Le droit à l’assistance d’un avocat oblige les policiers à s’abstenir de soutirer des éléments de preuve incriminants au détenu jusqu’à ce que celui-ci ait eu une possibilité raisonnable de joindre un avocat (obligation d’abstention)
La question « Souhaitez-vous dire quelque chose? », posée à la fin de la mise en garde habituelle du Service de police d’Edmonton, alors que G.T.D. avait déjà invoqué son droit à l’assistance d’un avocat, a constitué une violation de cette obligation « d’abstention ».
The purpose of the right to counsel and the police duty to “hold off”.
 The Charter is a purposive document. To understand police obligations under s 10(b), it helps to consider the reasons why the Charter promises the right to speak with a lawyer: R v Black, 1989 CanLII 75 (SCC),  2 SCR 138 at p 152, 70 CR (3d) 97; R v Brydges, 1990 CanLII 123 (SCC),  1 SCR 190 at pp 202-203, 74 CR (3d) 129.
 There are two main reasons why s 10(b) of the Charter guarantees everyone the right to retain and instruct a lawyer if the police arrest or detain them. The first is to help detainees regain their freedom: R v Prosper, 1994 CanLII 65 (SCC),  3 SCR 236 at pp 272-273, 33 CR (4th) 85; R v Suberu,2009 SCC 33 (CanLII) at para 40,  2 SCR 460. The second is to ensure that detainees understand 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 at p 206; R v Hebert, 1990 CanLII 118 (SCC),  2 SCR 151 at p 176, 77 CR (3d) 145; Suberu at para 40; R v Sinclair, 2010 SCC 35 (CanLII) at para 24,  2 SCR 310.
 Although the right to counsel addresses concerns about involuntary self-incrimination, a lawyer’s 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 (at para 86): “… keep your mouth shut; press one to repeat this message.” 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 to exercise his rights: R v Manninen, 1987 CanLII 67 (SCC),  1 SCR 1233 at p 1233, 58 CR (3d) 97; Sinclair at para 26; R v Osmond, 2007 BCCA 470 (CanLII) at paras 17-55, 227 CCC (3d) 375. The lawyer’s function is not just informational, but also advisory:
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 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.
[Hebert at p 176, emphasis added]
 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 “take no for an answer.” The police may persistently question a detainee even after he asserts his right to silence: R v Singh, 2007 SCC 48 (CanLII) at paras 42-48,  3 SCR 405. The police may make an emotional appeal to a detainee’s conscience or morality, and may mislead the detainee about the strength of the evidence against him: R v Rothman, 1981 CanLII 23 (SCC),  1 SCR 640 at p 697, 20 CR (3d) 97; R v Crawford, 1995 CanLII 138 (SCC),  1 SCR 858 at para 25, 37 CR (4th) 197; R v Oickle, 2000 SCC 38 (CanLII) at para 56,  2 SCR 3. While s 10(b) is not an ongoing “protective” right that guarantees legal assistance throughout the course of an interrogation (Sinclair at paras 30-32), a detainee will often need advice at the outset of his detention about the “types of police conduct of which he should be wary”: R v McKenzie (2002), 2002 CanLII 45009 (ON CA), 162 OAC 160 at para 37, 3 CR (6th) 317 (CA). A lawyer provides critical advice about why it is important to remain silent, and can help explain strategies for resisting police interrogation tactics: R v Berger, 2012 ABCA 189 (CanLII) 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.
 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’s limited understanding of the law. A detainee may not realize the advantages and disadvantages of making a statement. 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, 1988 CanLII 89 (SCC),  1 SCR 3 at para 24, 62 CR (3d) 137; R v Pasqua, 2009 ABCA 247 (CanLII) 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, 1996 CanLII 232 (SCC),  1 SCR 660 at paras 24-25, 46 CR (4th) 133. He may not realize that the Crown cannot use his silence to help prove his guilt: R v Turcotte, 2005 SCC 50 (CanLII) at paras 36-58,  2 SCR 519. Or he may not understand the mens rea of an offence, or recognize his potential liability as an aider or abettor – 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’s basic awareness of his right to silence does not fully address his position of vulnerability. The right to counsel helps “level the playing field” between police and a detainee: Whipple at para 27.
