Section 10 of the Charter reads as follows:
Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
While the section 10(c) right to habeas corpus is beyond the scope of this book - our primary focus is "on the street encounters" - the rights under subsections 10(a) and (b) are intricately entwined with the section 9 right relating to arrest and detention.48Indeed, breaches of these two rights may well in themselves result in the arrest and detention being held unlawful. In Chapter 3, we discussed the concept of "detention" which triggers the applicability of the section 10 rights. We will not repeat that discussion here. It is worth saying, though, that subsection 10(a) and (b) rights have been treated as "gateway" rights in the sense that the Court has indicated that their purpose is to ensure that suspected persons are able to enjoy their other rights. By informing suspects why they are detained or arrested and allowing them to speak to counsel, suspects are able to enjoy their rights, in particular their right to silence in regard to the matter under investigation.
Therefore, based on the detention of the suspect, the suspect needs to be placed in a position to decide whether to exercise the right to silence in the face of police suspicion and desire to secure evidence. Having said that, there are significant situations in which the Court has determined that section 1 of the Charter legitimately limits the right to counsel, a subject covered in Chapter 3. The Supreme Court has generally limited the right to counsel in "screening" situations in impaired-driving cases. Further, as discussed in Chapter 2 , the issue as to whether these rights apply to non-police detentions has not been settled. Below, we will offer additional comments on this issue.
It is worth recognizing the interaction between sections 9 and 10. Earlier in this chapter we discussed section 9, which deals with whether there was any legal authority to detain or arrest the individual. If there was not, then there will already have been a violation of the accused’s Charter rights, and so she will potentially be entitled to a remedy. Whether there was legal authority or not, however, the mere fact of arrest or detention triggers the rights in section 10(a) and (b). The police must then (in accordance with the requirements to be discussed below) inform the person of the reason for the detention and the right to counsel.
As a practical matter, this often means that there will be violations of both section 9 and section 10 on a single fact pattern. Where the police have crossed the line from legitimate conversation to psychological detention, they will often not have had legal authority and so will have
arbitrarily detained the accused in violation of section 9. Precisely because they were trying to skirt the line of detention, they will not have said to the accused "you are detained" at all, and typically will not in those situations have told the accused of the right to counsel: accordingly, there will be violations of subsections 10(a) and (b) as well.
On the other hand, it is also quite possible for the rights to be violated independently. An accused might be explicitly but unlawfully arrested or detained and given his section 10 rights, in which case there is a violation only of section 9. Alternatively, an accused might have been lawfully arrested or detained but there could be some failure to comply with the requirements of section 10, a scenario discussed below.
The most obvious "triggers" for section 10 are a formal arrest, made under one of the powers set out in the Criminal Code, or a detention of the sort discussed in Chapter 3. For some time it had remained unclear whether an investigative detention under Mann triggered the right to counsel; however, in R. v. Suberu the Supreme Court of Canada decided authoritatively that such detentions do trigger section 10.49
Although initial arrests and detentions are the most obvious triggers, they are not the only ones. For example, in R. v. Evans,50the accused had been arrested on a marijuana charge and taken to the police station for questioning. In fact, the real interest of the police was a murder for which they believed Evans’s brother to be responsible, and they hoped to elicit information from Evans. When the accused was arrested, he was properly told of the reason, in accordance with section 10(a). As the interview continued, however, the police began to form the view that Evans himself was likely responsible for the murder.
In those circumstances, the Court held that the accused’s section 10 rights were, in essence, retriggered. It stated that, when there is a "fundamental and discrete change in the purpose of the investigation, one involving a different and unrelated offence or a significantly more serious offence than that contemplated at the time of the warning," then the police must restate the accused’s right to counsel.51The rationale for this rewarning is that the nature of the accused’s jeopardy has changed, and so the accused’s initial decision as to whether it was necessary to consult counsel might equally change.
The Court found what might be seen as a specific instance of this retriggering in R. v. Burlingham.52In that case, the accused was arrested for murder and questioned over the weekend. He had been properly
cautioned at the time of his arrest and indeed had spoken with counsel. At a certain point in the interrogation, he was offered a plea bargain. The Court held that this constituted the kind of situation envisioned in Evans, and therefore that the accused’s section 10(b) right to consult with counsel arose again at that point.
The section 10(a) right to be to be "informed promptly of the reasons" for an arrest or detention did not get very much attention in the early Charter cases. It was a right that was recognized at common law. In Christie v. Leachinsky, the House of Lords set out the following on the point:
If a policeman arrests without warrant on reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words, a citizen is entitled to know on what charge or on suspicion of what crime he is seized.
If the citizen is not so informed, but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment.
The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained.
The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraint on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed.
The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he
himself produces the situation which makes it practically impossible to inform him, eg, by immediate counter-attack or by running away.53The House was decidedly of the view that such a rule was necessary to protect the person arrested and particularly to allow the person arrested to determine whether the arrest was lawful:
If another person has a lawful reason for seeking to deprive him of that liability, that person must as a general rule tell him what the reason is, for, unless he is told, he cannot be expected to submit to arrest or be blamed for resistance. The right to arrest and the duty to submit are correlative.54Of course, the information thus provided allows the arrested person to know on what ground they are arrested and assists in their decision as to whether they should remain silent in the face of the allegation in question.
Before the enactment of subsection 10(a), the Supreme Court had thrown some doubt on whether Canadian law required full compliance with the law set out in Christie. In R. v. Gamracy,55the accused was arrested and told that he was being arrested on a warrant which the officer did not have with him; nor did the officer know for what offence the warrant had been issued. Nonetheless, the Court found compliance with subsection 29(2) of the Criminal Code which says:
29(2) It is the duty of every one who arrests a person, whether with or without a warrant, to give notice to that person, where it is feasible to do so, of
(a) the process or warrant under which he makes the arrest; or (b) the reason for the arrest.
The majority in Gamracy held that advising the suspect that there was a warrant for his arrest was sufficient compliance with the section and that, though Christie was no doubt an interesting one in the English context and naturally entitled to the greatest respect, I think it should be said that such cases afford no assistance...