Justification for Delaying section 10 Rights?

Mohammad Mian was driving a grey Chevrolet Malibu. He was noted by police surveillance to be driving that car as part of an investigation into a number of homicides and attempted homicides in Edmonton. This investigation include wires. The principal target was Robin Chelmick. Through the wires the police learned that a drug transaction was going to take place and Chelmick was to be the middle man. Ultimately the police observed three separate meetings between Chelmick and the driver of the Malibu. After the third meeting one of the investigating officers contacted two other police officers, not connected with the homicide investigation; the detective met with those officers and recruited them to participate in the investigation; in particular, they were recruited to conduct a traffic stop of the Malibu when the investigative team alerted them. The officers were instructed to "make a routine traffic stop of the Malibu...they were to use every effort to find appropriate grounds to search the Malibu without having to rely on the information provided...so that the ongoing homicide investigation would not be compromised" [@8]. 

That traffic stop was eventually made. The officers approached Mian, spoke briefly then removed him from the vehicle. He had a cell phone in his hand. A pat-down search revealed $2,710 in cash. Mian was placed in the police cruiser and the officers conducted a search of the Malibu; during that search they located a large amount of cocaine and a smaller baggie of cocaine, additional cash and another cell phone.

22 minutes passed between the time when the officers pulled Mian over and when he was advised of the reason for his arrest and stop; a further 2 to 5 minutes passed before he was advised of his right to counsel.

At trial Mian successfully argued that this conduct violated his rights under section 10(a) and (b). The matter was appealed and eventually considered by the Supreme Court: 2014 SCC 54

On appeal the Crown argued, inter alia, that while there was a delay in providing the section 10 rights, the delay was justified on the basis of the need to protect the integrity of the ongoing investigation. Without rejecting the possibility that such delay may be permissible, the Court held that the factual findings in this case (by the trial judge) did not support the argument: 

The Crown concedes that to accept this argument would constitute an extension of the circumstances in which s. 10 rights may be suspended. As the Crown in this case recognizes, “[n]one of the jurisprudence has considered the precise situation presented here” (R.F., at para. 81).  I accept that the jurisprudence does recognize that compliance with the s. 10(b) informational rights may be suspended in exceptional circumstances (see R. v. Manninen,1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, at p. 1244; and R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, at pp. 998-99). However, it is not necessary to decide in this case whether the need to protect the integrity of a separate, ongoing investigation is an exceptional circumstance which may justify the suspension of the s. 10(b) rights. Nor is it necessary to determine whether exceptional circumstances can delay the implementation of s. 10(a) rights. Even if they could, exceptional circumstances do not arise on the facts as found by the trial judge in this case [@74].

As noted by the Court, the trial judge did not find there was sufficient evidence to support the assertion that "immediate compliance with s. 10 of the Charter would have compromised the broader investigation" [@75].

In concluding on the section 10 issue and rejecting the Crown's position on that point, the Court offered the following comments which reveal that while the factual basis was not present, the legal position may not be unfounded:

Crown appeals from acquittals are restricted to questions of law. Findings of fact can only be undermined in limited situations, not applicable in this case, where the trial judge’s alleged shortcomings in assessing the evidence give rise to an error of law (See Criminal Codes. 676(1)(a); and R. v. J.M.H., 2011 SCC 45 (CanLII), 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 24-39, perCromwell J.). [@75].

With respect to the 24(2) issue the Court again noted the narrow approach in a Crown appeal from acquittal "which limits the Crown’s challenge to the decision of the trial judge to questions of law".

Turning to the seriousness of the breach the Court held that in this case, the 22 minute delay, while not necessarily lengthy, was serious as during that time the police questioned Mian and had, on the findings of fact by the trial judge, no justifiable reason for delaying 10(a) or (b). The Court noted however:

This does not mean that the seriousness of a delay will never be mitigated by extenuating circumstances. Indeed, in an appropriate case, where a Charter breach has been found, a delay of more than 22 minutes may well be justified. In this case, however, these arguments are impermissible attempts to undermine the factual findings of the trial judge. [@81].

In concluding its review of the 24(2) analysis and dismissing the Crown appeal, the Court again eluded to the narrow approach:

However, the Grant test is a flexible and imprecise balancing exercise (see Grant, at paras. 85-86). The question is whether the trial judge considered the proper factors. In this case, the trial judge did exactly that. The trial judge held that the lack of a causal connection between the breach and the evidence, the minimal impact of the breach on Mr. Mian’s privacy rights, the reliability of the evidence, and the seriousness of the offence favoured admission of the evidence. He also held that the egregious and deliberate state conduct, the lack of a valid reason for the Charter breach, and the misleading state conduct favoured exclusion of the evidence. On balance, the judge concluded that society’s interest in the adjudication of the case on its merits was outweighed by the wilful and flagrant state conduct and the attempts to mislead the court. This conclusion was not unreasonable. [@88].

While the findings of fact in Mian did not support the position that there may be other justifiable reasons for delaying section 10 rights, the Court leaves open the possibility that there may be and if so, what the precise scope and application of them will be. Stay tuned.


New & Notable: The right to be informed does not ensure a protected reaction

Joseph Savard had a thing for PK, the teller at his bank. So much so that when she transferred branches he did too. Savard also had a thing for 16 year old NF who bagged his groceries at the Loblaws. When NF left, Savard focussed his attention on 16 year old TC. Neither PK, NF nor TC were interested in any kind of relationship with Savard, but this did not deter him in the least. Savard wrote a letter to TC outlining his sexual interest in both her and NF. TC immediately went to the police. Savard was arrested and charged with criminal harassment of TC.


Savard then contacted PK by letter confessing his sexual interest in her and seeking her assistance in dealing with his recent charge. That letter also impliedly threatened that TC’s parents would never see their daughter again. PK went to the police. Savard was charged with criminally harassing PK and NF.

Following a trial in the Ontario Court of Justice Savard was convicted and sentenced to time served of 17 months followed by three years of probation. The trial judge declined to impose a mandatory weapons prohibition and refused to make an order for Savard to provide a sample of DNA. The Crown appealed the sentence; Savard appealed the convictions: 2013 ONSC 2208.

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