 To help achieve the purposes of the right to counsel, s 10(b) imposes both “informational” and “implementational” obligations on the police: Bartle at 191-192; R v Luong, 2000 ABCA 301 (CanLII) at para 12, 271 AR 368; Suberu at para 38; Sinclair 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 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, 2014 SCC 50 (CanLII) at paras 24-25,  2 SCR 495.
 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: R v Nelson, 2010 ABCA 349 (CanLII) at paras 17-20, 490 AR 271; R v KWJ, 2012 NWTCA 3 (CanLII) 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 “hold off” on taking certain investigative steps until the detainee has a reasonable opportunity to consult with counsel: Manninen at pp 1242-1244; R v Ross, 1989 CanLII 134 (SCC),  1 SCR 3 at pp 10-12, 67 CR (3d) 209; Suberu at para 28; Sinclair at para 27; Taylor at para 28. The police must “cease questioning or otherwise attempting to elicit evidence from the detainee” (Ross at p 12), as Lamer CJC explained in Prosper (at p 269, internal citations omitted):
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 from the detainee until he or she has had a reasonable opportunity to reach counsel. … [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 “hold off” from attempting to elicit incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel.
Does concluding the police caution with the open-ended question “do you wish to say anything?” violate the duty to “hold off”?
 The first issue in this appeal is whether the arresting officer violated his duty to “hold off” by asking the appellant “do you wish to say anything?” at the end of the standard police caution. In my view, he did.
 The arresting officer’s question must be considered in context. The officer explained why the appellant was under arrest. The officer then told the appellant that anything he said “could be given in evidence.” 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’s invitation to respond to the allegations that led to their arrest.
 Modern police cautions grew out of the “Judges’ Rules,” administrative guidelines for police investigations that were developed by the English judiciary in the early 20th century: F. Kaufman, The Admissibility of Confessions, 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 (1918), 13 Cr App R 89 (Eng CA), and eventually endorsed by the Canadian courts: R v Gach, 1943 CanLII 32 (SCC),  SCR 250 at pp 254-255, 79 CCC 221; R v Deagle, 1947 CanLII 250 (AB CA),  2 DLR 659 at pp 664-665, 3 CR 98 (Alta SC(AD)). A police caution 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, 1949 CanLII 26 (SCC),  SCR 262, 7 CR 427; Hebert at pp 165-173; Singh at paras 31-33; R v KF, 2010 NSCA 45 (CanLII) at paras 21-38, 290 NSR (2d) 387.
 “Do you wish to say anything?” is a shorter version of the question posed in many versions of the caution: “Do you wish to say anything in answer to the charge?”: R v McLaren, 1949 CanLII 247 (AB CA),  2 DLR 682 at p 685, 7 CR 402 (Alta SC(AD)); Manninen at p 1237; Singh at para 31. Even without the final five words, this question prompts the detainee to respond to the reasons for his arrest. It also mirrors the question that magistrates once asked at the end of a preliminary inquiry: “Having heard the evidence, do you wish to say anything in answer to the charge?” Almost a century ago, Ivey J recognized how the magistrate’s question invited the accused to make a potentially incriminating statement: R v MacDonald (1920), 51 DLR 539, 32 CCC 294 (Alta SC(AD)). The question comes at “an exceedingly critical point for the accused” because “[h]eretofore he has not been addressed in any way that requires an answer” and “whatever he answers will be written down and will confront him at trial”: MacDonald at p 545 (DLR). These observations are equally true when a police officer asks a similar question as part of the standard police caution.
 Section 10(b) promises a detainee the opportunity to receive legal advice before deciding whether to give up his right to silence. As a result, there is good reason for the police to “hold off” 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.
 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’s response is spontaneous and voluntarily: R v Simpenzwe, 2009 ABQB 579 (CanLII) at paras 38-45, 512 AR 49; R v Charles, 2011 ONSC 1242 (CanLII) at paras 3, 13-14.
 The right to silence guaranteed by s 7 of the Charter and the right to counsel guaranteed by s 10(b) of the Charter are related rights, but they protect somewhat different interests: Hebert at p 176; Sinclair at para 29. Focusing on the voluntariness of the appellant’s 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 to seek legal advice so he can make an informed decision about whether he should give up his right to silence. A detainee’s awareness of his right to silence does not detract from a police officer’s obligations under s 10(b): R v TGH, 2014 ONCA 460 (CanLII) at paras 26-27, 120 OR (3d) 581.
