Her Majesty the Queen v. Suberu

[Indexed as: R. v. Suberu]

85 O.R. (3d) 127

Court of Appeal for Ontario,

Doherty, Laskin and Armstrong JJ.A.

January 31, 2007

Charter of Rights and Freedoms -- Right to counsel -- Section 10(b) of Charter being engaged by investigative detentions where it would not artificially and unduly prolong detention -- Words "without delay" should be given more expansive interpretation in context of investigative detention than in case of arrest -- Failure to inform accused of his right to counsel at outset of very brief investigative detention not violating accused's right to counsel in circumstances of this case -- Canadian Charter of Rights and Freedoms, s. 10(b).

Criminal law -- Appeals -- Summary conviction appeals -- Sentence appeals -- Accused seeking leave to appeal from summary conviction appeal court on basis that summary conviction judge erring in dismissing appeal from sentence -- Questions of fitness of sentence in summary conviction matters primarily issue for superior court -- Leave to appeal further should be granted only when appeal raising issue of application beyond particular case -- Accused arguing that Crown's neutral position on whether sentence should be intermittent if less than 90 days' imprisonment tantamount to joint submission -- Crown's position not resulting from plea discussion and no advantage waived by accused in exchange for Crown's neutrality -- Absence of position by Crown not equivalent to joint submission -- Leave to appeal sentence dismissed. [page128]

The accused was briefly detained by a police officer as he left a liquor store where an accomplice had tried to use a gift certificate which was allegedly purchased with a stolen credit card. The officer asked a few exploratory questions before receiving more information from another officer, whereupon he arrested the accused and immediately informed him of his right to counsel. The accused gave some incriminating answers to the questions asked by the officer both before and after his arrest. The trial judge held that the accused was detained before his arrest, that the detaining officer had grounds for an investigative detention, and that the accused's right to be informed of his right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms was not triggered before the officer acquired reasonable and probable grounds to arrest him. The accused was convicted of possession of property obtained by crime, possession of a stolen credit card and possession of a stolen debit card. He was sentenced to 90 days' incarceration followed by one year's probation. The summary conviction appeal court judge dismissed the accused's appeal, holding that an investigative detention cannot trigger s. 10(b) of the Charter. The accused appealed.

Held, the appeal should be dismissed.

The summary conviction appeal court judge erred in holding that an investigative detention cannot trigger s. 10(b) of the Charter. Section 10(b) may be engaged in investigative detentions where it would not artificially and unduly prolong the detention. The phrase "without delay" is to be interpreted more expansively in the case of an investigative detention than in the case of an arrest. A brief interlude between the commencement of an investigative detention and the advising of the detained person of his right to counsel under s. 10(b), during which the officer makes a quick assessment of the situation to decide whether anything other 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. In the circumstances of this case, the accused's right to counsel was not violated by the failure to inform him of that right during the very brief investigative detention.

An accused could argue that the admission of incriminating statements made during an investigative detention before he was advised of his right to counsel would render the trial unfair if those statements were received for any purpose other than to explain subsequent police conduct. It was not argued in this case that the admission of the accused's statements made during his brief investigative detention would render his trial unfair, and there was nothing in the circumstances surrounding the making of the statements that would have supported that argument.

This is a summary conviction appeal. Issues such as the fitness of sentence are primarily the province of the superior court where the appeals at first instance are heard. Leave to appeal a sentence to the Court of Appeal should only be granted if the case raises an issue of application beyond the particular appeal. The accused sought leave arguing that the lower courts had erred by rejecting his position that the Crown's neutrality as to whether, if a sentence of less than 90 days was imposed, it should be intermittent, was tantamount to a joint submission. There was no merit in this argument. The accused hadn't given up any right in exchange for the Crown's position and it was not the product of a plea negotiation. Leave to appeal is denied.

APPEAL from the judgment of McIsaac J., 2006 63687 (ON SC), [2006] O.J. No. 1958, 142 C.R.R. (2d) 75 (S.C.J.), dismissing an appeal from the conviction and sentence imposed by Purvis J. of the Ontario Court of Justice, dated October 19, 2004 and January 7, 2005.

