{"id":8899,"date":"2018-03-08T19:18:20","date_gmt":"2018-03-09T00:18:20","guid":{"rendered":"https:\/\/www.doyonavocats.ca\/?p=8899"},"modified":"2020-08-12T12:24:12","modified_gmt":"2020-08-12T16:24:12","slug":"obligation-abstention-souhaitez-vous-dire-quelque-chose","status":"publish","type":"post","link":"https:\/\/www.doyonavocats.ca\/en\/obligation-abstention-souhaitez-vous-dire-quelque-chose\/","title":{"rendered":"La question \u00ab\u00a0souhaitez-vous dire quelque chose?\u00a0\u00bb viole l’obligation d’abstention relative au droit \u00e0 l’assistance d’un avocat : R. v. G.T.D., 2018 SCC 7\u00a0"},"content":{"rendered":"

R. v. G.T.D., 2018 SCC 7\u00a0<\/a><\/p>\n

Le droit \u00e0 l\u2019assistance d\u2019un avocat oblige les policiers \u00e0 s\u2019abstenir de soutirer des \u00e9l\u00e9ments de preuve incriminants au d\u00e9tenu jusqu\u2019\u00e0 ce que celui-ci ait eu une possibilit\u00e9 raisonnable<\/a> de joindre un avocat (obligation d’abstention)<\/h2>\n

La question \u00ab\u00a0Souhaitez-vous dire quelque chose?<\/strong>\u00a0\u00bb, pos\u00e9e \u00e0 la fin de la mise en garde habituelle du Service de police d\u2019Edmonton, alors que G.T.D. avait d\u00e9j\u00e0 invoqu\u00e9 son droit \u00e0 l\u2019assistance d\u2019un avocat, a constitu\u00e9 une violation de cette obligation \u00ab\u00a0d\u2019abstention\u00a0\u00bb.<\/p>\n

R. v G.T.D., 2017 ABCA 274<\/a><\/p>\n

The purpose of the right to counsel and the police duty to \u201chold off\u201d.<\/h2>\n

[52]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 The Charter <\/em>is a purposive document. To understand police obligations under s 10(b), it helps to consider the reasons why the Charter <\/em>promises the right to speak with a lawyer: R v Black<\/em>, 1989 CanLII 75 (SCC)<\/a>, [1989] 2 SCR 138 at p 152, 70 CR (3d) 97; R v Brydges<\/em>, 1990 CanLII 123 (SCC)<\/a>, [1990] 1 SCR 190 at pp 202-203, 74 CR (3d) 129.<\/p>\n

[53]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 There are two main reasons why s 10(b) of the Charter <\/em>guarantees everyone the right to retain and instruct a lawyer if the police arrest or detain them. The first is to help detainees regain<\/strong> their freedom: R v Prosper<\/em>, 1994 CanLII 65 (SCC)<\/a>, [1994] 3 SCR 236 at pp 272-273, 33 CR (4th) 85; R v Suberu<\/em>,2009 SCC 33 (CanLII)<\/a> at para 40, [2009] 2 SCR 460. The second is to ensure that detainees understand<\/strong> their legal rights and obligations, and most importantly, to ensure they understand their right to remain silent, so they can make an informed decision about whether to waive their right to silence after receiving legal advice relevant to their situation: Brydges <\/em>at p 206; R v Hebert<\/em>, 1990 CanLII 118 (SCC)<\/a>, [1990] 2 SCR 151 at p 176, 77 CR (3d) 145; Suberu <\/em>at para 40; R v Sinclair<\/em>, 2010 SCC 35 (CanLII)<\/a> at para 24, [2010] 2 SCR 310.<\/p>\n

[54]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 Although the right to counsel addresses concerns about involuntary self-incrimination, a lawyer\u2019s role goes beyond simply telling a detainee that he has the right to remain silent. If this was all that the lawyer needed to explain, the right to counsel could be replaced by the police caution, which tells a detainee that he is not obliged to say anything, or with a recorded telephone message like the one Binnie J posited in Sinclair <\/em>(at para 86): \u201c\u2026 keep your mouth shut; press one to repeat this message.\u201d A lawyer not only helps ensure that the detainee understands his rights and obligations, but equally if not more important, a lawyer can advise the detainee about how <\/em>to exercise his rights<\/strong>: R v Manninen<\/em>, 1987 CanLII 67 (SCC)<\/a>, [1987] 1 SCR 1233 at p 1233, 58 CR (3d) 97; Sinclair <\/em>at para\u00a026; R v Osmond<\/em>, 2007 BCCA 470 (CanLII)<\/a> at paras 17-55, 227 CCC (3d) 375. The lawyer\u2019s function is not just informational, but also advisory:<\/p>\n

