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Defence Brief
Issue 20, September 18, 1998

 

§10(a) of the Charter and the novels of Georges Simenon

By Gilles Renaud
Ontario Court of Justice (Provincial Division)

 

Introduction:

Section 10(a) of the Charter provides that: "Everyone has the right on arrest or detention (a) to be informed promptly of the reasons thereof". Little authority is required in support of the proposition that Parliament recognized the single need to inform a person that he or she is suspected of wrongdoing in order that they might focus directly and in an informed fashion on the need for legal assistance. What is more troublesome is the delineation of the boundaries of this protection. What is the meaning of detention?; what is the meaning of arrest?; what is meant by "to be informed"? Indeed, the difficulty in evaluating the case law in this respect is compounded by the fact that comparatively little attention is accorded to §10(a). Typically, a failure to comply with its terms is usually accompanied by a breach of §10(a) or a failure to caution. As a result, I have selected an unusual research technique: I will make almost no reference to the case law, choosing instead to highlight a number of fictional arrests or detentions drawn from the novels of Georges Simenon. It is my hope that this less conventional study of the subject may serve as a useful complement to the few judgments and academic writings on the subject. I note as well that this technique avoids the obvious difficulty, for a judge, to analyze case law for fear of prejudging any future issues.

Discussion:

The instruction found in Simenon's novels:

For present purposes, it will suffice to say that the Continental system of police investigation does not require the police to disclose the type of information mandated by §10(a) of the Charter. Nevertheless, Inspector Maigret and his colleagues have, on occasion, informed persons about to be questioned of their status as suspects (or potential suspects) and of the options they enjoy to remain silent and to consult with counsel. For example, in Maigret Takes A Room1, he states: "At this point, one of my English colleagues would be obliged to warn you, by reminding you that anything you say may be used in evidence against you. French Law does not require me to tell you this, but I don't want to trick you into anything." Note as well that in The Methods of Maigret2, Maigret is assisted by a member of Scotland Yard named Pyke who is compelled by his training to say to a suspect, a British citizen who is on French soil, "At home, Mrs. Wilcox, we should be obliged to remind you that anything you say may be used in evidence against you." These cases are exceptional, however, and for the most part, there is a general absence of any "police" warnings in Simenon's work when the scene is set outside of the United States, as exemplified in At the 'Gai-Moulin'3.

In my view, it is fundamental to a fair system of justice, based on the principle that each suspect enjoys the right to silence, that the representatives of the State who have assumed physical control of a suspect must disclose the reasons for such a measure. Attention is now drawn to the impairment of the liberty interest of those who are arrested or detained when this does not occur.

Leaving aside these exceptional cases, the first problem that is made plain in Simenon's novels concerns the lack of fairness in failing to inform persons to be questioned of their status as a suspect. Indeed, in many instances, the person is not arrested and does not appreciate that they are, in fact and law, detained and not at liberty to make any decisions about their movements. And, of course, the person may be arrested but not appreciate fully that they are to be questioned about various matters. Thus, if a person is not told that the police consider them as suspects, how may they decide whether to co-operate or not en pleine connaisance de cause? In Maigret and the Madwoman5, a person asks the famous detective, "Am I still a suspect?" He replies, "Until I have evidence to the contrary, everyone is suspect, but you are no more suspect than anyone else." In The Hitchhiker,6 the rape victim's husband remarked that he found odd the fact of being questioned closely by the police. He was told: "It's our job to examine all the possibilities without rejecting any out of hand." The problem may best be understood by making reference to Maigret Goes Home7: the inspector asks the deceased's son "who might benefit from her death?" His answer makes plain that no one could profit more than he.

On the one hand, doubtless the police must investigate offences and to do so, they must ask questions. But they must fairly disclose that their investigation has shifted from the general to the particular, if such be the case, on the other hand. In other words, it is fair to argue that the police are merely investigating and that it is unnecessary to warn people to be questioned in this respect. For example, if a patron of a bar was killed by an unknown assailant by means of a pistol, may the police not ask each and every person what they were doing when they heard the shot, notwithstanding that one person may well be the culprit? Of interest, in R. v. Tipewan8, supra, the police interviewed the accused's uncle at a time when they did not know who might have been the culprit. Consider also that in Maigret and the Black Sheep9, the commissaire asks the deceased's daughter: "You are the last person to have seen you father-in-law alive. He didn't seem worried?" But what if she murdered him? On balance, the resolution of the issue depends upon the information the police have in hand: if the grounds to suspect do not exist, no warning is required; if reasonable grounds are evident, a warning and the right to counsel should be explained. In Maigret Stonewalled10, the victim's son, when asked to give an account of his whereabouts at the time of the murder, asks in turn where the police investigation suggests he was at the relevant time. Stated otherwise, am I a suspect? Maigret does not provide this information, apparently because he did not know and was only "fishing".