Cases referred to R. v. Elshaw, 1991 28 (SCC), [1991] 3 S.C.R. 24, [1991] S.C.J. No. 68, 59 B.C.L.R. (2d) 143, 128 N.R. 241, 6 C.R.R. (2d) 1, 67 C.C.C. (3d) 97, 7 C.R. (4th) 333; R. v. Hall, [1998] O.J. No. 2607 (C.J.); [page129] R. v. Mann, [2004] 3 S.C.R. 59, [2004] S.C.J. No. 49, 187 Man. R. (2d) 1, 241 D.L.R. (4th) 214, 330 W.A.C. 1, [2004] 11 W.W.R. 601, 122 C.R.R. (2d) 189, 185 C.C.C. (3d) 308, 2004 SCC 52, 21 C.R. (6th) 1, consd Other cases referred to R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173, [1994] S.C.J. No. 74, 118 D.L.R. (4th) 83, 23 C.R.R. (2d) 193, 92 C.C.C. (3d) 289, 33 C.R. (4th) 1, 6 M.V.R. (3d) 1 (sub nom. R. v. Pozniak); R. v. Byfield (2005), 2005 1486 (ON CA), 74 O.R. (3d) 206, [2005] O.J. No. 228, 194 O.A.C. 98, 193 C.C.C. (3d) 139, 26 C.R. (6th) 61 (C.A.); R. v. Campbell, 2003 MBCA 76, [2003] M.J. No. 207, 107 C.R.R. (2d) 168, 175 C.C.C. (3d) 452 (C.A.); R. v. Chaisson, [2006] 1 S.C.R. 415, [2006] S.C.J. No. 11, 256 Nfld. & P.E.I.R. 181, 347 N.R. 282, 773 A.P.R. 181, 206 C.C.C. (3d) 1, 2006 SCC 11, 37 C.R. (6th) 43, revg 2005 NLCA 55, [2005] N.J. No. 277, 249 Nfld. & P.E.I.R. 252, 743 A.P.R. 252, 137 C.R.R. (2d) 198, 200 C.C.C. (3d) 494, 2005 N.L.C.A. 55 (C.A.); R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, [1989] S.C.J. No. 118, 37 O.A.C. 1, 102 N.R. 161, 45 C.R.R. 49, 52 C.C.C. (3d) 193, 73 C.R. (3d) 129; R. v. Elias, [2005] 2 S.C.R. 3, [2005] S.C.J. No. 37, 195 Man. R. (2d) 161, 253 D.L.R. (4th) 385, 335 N.R. 342, 351 W.A.C. 161, [2005] 9 W.W.R. 203, 132 C.R.R. (2d) 117, 196 C.C.C. (3d) 481, 2005 SCC 37, 29 C.R. (6th) 205, 19 M.V.R. (5th) 23 (sub nom. R. v. Orbanski); R. v. Evans, 1991 98 (SCC), [1991] 1 S.C.R. 869, [1991] S.C.J. No. 31, 124 N.R. 278, 3 C.R.R. (2d) 315, 63 C.C.C. (3d) 289, 4 C.R. (4th) 144; R. v. Feeney, 1997 342 (SCC), [1997] 2 S.C.R. 13, [1997] S.C.J. No. 49, 146 D.L.R. (4th) 609, 212 N.R. 83, [1997] 6 W.W.R. 634, 44 C.R.R. (2d) 1, 115 C.C.C. (3d) 129, 7 C.R. (5th) 101; R. v. Grant (2006), 2006 18347 (ON CA), 81 O.R. (3d) 1, [2006] O.J. No. 2179, 213 O.A.C. 127, 209 C.C.C. (3d) 250, 38 C.R. (6th) 58 (C.A.); R. v. Greaves, [2004] B.C.J. No. 1953, 124 C.R.R. (2d) 214, 189 C.C.C. (3d) 305, 2004 BCCA 484, 24 C.R. (6th) 15 (C.A.); R. v. Harrer, 1995 70 (SCC), [1995] 3 S.C.R. 562, [1995] S.C.J. No. 81, 128 D.L.R. (4th) 98, 186 N.R. 329, 32 C.R.R. (2d) 273, 101 C.C.C. (3d) 193, 42 C.R. (4th) 269; R. v. Kelly, 1985 3483 (ON CA), [1985] O.J. No. 2, 7 O.A.C. 46, 12 C.R.R. 354, 17 C.C.C. (3d) 419, 44 C.R. (3d) 17 (C.A.); R. v. Kwok, 1986 4726 (ON CA), [1986] O.J. No. 1194, 18 O.A.C. 38, 31 C.C.C. (3d) 196 (C.A.); R. v. Lewis (1998), 1998 7116 (ON CA), 38 O.R. (3d) 540, [1998] O.J. No. 376, 50 C.R.R. (2d) 358, 122 C.C.C. (3d) 481, 13 C.R. (5th) 34 (C.A.); R. v. Milne (1996), 1996 508 (ON CA), 28 O.R. (3d) 577, [1996] O.J. No. 1728, 35 C.R.R. (2d) 257, 107 C.C.C. (3d) 118, 48 C.R. (4th) 182, 18 M.V.R. (3d) 161 (C.A.) [Leave to appeal refused [1996] S.C.C.A. No. 353]; R. v. Ngo, [2005] O.J. No. 2678, 131 C.R.R. (2d) 348, 2005 ONCJ 217 (C.J.); R. v. Strachan, 1988 25 (SCC), [1988] 2 S.C.R. 980, [1988] S.C.J. No. 94, 56 D.L.R. (4th) 673, 90 N.R. 273, [1989] 1 W.W.R. 385, 37 C.R.R. 335, 46 C.C.C. (3d) 479, 67 C.R. (3d) 87; R. v. Terry, 1996 199 (SCC), [1996] 2 S.C.R. 207, [1996] S.C.J. No. 62, 135 D.L.R. (4th) 214, 197 N.R. 105, 36 C.R.R. (2d) 21, 106 C.C.C. (3d) 508, 48 C.R. (4th) 137; R. v. Therens, 1985 29 (SCC), [1985] 1 S.C.R. 613, [1985] S.C.J. No. 30, 38 Alta. L.R. (2d) 99n, 40 Sask. R. 122, 18 D.L.R. (4th) 655, 59 N.R. 122, [1985] 4 W.W.R. 286, 13 C.R.R. 193, 18 C.C.C. (3d) 481, 45 C.R. (3d) 97, 32 M.V.R. 153; R. v. White, 1999 689 (SCC), [1999] 2 S.C.R. 417, [1999] S.C.J. No. 28, 174 D.L.R. (4th) 111, 240 N.R. 1, 63 C.R.R. (2d) 1, 135 C.C.C. (3d) 257, 42 M.V.R. (3d) 161, 24 C.R. (5th) 201 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 1, 9, 10, 24(2) Criminal Code, R.S.C. 1985, c. C-46, s. 839 [as am.] Authorities referred to Fairburn, Michal, "Mann Oh Man -- We've Only Just Begun" (2005) 17 N.J.C.L. 171 Stribopoulos, James, "A Failed Experiment? Investigative Detention: Ten Years Later" (2003) 41 Alta. L. Rev. 335 [page130]

Andras Schreck, for appellant. Andrew Cappell, for respondent.