The detained suspect, potentially at a disadvantage in relation to the informed and sophisticated powers at the disposal of the state, is entitled to rectify the disadvantage<\/strong> by speaking to legal counsel at the outset, so that he is aware of his right not to speak to the police and obtains appropriate advice with respect to the choice he faces<\/u>.<\/p>\n

[Hebert <\/em>at p 176, emphasis added]<\/p><\/blockquote>\n

[55]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 The right to counsel has become particularly important because of modern police interrogation practices. For example, while a detainee has the right to remain silent, investigators are not required to \u201ctake no for an answer.\u201d The police may persistently question a detainee even after he asserts his right to silence: R v Singh<\/em>, 2007 SCC 48 (CanLII)<\/a> at paras 42-48, [2007] 3 SCR 405. The police may make an emotional appeal<\/strong> to a detainee\u2019s conscience or morality, and may mislead<\/strong> the detainee about the strength of the evidence against him: R v Rothman<\/em>, 1981 CanLII 23 (SCC)<\/a>, [1981] 1 SCR 640 at p 697, 20 CR (3d) 97; R v Crawford<\/em>, 1995 CanLII 138 (SCC)<\/a>, [1995] 1 SCR 858 at para 25, 37 CR (4th) 197; R v Oickle<\/em>, 2000 SCC 38 (CanLII)<\/a> at para 56, [2000] 2 SCR 3. While s 10(b) is not an ongoing \u201cprotective\u201d right that guarantees legal assistance throughout the course of an interrogation (Sinclair <\/em>at paras 30-32), a detainee will often need advice at the outset of his detention about the \u201ctypes of police conduct of which he should be wary\u201d: R v McKenzie <\/em>(2002), 2002 CanLII 45009 (ON CA)<\/a>, 162 OAC 160 at para 37, 3 CR (6th) 317 (CA). A lawyer provides critical advice about why <\/em>it is important to remain silent<\/strong>, and can help explain strategies for resisting police interrogation tactics<\/strong>: R v Berger<\/em>, 2012 ABCA 189 (CanLII)<\/a> at para 24, 533 AR 124. This legal advice helps ensure the detainee can make a meaningful and informed choice about whether to cooperate with the investigation.<\/p>\n

[56]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 Detainees benefit from legal advice even if the police do not use high-pressure interrogation practices, however. Speaking with a lawyer also helps compensate for a detainee\u2019s limited understanding of the law. A detainee may not realize the advantages and disadvantages of making a statement<\/strong>. For example, he may not appreciate how the rules of evidence usually prohibit his lawyer from using his exculpatory statements to help defend him at trial: R v Simpson<\/em>, 1988 CanLII 89 (SCC)<\/a>, [1988] 1\u00a0SCR 3 at para 24, 62 CR (3d) 137; R v Pasqua<\/em>, 2009 ABCA 247 (CanLII)<\/a> at paras 22-23, 457 AR 358. He may not understand how even an exculpatory statement could be used to impeach him if he testifies: R v Calder<\/em>, 1996 CanLII 232 (SCC)<\/a>, [1996] 1 SCR 660 at paras\u00a024-25, 46 CR (4th) 133. He may not realize that the Crown cannot use his silence to help prove his guilt: R v Turcotte<\/em>, 2005 SCC 50 (CanLII)<\/a> at paras 36-58, [2005] 2 SCR 519. Or he may not understand the mens rea <\/em>of an offence, or recognize his potential liability as an aider or abettor \u2013 and therefore believe he is professing innocence when he is actually confessing guilt. Without access to a lawyer who can help explain the risks of giving a statement, a detainee\u2019s basic awareness of his right to silence does not fully address his position of vulnerability. The right to counsel helps \u201clevel the playing field\u201d between police and a detainee: Whipple <\/em>at para 27.<\/p>\n

