work of police officers unwieldy at best and impossible at worst. But if the Grant standard cannot work in the real world, where minorities do feel persecuted (and not unfairly, many would argue), then what use is it?

Although much of the media coverage has focused on the results, ultimately the Court found no Charter violation in either Shepherd or Suberu, affirmed the decision below to admit into evidence an unconstitutionally obtained handgun in Grant, and excluded the cocaine at issue in Harrison. By the numbers, that looks like a 3 to 1 victory for the state over the individual accused, and an unmitigated victory for crime control over due process.

A closer consideration of the judgments, however, reveals a far more nuanced and optimistic outcome for those who worry equally about civil liberties.

Of the four, Friday’s key decision was undoubtedly Grant. Despite the Court’s decision to admit the handgun in that case, a closer reading of the judgment reveals that proponents of due process have much to celebrate.

Section 9 of the Charter

First, the Court has finally seized the opportunity to identify the underlying purpose of s. 9, the right not to be arbitrarily detained or imprisoned.  They have never done this before, even though s. 9 has been before them on countless occasions. The Court recognized, quite correctly I think, that the purpose of this important Charter guarantee is to protect our liberty from unjustified interference by the state. With that purpose in mind, the Court went on to revisit the meaning of “detention”, which is the legal event that triggers the protection afforded by this constitutional guarantee.

In its judgment, the Court re-affirms the core of its earlier precedent in R. v. Therens, [1985] 1 S.C.R. 613, while also providing much-needed and very practical guidance on when a police-citizen encounter will constitute a “detention”. In a very useful summary that should undoubtedly find its way into police training manuals, the majority explains at para. 44 that:

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 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; and 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.

The reference in 2(c) to the individual’s “minority status” is an undoubted and welcome recognition by the Court that members of certain visible minority communities have been policed differently in the past, and that their unique experience in being targeted for increased scrutiny will understandably influence their perception of a police encounter and ought to be taken into account in assessing whether or not they were “detained” for Charter purposes.

Applying these criteria, the Court concluded that young Mr. Grant was indeed “detained” when he was intercepted by three police officers, one in uniform blocking his way to the front, with two standing by just behind him, asked for his name and address, told “to keep his hands in front of him” and then subject to a series of questions that resembled an interrogation.

Recognizing a new s. 24(2) exclusionary framework

With respect to s. 24(2), which was the other major focus of its ruling, the Court essentially rewrites the rules from its earlier – and much criticized – judgments in R. v. Collins, [1987] 1 S.C.R. 265 and R. v. Stillman, [1997] 1 S.C.R. 607.

This new approach is a considerable improvement over Stillman, and the insurmountable confusion that was created by that judgment’s “conscripted” vs. “non-conscripted” evidence categorization.

In Grant, in deciding whether or not the admission of evidence could bring the administration of justice into disrepute (the language from s. 24(2)) the Court favours a more robust balancing approach, which sensibly requires a consideration of: (1) the seriousness of the Charter infringing state conduct, (2) the impact of the breach on the Charter protected interests of the accused, and (3) society’s interest in the adjudication of the case on its merits. Under this approach, unlike Stillman, no single factor is controlling and no particular type of evidence is privileged for exclusion or admission.

Hopefully, lower court judges will see past the result in Grant, in which the Court admits the handgun. The Court was careful to explain that it was doing so in large part because the demarcating line between permissible police-citizen encounters and constitutionally prohibited arbitrary detentions was unclear prior to its judgment in Grant. In other words, the officers in Grant were to be forgiven for making an honest mistake in navigating this confusing area of the law. In fact, the Court was careful to point out in Grant that the decision to admit the handgun was a “close case”. Thankfully, the Court’s judgment in Grant now clarifies much of that confusion, which is why the Court makes a point of noting, at para. 133:

We add that the Court’s decision in this case will be to render similar conduct less justifiable going forward. While police are not expected to engage in judicial reflection on conflicting precedents, they are rightly expected to know what the law is.

In future, police officers who do what the officers did in Grant can expect that the fruits of their unconstitutional efforts will be excluded.

In short, even though the Court admitted the handgun in this case, it has sent a very strong and clear message to the police: Police officers, know and obey the law. If you exceed the established limits on your legal authority and happen to acquire evidence in the process, you will not be rewarded. To the contrary, the courts will disassociate themselves from deliberate violations of Charter rights by excluding the fruits of their unconstitutional efforts. They will do so, even in cases involving serious crimes (i.e. the exclusion of a very large quantity of cocaine in Harrison).

