''R v Suberu'

is a leading decision of the

Supreme Court of Canada The Supreme Court of Canada (SCC; , ) is the highest court in the judicial system of Canada. It comprises nine justices, whose decisions are the ultimate application of Canadian law, and grants permission to between 40 and 75 litigants eac ...

on section 9 and section 10 of the ''

Canadian Charter of Rights and Freedoms The ''Canadian Charter of Rights and Freedoms'' (), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part of the '' Constitution Act, 1982''. The ''Char ...

''. The Court applied the new test for detention created in the companion case of '' R v Grant'' and ruled on the timing of when an individual is required to be informed of his or her rights to counsel after being arrested or detained.

Background

On June 13, 2008, Musibau Suberu and a colleague made a one-day shopping trip east of

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to purchase merchandise, pre-paid shopping cards, and gift certificates from

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and the

LCBO The Liquor Control Board of Ontario (LCBO, ) is a Crown agency (Ontario), Crown agency that retails and distributes alcoholic beverages throughout the Provinces of Canada, Canadian province of Ontario. It is accountable to the Legislative Asse ...

using a stolen credit card. The staff of a store in

Cobourg, Ontario Cobourg ( ) is a town in the Provinces and territories of Canada, Canadian province of Ontario, located in Southern Ontario east of Toronto and east of Oshawa. It is the largest town in and seat of Northumberland County, Ontario, Northumberla ...

were warned to look out for the pair, after they reportedly bought $100 gift certificates from a different store using the stolen credit card. When Suberu's associate went to buy some merchandise at the Cobourg store with a $100 gift certificate, store employees began to stall Suberu's associate. A police constable unaware of the background was dispatched to respond to a call about a male person using a stolen credit card at the Cobourg store. An officer who arrived earlier radioed the police constable to inform him there were two male suspects. When the police constable arrived, the other officer was dealing with Suberu's associate. Suberu walked past the police constable, and said "he did this, not me, so I guess I can go." The police constable followed Suberu outside and said "Wait a minute. I need to talk to you before you go anywhere" while Suberu was getting into the driver's side of a minivan. While Suberu was seated in the driver's seat of the van, the police constable asked him some quick questions about who he was with in the store, where they had come from, and who owned the van. After this conversation, the police constable was informed by radio dispatch of the description and

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of the van that had been involved with using the stolen credit card. The minivan Suberu was in matched the description and license plate. When the constable looked into the van, he saw bags of merchandise from Wal-Mart and the LCBO. Suberu was arrested for fraud. He was informed of the constable's reasons for doing so. Before the constable could read him his rights to counsel, Suberu made statements protesting his innocence and began asking questions of the constable. The police constable had a short exchange with Suberu but soon told Suberu "just listen" and read the rights to counsel. There was no issue about the timing of the rights to counsel in relation to the arrest. The issue was whether the police constable should have informed Suberu of his rights to counsel at the outset of their interaction, arguing that the constable's instruction to "wait" meant that there was a detention, triggering section 10 of the ''Charter''. At the

Ontario Court of Justice The Ontario Court of Justice is the provincial court court of record, of record for the Canadian province of Ontario. The court sits at more than 200 locations across the province and oversees matters relating to family law, criminal law, and prov ...

, the trial judge found that there was a necessary "momentary investigative detention". However, the trial judge went on to find that the police were not required to inform Suberu of his rights to counsel before he was asked preliminary or exploratory questions to determine if there was any involvement by Suberu. Suberu was convicted of possession of property obtained by crime, possession of a stolen credit card, and possession of a stolen

debit card A debit card, also known as a check card or bank card, is a payment card that can be used in place of cash to make purchases. The card usually consists of the bank's name, a card number, the cardholder's name, and an expiration date, on either ...

. At the

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, the

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appeal judge upheld the conviction, but on the basis that section 10(b) of the ''Charter'' is never engaged by investigative detentions. The

Court of Appeal for Ontario The Court of Appeal for Ontario (frequently mistakenly referred to as the Ontario Court of Appeal) (ONCA is the abbreviation for its neutral citation) is the appellate court for the province of Ontario, Canada. The seat of the court is Osgoode Ha ...

rejected the summary conviction appeal judge's proposition, but dismissed the appeal on the basis that the wording of "without delay" in section 10(b) of the ''Charter'' allows for a brief interlude at the beginning of an investigative detention to allow police to ask exploratory questions to determine whether further detention is necessary.

Reasons of the court

The majority judgment was given by McLachlin C.J. and Charron J.

Detention

The majority followed the test for detention set out in the companion case of ''R. v. Grant'': Suberu was not physically detained and did not face any legal obligations to comply with the officer's request to wait. Therefore, the remaining question was whether the police officer's conduct would lead a reasonable person to believe that he had no choice but to comply. The majority found that police can ask exploratory questions of an individual without there being a detention. In this case, the circumstances as would be reasonably perceived by Suberu were that the police officer was orienting himself to the situation and was not specifically concluding that Suberu was involved in the commission of a crime. The majority also noted that Suberu did not testify, and that there was no evidence of what Suberu actually perceived. The police conduct also supported the conclusion that there was no detention. The officer did not attempt to obstruct Suberu's movement, allowed Suberu to sit in the driver's seat of his van, and it was of a very brief duration. Since Suberu did not testify, there was no evidence of his particular personal circumstances, either from him or from the testimony of the other witnesses. Suberu never indicated he did not want to answer the officer's questions, and the officer testified the conversation was not "strained". Therefore, the majority concluded there was no detention prior to Suberu's arrest, and therefore there was no violation of Suberu's rights under section 10(b) of the ''Charter''. In a dissenting decision, Binnie J. noted that he proposed a different test for detention in ''Grant'', but that Suberu was entitled to the test the majority handed down in ''Grant''. However, in applying the majority's test for detention, he concluded that there was a detention (based on the fact that Suberu would reasonably have concluded that the police were investigating him for the use of the stolen credit card and that he had been told to "wait"). In a second dissenting decision, Fish J. agreed with the majority's test, but agreed with Binnie's J.'s application of the test.

"Without Delay"

Although there was no need for the majority to address the issue (since they concluded there was no detention), they still decided to rule on the issue. The majority concluded that "without delay" for the purpose of section 10(b) of the ''Charter'' means "immediately". This is due to the vulnerability of the detainee in relation to the state. The majority found that the Court of Appeal's proposition would have created an ill-defined and unworkable test - brief exploratory questioning is an abstract concept and difficult to quantify, and section 10(b) is intended to impose specific obligations on the police. The only exceptions to "immediately" are concerns for officer and public safely, and limitations prescribed by law that are justified under section 1 of the ''Charter''. Binnie J. agreed with the majority's interpretation. Fish J. did not expressly state his opinion on the issue, but did note that "upon detention, Mr. Suberu was not given his rights under s. 10 of the ''Charter''."

Section One of the ''Charter''

Although there are situations when section 1 of the ''Charter'' would allow for a justified limitation on the 'immediacy' requirement for rights to counsel, the majority concluded that a case had not been made out for allowing some type of limitation for investigative questioning. The majority found that the argument was based on a broader interpretation of "detention" than was decided in ''Grant''. Since the majority ruled that the police are allowed to interact with the public without engaging an investigative detention, there was no need to create a section 1 limitation. Binnie J., after concluding that the type of questions did constitute a detention, found that the Crown could argue for a section 1 limitation. However, Binnie J. found that there was no sufficient evidence or arguments before the Court to allow for the point to be properly adjudicated. Fish J. did not expressly state his opinion on the issue.

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