[57]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 To help achieve the purposes of the right to counsel, s 10(b) imposes both \u201cinformational\u201d and \u201cimplementational\u201d obligations on the police: Bartle <\/em>at 191-192; R v Luong<\/em>, 2000 ABCA 301 (CanLII)<\/a> at para 12, 271 AR 368; Suberu <\/em>at para 38; Sinclair <\/em>at para 27. A detainee is vulnerable from the moment he is first detained. Absent any safety concerns, the police have an informational duty to immediately tell the detainee about his right to counsel: Suberu <\/em>at paras 41-42. If the detainee asks to speak with a lawyer, the police have an implementational duty to provide the detainee with access to counsel at the first reasonable opportunity: R v Taylor<\/em>, 2014 SCC 50 (CanLII)<\/a> at paras 24-25, [2014] 2 SCR 495.<\/p>\n

[58]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 In practice, the police often cannot provide a detainee with immediate access to a lawyer. For example, when a police officer makes an arrest in a public place, the officer must take the detainee somewhere to speak with counsel in private<\/strong>: R v Nelson<\/em>, 2010 ABCA 349 (CanLII)<\/a> at paras 17-20, 490 AR 271; R v KWJ<\/em>, 2012 NWTCA 3 (CanLII)<\/a> at paras 28-30, 524 AR 75. As a result, when a detainee asks to speak with a lawyer, the police have an obligation to \u201chold off<\/strong>\u201d on taking certain investigative steps until the detainee has a reasonable opportunity to consult with counsel: Manninen <\/em>at pp 1242-1244; R v Ross<\/em>, 1989 CanLII 134 (SCC)<\/a>, [1989] 1 SCR 3 at pp 10-12, 67 CR (3d) 209; Suberu <\/em>at para\u00a028; Sinclair<\/em> at para 27; Taylor <\/em>at para 28. The police must \u201ccease questioning or otherwise attempting to elicit evidence from the detainee<\/strong>\u201d (Ross <\/em>at p 12), as Lamer CJC explained in Prosper <\/em>(at p 269, internal citations omitted):<\/p>\n

Once a detainee has indicated a desire to exercise his or her right to counsel, the state is required to provide him or her with a reasonable opportunity in which to do so. In addition, state agents must refrain from eliciting incriminatory evidence<\/strong> from the detainee until he or she has had a reasonable opportunity to reach counsel.\u00a0 \u2026 [O]nce a detainee asserts his or her right to counsel, the police cannot in any way compel him or her to make a decision or participate in a process which could ultimately have an adverse effect in the conduct of an eventual trial until that person has had a reasonable opportunity to exercise that right. In other words, the police are obliged to \u201chold off\u201d from attempting to elicit incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel.<\/p><\/blockquote>\n

Does concluding the police caution with the open-ended question \u201cdo you wish to say anything?\u201d violate the duty to \u201chold off\u201d?<\/h2>\n

[59]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 The first issue in this appeal is whether the arresting officer violated his duty to \u201chold off\u201d by asking the appellant \u201cdo you wish to say anything?\u201d at the end of the standard police caution. In my view, he did.<\/p>\n

[60]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 The arresting officer\u2019s question must be considered in context<\/strong>. The officer explained why the appellant was under arrest. The officer then told the appellant that anything he said \u201ccould be given in evidence.\u201d The officer concluded by asking the appellant whether he wanted to say anything. Many, if not most, detainees would treat this concluding question as the arresting officer\u2019s invitation to respond<\/strong> to the allegations that led to their arrest.<\/p>\n

[61]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 Modern police cautions grew out of the \u201cJudges\u2019 Rules,\u201d administrative guidelines for police investigations that were developed by the English judiciary in the early 20th century: F.\u00a0Kaufman, The Admissibility of Confessions<\/em>, 3rd ed (Toronto: Carswell, 1979) at pp 149-152. While these Rules did not have the force of law, they were popularized in R v Voisin<\/em> (1918), 13 Cr App R 89 (Eng CA)<\/span>, and eventually endorsed by the Canadian courts: R v Gach<\/em>, 1943 CanLII 32 (SCC)<\/a>, [1943] SCR 250 at pp 254-255, 79 CCC 221; R v Deagle<\/em>, 1947 CanLII 250 (AB CA)<\/a>, [1947] 2 DLR 659 at pp 664-665, 3 CR 98 (Alta SC(AD)). A police caution<\/strong> is not mandatory, but courts quickly recognized that the presence of a caution helps prove that a suspect made a voluntary statement: R v Boudreau<\/em>, 1949 CanLII 26 (SCC)<\/a>, [1949] SCR 262, 7\u00a0CR 427; Hebert<\/em> at pp 165-173; Singh <\/em>at paras 31-33; R v KF<\/em>, 2010 NSCA 45 (CanLII)<\/a> at paras 21-38, 290 NSR (2d) 387.<\/p>\n

