R. v. Dupe, 2010 ONSC 6594
[23] Certainly the accused is correct that the case law requires the police to hold off from questioning a detainee about the offence charged until he or she has a reasonable opportunity to consult counsel. Lamer J. (as he then was) put it this way in Manninen, at para. 23:
Further, s. 10(b) imposes on the police the duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel. The purpose of the right to counsel is to allow 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. In this case, the police officers correctly informed the respondent of his right to remain silent and the main function of counsel would be to confirm the existence of that right and then to advise him as to how to exercise it. For the right to counsel to be effective, the detainee must have access to this advice before he is questioned or otherwise required to provide evidence. (Emphasis added.)
[24] But it seems clear that Lamer J. did not intend, in Manninen, to oblige the authorities to stop all questioning of the accused while he or she is given the opportunity to consult counsel. The use of the words “cease questioning or otherwise attempting to elicit evidence” to describe the requirement to hold off sheds light on the sort of questioning that is prohibited – questioning intended to elicit evidence, sometimes referred to as investigative questioning. Questioning to assist the accused to exercise his rights, preserve his property, provide care for his family, or protect his health and safety or the health and safety of others, just to name the most obvious examples, are not prohibited by the language in Manninen. Nor should they be. Prohibiting such questions would not enhance the purpose of s. 10(b). An accused does not require the advice of counsel to assist him or her in determining how to answer such questions, while the best interests of not only the accused but those around him demand that they be asked. An accused only requires the advice of counsel to assist him or her in determining how to answer questions designed to elicit incriminatory evidence, or at least to elicit evidence relating to the offence under investigation.
[25] My understanding of the purpose of s. 10(b) is reinforced by the view expressed by Professor Stuart in Charter Justice in Canadian Criminal Law (5th ed.), (Toronto: Carswell, 2010), at p. 360, where he looks to Bartle, supra, to say that concerns about “protect[ing] the disadvantaged from the risk of self-incrimination” are at the core of s. 10(b), as an individual needs to be knowledgeable about how to exercise his or her legal rights. The fact that the answer to an innocuous question asked for a different purpose may prove to be useful to the Crown does not change the character of the questioning.
[26] The language used in Prosper leads me to the same conclusion. There, Lamer C.J., in para. 34, as noted above, in describing the duty to hold off, stated, “… state agents must refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel.” Questioning that is not designed to elicit incriminatory evidence, or at least to elicit evidence relating to the offence under investigation, is not prohibited.
[27] Exactly what constitutes “attempting to elicit incriminatory evidence” has not been explored in depth in the case law. This is perhaps because it is normally obvious when a question is an attempt, whether overt or not, to elicit incriminatory evidence. What little assistance there is, however, supports my view of the matter. I turn first to the decision of Code J. in R. v. Learning, 2010 ONSC 3816, 258 C.C.C. (3d) 68. In that case, after being arrested for possession of an unauthorized firearm and advised of his right to counsel, the accused asked to speak to his lawyer “right now.” After being transported to a police station, the accused was paraded, asked booking questions, taken to an interview room and asked questions for the purpose of acquiring background processing information. All of this took place before the accused was given an opportunity to call his lawyer.
[28] The Crown sought to introduce the answers to the booking questions in evidence at trial. The accused brought an application to exclude the answers on the basis that they were obtained in a manner that violated the Charter. He said that the asking of the questions that elicited these answers was asked when the police were required to hold off, and so the answers were obtained in breach of s. 10(b) of the Charter. Code J. did not accept this argument. After considering what was said in Manninen, he stated, at para. 81:
81 I am satisfied that if Sgt. Schoch was merely asking the accused for background information for the Record of Arrest, such as his date of birth, address, phone number, height and weight, and was taking note of his clothing and any identifying features, this would not constitute "eliciting evidence from the detainee" or "calling upon the detainee to provide evidence". Indeed, the routine booking process when the accused first enters the station, involves similar kinds of questions that have no evidentiary value in relation to the charges against the accused …
[29] Powers J. came to a similar conclusion in R. v. Sinclair, 2003 BCSC 2040, [2003] B.C.J. No. 3258, aff’d 2008 BCCA 127, 169 C.R.R. (2d) 232, aff’d 2010 SCC 35, 259 C.C.C. (3d) 443. In that case, the accused was arrested for murder in an apartment in which he was found sleeping. Upon being advised of his right to counsel, he signified that he wished to exercise it. The accused did not want to leave his effects in the apartment, and so the police gathered them. They asked him if certain clothing and a wallet were his, and he indicated that they were. The police subsequently seized and analyzed some of this clothing, and the Crown sought to have it admitted in evidence, along with the accused’s statement that it was his, because the Crown later discovered they were relevant to the murder. The accused argued that the statements were obtained in violation of s. 10(b) of the Charter, and should be excluded, since the police were obliged to hold off questioning him until he had exercised his right to consult counsel.
