R. v. McGowan-Morris, 2025 ONCA 349
[33] Section 10(a) of the Charter provides:
10 Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor…
[34] Of all the legal rights in the Charter (ss. 7-14), the scope of s. 10(a) is among the least-developed in the jurisprudence. This is because, in most cases when 10(a) is triggered, s. 10(b) assumes greater prominence. There is an intimate link between these two rights: see R. v. Kelly (1985), 1985 CanLII 3483 (ON CA), 17 C.C.C. (3d) 419 (Ont. C.A.), at p. 424.
[35] The essential nature of s. 10(a) of the Charter, and its common law roots, was discussed in R. v. Nguyen, 2008 ONCA 49, 231 C.C.C. (3d) 541, at para. 16, where this court said:
The right to be informed of the reasons for detention as enshrined in the Charter and the Canadian Bill of Rights is a codification of the common law described most famously in the case of Christie v. Leachinsky, [1947] A.C. 573 (H.L.). In Christie, the common law right was essentially described as follows: a person is entitled to be informed of the reason why he or she is being restrained, unless the circumstances are such that he or she knows why. The reasons do not need to be expressed in technical or precise language, but must, in substance, inform the person as to the reason why the restraint is being imposed. [Emphasis added.]
[36] The Supreme Court of Canada has explained that the purpose of s. 10(a) is “to ensure that a person ‘understand generally the jeopardy’ in which he or she finds herself”: R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217, at para. 28, citing R. v. Smith, 1991 CanLII 91 (SCC), [1991] 1 S.C.R. 714, at p. 728. The Court has identified two rationales for the right guaranteed by s. 10(a). First, it protects individual liberty by guaranteeing that “one is not obliged to submit to an arrest [or detention] if one does not know the reasons for it”: R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at pp. 886-887. Second, it safeguards the right to counsel because “[an] individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy”: Evans, at pp. 886-887, citing R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138, at pp. 152-153.
[37] To comply with s. 10(a), the police must adequately communicate the reason(s) for the detention, and they must communicate those reasons promptly: R. v. Roberts, 2018 ONCA 411, 360 C.C.C. (3d) 44, at para. 63; R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225, at paras. 122-123. These are referred to respectively as the informational and temporal components of s. 10(a).
[38] It is only the informational component of s. 10(a) that is in issue in this case – the adequacy of P.C. Osman’s explanation for why the occupants of the Jeep were stopped.
[39] The informational component demands, “at a minimum”, that the police advise the detainee “in clear and simple language the reasons for the detention”: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 21. If the police have multiple reasons for detaining an individual, they must disclose each reason to the detainee: R. v. Borden, 1994 CanLII 63 (SCC), [1994] 3 S.C.R. 145, at pp. 165-166. Moreover, the reason for the detention, whether one or more, must be “legally valid”: R. v. Beaver, 2022 SCC 54, 475 D.L.R. (4th) 575, at para. 90. The ultimate question is “whether what the accused was told, viewed reasonably in all of the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline or submit to arrest [or detention], or alternatively, to undermine his right to counsel under s. 10(b)”: Evans, at p. 888; Latimer, at para. 30.
[40] Section 10(a) of the Charter requires that the police only explain what they are investigating, not how they intend to investigate the matter and the steps they might take: R. v. Kumarasamy, 2011 ONSC 1385, at paras. 56-57; Davin Michael Garg and Anil Kapoor, Detention, Arrest, and the Right to Counsel (Emond Montgomery Publications Limited, 2025), at p. 304. Simply put, the “reason” that the police detain an individual is that they suspect that the individual may have committed a particular offence.
[41] These basic principles accord with the purpose of s. 10(a) and ensure that the right sits harmoniously beside s. 10(b). It is the role of counsel, not the police, to explain to a detained person the investigative steps that may be taken during a detention, should they choose to exercise their rights under s. 10(b) of the Charter. In the words of Nguyen, at para. 16, a detainee need only be told in plain, non-technical language, “the reason why the restraint is being imposed”: see also R. v. Katerberg, 2019 ONCA 177, at para. 7. When the police inform an individual of this basic reason and give them their s. 10(b) right, that individual will have been afforded every opportunity to understand the extent of their jeopardy.
[42] Respectfully, the trial judge erred in his conclusion that P.C. Osman violated s. 10(a) of the Charter because he failed to advise the respondent of the investigative steps that might be undertaken in the circumstances. Specifically, P.C. Osman was not required to inform the respondent that the police would search him, the Jeep, or any of the other occupants. It sufficed to simply tell them that they were stopped because they could not have cannabis in the vehicle.
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