In my view, with respect, the decision whether a person is or is not a suspect depends on the objective evaluation of the information the police have obtained. It should not depend on what the person interviewed may think, as highlighted in this passage:

...You ask questions as if it was all clear-cut. They're writing down my answers. I've only got to make one mistake, or get muddled up or leave out some details, and you'll jump to God knows what conclusion... You must admit it's not very fair. Would you rather be questioned in the presence of a lawyer? Have I the right? If you consider yourself to be a suspect... 11

In addition, the person whose liberty interest is interfered with must not be placed in the situation of having to bargain with the police in order to remain at large, as seen in Maigret and the Burglar's Wife12: "Am I to understand that I'm being charged?" Maigret hesitated. "No", he decided, "Officially, you're summoned as a witness. If you wish, however, I am ready to charge you; more exactly, to ask the Public Prosecutor to indict you, which would entitle you to have legal advice." I pause to note this observation, taken from Maigret and the Headless Corpse13: "Even a half-wit has a kind of sixth sense, which enables him to recognize at once whether the police are making accusations at random or have solid grounds for suspicion." Be that as it may, many examples are found in Simenon's work and before the courts of this country of intelligent individuals who ask, "Do I have to answer", to be told, "It would certainly be better to", even though they are not told that they are suspected of wrongdoing. May the administration of criminal justice depend on the ability of the person to identify potential prejudice from the interaction with the police? Note in this respect a passage from Maigret and the Hundred Gibbets14:

"Where, when, and how did you come to know the Bremen suicide who was travelling with a passport in the name of Louis Jeunet?" The other gave an imperceptible start. But he glanced up with a determined look and said: "In what capacity am I here?" "Do you refuse to answer my question?" Van Damme gave a laugh, a new kind of laugh, ironical and unpleasant. "I know the law quite as well as you do, Inspector. Either you are charging me and I shall wait until I see the warrant for my arrest, or else you are not charging me and I do not have to answer." . 'In the first case, the law states that I may wait legal aid before speaking."

Consider as well that in Maigret and the Apparition15, he is told by a suspect that he would like to consult with counsel prior to answering further questions. His response was "If you choose to call in your legal adviser now, rather than to give me a straight answer, I suggest you arrange for him to meet you at the [police station] because, if that is your decision, I must ask you to accompany me there at once." Not surprisingly, the witness went on to provide further information.

It is submitted that any witness is entitled to state: "I believe I have the right to know the reason for this interrogation"16, or the question posed in Inspector Maigret and the Strangled Stripper17, "If you let me in on what's going on maybe I can help you. Don't you think we've played cat and mouse long enough?" However, fundamental equity in dealings between the State and a member of the community requires, at the very least, an objective standard to ensure that this information is provided to all, whether astute or not. What is not possible, as found in the world of fiction, is this exchange: "First of all, tell me what you know...". There follows the Maigret's evasive yet intimidating reply: "I ask the questions here..." 18

R. v. Tipewan: The duty to inform under §10(a)

Having considered the fictional problems surrounding arrest and detention, let us turn our attention to Mr. Justice Laing's real life concerns in R. v. Tipewan, [1998] S.J. No. 238 (Q.B.) [Quick Law] 19 in order to illustrate the serious concerns that may arise in such situations. The accused was charged with second degree and moved to contest the admissibility of statements made to a police officer. At ¶13, the Court's comments with respect to information to be provided respecting D.N.A. warrant is apposite: "As with an arrest, a person should not be expected to submit to the exercise of a warrant without knowing the reasons for the same." Of further interest is the fact the accused was intoxicated at the time of initial arrest. This created an obvious duty of care greater than otherwise present to ensure a complete understanding of §10(a). Nevertheless, the accused was placed in the police vehicle and, unbeknownst to him, was locked into the back seat. See ¶22. Thereafter, without any information being conveyed to make plain that he was detained, the accused was asked "... what had happened in his house". In response, the accused became hostile and tried to take a couple of swings at Corporal Romanow through the window.

Of note, "...[he] accused Corporal Romanow of shooting his wife, which is the impugned statement. It would assist the Crown in demonstrating that Mr. Tipewan was aware of the circumstances of his wife's death. He was only placed under arrest subsequently, after dried blood was noted on his right ankle." 20

Laing J. noted at ¶28 that the officer's purpose in talking to the accused was to obtain what evidence he could and that at no time prior to his arrest did he tell the accused why he was sitting in the back seat of the vehicle. The Court observed at ¶33 that the case law amply establishes that it is not necessary to have an arrest in order that there exists in law a 'detention'. As noted by Le Dain J. in R. v. Therens (1985), 18 C.C.C. (3d) 481 at p. 504: In its use of the word "detention", §10 of the Charter is directed to a restraint of liberty other than arrest in which a person may reasonably require the assistance of counsel but might be prevented or impeded from retaining and instructing counsel without delay but for the constitutional guarantee.

