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samedi 7 juin 2025

Le fait de déplacer un détenu du poste de police au lieu de la commission de l'infraction pour soutirer une déclaration n'oblige pas les policiers à fournir une 2e fois le doit à l'avocat sous 10b)

R v Pietz, 2025 MBCA 5 

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[34]                     We start our analysis with what the Supreme Court has clearly identified as the purpose of section 10(b) of the Charter.

[35]                     In R v Lafrance2022 SCC 32 [Lafrance], Brown J stated that the purpose of section 10(b) is to “provide a detainee with an opportunity to obtain legal advice relevant to his legal situation” (at para 70, quoting Sinclair at para 24). This entails allowing “the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights” (Lafrance at para 70, quoting Sinclair at para 26; see also R v Manninen, [1987] 1 SCR 1233 at 1242-43, 1987 CanLII 67 (SCC)). In the context of a custodial interrogation, section 10(b) “seeks ‘to support the detainee’s right to choose whether to cooperate with the police investigation or not, by giving him access to legal advice on the situation [they are] facing’” (Lafrance at para 70, quoting Sinclair at para 32).

[36]                     In R v Dussault2022 SCC 16the Supreme Court endorsed Doherty JA’s description of the right to counsel as a “‘lifeline’ through which detained persons obtain legal advice and ‘the sense that they are not entirely at the mercy of the police while detained’” (at para 56, quoting R v Rover2018 ONCA 745 at para 45). Similarly, in R v Brunelle2024 SCC 3, O’Bonsawin J, for a unanimous Court on this point, wrote that the purpose of section 10(b) “is to protect any person whose detention puts them in a situation of vulnerability relative to the state” (at para 81).

[37]                     In Sinclair, the Supreme Court suggested that, absent a change in circumstances, section 10(b) is satisfied by an initial warning coupled with a reasonable opportunity to consult counsel. However, sometimes, an accused is entitled to a second consultation with counsel. Sinclair at para 65 described the general principle as follows:

 

What is required is a change in circumstances that suggests that the choice faced by the accused has been significantly altered, requiring further advice on the new situation, in order to fulfill the purpose of s. 10(b) of providing the accused with legal advice relevant to the choice of whether to cooperate with the police investigation or not. 

 

[38]                     Further, the Court stated that “[t]he failure to provide an additional opportunity to consult counsel will constitute a breach of s. 10(b) only when it becomes clear, as a result of changed circumstances or new developments, that the initial advice, viewed contextually, is no longer sufficient or correct” (ibid at para 57).

[39]                     The constitutional right to a second consultation with counsel will generally only arise where there has been “a material change in the detainee’s situation after the initial consultation” (ibid at para 43). Sinclair identified three categories of such circumstances, noting that the categories are not closed (see paras 2, 49).

[40]                     On the facts of the present case, only the first category is relevant: “a non-routine procedure that would not generally fall within the expectation of the advising lawyer at the time of the initial consultation” (decision at para 60). For completeness, we note that the second category is where there is a change in jeopardy, such as where an investigation takes a new and more serious turn, which may arise where the detainee is arrested for one charge and, as the investigation continues, it is determined that he is a suspect in a more serious charge (see ibid at para 61). The third category is where there is a reason to question the detainee’s understanding of his right to counsel. The trial judge correctly concluded that there was no change in jeopardy to the accused following his arrest, and she made no error in dismissing the accused’s contention that he did not understand his right to counsel.

[41]                     Sinclair provides guidance as to what is considered a non-routine procedure. The Supreme Court stated (ibid at para 50):

 

Non-routine procedures, like participation in a line-up or submitting to a polygraph, will not generally fall within the expectation of the advising lawyer at the time of the initial consultation. It follows that to fulfill the purpose of s. 10(b) of providing the detainee with the information necessary to making a meaningful choice about whether to cooperate in these new procedures, further advice from counsel is necessary . . ..

 

[42]                     In R v Briscoe2015 ABCA 2 [Briscoe], the Alberta Court of Appeal provided additional commentary on what is a non-routine procedure. Justice Watson stated that a second consultation is required in “some special form of evidence gathering situation which significantly differs from what counsel could be reasonably expected to have told the detainee about” (ibid at para 48). He also stated (ibid at paras 45, 48):

 

It would really depend on the facts whether in a particular situation the investigative step is “new”.

 

Such new procedures would not be aspects of the predictable police questioning, but would be matters for which the detainee’s participation is essential and for which the detainee would have a right to decline participation or at least a right to understand what is involved before participating.

 

[43]                     Generally, courts have been hesitant to expand the recognition of non-routine procedures. In addition to the polygraph tests and police line-ups mentioned in Sinclair, other cases have identified the following as non‑routine: a penile swab search for DNA of a complainant in a sexual assault allegation (see R v Johnson2016 ONSC 3947 at para 168), and a request for an accused’s cellphone password (see R v Azonwanna2020 ONSC 5416 at para 156).  As described in Briscoe at para 48, these are techniques that seek evidence beyond simply a statement from an accused and which require their consent or participation.

