Yet Another Case on Investigative Detention: R v Suberu

On February 1st, 2008, Justice Binnie granted five organizations leave to intervene in R v Suberu, 2007 ONCA 60, a criminal law case that will force the Supreme Court of Canada (“SCC”) to further define the boundaries of investigative detention. The participation of these organizations will likely assist the SCC in understanding the broader implications the issues arising in so-called routine interactions between police officers and individuals. More significantly, this case provides yet another illustration of the need for the House of Commons to legislate clearer rules governing such interactions.

The Case

Mr. Suberu and a friend, William Erhirhie, were in possession of a stolen credit card.. They used it to make a number of purchases, including six $100 Liquor Store gift certificates. When Mr. Erhirhie attempted to buy a $3 bottle of beer with one of these certificates in another Liquor Store, the cashier – who had been warned to be on the look-out for people using $100 certificates – had a colleague call the police. A police officer arrived shortly thereafter and began questioning Mr. Erhirhie. Mr. Suberu decided to walk out of the store and, referring to his friend, said, “he did this, not me, so I guess I can go,” just as a second officer was entering the store.

The second officer followed Mr. Suberu out of the store and watched him enter the driver’s side of a van. The officer said, “Wait a minute. I need to talk to you before you go anywhere.” At trial, the officer testified that he did not want Mr. Suberu to leave the area because the officer was “exploring the situation.” He did not advise Mr. Suberu of his right to counsel.

After receiving information that the purchases of the gift cards were made with a stolen credit card, the officer told Mr. Suberu that he was under arrest for fraud. The officer then asked who owned the bags of merchandise that were in plain view inside the car. Mr. Suberu offered a self-incriminating statement that some of the bags belonged to him and some of them belonged to Mr. Erhirhie. The officer repeated that Mr. Suberu was under arrest for fraud and, at that time, informed him of his right to counsel. Mr. Suberu and his purse were then searched, which resulted in more incriminating evidence being found.

At trial, the judge determined that the right to counsel was not engaged during this brief interaction between Mr. Suberu and the officer. Mr. Suberu was convicted of one count of possession of property obtained by crime, one count of possession of a stolen credit card, and one count of possession of a stolen debit card, which led to a sentence totalling ninety days imprisonment followed by probation for one year.

The Decision of the Ontario Court of Appeal

Mr. Suberu argued that the police officer was obliged to advise him of his right to counsel immediately upon detaining him for investigative purposes. On the plain language of s. 10(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 [“Charter“], it does not appear that the framers intended that there be an exception for investigative detention. It states:

10. Everyone has the right on arrest or detention […] b to retain and instruct counsel without delay and to be informed of that right;

Nonetheless, in the Court of Appeal’s judgment in R v Suberu, Justice Doherty found that the words “without delay” provided room for the police to ask self-incriminating questions to suspects placed under investigative detention. He wrote:

In my view, a brief interlude between the commencement of an investigative detention and the advising of the detained person’s right to counsel under s. 10(b) during which the officer makes a quick assessment of the situation to decide whether anything more than a brief detention of the individual may be warranted, is not inconsistent with the requirement that a detained person be advised of his or her right to counsel “without delay”…. The words “without delay” are semantically capable of a broader meaning than “immediately” in the appropriate context.

However, Justice Doherty did not provide any specific guidance on the exact time limit imposed by the words “without delay,” only stressing that it “can accommodate only brief interludes between commencing an investigative detention and advising the detained person of his or her right to counsel.”

In addition to blurring the boundaries of the right to counsel, Justice Doherty’s decision expresses a concern that Charter rights, if interpreted too strictly, may interfere with the ability of the police to do their job. He states,

There is an obvious tension between the requirement to inform detained persons of their right to counsel and the proper and effective use of brief investigative detentions… If the police are obliged to advise every person detained for investigative purposes of their right to counsel before asking any potentially incriminating questions, the police are presumably required to stop any questioning and facilitate contact with counsel if the detained person chooses to exercise his or her right to counsel. The delay inherent in this process, not to mention the redirection of police resources that would be required to comply with requests to consult with counsel, would render the police power to briefly detain persons for investigative purposes in aid of criminal investigations largely illusory.

Perhaps more striking is Justice Doherty’s finding that a strict application of s. 10(b) may actually be harmful for the person under investigation. He says,

In addition to the negative impact on the ability of the police to effectively investigate crimes, a requirement that the police advise detained persons of the right to counsel immediately could seriously impair the liberty interests of detained persons. If the police are required to advise a person detained briefly for investigative purposes of his or her right to counsel before asking any questions and if the person exercises that right, the detention of that person will potentially be considerably longer than it would otherwise have been. The police may also be required to take the person into physical custody to transport that person to another location where he or she can effectively exercise the right to counsel. These lengthier detentions, accompanied in some cases by transportation to another location while in physical custody, could also necessitate personal searches of the detained persons that would not be appropriate in the context of a brief investigative detention. The interpretation of s. 10(b) urged by counsel for the appellant in the context of brief investigative detentions would inevitably result in significant additional interference with the liberty and personal security of those detained for investigative purposes.

As a result, Justice Doherty dismissed Mr. Suberu’s appeal, upholding the conviction and condoning the actions of the officer.

The Interveners

The five organizations granted leave to intervene are the Association des avocats de la défense de Montréal, the Attorney General of British Columbia, the Canadian Civil Liberties Association, the Criminal Lawyers’ Association (Ontario) and the Director of Public Prosecutions of Canada. They were all permitted to serve a factum not exceeding 20 pages. Their requests to present oral arguments will not be addressed until the SCC receives and considers the written arguments of both the parties and interveners. The case is currently scheduled to be heard on April 15th, 2008.

The Need for Clear Direction

The involvement of these organizations will help the SCC fully understand the broader implications of its eventual decision and, ideally, will lead the SCC to clearly define the rules of conduct between individuals and police officers in so-called routine interactions. However, this case and others like it, such as R v Grant, [2009] 2 SCR 353, illustrate the need for the legislature to provide law enforcement with clear rules governing their conduct when placing people in investigative detention.

A fundamental aspect of the rule of law is that the rules governing our society are clear and ascertainable. The ability of courts to make law that meet this requirement is limited insofar as decisions are made on a case-by-case basis. In cases involving the Charter, this not only leaves individuals questioning the substance of their rights, but also places the police in the precarious position of wondering whether their conduct will later lead to crucial evidence being excluded under s. 24(2).

Justice Doherty’s concern that a strict reading of s. 10(b) may hinder the ability of the police to conduct effective investigations is justified. Nonetheless, watering down the rights in the Charter is not the solution. Instead, the government should engage Canadians in a debate regarding the acceptable rules governing investigative detention, which results in legislation that balances the need for this necessary police power with the rights of individuals outlined in the Charter. Such legislation would provide those under investigative detention with a clearer picture of their rights as well as providing law enforcement with explicit authority for their actions.