 The respondent argues that the arresting officer did not intend to elicit an incriminatory response when he asked the question. But for Charter purposes, a police officer’s 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’s subjective intent: Hebert at p 177; Grant at paras 31-32; Suberu at para 28; Sinclair 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 “do you wish to say anything?” still risked prompting an incriminating response.
 The respondent asserts that the impugned question was not an invitation to respond to the substance of the allegations, but rather a simple “yes or no” 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 “yes,” the arresting officer would have afforded him an opportunity to speak with a lawyer before questioning him any further.
 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 “yes or no” inquiry, but many other detainees would understand it as a prompt for a substantive response to the allegations.
 Even if the arresting officer was merely asking whether the appellant wanted to give a statement at all – that is, after having a chance to speak with a lawyer – the officer was still prompting the appellant “to make a decision … which could ultimately have an adverse effect in the conduct of an eventual trial”: Ross 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: R v Briscoe, 2015 ABCA 2(CanLII) 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’s advantage at trial: R v Edgar, 2010 ONCA 529 (CanLII), at paras 19-73, 101 OR (3d) 161; R v Liard, 2015 ONCA 414 (CanLII), at paras 44-76, 338 OAC 164. Even refusing to make a statement may have serious repercussions.
 The police do not violate their duty to “hold off” when a detainee makes an entirely unprompted inculpatory statement: R v Jackson, 2005 ABCA 430 (CanLII) at paras 10, 27, 376 AR 99; R v Guenter, 2016 ONCA 572 (CanLII) 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, 2011 ONSC 1912 (CanLII) at paras 20-30, aff’d 2017 ONCA 389 (CanLII). 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 warning: R v BH, 1989 ABCA 227 (CanLII), 100 AR 20.
 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, 2003 BCSC 2040 (CanLII) at paras 68-76 (ownership of belongings at the place of arrest); R v Learning, 2010 ONSC 3816 (CanLII) at paras 38-45, 78-83, 258 CCC (3d) 68 (biographical details such as name, date of birth, and weight); R v Dupe, 2010 ONSC 6594 (CanLII) at paras 12-18, 19-38 (questions about health conditions, medication, and drug consumption); R v Ashby, 2013 BCCA 334 (CanLII) at paras 16, 61-65, 340 BCAC 298 (asking whether the detainee has “anything on her” prior to a pat-down search); R v Mullins, 2015 ONSC 1552 (CanLII) at paras 16, 33-37, 40-42, 331 CRR (2d) 95 (questions about medication and health issues). But see also R v Smith, 2011 BCSC 1695 (CanLII) at paras 170-221 (disapproving of “rapport building” questions); R v Ngo, 2003 ABCA 121 (CanLII) at paras 17-39, 327 AR 320 (disapproving of questions used to obtain voice identification evidence); R v Patrick, 2017 BCCA 57 (CanLII) 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’s answers may be inadmissible).
 Without deciding 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 “booking questions” to elicit potentially incriminating information or otherwise have an adverse effect on the conduct of the detainee’s trial. In contrast, the broad question “do you wish to say anything?” – asked immediately after the officer told the appellant why he was arrested – invited the appellant’s response to the substance of the charges and posed a serious risk of self-incrimination.
 In undercover police operations, “elicitation” has been defined in terms of whether the undercover officer’s conduct was the “functional equivalent of an interrogation”: R v Broyles, 1991 CanLII 15 (SCC),  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 at paras 27-39; R v Smith, 2008 ONCA 127 (CanLII) 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 – in effect, it was an interrogation, albeit a very brief and non-confrontational one.
 The duty to hold off requires police to “cease questioning or otherwise attempting to elicit evidence from the detainee”: Ross 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. As the facts of Manninen demonstrate, it may take only a few questions to cause the detainee to incriminate himself: Manninen 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’s incriminating response to his single question.
 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 “their side of the story” if the police politely ask. Both categories of detainees are vulnerable, 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.
 The appellant did not waive his right to counsel by responding to the arresting officer’s question. The appellant “had the right not to be asked questions, and he must not be held to have implicitly waived that right simply because he answered”: Manninen at p 1244.
 In conclusion, the arresting officer breached s 10(b) by failing to “hold off” when he asked the appellant “do you wish to say anything?” after the appellant invoked his right to counsel, but before the appellant had a reasonable opportunity to speak with a lawyer.