Canada: R. V. G.T.D.: The Supreme Court Of Canada Decides A Charter Case From The Bench — Again

A detained person's right to counsel is guaranteed by s. 10(b) of the Charter. It imposes on police a duty to "hold off" on trying to elicit incriminating evidence from the detainee "until he or she has had a reasonable opportunity to reach counsel": R. v. Prosper, [1994] 3 S.C.R. 236, at p. 269.

On February 19, the Supreme Court of Canada held that this duty to hold off prevents police from asking a detainee "do you wish to say anything?" after the detainee has invoked his or her right to counsel: R. v. G.T.D., 2018 SCC 7. Though it was unanimous on the s. 10(b) issue, the five-judge panel split on whether, in the case at bar, the statement that G.T.D. made in response to the police's Charter-infringing question ought to be excluded under s. 24(2). The majority decided that the statement should be excluded, the appeal allowed, and a new trial ordered. Chief Justice Wagner disagreed; he would have dismissed the appeal.

For Supreme Court watchers, two aspects of G.T.D. are worth noting: (1) that the Court gave oral, as opposed to written, reasons for judgment; and (2) that Brown J. delivered Wagner C.J.'s dissenting reasons along with his own for the majority.

Another Decision from the Bench

Despite the jurisprudential significance of the Court's disposition of the s. 10(b) issue, the appeal was decided from the bench. As my former colleague James Foy has noted, this is further evidence of a multi-year trend. According to the Court's own data, an average of 5.4 judgments were delivered orally from the bench during each of the seven years between 2007 and 2013. In the last four years, by contrast, the Court has disposed of an average of 16.75 appeals each year without written reasons. That's more than a three-fold increase in the space of a decade.

Workload alone cannot explain the shift towards oral judgments. Between 2007 and 2013, the Court decided an average of 71.85 appeals each year. Between 2014 and 2017, the average number of appeals decided each year dropped to 68.75. And the last two years have been among the lightest in ten years, with just 57 and 65 appeals decided in 2016 and 2017, respectively.

These data refer to judgments rendered in a particular year, not the number of appeals heard, and so they may not reflect precisely how busy the Court truly was during any particular 12-month period. Still, it is noteworthy that the Court is deciding fewer cases year on average — and yet disposing of far more appeals from the bench — than it did a decade ago.

Is this a problem? Time will tell. As the Court noted in R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609, the Supreme Court of Canada is responsible not just for correcting errors, but also for stewarding the development of jurisprudence: Henry, at para. 53. Its judgments are authoritative not only for the specific questions they decide, but also for the Court's "wider circle of analysis which is ... intended for guidance": Henry, at para. 57. When the Court gives only brief oral reasons for judgment, it narrows its circle of its analysis almost to the vanishing point. Lower courts — and lawyers, and clients — looking for authoritative guidance are largely left to search elsewhere.

G.T.D. makes the point. The Court interpreted s. 10(b) of the Charter to bar a "standard" police practice, but provided just two sentences' worth of reasoning to support this conclusion:

The first issue in this appeal is whether the question "Do you wish to say anything?", asked at the conclusion of the standard caution used by the Edmonton Police Service after G.T.D. had already invoked his right to counsel, violated this duty to "hold off". We are all of the view that it did, because it elicited a statement from G.T.D. [Emphasis added.]

Does this mean that any police conduct that has the effect of "elicit[ing] a statement" from a detained person who has invoked his or her right to counsel will run afoul of s. 10(b)? What about police conduct that could have elicited a statement, but did not — or did not immediately? And what are the limits, if any, to the reach of the Court's reasons for deciding this case?

When the Court issues a written judgment, its analysis can help future courts and litigants answer these questions. Without a written judgment, the law may prove more difficult to settle.

The problem is only exacerbated where, as here, the Court has delivered a divided oral judgment. We know that Wagner C.J. broke with his colleagues on the issue of whether the evidence obtained by the police's Charter-infringing conduct ought to be excluded pursuant to s. 24(2). We have Brown J.'s brief sketch of Wagner C.J.'s reasons for disagreeing — more on this in a moment — but hardly any insight into where, why, and how the majority and the dissent parted company. We know that the majority "relie[d] substantially" on the reasons of the dissenting judge in the court of appeal. But we do not know how much, if any, of that judge's s. 24(2) analysis found favour with the entire Court, or if there is anything in the dissenting appeal judge's reasons with which the Supreme Court majority did not entirely agree. What is a trial or appellate court to do the next time it is asked whether to exclude evidence under s. 24(2) that was obtained in breach of s. 10(b)? G.T.D. will be of little assistance in this regard.

Justice Brown's Double Duty

I teach a course on appellate litigation at the University of Toronto. Shortly after the Court decided G.T.D., one of my students emailed me, confused. Why did Brown J. deliver his own reasons, as well as Wagner C.J.'s reasons for dissenting?

Here is what may have happened.

After G.T.D.'s lawyer finished his reply submissions, the Chief Justice announced that, "the Court will take its morning break, and would ask counsels to remain at our disposal". (You can see this at about 58:30 on the webcast, here.) The five judges retired to their conference room, behind the courtroom.

When the Court decides an appeal from the bench, it is usually the president (i.e., the most senior member) of the panel who delivers the oral judgment. But here, the president (Wagner C.J.) was in dissent. This would have become clear during the judges' post-hearing conference. Once it did, it was decided that Wagner C.J. would not announce a majority judgment that he had not joined, and that Brown J. would deliver oral reasons on behalf of the majority, instead.

It is not the Supreme Court of Canada's practice to have multiple judges give oral reasons when an appeal is allowed or dismissed from the bench. When one or more judges dissents, the judge who delivers the majority judgment also states the dissenter(s) reasons for dissenting: see, e.g., R. v. Millington, 2017 SCC 53; R. v. Robinson, 2017 SCC 52; R. v. Clifford, 2017 SCC 9; British Columbia Teachers' Federation v. British Columbia, 2016 SCC 49, [2016] 2 S.C.R. 407. Usually, it is the president who delivers the oral judgment. (But not always: see Pintea v. Johns, 2017 SCC 27, [2017] 1 S.C.R. 470.) G.T.D. indicates that, when the president is in dissent, the task will be left to a member of the majority.

When the Court reconvened in G.T.D., Wagner C.J. stated that "the Court is ready to release its decision, and Justice Brown will read the decision". And so he did.

The Bottom Line

The brevity of the Supreme Court of Canada's oral judgment in G.T.D. belies its significance. The manner in which the Court disposed of G.T.D.'s appeal confirms a trend towards deciding appeals from the bench, even in cases of jurisprudential consequence — and even in cases in which leave to appeal has been granted: see Pintea; British Columbia Teachers' Federation. G.T.D. also offers a glimpse of the Supreme Court of Canada's internal practices concerning oral judgments.

For participants in appeals to Canada's highest court, and particularly appellants, G.T.D. suggests that a winning strategy may be to focus as much on the error sought to be corrected as on the broader development of the law or the question of public importance on which leave to appeal was granted. The Court's guidance may be less forthcoming than it might have been even a few years ago.

Adam Goldenberg is an associate in McCarthy Tétrault LLP's Litigation Group in Toronto and an Adjunct Professor of Law at the University of Toronto, where he teaches appellate practice and procedure.

Case Information

R. v. G.T.D., 2018 SCC 7

Docket: 37756

Date of Decision: February 19, 2018

To view the original article click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions