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R v Suberu, 2009 SCC 33. (Link)

Facts:

S was not read his rights upon first encounter with the police.

S was arrested for credit card fraud.

S was immediately read his rights upon second encounter with police and subsequent arrest.

Issue(s):

When must an individual be read their 'rights'?

Ratio:

Individuals must be informed of their rights upon detention (before or concurrently during arrest), specifically the right to counsel in this case, and must be informed so immediately.

Analysis:

McLachlin, J for the Majority:

Re. Detention:
In the present case, while S was momentarily “delayed” when the police asked to speak to him, he was not subjected to physical or psychological restraint so as to ground a detention within the meaning of the Charter. S did not testify and the evidence does not support his contention that his freedom to choose whether or not to cooperate with the police was removed during the period of time prior to his arrest. The trial judge’s findings on the facts, supported by the evidence, lead to the view that a reasonable person in the circumstances would have concluded that the initial encounter was preliminary investigative questioning falling short of detention. Thus, S’s s. 10(b) right to counsel was not engaged during this period. It was only later, after the officer received additional information indicating that S was probably involved in the commission of an offence and determined that he could not let him leave, that the detention crystallized and S’s rights under s. 10 were engaged — a moment which, on the facts of this case, coincided with his arrest. Upon arresting S, the police officer promptly and properly informed him of his right to counsel and, therefore, there was no violation of s. 10(b) of the Charter.

Re. Reading of rights:
The police duty to inform an individual of his or her s. 10(b) Charter right to retain and instruct counsel is triggered at the outset of an investigative detention."
as per "without delay" in s. 10(b) of Charter (interpretive application)

Holding:

Appeal dismissed in favour of the Crown.


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