Conclusion

These judgments are a real breath of fresh air for those of us who are concerned about civil liberties and what has been a noticeable trend in lower courts, as of late, towards the admission of unconstitutionally obtained evidence.

Suberu concerns the right of an individual detained (but not arrested) by police and when that detention triggers the right to counsel under s.10(b) of the Charter. The section states that “on arrest or detention”, everyone has the right “to retain and instruct counsel without delay and to be informed of that right.”(emphasis added)

Mr. Suberu and an accomplice obtained a stolen credit card which they used to purchase LCBO gift certificates, then attempted to use the $100 gift certificate to buy a $3 bottle of beer. The LCBO employees became suspicious and called the police without the appellants’ knowledge. When the constable arrived, he briefly detained the appellants and asked them some questions. It quickly became obvious to the officer that the appellants were the individuals responsible for the use of LCBO certificates (among other items) paid for with a stolen credit card, and he arrested them for fraud.

The obvious question in determining Mr. Suberu’s guilt in this instance is whether or not his right to counsel under s.10(b) was triggered. Justice Doherty, in the Ontario Court of Appeal decision (which found against Mr. Suberu), compared the situation to R. v. Hall, [1998] O.J. No. 2607 (Ct. J.), where an individual was detained for a traffic violation and then admitted to possessing marijuana before being informed of right to counsel. In Hall, the court found that the suspect’s 10(b) rights were activated by the traffic detention. However, Justice Doherty used a passage from Hall to illustrate the cause for dismissing Suberu’s appeal:

[H]e [the police officer] was entitled to ask an exploratory question in order to ascertain whether an investigation of the cigarette was worth pursuing. Only after making the determination that it was would he be required to inform Mr. Hall of his right to counsel in relation to that investigation.

Justice Doherty here suggested that the “exploratory question” was akin to the constable’s brief interrogation of Mr. Suberu. However, nowhere in his decision did he account for another distinguishing fact: that the constable, rather than stopping someone for an unrelated violation of a different nature, was actually called to the scene expressly for the purpose of investigating whether Mr. Suberu was potentially guilty of a specific crime.

Does this mean Justice Doherty’s decision was incorrect and requires overturning? Possibly. This ties into another reason why the amount of time spent thus far by the SCC to decide this case is so startling: when the Supreme Court  first recognized the investigative detention power in R. v. Mann, [2004] 3 S.C.R. 59, they specifically noted that whether or not the right to counsel applies incidental to such detentions would be decided at a later date, with the benefit of deliberation by lower courts.

But now, the issue has been deliberated upon in the lower courts. And the SCC’s delay in handing down their decision in Suberu grows more puzzling every day.

The Case

Mr. Suberu and a friend, William Erhirhie, were in possession of a stolen credit card.. They used it to make a number of purchases, including six $100 Liquor Store gift certificates. When Mr. Erhirhie attempted to buy a $3 bottle of beer with one of these certificates in another Liquor Store, the cashier – who had been warned to be on the look-out for people using $100 certificates – had a colleague call the police. A police officer arrived shortly thereafter and began questioning Mr. Erhirhie. Mr. Suberu decided to walk out of the store and, referring to his friend, said, “he did this, not me, so I guess I can go,” just as a second officer was entering the store.

The second officer followed Mr. Suberu out of the store and watched him enter the driver’s side of a van. The officer said, “Wait a minute. I need to talk to you before you go anywhere.” At trial, the officer testified that he did not want Mr. Suberu to leave the area because the officer was “exploring the situation.” He did not advise Mr. Suberu of his right to counsel.

After receiving information that the purchases of the gift cards were made with a stolen credit card, the officer told Mr. Suberu that he was under arrest for fraud. The officer then asked who owned the bags of merchandise that were in plain view inside the car. Mr. Suberu offered a self-incriminating statement that some of the bags belonged to him and some of them belonged to Mr. Erhirhie. The officer repeated that Mr. Suberu was under arrest for fraud and, at that time, informed him of his right to counsel. Mr. Suberu and his purse were then searched, which resulted in more incriminating evidence being found.

