R. v. Suberu (M.), (2009) 390 N.R. 303 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 15, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2009), 390 N.R. 303 (SCC);2009 SCC 33;[2009] SCJ No 33 (QL);309 DLR (4th) 114;AZ-50566221;390 NR 303;[2009] 2 SCR 460;EYB 2009-161620;193 CRR (2d) 96;JE 2009-1378;245 CCC (3d) 112;66 CR (6th) 127;252 OAC 340;[2009] ACS no 33

R. v. Suberu (M.) (2009), 390 N.R. 303 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2009] N.R. TBEd. JL.068

Musibau Suberu (appellant) v. Her Majesty The Queen (respondent) and Director of Public Prosecutions of Canada, Attorney General of British Columbia, Criminal Lawyers' Association (Ontario), Association des avocats de la défense de Montréal and Canadian Civil Liberties Association (intervenors)

(31912; 2009 SCC 33; 2009 CSC 33)

Indexed As: R. v. Suberu (M.)

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.

July 17, 2009.

Summary:

The accused was convicted of one count each 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 in jail to be followed by one year of probation. The accused appealed his conviction and sentence.

The Ontario Superior Court, in a decision reported at [2006] O.T.C. 481, dismissed the appeals. The accused sought leave to appeal his conviction and sentence.

The Ontario Court of Appeal, in a decision reported at 220 O.A.C. 322, granted leave to appeal the decision dismissing the conviction appeal and dismissed the conviction appeal. The court refused leave to appeal the order dismissing the accused's appeal from sentence. The accused appealed.

The Supreme Court of Canada, Binnie and Fish, JJ., dissenting, dismissed the appeal.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - The Supreme Court of Canada stated that "... in a situation where the police believe a crime has recently been committed, the police may engage in preliminary questioning of bystanders without giving rise to a detention under ss. 9 and 10 of the Charter. Despite a police request for information or assistance, a bystander is under no legal obligation to comply. This legal proposition must inform the perspective of the reasonable person in the circumstances of the person being questioned. The onus is on the applicant to show that in the circumstances he or she was effectively deprived of his or her liberty of choice. The test is an objective one and the failure of the applicant to testify as to his or her perceptions of the encounter is not fatal to the application. However, the applicant's contention that the police by their conduct effected a significant deprivation of his or her liberty must find support in the evidence." - See paragraph 28.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - Constable Roughley responded to a call about a male person attempting to use a stolen credit card at the Cobourg LCBO - Before Roughley entered the store, an officer who was already inside advised him by radio that there were two male suspects in the store - Roughley entered the store and saw that officer at a cash register talking to a store employee and one male customer - Suberu walked past Roughley and said words to the effect of "he did this, not me, so I guess I can go." - Roughley 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 seat of a minivan - Suberu was seated in the driver's seat of the van but turned outwards, facing Roughley, throughout the following brief exchange: "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 van is this? A. My girlfriend's. Q. Who is your girlfriend? A. Yvonne." - Roughley then received further information by radio, including the description and licence plate number of the van driven by the men who had used a stolen credit card to buy gift certificates at another LCBO store earlier that day - The description and the licence plate number both matched that of the van in which Suberu was sitting - Roughley asked for Suberu's ID and for the vehicle ownership documents - While Suberu retrieved the ownership documents, Roughley looked into the van and saw Wal-Mart and LCBO shopping bags between and behind the front seats - At this point, Roughley decided that he had reasonable and probable grounds to arrest Suberu for fraud - The Supreme Court of Canada held that the trial judge did not err in holding that Suberu was not detained within the meaning of the Charter when Roughly spoke to him in his van - See paragraphs 1 to 36.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators (incl. undercover officers) - Section 10(b) of the Charter provided that "Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right." - The Supreme Court of Canada held that "without delay" meant "immediately" - The court stated that "To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(b) creates an ill-defined and unworkable test of the application of the s. 10(b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words 'without delay' mean 'immediately' for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention." - See paragraphs 37 to 42.

Civil Rights - Topic 4613

Right to counsel - General - Requirement of arrest or detention and notice of reasons for - [See Civil Rights - Topic 4609.1 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - Section 10(b) of the Charter provided that "Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right." - The Supreme Court of Canada held that "without delay" meant "immediately" - The court rejected the Crown's assertion that a general suspension of the right to counsel during the course of short "investigatory" detentions was necessary and justified under s. 1 of the Charter - Because the definition of detention, as understood in the court's reasons, gave the police leeway to engage members of the public in non-coercive, exploratory questioning without necessarily triggering their Charter rights relating to detention, it was not necessary to invoke s. 1 in order to allow the police to effectively fulfill their investigative duties - See paragraphs 43 to 45.

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - [See Civil Rights - Topic 4609.1 and Civil Rights - Topic 8348 ].

Words and Phrases

Without delay - The Supreme Court of Canada interpreted the phrase "without delay", as found in s. 10(b) of the Canadian Charter of Rights and Freedoms, 1982, as "immediately" - See paragraphs 37 to 42.

Cases Noticed:

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, appld. [para. 1].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 2].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, refd to. [paras. 40, 48].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 40].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161; 2005 SCC 37, refd to. [para. 45].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 10(b) [para. 20].

Counsel:

P. Andras Schreck, for the appellant;

Andrew Cappell and Rosella Cornaviera, for the respondent;

Croft Michaelson and Kevin Wilson, for the intervenor, the Director of Public Prosecutions of Canada;

M. Joyce DeWitt-Van Oosten and Lesley Ruzicka, for the intervenor, the Attorney General of British Columbia;

Frank Addario and Colleen Bauman, for the intervenor, the Criminal Lawyers' Association (Ontario);

Alexandre Boucher and Emily K. Moreau, for the intervenor, Association des avocats de la défense de Montréal;

Christopher A. Wayland and Alexi N. Wood, for the intervenor, the Canadian Civil Liberties Association.

Solicitors of Record:

Schreck & Greene, Toronto, Ontario, for the appellant;

Attorney General of Ontario, Toronto, Ontario, for the respondent;

Public Prosecution Service of Canada, Toronto, Ontario, for the intervenor, the Director of Public Prosecutions of Canada;

Attorney General of British Columbia, Victoria, B.C., for the intervenor, the Attorney General of British Columbia;

Sack Goldblatt Mitchell, Toronto, Ontario, for the intervenor, the Criminal Lawyers' Association (Ontario);

Waxman, Dorval & Associés, Montréal, Quebec, for the intervenor, Association des avocats de la défense de Montréal;

McCarthy Tétrault, Toronto, Ontario, for the intervenor, the Canadian Civil Liberties Association.

This appeal was heard at Ottawa, Ontario, on April 15, 2008, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ., of the Supreme Court of Canada. The court delivered the following reasons for judgment, in both official languages, on July 17, 2009, including the following opinions:

McLachlin, C.J.C., and Charron, J. (LeBel, Deschamps, and Abella, JJ.) - see paragraphs 1 to 46;

Binnie, J., dissenting - see paragraphs 47 to 64;

Fish, J., dissenting - see paragraphs 65 to 67.