The judgment of the court was delivered by

[1] DOHERTY J.A.:-- This is yet another case where a routine interaction between a police officer and an individual gives rise to a difficult constitutional question requiring the court to balance individual constitutional rights against the public interest in effective law enforcement. Viewed from one perspective, the police officer's actions were exactly what the community would expect of him. He responded quickly to a victim's request for police assistance, followed up on his reasonable suspicions once he arrived at the scene of the crime, treated the appellant in a professional and even-handed manner, and in the end caught a criminal. From another perspective, the appellant was not treated fairly. While under police detention, he was effectively invited by the police officer's questions to implicate himself in a crime without first being told of his right to obtain legal assistance and without being afforded the opportunity to obtain that assistance, if he so desired.

Overview

[2] The appellant was convicted of one count of possession of property obtained by crime (a $100 LCBO gift certificate), one count of possession of a stolen credit card, and one count of possession of a stolen debit card. The appellant received sentences totalling 90 days to be followed by probation for one year.

[3] His appeals from conviction and sentence to the Superior Court were dismissed. Pursuant to s. 839 of the Criminal Code, R.S.C. 1985, c. C-46, he seeks leave to appeal to this court from both his conviction and sentence. In keeping with this court's practice, the application for leave to appeal and the merits of the appeal were heard together by a panel of the court.

[4] On the conviction appeal, the appellant submits that his right to be informed of his right to counsel under s. 10(b) of the Canadian Charter Of Rights and Freedoms was denied during a [page131] brief investigative detention. He contends that his statements made during that detention, his statements made after his arrest which immediately followed his detention, and evidence seized from him after his arrest should have been excluded under s. 24(2) of the Charter. The appellant contends that without these statements and the evidence seized from him, he would not have been convicted.

[5] On the sentence appeal, the appellant argues that the trial judge erred in law in not imposing an intermittent sentence. It is the appellant's contention that as the Crown was not opposed to an intermittent sentence, the trial judge was obliged to treat the appellant's request for an intermittent sentence as a joint submission once he decided to impose a sentence of 90 days or less.

[6] The Crown submits that there was no violation of s. 10(b) of the Charter and alternatively, that if there was a violation, neither the statements made to the police after arrest nor the evidence seized from the appellant should be excluded under s. 24(2) of the Charter. The Crown contends that apart from the statements made by the appellant during his brief investigative detention, the case against the appellant was overwhelming.

[7] In response to the sentence appeal, the Crown argues that there was no joint submission and the sentence reveals no error in law.

[8] I would grant leave to appeal the conviction and dismiss the appeal. The appellant has not demonstrated that he was not advised of his right to counsel "without delay". There was no breach of s. 10(b) and the evidence cannot be excluded under s. 24(2). I would refuse leave to appeal the sentence.

The Issue

[9] The legal issue raised on this appeal arises out of a prosaic fact situation. A police officer briefly detained the appellant for investigative purposes and questioned him without advising him of his right to counsel. The police officer received additional information from another officer and then arrested the appellant, advised him of his right to counsel, questioned him, and searched his person and his purse. The appellant gave incriminating answers to the questions asked by the officer both before and after his arrest. The material seized from the appellant also implicated him in the offences.

[10] The appellant alleges a single constitutional violation. He contends that the officer was obliged to advise him of his right to counsel immediately upon detaining him for investigative purposes and before asking him any questions that could [page132] possibly elicit incriminating answers from the appellant. [^1] The appellant does not allege that his initial detention violated his constitutional rights or that his subsequent arrest, questioning and search violated the Charter.

The Evidence

[11] It was the Crown's position that the appellant and an accomplice named William Erhirhie obtained a stolen credit card and debit card belonging to Sarbjit Brar. The Crown contended that they used the cards to purchase property at various stores, including an LCBO store in Belleville, Ontario where they purchased six $100 gift certificates. Given the single issue raised on the conviction appeal, my narrative of the events can begin with Erhirhie's attempt to use one of the $100 gift certificates at the LCBO in Cobourg, Ontario.

[12] An employee at the Cobourg LCBO testified that she and other employees had been warned to be on the lookout for two men using $100 gift certificates to purchase items. A man (Erhirhie) came into the store and attempted to purchase a $3 bottle of beer with a $100 gift certificate. The employee went into the back room and advised another employee to call the police. She then returned to the counter and attempted to delay the man until the police arrived. A second man, the appellant, approached and asked her what was taking so long. After a short wait, the appellant told the employee that they would pay cash for the bottle of beer and asked her to return the gift certificate to him. At this juncture, the police arrived. Erhirhie was questioned at the store counter by Officer Bellemare, the first police officer to enter the store.

[13] Constable John Roughley responded to a radio call indicating that a male person was attempting to use a stolen credit card at the Cobourg LCBO. [^2] As he drove to the store, he received information that the clerk was trying to stall the suspect. Constable Roughley arrived at the store, and before he entered he was advised over the radio by Constable Bellemare that there were two male suspects in the store. [page133]

[14] Constable Roughley entered the LCBO and saw Constable Bellemare speaking at the cash register with Erhirhie. There were other people in the store. Constable Roughley saw the appellant walk toward the door from the vicinity where Constable Bellemare was standing with Erhirhie. As the appellant walked past Constable Roughley, he said words to the effect "he did this, not me, so I guess I can go".

[15] The appellant left the store and Constable Roughley followed him. The appellant headed across the parking lot and was getting into the driver's side of a van when Constable Roughley said, "Wait a minute. I need to talk to you before you go anywhere." Constable Roughley testified that he did not want the appellant to leave the area because he was uncertain whether the appellant was involved in the incident in the store and, if so, how he was involved. According to Constable Roughley, he was "exploring the situation".

[16] The appellant stopped when Constable Roughley spoke to him. Constable Roughley did not advise the appellant of his right to counsel. The following conversation ensued:

Q: Who's the guy inside you were with?

A: A friend.

Q: What is your friend's name?

A: Willy.

