Constitutional law – Charter of Rights – Right to be tried within a reasonable time
“A new framework is therefore required for applying s. 11(b). This framework is intended to focus the s. 11(b) analysis on the issues that matter and encourage all participants in the criminal justice system to cooperate in achieving reasonably prompt justice, with a view to fulfilling s. 11(b)’s important objectives.
At the heart of the framework is a presumptive ceiling beyond which delay – from the charge to the actual or anticipated end of trial is presumed to be unreasonable, unless exceptional circumstances justify it. The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in superior court (or cases tried in provincial court after a preliminary inquiry). Delay attributable to or waived by the defence does not count towards the presumptive ceiling.
Once the presumptive ceiling is exceeded, the burden is on the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. If the Crown cannot do so, a stay will follow. Exceptional circumstances lie outside the Crown’s control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot be reasonably remedied.
It is obviously impossible to identify in advance all circumstances that may qualify as exceptional…….However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.
If the exceptional circumstance relates to a discrete event (such as, for example, an illness or unexpected event at trial), the delay reasonably attributable to that event is subtracted from the total delay. If the exceptional circumstance arises from the case’s complexity, the delay is reasonable and no further analysis is required.
The seriousness or gravity of the offence cannot be relied on, nor can chronic institutional delay. Most significantly, the absence of prejudice can in no circumstances be used to justify delays after the presumptive ceiling is breached. Once so much time has elapsed, only circumstances that are genuinely outside the Crown’s control and ability to remedy may furnish a sufficient excuse for the prolonged delay.
Below the presumptive ceiling, however, the burden is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. Absent these two factors, the s.11(b) application must fail.”
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.
R. v. Marakah 2017 SCC 59; R. v. Jones, – Recent Decisions of the Supreme Court of Canada
On December 8, 2017, the Supreme Court of Canada released its decisions in R. v. Marakah, 2017 SCC 59 and R. v. Jones, 2017 SCC 60. Together, these decisions deal with four main issues:
1) ONE - Marakah deals with the question of whether an accused person who sends text messages has a reasonable expectation of privacy in the sent text messages retrieved from a recipient’s phone, so as to give the accused standing to challenge the seizure and admissibility of the text messages under ss. 8 and 24(2) of the Charter.
The majority of the SCC concluded that the sender of text messages may have a reasonable expectation of privacy in sent text messages retrieved from a recipient’s phone. Consequently, the sender of text messages may have standing to challenge the seizure and admissibility of the text messages under ss. 8 and 24(2) of the Charter.
2) TWO Jones deals with the related question of whether an accused person who sends text messages has a reasonable expectation of privacy in the sent text messages retrieved from the computer system of the recipient’s service provider (in this case, Telus), so as to give the accused standing to challenge the seizure and admissibility of the text messages under ss. 8 and 24(2) of the Charter.
The SCC unanimously concluded that the sender of text messages has a reasonable expectation of privacy in sent text messages retrieved from the computer system of the recipient’s service provider. Consequently, the sender of text messages will have standing to challenge the seizure and admissibility of the text messages under ss. 8 and 24(2) of the Charter.
3) THREE Jones also deals with the question of whether an accused person must adduce evidence establishing a connection to the place searched or the things or data seized, in order to establish standing to challenge the search or seizure under ss. 8 and 24(2) of the Charter. The SCC unanimously concluded that the accused person need not necessarily adduce evidence establishing this connection. The accused person may rely on the Crown’s theory to establish this connection and thereby ground his or her claim to standing.
4) FOUR - Finally, Jones deals with the question of whether a production order may be used to retrieve historical text messages (meaning those that have been sent and received, not text messages in the transmission process) from the computer system of a service provider, or whether a Part VI wiretap authorization is required.
The majority of the SCC concluded that a production order may be used to retrieve historical text messages from the computer system of a service provider. A wiretap authorization is not required.
“A new framework is therefore required for applying s. 11(b). This framework is intended to focus the s. 11(b) analysis on the issues that matter and encourage all participants in the criminal justice system to cooperate in achieving reasonably prompt justice, with a view to fulfilling s. 11(b)’s important objectives.
At the heart of the framework is a presumptive ceiling beyond which delay – from the charge to the actual or anticipated end of trial is presumed to be unreasonable, unless exceptional circumstances justify it. The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in superior court (or cases tried in provincial court after a preliminary inquiry). Delay attributable to or waived by the defence does not count towards the presumptive ceiling.
Once the presumptive ceiling is exceeded, the burden is on the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. If the Crown cannot do so, a stay will follow. Exceptional circumstances lie outside the Crown’s control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot be reasonably remedied.
It is obviously impossible to identify in advance all circumstances that may qualify as exceptional…….However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.
If the exceptional circumstance relates to a discrete event (such as, for example, an illness or unexpected event at trial), the delay reasonably attributable to that event is subtracted from the total delay. If the exceptional circumstance arises from the case’s complexity, the delay is reasonable and no further analysis is required.
The seriousness or gravity of the offence cannot be relied on, nor can chronic institutional delay. Most significantly, the absence of prejudice can in no circumstances be used to justify delays after the presumptive ceiling is breached. Once so much time has elapsed, only circumstances that are genuinely outside the Crown’s control and ability to remedy may furnish a sufficient excuse for the prolonged delay.
Below the presumptive ceiling, however, the burden is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. Absent these two factors, the s.11(b) application must fail.”
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.
R. v. Marakah 2017 SCC 59; R. v. Jones, – Recent Decisions of the Supreme Court of Canada
On December 8, 2017, the Supreme Court of Canada released its decisions in R. v. Marakah, 2017 SCC 59 and R. v. Jones, 2017 SCC 60. Together, these decisions deal with four main issues:
1) ONE - Marakah deals with the question of whether an accused person who sends text messages has a reasonable expectation of privacy in the sent text messages retrieved from a recipient’s phone, so as to give the accused standing to challenge the seizure and admissibility of the text messages under ss. 8 and 24(2) of the Charter.
The majority of the SCC concluded that the sender of text messages may have a reasonable expectation of privacy in sent text messages retrieved from a recipient’s phone. Consequently, the sender of text messages may have standing to challenge the seizure and admissibility of the text messages under ss. 8 and 24(2) of the Charter.
2) TWO Jones deals with the related question of whether an accused person who sends text messages has a reasonable expectation of privacy in the sent text messages retrieved from the computer system of the recipient’s service provider (in this case, Telus), so as to give the accused standing to challenge the seizure and admissibility of the text messages under ss. 8 and 24(2) of the Charter.
The SCC unanimously concluded that the sender of text messages has a reasonable expectation of privacy in sent text messages retrieved from the computer system of the recipient’s service provider. Consequently, the sender of text messages will have standing to challenge the seizure and admissibility of the text messages under ss. 8 and 24(2) of the Charter.
3) THREE Jones also deals with the question of whether an accused person must adduce evidence establishing a connection to the place searched or the things or data seized, in order to establish standing to challenge the search or seizure under ss. 8 and 24(2) of the Charter. The SCC unanimously concluded that the accused person need not necessarily adduce evidence establishing this connection. The accused person may rely on the Crown’s theory to establish this connection and thereby ground his or her claim to standing.
4) FOUR - Finally, Jones deals with the question of whether a production order may be used to retrieve historical text messages (meaning those that have been sent and received, not text messages in the transmission process) from the computer system of a service provider, or whether a Part VI wiretap authorization is required.
The majority of the SCC concluded that a production order may be used to retrieve historical text messages from the computer system of a service provider. A wiretap authorization is not required.
