R v G.T.D.: When Six Words in a Police Caution Infringe Rights to Counsel
“Do you wish to say anything?”
On February 14, 2018, the Supreme Court of Canada (“SCC”) decided in R v G.T.D., 2018 SCC 7 [G.T.D.] that those six words, said by an arresting officer to the accused, were sufficient to breach G.T.D’s rights to counsel under section 10(b) of the Canadian Charter of Rights and Freedoms [Charter]. The SCC then excluded G.T.D’s statement, made after the officer’s question, under s.24(2) of the Charter. The SCC overturned G.T.D.’s sexual assault conviction and ordered a new trial.
G.T.D. is a welcomed decision for two reasons. First, it strengthens a detainee’s rights to counsel under section 10(b) of the Charter, and by extension, the right to silence under section 7 of the Charter. Second, it gives courts the power to consider whether the Charter-infringing conduct is not an isolated incident, but a widespread practice among police, in the section 24(2) Charter analysis.
The incident took place in Edmonton, Alberta. G.T.D. was charged with sexual assault against a previous partner. After receiving a call from the complainant, the arresting officer located G.T.D. and placed him under arrest and into a scout car. The officer began to read G.T.D. his rights upon arrest, though there was an indication that G.T.D. did not speak English fluently. He asked G.T.D. if he wanted to speak with a lawyer, to which he responded “yes” (R v G.T.D., 2017 ABCA 274, para 35).
The officer then gave a further caution, which formed the subject matter of G.T.D.’s appeal:
You may be charged with sexual assault and breach. 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? [emphasis added].
Upon hearing the caution, G.T.D. made inculpatory statements about having sex with the complainant.
At trial, a voir dire was held to determine whether G.T.D.’s statements could be excluded because the officer’s caution elicited information before G.T.D. was able to speak with a lawyer. Upon cross-examination, the arresting officer stated the words “Do you wish to say anything?” was part of a standard caution which he read from an Edmonton Police Service-issued card. He stated he was supposed to ask that question whether the person wanted to speak with a lawyer or not, and that it was part of standard practice for the past decade.
The trial judge found there was no breach of G.T.D.’s section 10(b) right, and found him guilty of sexual assault.
Alberta Court of Appeal
G.T.D. appealed the decision, stating his section 10(b) rights were breached and his statements should have been excluded. The majority and dissent agreed that G.T.D.’s section 10(b) rights were breached, but disagreed on whether the statements should have been excluded.
The majority concluded that the statements should not be excluded as per the test from R v Grant, 2009 SCC 32 [Grant]. As per Grant’s first line of inquiry, the majority decided that the officer’s conduct was not very serious, finding nothing particularly unreasonable or negligent with the officer’s caution (R v G.T.D., 2017 ABCA 274, para 22 [G.T.D. ABCA]). They also decided that the impact on G.T.D.’s interests was “minimal,” and that the statement was made voluntarily after the rights to counsel were given (G.T.D. ABCA, para 26).
Justice Veldhuis, writing for the dissent, disagreed with the first two parts of the majority’s Grant analysis, and decided G.T.D.’s statements should have been excluded. Justice Veldhuis found that the police conduct was very serious. Justice Veldhuis also found the evidence showed the police officer’s caution was a regular practice, so the conduct constituted a “systemic” breach of Charter rights of those put under arrest by the Edmonton police (G.T.D. ABCA, para 93). Justice Veldhuis did not consider the breach to be merely minimal or “technical”, as the rights to counsel ensures that the accused receives advice about their rights to remain silent, and allows them to make an informed choice as to whether to give up those rights or not.
The majority of the SCC relied substantially on Justice Veldhuis’s reasons to overturn G.T.D.’s conviction and order a new trial. Chief Justice Wagner, the lone dissent, would not have excluded G.T.D.’s statements under the Grant test.
Strengthening section 10(b) and section 7 rights
G.T.D. gives police clear direction on their duty to “hold off” questioning until they are able to speak with counsel. With this decision, police recognize the duty applies when the individual is arrested and his rights to counsel are read. Even an innocuous question, asked in good faith, is unacceptable if it can elicit potentially inculpatory statements from the accused, before the accused has a chance to speak with a lawyer.
As a result, G.T.D. strengthens the rights to counsel under section 10(b), and by extension, the right to silence under section 7 of the Charter. A police officer must inform the detainee about their rights to silence, but it is the lawyer that can provide advice about the consequences if the detainee decides to waive that right.
Practically speaking, G.T.D. makes sense. When people are placed under arrest, they are already in a legally vulnerable situation. However, it is easy to see how some want to explain their actions. Those who believe they are innocent will likely want to tell their “side of the story,” perhaps hoping that the police will stop arrest proceedings. From the detainee’s point of view, it is easy to see how the officer’s caution of “Do you wish to say anything?” seems like an opportunity to say something in their defence.
Yet, the caution can elicit statements that are, unknown to the accused, damaging to their case. In G.T.D.’s case, after the caution was given, G.T.D. made statements stating he thought he did nothing wrong because the complainant was a romantic partner. His statements to the arresting officer ended up being used against him during trial—where, it is worth mentioning, G.T.D. did not testify. Perhaps if G.T.D. was not asked the question, and he was able to speak with a lawyer, he would have chosen not to make those statements.
Systemic Issues and s.24(b) of the Charter
What makes G.T.D. interesting is how Justice Veldhuis came to her conclusion that the police officer’s Charter-infringing conduct was very serious. Viewed in isolation, both the majority and the minority from the Court of Appeal of Alberta (“ABCA”) agreed the arresting officer’s conduct is arguably a minor violation. The majority for the ABCA made persuasive comments stating the caution had been used for decades in multiple police jurisdictions, and in that time it had been subject to few Charter challenges (G.T.D. ABCA, para 22).
However, Justice Veldhuis notes the concern lies on an institutional failure by the Edmonton Police to ensure their police cautions are Charter compliant (G.T.D. ABCA, para 82). Despite acknowledging that the Edmonton Police force was not acting negligently, and understandably relied on historical precedent in creating their cautions, Justice Veldhuis does not excuse the officer’s actions. She excludes the statement and orders a new trial as a result.
Justice Veldhuis’s analysis is powerful. It sets precedent for advocates and judges to look at the Grant analysis in a broader context than only the accused’s set of circumstances. Even minor Charter infractions should be challenged if it is part of a wider practice. Given that people who are detained and arrested are already in legally vulnerable situations, police must ensure their Charter rights are respected and provided in a meaningful way. Overall, Justice Veldhuis’s judgment, agreed with by the SCC, directs police to ensure their behavior is held to a high standard aligned with contemporary Charter values.
G.T.D. directs police to hold off on giving any statements or asking any questions that could potentially elicit information from the detainee as soon as the police are reading their rights to counsel. Even the simple question, “Do you wish to say anything?” given after the caution is not Charter-compliant.
The SCC’s decision is expected to encourage police forces to review and revise their police cautions to ensure they are not eliciting information from the detainee before they have spoken with counsel. Given the conduct was systemic, warranting that G.T.D.’s serious convictions be overturned, this case should be powerful incentive for police to respect the accused’s right to counsel and right to silence.