[44]                     On the other hand, many post-arrest or detention police procedures are considered to be routine and do not trigger the right to a second consultation with counsel. These include interrogation, performing a pat‑down or safety search, photographing a detainee, swabbing their fingers, asking to see their hands, seizing evidence found on their person, including their clothing, and participating in a re-enactment (see Davin Michael Garg & Anil Kapoor, Criminal Law Series: Detention, Arrest, and the Right to Counsel, ed by Brian H Greenspan & Vincenzo Rondinelli, vol 17 (Toronto: Emond Montgomery, 2025); R v Madison2022 ONSC 1749 at para 84Renaud c R2022 QCCS 767 at para 63R v Ashmore2011 BCCA 18 [Ashmore]).

[45]                     There is a limited body of jurisprudence that has considered the police action at issue here—the drive around of a detainee to a location believed to be connected to an alleged offence. We will review the relevant cases that bear on this issue and were considered by the trial judge.

[46]                     In Ashmore, the accused was arrested and detained for a murder investigation. While being interrogated in the police station, he confessed to the murder after being confronted with video evidence of him telling an undercover officer that he had killed the victim. The police requested that he participate in a re-enactment of the murder, and he agreed. The police drove him to different locations for the re-enactment, including to a different police station, to the scene of the murder and then to the site where the body was disposed of.

[47]                     The accused argued that the police should have ensured that he received legal advice prior to taking part in the re-enactment. The British Columbia Court of Appeal found that he was offered a further consultation with counsel, which he effectively waived. However, Frankel JA went on to conclude that the re-enactment was, in any event, not a “new (non-routine) procedure that falls outside of the expectations of counsel advising a detainee” as it was “nothing more than a statement by conduct” that merely “involves a person demonstrating, rather than simply recounting, how events unfolded” (ibid at para 70).

[48]                     It is noteworthy that in Ashmore, the fact that the re-enactment involved a drive around by police was not raised as an issue. The accused’s assertion that his section 10(b) right was violated was based only on the argument that the re-enactment, not the drive around, was a non-routine procedure. In our view, the facts in Ashmore are analogous to those in the present case, as the accused in Ashmore was driven by police to different locations connected to the murder for the purpose of his providing statements (albeit by conduct) to the police.

[49]                     In R v MacPhail2011 ONCJ 184 [MacPhail], it was the accused who suggested a drive around to show police several houses that he had broken into and he was well aware that if he disclosed additional offences, he would face further jeopardy. Police advised the accused of his right to counsel and attempted to put him in touch with a lawyer to no avail. Despite this, he wished to confess to his offences. The accused did not argue, nor did the Court find, that the drive around constituted a non-routine procedure. Rather, he argued that, although he had waived his right to counsel initially, he should have been given a second warning when the investigation “escalated” upon him suggesting a drive around (ibid at paras 91, 101). 

[50]                     This was rejected by the trial judge in MacPhail at para 101, who found that:

 

Although there was every prospect it would be an escalation of the number of charges, Mr. MacPhail clearly understood that and his position with respect to counsel previously prevailed throughout his continuing contact and interaction with the police officers once they had left the station and took part in the ride around.

 

[51]                     In other words, the trial judge in MacPhail found that none of the circumstances of the drive around presented a material change in the accused’s situation to warrant a second consultation with counsel (see ibid at paras 91-102).

[52]                     In R v Downey2019 ABQB 376 [Downey]the accused argued that he was entitled to a second right to consult counsel prior to going out on a drive around after he agreed to take police to the location of a missing child whom he had been accused of kidnapping.  He asserted that “a drive out procedure was a non-routine procedure” (ibid at para 110). Justice Hughes considered SinclairAshmore and Briscoe, concluding, “I agree with the reasoning in Ashmore that the drive out procedure was a statement by conduct. It was not a non-routine procedure that triggered a right to re-consult” (Downey at para 118).

[53]                     Finally, the trial judge in the present case considered R v Quindipan2015 BCSC 1178 [Quindipan], which was relied on by the accused.  We agree with the trial judge’s assessment that it is of limited assistance. Quindipan dealt with the implementation of section 10(b) in the context of three different procedures: a polygraph, the execution of a DNA warrant, and the accused offering to take the police to the scene of the alleged offence.  As pointed out by the trial judge, the real issue in that case was that the accused was not satisfied with the initial advice he received following his arrest, as he lacked confidence in the lawyer with whom he had consulted. The Court in Quindipan concluded that the police were obligated to provide him with a second opportunity to consult counsel because the advice the accused had received prior to the interview was inadequate—not because the drive out to the location of the offence was a non-routine procedure.