Q: Where are you from?

A: Toronto.

Q: How did you come to be in Cobourg today?

A: Willy asked me to drive him.

Q: From Toronto to Cobourg?

A: Yes.

Q: Who's [sic] van is this?

A: My girlfriend's.

Q: Who is your girlfriend?

A: Yvonne.

[17] After this very brief dialogue, Constable Roughley received information over his radio that the two suspects who had used the stolen credit card to purchase the gift certificates at the LCBO in Belleville earlier were driving a red Pontiac Montana van. Constable Roughley was also given the licence plate number of that van. The description of the vehicle and the licence plate number matched the appellant's vehicle. [page134]

[18] Constable Roughley then asked the appellant for identification and the ownership documents for the vehicle. While the appellant was retrieving the ownership documents, Constable Roughley looked inside the vehicle. The officer noticed an LCBO bag with liquor inside. He also saw some Wal- Mart bags sitting between the front seats, and several boxes that appeared to contain new merchandise in plain view behind the front seat.

[19] Constable Roughley decided he had reasonable and probable grounds to arrest the appellant and he did so. He testified that part of the basis for the arrest was the appellant's statement to him that he had driven to the LCBO with the person who Constable Roughley believed had tried to use a stolen credit card in the store.

[20] Constable Roughley told the appellant that he was under arrest for fraud. The appellant interrupted him and according to Constable Roughley said, "It wasn't him it was his friend." Constable Roughley then asked who owned "all of the stuff" that was in the car and Constable Roughley testified that the appellant replied, "Some of it was his [the appellant's] and some of it was the other fella's inside the store."

[21] Constable Roughley repeated that the appellant was under arrest for fraud and asked him whether he understood the charge. The appellant indicated that he did and then added, "but if he says it was just him can I go?" Constable Roughley told him to just listen and he read him his rights to counsel. He asked the appellant whether he wished to call a lawyer and the appellant said that he did not want to contact a lawyer.

[22] Constable Roughley handcuffed the appellant and searched his pockets. He found some Wal-Mart receipts and a Wal-Mart shopping card. Constable Roughley and the appellant returned to the appellant's van and the appellant retrieved his black purse. Constable Roughley searched the purse and found a small index card containing the name Sarbjit Brar and personal information apparently pertaining to Mr. Brar. Mr. Brar was the owner of the stolen credit and debit cards.

[23] After seizing the material from the appellant, Constable Roughley cautioned the appellant and asked him whether he wished to say anything in answer to the charge. He explained to the appellant that he was not obliged to say anything, but whatever he might say could be used in evidence. The appellant said he understood the caution.

[24] Constable Roughley then asked the appellant a series of questions relating to the material he had found on the appellant's person and in the black purse. The appellant acknowledged that [page135] the purse was his. He said that he was holding the various cards for his friend and that Mr. Brar was also a friend of his. Constable Roughley took the appellant to the police station. The appellant later spoke to duty counsel.

The Reasons in the Courts Below

[25] The argument advanced in this court was made at trial and in the summary conviction appeal court.

[26] The trial judge accepted that the appellant was detained when Officer Roughley stopped him at his vehicle and told him that he wanted to speak with him before he left. As the appellant was not under any physical restraint at the time, the trial judge's finding of a detention was presumably based on the notion of "psychological compulsion" described in R. v. Therens, 1985 29 (SCC), [1985] 1 S.C.R. 613, [1985] S.C.J. No. 30, 18 C.C.C. (3d) 481, at p. 643 S.C.R., p. 505 C.C.C. As recently summarized in R. v. Grant (2006), 2006 18347 (ON CA), 81 O.R. (3d) 1, [2006] O.J. No. 2179, 209 C.C.C. (3d) 250 (C.A.), at para. 28, a psychological detention occurs where an individual voluntarily complies with the direction of the police reasonably believing that he or she has no choice but to comply with the police officer's direction.

[27] Officer Roughley ordered the appellant to stop and the appellant complied with that direction. Although the appellant did not testify, it was open to the trial judge to find that in the totality of the circumstances the appellant reasonably believed that he had no choice but to remain where he was until Constable Roughley had spoken with him. The Crown does not take issue with the trial judge's finding that the appellant was detained by Constable Roughley.

[28] The trial judge described the appellant's detention as "entirely necessary, a momentary investigative detention". In the trial judge's opinion, Constable Roughley was "duly bound to pursue a cursory questioning of Suberu". His questions were "introductory and preliminary" and were asked "merely to determine if there was any involvement by this person".

[29] The trial judge's finding that the officer had grounds to detain the appellant for investigative purposes is not challenged on appeal. The trial judge's findings as to the duration of the investigative detention and the nature and purpose of the questions asked by Constable Roughley during the investigative detention are findings of fact. They are not challenged on appeal and, in any event, are firmly supported by the evidence.

[30] The trial judge concluded that in the circumstances, the appellant's right to be informed of his right to counsel under s. 10(b) of the Charter was not triggered before Constable [page136] Roughley acquired reasonable and probable grounds to arrest the appellant. Constable Roughley complied with the requirements of s. 10(b) immediately upon arresting the appellant. Having found no violation of s. 10(b), the trial judge did not address s. 24(2) of the Charter.

[31] The summary conviction appeal court judge agreed with the trial judge's conclusion that Constable Roughley was not obliged to advise the appellant of his right to counsel during the brief investigatory detention. However, he went beyond the specific factual conclusions of the trial judge. After a review of the dissenting judgment of L'Heureux-Dubé J. in R. v. Elshaw, 1991 28 (SCC), [1991] 3 S.C.R. 24, [1991] S.C.J. No. 68, 67 C.C.C. (3d) 97, and a consideration of some American case law dealing with investigative stops, the summary conviction appeal court judge said:

I accept that the dissent in Elshaw, supra, has become the correct statement of law in this country that an investigative detention does not trigger s. 10(b) of the Charter. The trial judge found that the encounter in the instant case involved a "momentary investigative detention" that did not engage s. 10(b) of the Charter. The appellant has failed to satisfy me that in coming to this conclusion the trial judge fell into legal error. Accordingly, there is no need to consider the second question and the appeal against conviction is dismissed.