[62]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 \u201cDo you wish to say anything?\u201d is a shorter version<\/strong> of the question posed in many versions of the caution: \u201cDo you wish to say anything in answer to the charge<\/em>?\u201d: R v McLaren<\/em>, 1949 CanLII 247 (AB CA)<\/a>, [1949] 2\u00a0DLR 682 at p 685, 7 CR 402 (Alta SC(AD)); Manninen <\/em>at p 1237; Singh <\/em>at para 31. Even without the final five words, this question prompts the detainee to respond to the reasons for his arrest.[1]<\/a> It also mirrors the question that magistrates once asked at the end of a preliminary inquiry: \u201cHaving heard the evidence, do you wish to say anything in answer to the charge?\u201d[2]<\/a> Almost a century ago, Ivey J recognized how the magistrate\u2019s question invited the accused to make a potentially incriminating statement<\/strong>: R v MacDonald<\/em> (1920), 51 DLR 539, 32 CCC 294<\/span> (Alta SC(AD)). The question comes at \u201can exceedingly critical point for the accused\u201d because \u201c[h]eretofore he has not been addressed in any way that requires an answer\u201d and \u201cwhatever he answers will be written down and will confront him at trial\u201d: MacDonald <\/em>at p 545 (DLR). These observations are equally true when a police officer asks a similar question as part of the standard police caution.<\/p>\n

[63]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 Section 10(b) promises a detainee the opportunity to receive legal advice before<\/strong> deciding whether to give up his right to silence. As a result, there is good reason for the police to \u201chold off\u201d and allow the detainee to speak with a lawyer before asking a question that invites self-incrimination. This includes the question found at the end of the EPS caution.<\/p>\n

[64]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 The respondent notes how the arresting officer asked the open-ended question immediately after telling the appellant he was not obliged to say anything. The respondent also points out how the appellant replied quickly and voluntarily. The respondent relies on two trial-level decisions that suggest asking a similar question as part of the standard police caution does not violate s 10(b) when the detainee\u2019s response is spontaneous and voluntarily: R v Simpenzwe<\/em>, 2009 ABQB 579 (CanLII)<\/a> at paras 38-45, 512 AR 49; R v Charles<\/em>, 2011 ONSC 1242 (CanLII)<\/a> at paras 3, 13-14.<\/p>\n

[65]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 The right to silence guaranteed by s 7 of the Charter <\/em>and the right to counsel guaranteed by s 10(b) of the Charter <\/em>are related rights<\/strong>, but they protect somewhat different interests: Hebert <\/em>at p\u00a0176; Sinclair <\/em>at para 29. Focusing on the voluntariness of the appellant\u2019s response ignores the distinct reasons why a detainee is afforded the right to speak with counsel. The question is not whether a detainee made the statement voluntarily, or whether a detainee was generally aware of his right to remain silent. Instead, s 10(b) ensures a detainee has an opportunity<\/strong> to seek legal advice so he can make an informed<\/em> decision about whether he should give up his right to silence. A detainee\u2019s awareness of his right to silence does not detract from a police officer\u2019s obligations under s 10(b): R v TGH<\/em>, 2014 ONCA 460 (CanLII)<\/a> at paras 26-27, 120 OR (3d) 581.<\/p>\n

[66]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 The respondent argues that the arresting officer did not intend to elicit an incriminatory response when he asked the question. But for Charter <\/em>purposes, a police officer\u2019s conduct is typically measured against an objective standard, based on how a reasonable person would perceive the circumstances, rather than focusing solely on the officer\u2019s subjective intent: Hebert <\/em>at p 177; Grant <\/em>at paras 31-32; Suberu <\/em>at para 28; Sinclair <\/em>at paras 55, 57. Even if the arresting officer did not subjectively intend to elicit incriminating information when he read from his police-issued card, viewed objectively, his concluding question \u201cdo you wish to say anything?\u201d still risked prompting an incriminating response.<\/p>\n

