On February 19, 2018, the Supreme Court of Canada released the decision of R. v. G.T.D. The decision provides important guidance about the contents of the standard police caution as it relates to the right to counsel in s. 10(b) of the Charter.
Facts: G.T.D. (“G”) was arrested for sexual assault of a previous intimate partner. The arresting officer read G a standard right to counsel statement and asked G if he wanted to speak to a lawyer. G said that he did. The officer read a further standard caution to G, ending with: “Do you wish to say anything?” G uttered an inculpatory statement. G argued that police had a duty under s. 10(b) of the Charter to “hold off” on any questions until G was given a reasonable opportunity to consult with counsel. The majority of the Alberta Court of Appeal said that the standard police question was in fact a Charter breach. The Court decided not to exclude the evidence under s. 24(2); the appeal was dismissed. G appealed to the SCC.
Issues: Did the question “Do you wish to say anything?” asked at the conclusion of the standard police caution issued after G already invoked his right to counsel violate the police duty to “hold off” and cause a breach s. 10(b)? Yes. Should the statement be excluded under s. 24(2) of the Charter? Yes.
Held: The SCC decided that the question “Do you wish to say anything” elicited a statement from G. Because G had already invoked his right to counsel, the arresting officer violated his duty to “hold off” from inviting self-incriminatory evidence from G, until he had a reasonable opportunity to speak with counsel. G’s section 10(b) Charter rights were breached. The statement that G gave in response to the question was excluded under s. 24(2) of the Charter. The breach was systemic: the question was included in all standard cautions issued by Edmonton Police Service officers and there was no evidence that officers were provided with training not to ask the question in certain circumstances. The breach was serious.
Why is this decision important to police?
The question “Do you wish to say anything”, or similar, cannot be asked of a detained person prior to allowing the detained person the opportunity to consult with a lawyer if they have invoked their right to counsel. Inclusion of such wording in the standard police caution without qualification invites police officers to always ask the question, without reflection about whether it should be asked at that time. Such an approach is wrong. A police officer will breach s. 10(b) of the Charter by any question that elicits evidence from a detained person during the “hold off” period. The question “Do you wish to say anything” is such a question. The SCC ruling tells us that these type of breaches will inevitably lead to exclusion of the evidence under s. 24(2) of the Charter.
What is the duty to “hold off”?
When a detainee asserts their right to counsel (either expressly or by not waiving their right), police have a temporary duty to “hold off” on questioning the detainee. The 1994 Supreme Court of Canada decision of R. v. Prosper is still the leading authority on this duty.
Can a police officer still ask a detained persons questions?
This case does nothing to limit the type of questions that police can ask detainees or accepted police interrogative techniques. The decision simply reminds police to ask questions at the right time.
Police officers can still ask questions of a detainee at the following times:
1) when the detainee understands their right to counsel and expressly declines the opportunity to consult with a lawyer or waives their right
2) once a detainee has exercised their right to counsel by consulting with a lawyer, and
3) when a detainee has asserted their right to counsel (either expressly or by not waiving their right) but subsequently changes their mind – and after receiving a “Prosper warning” from police.
What is a Prosper warning?
A Prosper warning is an additional informational obligation on police. It is triggered when the third scenario as listed above occurs. Specifically, the obligation is triggered in the following circumstance:
· when a detainee has asserted their right to counsel (either expressly or by not waiving their right);
· police have afforded the detainee with a reasonable opportunity to exercise their right; and
· the detainee changes their mind by expressly saying they no longer want to speak with counsel or the detainee appears to change their mind because of an absence of reasonable diligence in exercising it.
At this point, police have an additional informational obligation, beyond the caution. Police officers ought to tell the detainee about the detainee’s right to a reasonable opportunity to contact a lawyer and of the obligation on the part of police during this time not to take any statements or require the detainee to participate in any potentially incriminating processes until the detainee has had a reasonable opportunity to consult with a lawyer.
