A recent decision from the British Columbia Supreme Court, R v Desmond, 2010 BCSC 1955, 2010 CarswellBC 3825,  BCJ No 2823 demonstrates the problem that was created by the Supreme Court in R v Suberu, 2009 SCC 33 - a problem which I discuss at length in a paper I co-authored with Tim Wightman: A Death on the Way to Rome: Has Suberu Marked the End of Investigative Detention [see My Articles].
In Desmond the police were called to respond to a robbery in the area of 5th Avenue and 12th Street in New Westminster [para 7]. Acting Sergeant Lau was one of the responding officers and the first to reach the vicinity of the original call. The call indicated that a male had been seen attempting to stuff a female into a Jeep Cherokee. The male was described as wearing a white shirt and white bandana [para 8].
En route to the area Lau spotted a male and female walking side-by-side on the street. The male, Lau would later testify, had a white bandana and white jacket; Lau also noted that there were not any other people in the area. Based on the temporal connection, location and matching description Lau pulled in front of the man and woman and after exiting his cruiser ordered the man onto the ground and handcuffed him [para 13]. Lau then asked the male if he had anything that might injure the officers; Desmond helpfully responded "Yes, I have something in my front pocket that you might be interested in" [para 14]. Indeed he did, a loaded firearm.
At trial Desmond sought the exclusion of the firearm alleging violations of his rights under sections 8, 9 and 10 of the Charter.
In a very thorough and well reasoned ruling Schultes J considered first whether the detention was a valid investigative detention [paras 40-50] and second whether there were reasonable grounds to do a pat down search for safety [paras 51-61]. Not surprisingly - although worth the read - Schultes J concluded that there was a valid investigative detention and justification for a pat down search.
Turning to the most interesting and contentious issue - at least in my view - Schultes J queried "whether Sergeant Lau's failure to comply with the Suberu, requirement that the s. 10(b) right be provided immediately upon detention was justified by officer or public safety concerns" [para 62]. While it is interesting to consider whether officer or public safety concerns could justify a delay in the provision of rights to counsel, it seems clear that the answer must be no. Surely the Supreme Court's decision in Suberu contemplated this - indeed, it was the subject of discussion in the others rulings in Suberu. Schultes J does in fact come to this very conclusion: "It is apparent from the analysis of the Supreme Court in that decision that practicalities of law enforcement were carefully considered and that maintaining the bright line of immediate advice was found to be essential, even in light of those concerns" [para 65]. Ultimately Schultes J concludes that there was a violation of section 10(b). Appropriately, Schultes J, nonetheless admits the evidence under section 24(2) of the Charter.
As discussed in A Death on the Way to Rome, this is the very issue that has been created by Suberu. Officer Lau acted appropriately; it was found that he had a justifiable basis to detain and to conduct a pat down search for safety. However, since he did not advise Desmond of his right to counsel, before conducting the pat down search there was a violation of section 10(b).
While I think this is the correct outcome, based on an application of Suberu, I find it to be an outcome which is problematic for officers and one which will, over time, negatively impact on the administration of justice. I expect that in very few situations where an officer feels it is necessary (as in Desmond) to do a pat down search for safety, will an officer feel comfortable or able to advise and provide a detainee with right to counsel before doing so. If I am correct in my expectation, then I anticipate that there will be many section 10(b) breaches - like the one in Desmond. However, in most cases, as in Desmond, the evidence will nonetheless be admitted. The consequence? Over time, I think it will undermine respect for section 10(b) and possibly create dangerous situations for officers and the public were 10(b) rights are being provided in situations such as Desmond. Not convinced, imagine what the officers in R v Clayton and Farmer, 2007 SCC 32 would do now, in light of Suberu...