(Emphasis added)

[32] The summary conviction appeal court judge was wrong in holding that an investigative detention cannot trigger s. 10(b) of the Charter. This court has expressly held to the contrary indicating that at least some investigative detentions will engage the obligation to advise the detainee of his right to counsel: see R. v. Lewis (1998), 1998 7116 (ON CA), 38 O.R. (3d) 540, [1998] O.J. No. 376, 122 C.C.C. (3d) 481 (C.A.), at para. 28. Other appellate courts have reached the same conclusion: see R. v. Greaves, 2004 BCCA 484, [2004] B.C.J. No. 1953, 189 C.C.C. (3d) 305 (C.A.), at paras. 82-85; R. v. Campbell, 2003 MBCA 76, [2003] M.J. No. 207, 175 C.C.C. (3d) 452 (C.A.), at paras. 44-52.

[33] I find it unnecessary to analyze the dissent of L'Heureux-Dubé J. in R. v. Elshaw, supra. Whatever she may have said in that dissent about investigative detention and s. 10(b) of the Charter has not been adopted either expressly or by implication in any subsequent decision of the Supreme Court of Canada. I also find no support for the summary conviction appeal court judge's conclusion that R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, [2004] S.C.J. No. 49, 185 C.C.C. (3d) 308, the leading case on investigative detention, somehow signalled the adoption of the dissent in R. v. Elshaw. R. v. Elshaw is not even mentioned in R. v. Mann. [page137]

[34] R. v. Mann, supra, involved a brief investigative detention and a search during that detention. Iacobucci J., for the majority, observed that the word "detention" in the Charter encompassed a broad range of encounters between the police and the public. He then observed at para. 20: "A detention for investigative purposes is, like any other detention, subject to Charter scrutiny."

[35] Iacobucci J. proceeded to consider the application of s. 9 and s. 10(a) of the Charter to investigative detentions. He then turned to s. 10(b) at para. 22:

Section 10(b) of the Charter raises more difficult issues. . . . Like every other provision of the Charter s. 10(b) must be purposively interpreted. Mandatory compliance with its requirements cannot be transformed into an excuse for prolonging, unduly and artificially, a detention that, as I later mention, must be of brief duration. Other aspects of s. 10(b), as they arise in the context of investigative detentions, will in my view be left to another day. They should not be considered and settled without the benefit of full consideration in the lower courts, which we do not have in this case.

(Emphasis added)

[36] Clearly, Iacobucci J. left the delineation of the relationship between the rights described in s. 10(b) and investigative detentions to a later case. [^3] I would have thought, however, that if he intended to suggest that s. 10(b) was not engaged in any investigative detentions, he would have simply said so rather than describing the application of s. 10(b) to investigative detentions as raising "more difficult issues". To the extent that anything can be read into the comments in R. v. Mann, supra, concerning s. 10(b), those comments suggest that s. 10(b) may be engaged in investigative detentions where it would not artificially and unduly prolong the detention.

[37] The strongest argument against the position that s. 10(b) cannot apply to investigative detentions is the language of s. 10(b) itself. Section 10(b) does not qualify the word "detention". The section applies to all detentions. However narrowly one chooses to define the word "detention", there will be circumstances where [page138] individuals are detained for investigative purposes. For example, some investigative detentions may involve the brief physical restraint of individuals. To suggest that individuals under physical restraint are not detained and are not entitled to be informed of their right to counsel because their restraint is characterized as an investigative detention rather than an arrest, is, in my view, to draw a distinction which has no basis in the language of s. 10(b) or in the purposes underlying that section. Once it is acknowledged that a person is detained by the police, whether that detention is an arrest or an investigative detention, then s. 10(b) must be engaged subject to s. 1 of the Charter. [^4]

Analysis

[38] Section 10(b) of the Charter 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.

[39] All persons who are detained by the police must be advised of their right to counsel without delay. It is unnecessary on this appeal to go into the specifics of the informational component of s. 10(b): see R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173, [1994] S.C.J. No. 74, 92 C.C.C. (3d) 289, at pp. 190-92 S.C.R., pp. 300-01 C.C.C.. If a detained person chooses to exercise his or her right to counsel, that person must be afforded a reasonable opportunity to contact and speak with counsel in private. The police must refrain from questioning the detainee until the detainee has availed him or herself of that reasonable opportunity: see R. v. Bartle.

[40] Police officers are authorized to detain persons for investigative purposes where there is a clear nexus between that individual and a recent or ongoing criminal offence. In addition to that nexus, the detention for investigative purposes must be a reasonable detention based on all of the circumstances and must be conducted in a reasonable manner. Investigative concerns will usually justify only a brief detention following which the officer will either have to release the individual or, if reasonable and probable grounds exist, arrest the individual. Investigative detention is not an arrest and cannot be treated as a de facto arrest by the police or by the courts: R. v. Mann, supra, at paras. 34-35, 45; [page139] R. v. Byfield (2005), 2005 1486 (ON CA), 74 O.R. (3d) 206, [2005] O.J. No. 228, 193 C.C.C. (3d) 139 (C.A.), at paras. 16-18.

[41] 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. Not only will most investigative detentions justify only a brief detention of the individual, most will occur "on the street" in dynamic and quickly evolving situations. The police must move quickly in these situations to react to the circumstances as they change and to new information as it becomes available. 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.

[42] 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.