[67]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 The respondent asserts that the impugned question was not an invitation to respond to the substance of the allegations, but rather a simple \u201cyes or no\u201d question, inquiring whether the appellant wanted to give a statement eventually, presumably later in the investigation. The respondent argues that if the appellant had simply responded \u201cyes,\u201d the arresting officer would have afforded him an opportunity to speak with a lawyer before questioning him any further.<\/p>\n

[68]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 I am not convinced that the impugned question lends itself to a single-word response, as the facts of this case demonstrate. Some detainees might interpret the question as a \u201cyes or no\u201d inquiry, but many other detainees would understand it as a prompt for a substantive response to the allegations.<\/p>\n

[69]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 Even if the arresting officer was merely asking whether the appellant wanted to give a statement at all<\/em> \u2013 that is, after having a chance to speak with a lawyer \u2013 the officer was still prompting the appellant \u201cto make a decision<\/em> … which could ultimately have an adverse effect in the conduct of an eventual trial\u201d: Ross <\/em>at p 12 (emphasis added). It is not only detainees inclined to speak with the police who require legal advice. There are circumstances, even if uncommon, where a lawyer might advise a detainee to cooperate with the police because doing so could help exonerate him<\/strong>: R v Briscoe<\/em>, 2015 ABCA 2(CanLII)<\/a> at para 89, 593 AR 102. For example, if the detainee has an airtight alibi, immediately disclosing his whereabouts and naming his alibi witnesses might convince the police to release him without charge. There may also be circumstances where a prompt exculpatory statement, made shortly after the detainee is first confronted with an allegation, may be used to the detainee\u2019s advantage at trial: R v Edgar<\/strong><\/em>, 2010 ONCA 529 (CanLII)<\/a>, at paras\u00a019-73, 101 OR (3d) 161; R v Liard<\/em>, 2015 ONCA 414 (CanLII)<\/a>, at paras 44-76, 338 OAC 164. Even refusing to make a statement may have serious repercussions.<\/p>\n

[70]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 The police do not violate their duty to \u201chold off\u201d when a detainee makes an entirely unprompted inculpatory statement: R v Jackson<\/em>, 2005 ABCA 430 (CanLII)<\/a> at paras 10, 27, 376 AR 99; R v Guenter<\/em>, 2016 ONCA 572 (CanLII)<\/a> at paras 58-62, 350 OAC 318. But this is not a case where the detainee blurted out an admission without any eliciting question from the police officer: R v Pearson<\/em>, 2011 ONSC 1912 (CanLII)<\/a> at paras 20-30, aff\u2019d 2017 ONCA 389 (CanLII)<\/a>. Nor is it a case where the detainee interrupted the police officer, making inculpatory comments as the officer attempted to read him the caution or Charter <\/em>warning: R v BH<\/em>, 1989 ABCA 227 (CanLII)<\/a>, 100 AR 20.<\/p>\n

[71]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 The respondent suggests the police may ask some routine questions before giving a detainee the opportunity to consult with counsel: see e.g. R v Sinclair<\/em>, 2003 BCSC 2040 (CanLII)<\/a> at paras\u00a068-76 (ownership of belongings at the place of arrest); R v Learning<\/em>, 2010 ONSC 3816 (CanLII)<\/a> at paras 38-45, 78-83, 258 CCC (3d) 68 (biographical details such as name, date of birth, and weight); R v Dupe<\/em>, 2010 ONSC 6594 (CanLII)<\/a> at paras 12-18, 19-38 (questions about health conditions, medication, and drug consumption); R v Ashby<\/em>, 2013 BCCA 334 (CanLII)<\/a> at paras 16, 61-65, 340 BCAC 298 (asking whether the detainee has \u201canything on her\u201d prior to a pat-down search); R v Mullins<\/em>, 2015 ONSC 1552 (CanLII)<\/a> at paras\u00a016, 33-37, 40-42, 331 CRR (2d) 95<\/span> (questions about medication and health issues). But see also R\u00a0v Smith<\/em>, 2011 BCSC 1695 (CanLII)<\/a> at paras 170-221 (disapproving of \u201crapport building\u201d questions); R v Ngo<\/em>, 2003 ABCA 121 (CanLII)<\/a> at paras 17-39, 327 AR 320 (disapproving of questions used to obtain voice identification evidence); R v Patrick<\/em>, 2017 BCCA 57 (CanLII)<\/a> at paras 95-104, 35 CR (7th) 59 (suggesting questions asked prior to a frisk search should be narrowly tailored to address officer safety issues, and that the detainee\u2019s answers may be inadmissible).<\/p>\n