At trial, the judge determined that the right to counsel was not engaged during this brief interaction between Mr. Suberu and the officer. Mr. Suberu was convicted of one count of possession of property obtained by crime, one count of possession of a stolen credit card, and one count of possession of a stolen debit card, which led to a sentence totalling ninety days imprisonment followed by probation for one year.

The Decision of the Ontario Court of Appeal

Mr. Suberu argued that the police officer was obliged to advise him of his right to counsel immediately upon detaining him for investigative purposes. On the plain language of s. 10(b) of the Charter, it does not appear that the framers intended that there be an exception for investigative detention. It states:

10. Everyone has the right on arrest or detention [...]
b to retain and instruct counsel without delay and to be informed of that right;

Nonetheless, in the Court of Appeal’s judgment in R v. Suberu Justice Doherty found that the words “without delay” provided room for the police to ask self-incriminating questions to suspects placed under investigative detention. He wrote:

In my view, 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”…. The words “without delay” are semantically capable of a broader meaning than “immediately” in the appropriate context.

However, Justice Doherty did not provide any specific guidance on the exact time limit imposed by the words “without delay,” only stressing that it “can accommodate only brief interludes between commencing an investigative detention and advising the detained person of his or her right to counsel.”

In addition to blurring the boundaries of the right to counsel, Justice Doherty’s decision expresses a concern that Charter rights, if interpreted too strictly, may interfere with the ability of the police to do their job. He states,

There is 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… If the police are obliged to advise every person detained for investigative purposes of their right to counsel before asking any potentially incriminating questions, the police are presumably required to stop any questioning and facilitate contact with counsel if the detained person chooses to exercise his or her right to counsel. The delay inherent in this process, not to mention the redirection of police resources that would be required to comply with requests to consult with counsel, would render the police power to briefly detain persons for investigative purposes in aid of criminal investigations largely illusory.

Perhaps more striking is Justice Doherty’s finding that a strict application of s. 10(b) may actually be harmful for the person under investigation. He says,

In addition to the negative impact on the ability of the police to effectively investigate crimes, a requirement that the police advise detained persons of the right to counsel immediately could seriously impair the liberty interests of detained persons. If the police are required to advise a person detained briefly for investigative purposes 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. The police may also be required to take the person into physical custody to transport that person to another location where he or she can effectively exercise the right to counsel. These lengthier detentions, accompanied in some cases by transportation to another location while in physical custody, could also necessitate personal searches of the detained persons that would not be appropriate in the context of a brief investigative detention. The interpretation of s. 10(b) urged by counsel for the appellant in the context of brief investigative detentions would inevitably result in significant additional interference with the liberty and personal security of those detained for investigative purposes.

As a result, Justice Doherty dismissed Mr. Suberu’s appeal, upholding the conviction and condoning the actions of the officer.

The Interveners

The five organizations granted leave to intervene are the Association des avocats de la défense de Montréal, the Attorney General of British Columbia, the Canadian Civil Liberties Association, the Criminal Lawyers’ Association (Ontario) and the Director of Public Prosecutions of Canada. They were all permitted to serve a factum not exceeding 20 pages. Their requests to present oral arguments will not be addressed until the SCC receives and considers the written arguments of both the parties and interveners. The case is currently scheduled to be heard on April 15th, 2008.

The Need for Clear Direction

The involvement of these organizations will help the SCC fully understand the broader implications of its eventual decision and, ideally, will lead the SCC to clearly define the rules of conduct between individuals and police officers in so-called routine interactions. However, this case and others like it, such as R v. Grant, illustrate the need for the legislature to provide law enforcement with clear rules governing their conduct when placing people in investigative detention.

A fundamental aspect of the rule of law is that the rules governing our society are clear and ascertainable. The ability of courts to make law that meet this requirement is limited insofar as decisions are made on a case-by-case basis. In cases involving the Charter, this not only leaves individuals questioning the substance of their rights, but also places the police in the precarious position of wondering whether their conduct will later lead to crucial evidence being excluded under s. 24(2).

Justice Doherty’s concern that a strict reading of s. 10(b) may hinder the ability of the police to conduct effective investigations is justified. Nonetheless, watering down the rights in the Charter is not the solution. Instead, the government should engage Canadians in a debate regarding the acceptable rules governing investigative detention, which results in legislation that balances the need for this necessary police power with the rights of individuals outlined in the Charter. Such legislation would provide those under investigative detention with a clearer picture of their rights as well as providing law enforcement with explicit authority for their actions.