[43] The reconciliation of the proper and effective use of the police power to briefly detain individuals for investigative purposes and the right of those individuals to be advised of the right to counsel must begin with a consideration of the purposes that [page140] underlie the rights guaranteed by s. 10(b). In R. v. Bartle, supra, at pp. 190-92 S.C.R., pp. 300-01 C.C.C., Lamer C.J.C. identifies two purposes animating the police obligation to advise detained persons of their right to counsel. First, advising detained persons that they are entitled to speak with a lawyer gives them the opportunity to obtain legal advice about their rights while under police detention, particularly their right against self-incrimination and their right to silence. Second, requiring the police to advise detained persons of their right to counsel facilitates access to legal advice to assist detained persons in regaining their liberty as quickly as possible.

[44] The first of these two purposes -- to advise detained persons of their rights -- is operative in the context of a routine investigative detention. Persons who are detained for investigative purposes are usually questioned. Often, questions asked in the context of a routine investigative detention, even exploratory questions like those asked by Constable Roughley, may have an incriminatory potential. Access to legal advice in the course of an investigatory detention would give the detainee some protection against the risk of self- incrimination. That protection would, however, come with a significant cost.

[45] The second purpose underlying the obligation to advise detained persons of the their right to counsel -- to assist those persons in regaining their liberty -- will often not be served by requiring that individuals subject to brief investigative detentions be advised of their right to counsel. To the contrary, as indicated above, a person who is under investigative detention and who after being advised of his or her right to counsel chooses to exercise that right, will almost inevitably end up suffering a longer detention and more intrusive state conduct than he or she would otherwise have endured. Iacobucci J. in R. v. Mann, supra, recognized the potential negative impact on the detained person's liberty when he cautioned against using s. 10(b) to artificially prolong investigative detentions.

[46] A proper interpretation of s. 10(b) in the context of investigative detentions must bear in mind not only the purposes underlying s. 10(b), but the practical realities of the nature, length, and purpose of investigative detentions. I think the phrase "without delay" takes on significance in the context of investigative detentions.

[47] The words "without delay" have been construed in the context of detentions following arrest as meaning "immediately": see R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, [1989] S.C.J. No. 118, 52 C.C.C. (3d) 193, Lamer C.J.C. (for the majority) at p. 1144 S.C.R., p. 198 C.C.C., Wilson J. (concurring in part) at pp. 1161-63 S.C.R., pp. 211-12 C.C.C.; [page141] R. v. Feeney, 1997 342 (SCC), [1997] 2 S.C.R. 13, [1997] S.C.J. No. 49, 115 C.C.C. (3d) 129, at pp. 54-57 S.C.R., pp. 160-61 C.C.C.; R. v. Strachan, 1988 25 (SCC), [1988] 2 S.C.R. 980, [1988] S.C.J. No. 94, 46 C.C.C. (3d) 479, at pp. 997-99 S.C.R., pp. 493-94 C.C.C. When the detained person is arrested, only legitimate police safety concerns or similar exigencies can justify any delay in advising the arrested person of his or her rights under s. 10(b) of the Charter.

[48] Considered in the context of an arrest, a restrictive reading of the words "without delay" in s. 10(b) is fully justified by a purposive interpretation of the section. Detention during an arrest will include physical restraint, a personal search, and will usually involve moving the detainee to a jail. That detention will not be brief and will significantly interfere with the detainee's liberty and security of the person. Advising an arrested person of his or her right to counsel will not usually prolong the detention. An arrested person is also obviously in need of immediate advice as to his or her rights while in detention. The concern that detained persons should have access to legal advice about their rights and the concern of minimizing interference with the liberty of detained persons are both promoted by advising arrested persons of the right to counsel immediately upon arrest.

[49] The phrase "without delay" in s. 10(b) has, however, been read somewhat more broadly in respect of detentions other than arrests. For example, in R. v. Kwok, 1986 4726 (ON CA), [1986] O.J. No. 1194, 31 C.C.C. (3d) 196 (C.A.), at p. 208 C.C.C., Finlayson J.A. accepted that persons detained at the border for purposes of an immigration interview were provided with their right to counsel in compliance with s. 10(b) even though they were asked a few questions pertaining to their entry into Canada immediately after their detention commenced and before they were given their s. 10(b) rights.

[50] 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". Allowing the police a brief opportunity to size up the situation and the detainee's status is consistent with the concern expressed by Iacobucci J. in R. v. Mann, supra, at para. 22 where he observed:

Like every other provision of the Charter, s. 10(b) must be purposively interpreted. Mandatory compliance with its requirements cannot be transformed into an excuse for prolonging, unduly and artificially, a detention that, as I later mention, must be of brief duration. [page142]

[51] Acknowledging that there can be a brief time span between an initial detention for investigative purposes and the administration of the s. 10(b) rights also reflects the nature of the vast majority of investigative detentions. Like the detention in this case, most investigative detentions are the result of "psychological compulsion" and not physical restraint. It is often difficult to tell exactly when in the course of a dynamic interchange between the police and an individual that a detention based on psychological compulsion begins. In some cases, the nature of the questions put to the person by the officer and that person's responses to those questions will be relevant in determining whether there was a psychological detention: see R. v. Grant, supra. It seems highly artificial to select an arbitrary point in what is a fluid encounter and declare that from that point forward the person was detained and the next words out of the officer's mouth should have been advice as to the person's right to counsel.

[52] Finally, and again most importantly, I see nothing in the phrase "without delay" which precludes the interpretation I would place on s. 10(b) insofar as investigative detentions are concerned. The words "without delay" are semantically capable of a broader meaning than "immediately" in the appropriate context: see R. v. Kelly, 1985 3483 (ON CA), [1985] O.J. No. 2, 17 C.C.C. (3d) 419 (C.A.), at p. 424 C.C.C.