[72]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 Without deciding<\/strong> how far police may go with any such preliminary questioning, I note the questions asked in these cases are distinguishable, as are the circumstances in which the police asked those questions. In most cases, a reasonable person would not expect a few innocuous \u201cbooking questions\u201d to elicit potentially incriminating information or otherwise have an adverse effect on the conduct of the detainee\u2019s trial. In contrast, the broad question \u201cdo you wish to say anything?<\/strong>\u201d \u2013 asked immediately after the officer told the appellant why he was arrested \u2013 invited the appellant\u2019s response to the substance of the charges and posed a serious risk of self-incrimination.<\/p>\n

[73]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 In undercover police operations, \u201celicitation\u201d has been defined in terms of whether the undercover officer\u2019s conduct was the \u201cfunctional equivalent of an interrogation\u201d: R v Broyles<\/em>, 1991 CanLII 15 (SCC)<\/a>, [1991] 3 SCR 595 at pp 609-612, 9 CR (4th) 1. Some courts have relied on this definition to decide whether police conduct other than direct questioning violates the duty to hold off: McKenzie<\/em> at paras 27-39; R v Smith<\/em>, 2008 ONCA 127 (CanLII)<\/a> at paras 17-22, 234 OAC 262. It is unnecessary to rely on these authorities in this case, however. The arresting officer posed a direct question that elicited a direct response. His question was not merely the functional equivalent of an interrogation \u2013 in effect, it was<\/em> an interrogation, albeit a very brief and non-confrontational one.<\/p>\n

[74]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 The duty to hold off requires police to \u201ccease questioning<\/em> or otherwise attempting to elicit evidence from the detainee\u201d: Ross <\/em>at p 12 (emphasis added). Until a detainee has a reasonable opportunity to speak with counsel, the police must not ask one eliciting question, ten eliciting questions, or ten hours of questions<\/strong>. As the facts of Manninen<\/em> demonstrate, it may take only a few questions to cause the detainee to incriminate himself: Manninen <\/em>at p 1238. Interestingly, the arresting officer did not interview the appellant after he called a lawyer. It seems that the arresting officer was quite satisfied with the appellant\u2019s incriminating response to his single question.<\/p>\n

[75]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 Section 10(b) does not promise legal advice only to those detainees who would give up their right to silence after a lengthy or manipulative interrogation. Section 10(b) also guarantees legal advice to detainees who would immediately agree to tell \u201ctheir side of the story\u201d if the police politely ask. Both categories of detainees are vulnerable,<\/strong> and both are in need of advice about how to exercise their rights. The right to speak with a lawyer does not turn on whether the police use trickery or abusive questioning to elicit a response from the detainee.<\/p>\n

[76]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 The appellant did not waive his right to counsel by responding to the arresting officer\u2019s question. The appellant \u201chad the right not to be asked questions, and he must not be held to have implicitly waived that right simply because he answered\u201d: Manninen <\/em>at p 1244.<\/p>\n

[77]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 In conclusion, the arresting officer breached s 10(b) by failing to \u201chold off\u201d<\/strong> when he asked the appellant \u201cdo you wish to say anything?\u201d after the appellant invoked his right to counsel, but before the appellant had a reasonable opportunity to speak with a lawyer.<\/p>\n

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R. v. G.T.D., 2018 SCC 7\u00a0 Le droit \u00e0 l\u2019assistance d\u2019un avocat oblige les policiers \u00e0 s\u2019abstenir de soutirer des \u00e9l\u00e9ments de preuve incriminants au d\u00e9tenu jusqu\u2019\u00e0 ce que celui-ci ait eu une possibilit\u00e9 raisonnable de joindre un avocat (obligation d’abstention) La question \u00ab\u00a0Souhaitez-vous dire quelque chose?\u00a0\u00bb, pos\u00e9e \u00e0 la fin de la mise en […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[120],"tags":[],"yst_prominent_words":[],"acf":[],"_links":{"self":[{"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/posts\/8899"}],"collection":[{"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/comments?post=8899"}],"version-history":[{"count":0,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/posts\/8899\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/media?parent=8899"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/categories?post=8899"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/tags?post=8899"},{"taxonomy":"yst_prominent_words","embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/yst_prominent_words?post=8899"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}