[30] Powers J. concluded that there was no violation of s. 10(b). He stated, at paras. 72-76:
72 I am satisfied that on that occasion the officers were not attempting to illicit information from Mr. Sinclair about the offence or to gather evidence or to interview him. Their obligation, once he asserted that he wished to speak to a lawyer, even though it may not have been right that second, was to either clarify whether he wanted to speak to a lawyer and, if so, to hold off and make sure that if he was waiving his right to speak to a lawyer that is what, in fact, he was doing.
73 That does not mean they cannot engage in normal conversation that is necessary for the purposes of telling him where to go, to get in the car, whatever, and in this case that is all that was happening. He is not in his own residence. There are other people around. He has some personal belongings there.
74 The officers knew that it was unlikely he would be coming back and I am satisfied they were merely gathering up his belongings for safekeeping at that time despite the fact that they may have become evidence later on.
75 There is clearly no issue about whether these statements were made voluntarily, that has not been argued. There were certainly no threats, inducements, no oppression. The only question is whether there was a breach of his right to counsel. He was certainly informed of that and whether they had somehow breached his right to counsel and his right to silence by asking him questions before he had an opportunity to exercise that right.
76 Again, I find that that was not what the officers were doing in this case. That it was only subsequent to these events that they even began to think that there might be some evidence on Mr. Sinclair's clothing. They did not even know that there might be any evidence in his wallet until subsequently when they were looking for his lawyer's card in that wallet for him and went through his wallet and found a birth certificate that had what may be blood on it. So they have not, in my opinion, breached his rights and those statements would be admissible.
[31] The questions in Sinclair were designed to preserve the accused’s property. The questions here were designed to protect the accused, and others, and to ensure that the accused knew his rights. In both cases, the questions were related to the offence only in the most tangential way. The decision in Sinclair supports the view that the questioning here did not breach the rule that state agents must refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel, and did not violate s. 10(b).
[32] I also note that, despite Sinclair reaching the Supreme Court of Canada on the scope of the application of s. 10(b) in the context of interrogation, Powers J.’s ruling on this issue was not even contested in the British Columbia Court of Appeal.
[33] Finally, I refer to the decision of Trafford J. in R. v. Smith (2007), 2007 CanLII 24098 (ON SC), 163 C.R.R. (2d) 41 (Ont. S.C.J.), which was relied upon by the accused. That case, like this one, involves answers to questions asked in the booking process. While the result in that case is the same as the result sought by the accused here, the reasoning is not consistent with the position of the defence.
[34] In Smith, the accused, upon being arrested for murder, told the arresting officer that he wanted to speak to duty counsel. Prior to being permitted to do so, he was booked. In the course of the booking process, he was asked routine booking questions which, on their face, were “innocent” ones unrelated to the alleged murder. At trial, the accused brought an application to exclude his answers. Trafford J. concluded that the asking of such questions did not violate s. 10(b). He stated, at para. 71:
… Those questions were asked to properly care for the medical condition of the defendant and the safety of all persons in the station. In my view, R. v. Manninen, supra, does not prohibit such questions for such purposes.
[35] Despite finding that the questioning did not violate s. 10(b), he excluded the answers. He stated, also in para. 71:
… However, it [R. v. Manninen] does prohibit any questions of an investigative purpose and, in my view, the subsequent use of any answers by the defendant to any question of the booking officer asked to care for the health or safety of people in the station. These circumstances undermined the defendant's right to choose to speak about the alleged murder. His responses are conscriptive evidence. The breach is a serious one …
[36] With great respect to Trafford J., I do not understand how the subsequent use of answers given to properly asked questions can breach s. 10(b) of the Charter, far less how that use, which had not yet occurred, could have been a serious breach. Voluntary answers to booking questions are not analogous to compelled testimony, and do not attract use immunity. I do agree with him, however, that the questions asked in the booking process were not prohibited by s. 10(b).
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