[54]                     In the present case, the accused submits that the police were required to give him a further opportunity to consult with counsel prior to taking him for the drive. He argues that his circumstances materially changed when the police officers decided to remove him from the interview room and go on the drive such that the initial advice was no longer sufficient. He asserts that the drive changed his jeopardy as there was the potential for him to implicate himself, not only by words but by conduct, if he gestured to something along the route.

[55]                     As for the application of the relevant law to the facts found by the trial judge, it is helpful to revisit the general principle articulated in Sinclair. The failure to provide an additional opportunity to consult counsel will constitute a breach of section 10(b) only when it becomes clear, as a result of changed circumstances or new developments, that the initial advice, viewed contextually, is no longer sufficient or correct.

[56]                     Here, it was the police officers who decided to take the accused on the drive as part of their investigation to see if it would elicit a reaction or a confession from him, rather than it being suggested by him. The accused was not given a choice on whether to go with them. He did not object or ask to speak to counsel again but simply asked, “Is this standard protocol?” We agree with the trial judge that nothing turns on whether it was the accused or the police officers who raised the idea of the drive—the same legal principles apply.

[57]                     In the circumstances of this case, we are not persuaded that the trial judge erred in finding that removing the accused from the interview room and taking him on the drive triggered his constitutional right to be warned again and be given a second right to speak to counsel. In our view, the drive interview essentially continued along the same lines as occurred within the police headquarters. The police officers continued to ask questions and use the same techniques to attempt to have the accused confess and confirm what they believed, namely, that he had killed the victim and disposed of the body at or near Arborg.

[58]                     The trial judge acknowledged that it is not common for a suspect to be taken for a drive as part of a police interview. However, she found that the purpose of the drive was similar to instances where the police show a suspect photographs, videos or recorded statements of other witnesses in order to prompt a response during an interview. She also found that it is similar to a request for a re-enactment—another technique that has been found not to give rise to a further right to consult counsel.

[59]                     In this case, the accused’s legal position did not change, nor was there a material change in his circumstances. The police officers were questioning him, asking him to provide information and confess to the crime. He received advice from counsel prior to questioning and he chose to remain silent during the entire time he was detained. The choice faced by the accused on the drive was not “significantly altered” (Sinclair at para 65)—he could either answer the police officers’ questions or remain silent.

[60]                     The interrogation of the accused by the police officers, together with confronting him with the evidence (real or otherwise), was within the expectation of the advising counsel at the time of the initial consultation. Whether this occurred at the police headquarters, in the police vehicle, or where the police officers believed to be the location of the victim’s body, made no material difference. Here, the same type of evidence—a statement—was sought by the police officers at each location. The accused was advised of his right to remain silent at his initial consultation with counsel. He exercised that right and succeeded in preventing the police officers from gathering evidence against him. He was in full control over whether he would give a statement to them. As was the case in Briscoe, “[t]he dealings between the police and the appellant were interviews. There was no ‘new’ procedure involved” (at para 42).

[61]                     We are not satisfied that the drive amounted to a change in circumstances such that the initial advice, viewed contextually, was no longer sufficient or correct. Further, we are not satisfied that the drive would fall outside the expectation of the advising counsel at the time of the initial consultation. Clearly, the advising counsel’s advice would have remained unchanged, that is, to remain silent.

[62]                     The drive was unlike the type of investigative procedure that existing jurisprudence has found to be non-routine. Non-routine procedures typically require an accused’s participation and necessarily create or uncover evidence (either inculpatory or exculpatory), such as eyewitness identification (i.e., a police line-up), an accused’s physiological responses to questioning (i.e., a polygraph test), DNA sample of a complainant (i.e., a penile swab), or electronic data (i.e., providing a cellphone password). Here, the accused was not conscripted to assist the police officers in uncovering evidence. He was able to control whether he gave a statement—verbal or by conduct—to the police officers at every location they took him to. 

[63]                     To conclude, we are satisfied that the trial judge did not err in her statement of the law, her assessment of the evidence or her application of the law to the facts when she found that the accused’s section 10(b) Charter right was not breached.  In the result, we dismiss this ground of appeal.

[64]                     Given that we have not been persuaded that there was a breach of the Charter, it is unnecessary to consider whether a stay of proceedings is an appropriate remedy. The trial judge did consider what the appropriate remedy would be if she was wrong on whether there was a breach of the Charter. The Supreme Court has made it clear that a stay of proceedings is a “drastic remedy” to be granted only in the “clearest of cases” (Babos at paras 30-31). We see no error in the trial judge’s application of the three-part test outlined in Babos at para 32 to the facts of this case.

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Le dédommagement à la victime doit toujours être envisagé lors de la détermination de la peine

Une agression sexuelle peut être commise même en l’absence d’un contact physique proprement dit, car la menace ou la tentative d'employer la force suffit pour entraîner la culpabilité de l'accusé

R. v. Edgar, 2016 ONCA 120  Lien vers la décision [ 10 ]        To commit a sexual assault, it was not necessary for the appellant to touch ...