[53] In interpreting the words "without delay" somewhat more expansively in the context of investigative detentions than in the context of arrest, I do not mean to read s. 10(b) out of police/citizen encounters that do not progress past the investigative detention stage. The time limit imposed by the words "without delay" is of necessity a tight one and can accommodate only brief interludes between commencing an investigative detention and advising the detained person of his or her right to counsel.

[54] The police activity during the brief interlude contemplated by the words "without delay" must be truly exploratory in that the officer must be trying to decide whether anything beyond a brief detention of the person will be necessary and justified. If the officer has already made up his or her mind that the detained person will be detained for something more than a brief interval, there is no justification for not providing the individual with his or her right to counsel immediately. To echo the words of R. v. Mann, supra, in those cases, the investigative detention is a de facto arrest. For example, in R. v. Greaves, supra, what was ostensibly an investigative detention went on for over half an hour. Clearly a delay of that length is beyond the limits of the "without delay" requirement. [page143]

[55] We were not referred to any authority which offers direct support for my conclusion that the phrase "without delay" is sufficiently flexible to encompass a brief passage of time between an initial investigative detention and an officer advising a detained person of his or her right to counsel. The decision of MacDonnell J. in R. v. Hall, [1998] O.J. No. 2607 (C.J.) offers some support for my conclusion. In R. v. Hall, the accused was stopped for a highway traffic violation. The officer noticed a suspicious looking cigarette on the ashtray of the appellant's vehicle. He asked Mr. Hall what was in the ashtray and Mr. Hall candidly responded, "Just a little weed." It was argued that the police officer was required to advise Mr. Hall of his right to counsel before asking him what was in the ashtray.

[56] MacDonnell J. assumed that Mr. Hall was detained from the moment he was pulled over on the highway traffic violation and that s. 10(b) was operative from the moment of detention. He observed at para. 8:

When [Officer] Clayton arrived at the side of Mr. Hall's car, he observed the handrolled cigarette in the ashtray. I accept that it would have been possible to recite the right to counsel at that point. However, the only investigation that Clayton knew he was conducting at that moment was a Highway Traffic Act investigation into Mr. Hall's conduct in proceeding through a stop sign. That was the matter for which Mr. Hall had been stopped and for which he was being detained. It was also a matter with respect to which the right to counsel has limited, if any, utility. While Clayton's professional curiosity was no doubt stimulated when he saw the cigarette, it would not be reasonable to suggest that upon seeing it he immediately became engaged in the investigation of a narcotics offence. Before he came under an obligation to inform Mr. Hall that the reasons for his detention included a narcotics investigation, and that he had the right to counsel in relation to that matter, Clayton was entitled to determine whether he was actually conducting such an investigation.

[57] MacDonnell J. referred to cases in which courts have recognized the obligation of the police to re-advise a detained person of his or her right to counsel when the nature of an investigation changes. Those cases allow some exploratory questions before the obligation to re-advise the detained person of the right to counsel arises: see R. v. Evans, 1991 98 (SCC), [1991] 1 S.C.R. 869, [1991] S.C.J. No. 31, 63 C.C.C. (3d) 289, at pp. 891-93 S.C.R., pp. 306-07 C.C.C.

[58] MacDonnell J. applied the same analysis to the officer's exploratory question of Mr. Hall. He concluded at para. 11:

[H]e [the police officer] was entitled to ask an exploratory question in order to ascertain whether an investigation of the cigarette was worth pursuing. Only after making the determination that it was would he be required to inform Mr. Hall of his right to counsel in relation to that investigation. And indeed, after asking an exploratory question in this case, Constable Clayton immediately fulfilled that obligation.

(Emphasis added) [page144]

[59] In the case under appeal, Constable Roughley directed questions to the appellant concerning the same offence for which he had been detained. However, like the questions in R. v. Hall, supra, Constable Roughley's questions were cursory and preliminary. He wanted to determine whether there was any need to detain the appellant beyond the very brief detention which was required to ask him a few cursory questions. It is fair to describe these questions as "exploratory".

[60] Constable Roughley was not asked how much time elapsed between the start of the detention at the appellant's vehicle and his subsequent arrest. From reading the transcript, however, it seems clear that the few questions asked by Constable Roughley were put to the appellant immediately when Constable Roughley arrived at the car and that Constable Roughley received the additional information pertaining to the vehicle immediately after the appellant had answered the few questions put to him by Constable Roughley. It seems a safe inference that the passage of time between the start of the detention and the arrest was very brief. Constable Roughley arrested the appellant immediately after he had determined that he had grounds to do so and then immediately complied with s. 10(b).

[61] It is possible, as occurred in this case, that persons will give incriminating answers to questions put to them during the brief interlude between the commencement of their detention and the obligation of the police to comply with s. 10(b). If the detained person is charged and the Crown seeks to introduce statements made during that interlude, it is arguable that the detained person is being conscripted to give evidence against himself. Those statements could not be excluded under s. 24(2) of the Charter as on my interpretation of the phrase "without delay" there is no breach of s. 10(b). An accused could, however, argue that the admission of the incriminatory statements made before he was advised of his right to counsel would render his trial unfair if those statements were received for any purpose other than to explain subsequent police conduct: see R. v. Harrer, 1995 70 (SCC), [1995] 3 S.C.R. 562, [1995] S.C.J. No. 81, 101 C.C.C. (3d) 193, La Forest J. (majority) at pp. 577-78 S.C.R., p. 205 C.C.C., McLachlin J. (concurring) at pp. 586-87 S.C.R., pp. 211-12 C.C.C.; R. v. Terry, 1996 199 (SCC), [1996] 2 S.C.R. 207, [1996] S.C.J. No. 62, 106 C.C.C. (3d) 508, at pp. 218-19 S.C.R., p. 517 C.C.C.; R. v. White, 1999 689 (SCC), [1999] 2 S.C.R. 417, [1999] S.C.J. No. 28, 135 C.C.C. (3d) 257, at paras. 86-89; R. v. Milne (1996), 1996 508 (ON CA), 28 O.R. (3d) 577, [1996] O.J. No. 1728, 107 C.C.C. (3d) 118 (C.A.), at pp. 585-86 O.R., pp. 127-28 C.C.C. The force of that argument would depend on the entirety of the circumstances surrounding the detention and [page145] taking of the statements. Factors such as the nature of the detention, the kinds of questions asked, and the age of the detained person would be among the relevant considerations.

