R. v. Suberu
Encyclopedia
R. v. Suberu 2009 SCC 33 is a leading decision of the Supreme Court of Canada
on section 9
and section 10
of the Canadian Charter of Rights and Freedoms
. 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.
to purchase merchandise, pre-paid shopping cards, and gift certificates from Wal-Mart
and the LCBO using a stolen credit card
. The staff of a store in Cobourg, Ontario
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 license plate 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 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
.
At the Ontario Superior Court of Justice
, the summary conviction 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 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.
and Charron J.
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.
of the Charter.
Binnie J. agreed with the majority's intrepretation. 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."
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 not 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.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
on section 9
Section Nine of the Canadian Charter of Rights and Freedoms
Section Nine of the Canadian Charter of Rights and Freedoms, found under the "Legal rights" heading in the Charter, guarantees the right against arbitrary detainment and imprisonment...
and section 10
Section Ten of the Canadian Charter of Rights and Freedoms
Section Ten of the Canadian Charter of Rights and Freedoms specifies rights upon arrest or detention, including the rights to consult a lawyer and the right to habeas corpus. As a part of a broader range of legal rights guaranteed by the Charter, section 10 rights may be limited by the Oakes test...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
. The Court applied the new test for detention created in the companion case of R. v. Grant
R. v. Grant
R. v. Grant is a leading decision of the Supreme Court of Canada on section 9, section 10, and section 24 of the Canadian Charter of Rights and Freedoms. The Court created a number of factors to consider when determining whether a person had been detained for the purpose of sections 9 and 10 of...
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 TorontoToronto
Toronto is the provincial capital of Ontario and the largest city in Canada. It is located in Southern Ontario on the northwestern shore of Lake Ontario. A relatively modern city, Toronto's history dates back to the late-18th century, when its land was first purchased by the British monarchy from...
to purchase merchandise, pre-paid shopping cards, and gift certificates from Wal-Mart
Wal-Mart
Wal-Mart Stores, Inc. , branded as Walmart since 2008 and Wal-Mart before then, is an American public multinational corporation that runs chains of large discount department stores and warehouse stores. The company is the world's 18th largest public corporation, according to the Forbes Global 2000...
and the LCBO using a stolen credit card
Credit card
A credit card is a small plastic card issued to users as a system of payment. It allows its holder to buy goods and services based on the holder's promise to pay for these goods and services...
. The staff of a store in Cobourg, Ontario
Cobourg, Ontario
Cobourg is a town in the Canadian province of Ontario, located in Southern Ontario 95 km east of Toronto. It is the largest town in Northumberland County. Its nearest neighbour is Port Hope, to the west. It is located along Highway 401 and the former Highway 2...
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
Minivan
Minivan is a type of van designed for personal use. Minivans are typically either two-box or one box designs for maximum interior volume – and are taller than a sedan, hatchback, or a station wagon....
.
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 license plate 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
Ontario Court of Justice
The Ontario Court of Justice is a Provincial Court for the Canadian province of Ontario. This court oversees matters relating to family law and criminal law....
, 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
Debit card
A debit card is a plastic card that provides the cardholder electronic access to his or her bank account/s at a financial institution...
.
At the Ontario Superior Court of Justice
Ontario Superior Court of Justice
The Superior Court of Justice is the superior court of general jurisdiction for the Province of Ontario, Canada. It is the successor to the former Ontario Court of Justice , and was created on April 19, 1999...
, the summary conviction 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 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.Beverley McLachlin
Beverley McLachlin, PC is the Chief Justice of Canada, the first woman to hold this position. She also serves as a Deputy of the Governor General of Canada.-Early life:...
and Charron J.
Louise Charron
Louise Charron is a Canadian jurist. She was appointed to the Supreme Court of Canada in October, 2004, and is the first native-born Franco-Ontarian Supreme Court judge...
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.
Ian Binnie
William Ian Corneil Binnie was a puisne justice of the Supreme Court of Canada, serving from 1998 to 2011. Of the justices appointed to the Supreme Court in recent years, he is one of the few to have never sat as a judge prior to his appointment.- Personal life and career as lawyer :Binnie was...
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.
Morris Fish
Morris J. Fish, is a judge of the Supreme Court of Canada.Born in Montreal, Quebec, the son of Aaron S. Fish and Zlata Grober, he received a Bachelor of Arts in 1959 and a Bachelor of Law in 1962 from McGill University.He practiced law mostly in Quebec for the law firm Cohen, Leithman, Kaufman,...
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 1Section One of the Canadian Charter of Rights and Freedoms
Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an...
of the Charter.
Binnie J. agreed with the majority's intrepretation. 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" then 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 not 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.
See also
- Criminal law of Canada
- List of Supreme Court of Canada cases
- R. v. MannR. v. MannR. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52, is a leading constitutional decision by the Supreme Court of Canada on the limits of police powers for search and seizure. The Court found that police have a right to detain someone for investigation but do not have the right to search them beyond...
, 2004 SCC 52
External links
- Full text of R. v. Suberu - S.C.C.
- Full text of R. v. Suberu - Ont. C.A.
- Full text of R. v. Suberu - Ont. S.C.J.