The Prosper warning is meant to ensure the detainee knows that if they change their mind about wanting counsel or are not reasonably diligent in exercising their right, that the police “hold off” period is suspended. See R. v. Fountain.
Facts: G.T.D. (“G”) was arrested for sexual assault of a previous intimate partner. The arresting officer read G a standard right to counsel statement and asked G if he wanted to speak to a lawyer. G said that he did. The officer read a further standard caution to G, ending with: “Do you wish to say anything?” G uttered an inculpatory statement. G argued that police had a duty under s. 10(b) of the Charter to “hold off” on any questions until G was given a reasonable opportunity to consult with counsel. The majority of the Alberta Court of Appeal said that the standard police question was in fact a Charter breach. The Court decided not to exclude the evidence under s. 24(2); the appeal was dismissed. G appealed to the SCC.
Issues: Did the question “Do you wish to say anything?” asked at the conclusion of the standard police caution issued after G already invoked his right to counsel violate the police duty to “hold off” and cause a breach s. 10(b)? Yes. Should the statement be excluded under s. 24(2) of the Charter? Yes.
Held: The SCC decided that the question “Do you wish to say anything” elicited a statement from G. Because G had already invoked his right to counsel, the arresting officer violated his duty to “hold off” from inviting self-incriminatory evidence from G, until he had a reasonable opportunity to speak with counsel. G’s section 10(b) Charter rights were breached. The statement that G gave in response to the question was excluded under s. 24(2) of the Charter. The breach was systemic: the question was included in all standard cautions issued by Edmonton Police Service officers and there was no evidence that officers were provided with training not to ask the question in certain circumstances. The breach was serious.
Why is this decision important to police?
The question “Do you wish to say anything”, or similar, cannot be asked of a detained person prior to allowing the detained person the opportunity to consult with a lawyer if they have invoked their right to counsel. Inclusion of such wording in the standard police caution without qualification invites police officers to always ask the question, without reflection about whether it should be asked at that time. Such an approach is wrong. A police officer will breach s. 10(b) of the Charter by any question that elicits evidence from a detained person during the “hold off” period. The question “Do you wish to say anything” is such a question. The SCC ruling tells us that these type of breaches will inevitably lead to exclusion of the evidence under s. 24(2) of the Charter.
What is the duty to “hold off”?
When a detainee asserts their right to counsel (either expressly or by not waiving their right), police have a temporary duty to “hold off” on questioning the detainee. The 1994 Supreme Court of Canada decision of R. v. Prosper is still the leading authority on this duty.
Can a police officer still ask a detained persons questions?
This case does nothing to limit the type of questions that police can ask detainees or accepted police interrogative techniques. The decision simply reminds police to ask questions at the right time.
Police officers can still ask questions of a detainee at the following times:
1) when the detainee understands their right to counsel and expressly declines the opportunity to consult with a lawyer or waives their right
2) once a detainee has exercised their right to counsel by consulting with a lawyer, and
3) when a detainee has asserted their right to counsel (either expressly or by not waiving their right) but subsequently changes their mind – and after receiving a “Prosper warning” from police.
What is a Prosper warning?
A Prosper warning is an additional informational obligation on police. It is triggered when the third scenario as listed above occurs. Specifically, the obligation is triggered in the following circumstance:
· when a detainee has asserted their right to counsel (either expressly or by not waiving their right);
· police have afforded the detainee with a reasonable opportunity to exercise their right; and
· the detainee changes their mind by expressly saying they no longer want to speak with counsel or the detainee appears to change their mind because of an absence of reasonable diligence in exercising it.
At this point, police have an additional informational obligation, beyond the caution. Police officers ought to tell the detainee about the detainee’s right to a reasonable opportunity to contact a lawyer and of the obligation on the part of police during this time not to take any statements or require the detainee to participate in any potentially incriminating processes until the detainee has had a reasonable opportunity to consult with a lawyer.
The Prosper warning is meant to ensure the detainee knows that if they change their mind about wanting counsel or are not reasonably diligent in exercising their right, that the police “hold off” period is suspended. See R. v. Fountain.