[62] Counsel did not argue, apart from the alleged violation of s. 10(b), that the admission of the appellant's statements made during his brief investigative detention would render his trial unfair. I see nothing in the circumstances surrounding the making of these statements that would have supported that argument.

[63] In summary, subject to possible limitations imposed by s. 1 of the Charter, s. 10(b) applies to detentions as defined in R. v. Therens, supra, including detentions for investigative purposes. However, in deciding whether there has been compliance with s. 10(b) in the context of a brief investigative detention, the phrase "without delay" should be read so as to countenance some brief interlude between commencing a detention and advising the detained person of his or her right to counsel. During that brief interlude, the police may take appropriate steps to make a quick assessment of whether anything beyond the brief investigative detention of the individual may be warranted.

Section 1 of the Charter

[64] In his written material, Crown counsel indicated that he proposed to advance a s. 1 argument should the court conclude that there was a violation of the appellant's rights under s. 10(b) of the Charter. The s. 1 submission, drawing on the analysis of the majority in R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3, [2005] S.C.J. No. 37, 196 C.C.C. (3d) 481, argues that a police officer's right to briefly detain a person for investigative purposes as recognized in R. v. Mann, supra, is a reasonably justifiable limit prescribed by law on the detained person's right to counsel as described in s. 10(b). The s. 1 argument assumes that statements made by a person under investigative detention would not be admissible against that person at trial except to explain or justify police conduct: see R. v. Elias at pp. 31-32 S.C.R., pp. 505-06 C.C.C.; R. v. Milne, supra. The potential application of s. 1 to s. 10(b) in the context of an investigative detention is referred to, but not decided in R. v. Ngo, 2005 ONCJ 217, [2005] O.J. No. 2678, 131 C.R.R. (2d) 348 (C.J.): see also James Stribopoulos, "A Failed Experiment? Investigative Detention: Ten Years Later" (2003) 41 Alta. L. Rev. 335 at 378; Michal Fairburn, "Mann Oh Man -- We've Only Just Begun" (2005) 17 N.J.C.L. 171 at 190-93.

[65] As I have found no violation of s. 10(b), I do not reach the s. 1 argument. Crown counsel chose not to pursue s. 1 in oral submissions, presumably because it was not advanced in the [page146] courts below. The extent to which a violation of s. 10(b) in the course of an investigative detention may be justified under s. 1 remains an open question.

Section 24(2) of the Charter

[66] As I find no violation of s. 10(b) of the Charter, I do not reach s. 24(2). Neither the trial judge nor the summary conviction appeal judge considered s. 24(2). I see nothing to be gained by this court engaging in a s. 24(2) analysis on the assumption of a s. 10(b) violation.

The sentence appeal

[67] Appeals to this court in summary conviction matters are available only on questions of law and only with leave to appeal. The Superior Court is the primary appellate court for summary conviction matters. Arguments which address the fitness of a sentence imposed at trial should not be routinely entertained by this court on a summary conviction appeal unless they raise issues that have application beyond the individual case. The Superior Court is the forum in which a review of the fitness of a sentence imposed in a summary conviction proceeding should be conducted.

[68] The only argument which could attract leave in this case is the submission that the Crown's neutral position as to whether the sentence should be served intermittently should be equated with a joint submission. It should not be so equated. The appellant did not forego any right he may have had in exchange for a position taken by the Crown on sentence. Nor did the Crown's neutral position on whether the sentence should be served intermittently form any part of a plea negotiation or plea resolution. There is no merit to the attempt to equate the Crown's non-position with respect to the appropriateness of an intermittent sentence should the trial judge decide to impose a sentence of 90 days or less with a joint submission for an intermittent sentence.

Conclusion

[69] I would grant leave to appeal from the order dismissing the appellant's conviction appeal and dismiss that appeal. I would refuse leave to appeal the order dismissing the appellant's appeal from sentence.

Appeal dismissed. [page147]

[^1]: The appellant does not allege a breach of s. 10(a) of the Charter, although he was not advised "promptly" of the reason for his detention. I assume s. 10(a) was not advanced as a separate argument because it is clear that the appellant knew full well why the officer wanted to speak with him. Presumably, a breach of s. 10(a) in these circumstances would not warrant any exclusion of the evidence obtained from the appellant.

[^2]: In fact, the person was using a gift certificate allegedly purchased with a stolen credit card. Nothing turns on this bit of misinformation.

[^3]: In a later case, R. v. Chaisson, 2006 SCC 11, [2006] 1 S.C.R. 415, [2006] S.C.J. No. 11, 206 C.C.C. (3d) 1, revg 2005 NLCA 55, [2005] N.J. No. 277, 2000 C.C.C. (3d) 494 (C.A.), the Supreme Court of Canada restored the trial judge's findings that the appellant's s. 10(b) rights had been infringed. The trial judge had found violations of s. 10(b), both during the brief investigative detention of the appellant and after holding his arrest, which followed shortly after the investigative detention, In holding that the trial judge had correctly found a violation of s. 10(b), the Supreme Court of Canada did not indicate whether it was referring to both s. 10(b) and investigative detentions remains an open question in the Supreme Court of Canada.

[^4]: I return to s. 1 in part V of these reasons, below.