In addition to the case of deprivation of liberty by physical constraint, there is, in my opinion, a detention within §10 of the Charter when a police officer or other agent of the State assumes control over the movement of a person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel.

Indeed, His Lordship had difficulty understanding how the prosecution could argue, without reference to any authority, that "there was not a detention in law of the accused prior to his formerly being advised he was under arrest. As noted at ¶34: "This case is far different from those cases where police officers might invite an accused to attend at the police station voluntarily to be questioned. In this case the accused had no option but to accompany Corporal Romanow, as made clear by Corporal Romanow's evidence that he would have arrested the accused had he not complied with his request. Once the accused was placed in the back of the Suburban vehicle, he was also subject to physical constraint." At ¶35, Laing J. also referred to the remarks of Martin J.A. in R. v. Esposito (1985), 24 C.C.C. (3d) 88 (Ont. C.A.) at p. 97:

Section 10(a) and (b) must be read together. As previously mentioned, a police officer has no power to detain a person for questioning. A police officer who detains a person for questioning is, in the absence of some specific authority, acting unlawfully. If he fails to inform the person detained of the reason for his detention and of his right to retain and instruct counsel without delay he also contravenes the provisions of §10(a) and (b) of the Charter.

The Court had little difficulty concluding that there was a breach of §9 of the Charter and found the detention to be arbitrary.

I note further that the Court concluded that "On the facts of this case it is not necessary to decide if there was a breach of the accused's §10(a) rights based on the fact that he was not advised why he was being detained ...". See ¶37. The Court limited its consideration to the fact that the accused was not given his rights to counsel prior to his formal arrest in breach of §10(b) of the Charter. It found, as recorded at ¶53, that "I am not satisfied beyond a reasonable doubt the accused's statements which amounted to accusations of murder against Corporal Romanow and Constable Perron made both before and after his formal arrest were voluntary. As a result, such statements will not be admissible at trial."

Conclusion:

Although not as dramatic as certain fictional accounts we have noted, the failure of the police to advise Mr. Tipewan of the reasons for their involvement and for his being ordered to remain in the vehicle points out the need for an objective standard of behaviour by the representatives of the State. If we modify the facts, to assume a lengthier detention without information, we can readily see how this may have a significant impact on individuals and it is to avoid this concern that §10(a) was enacted. The fundamental purpose of this provision is to ensure that no misunderstanding exists between the individual suspected of wrongdoing and the State. It does also serve, not incidentally, to ensure citizens that any arbitrary or high-handed dealings involving the police will be found only in the works of fiction.


Notes:

  1. In Georges Simenon, Heinemann/Octopus, London, 1978, at p. 145.
  2. Doubleday & Co., Garden City, 1957, translated by Nigel Ryan. Refer to p. 172.
  3. Penguin Books, Middlesex, 1951, [translated by G. Sainsbury], at pp. 184-185.
  4. See R. v. Sawastsky (1997), 9 C.R. (5th) 23 (Ont. C.A.).
  5. Harcourt Brace Jovanovich, Inc., N.Y., 1970, [translated by E. Ellenbogen], at p. 65.
  6. Simenon An American Omnibus, Harcourt, Brace & World, Inc., N.Y., 1967, at p. 336. Translation by Norman Denny.
  7. Penguin Books, Middlesex, 1967, at p. 24. Translated by Robert Baldick.
  8. See ¶21-23.
  9. Harcourt Brace Jovanovich, Orlando, 1976, translated by Helen Thomson, at p. 16.
  10. Penguin Books, Middlesex, 1964, at p. 33.
  11. See Maigret's Pickpocket in Maigret and the Mad Killers, Nelson Doubleday, Inc, Garden City, N.Y., 1980, at p. 158.
  12. Harcourt/HBJ Book, Orlando, 1991, at p. 109. Translated by J. Maclaren-Ross.
  13. Avon, N.Y., 1971, at p. 141. Translated by E. Ellenbogen.
  14. Penguin Books, Middlesex, 1963, at pp. 53-54. Translated by. Toni White.
  15. Harcourt Brace Jovanovich, N.Y., 1976, at p. 105. Translated by E. Ellenbogen.
  16. See Maigret and the Burglar's Wife, Harcourt/HBJ Book, Orlando, 1991, at page 65. Translated by J. Maclaren-Ross.
  17. Signet Book, N.Y., 1964, translated by Cornelia Schaeffer, at p. 27.
  18. Maigret Loses His Temper, Harcourt Brace Jovanovich, N.Y., 1965, at p. 128.
  19. See p. 23.
  20. This accusation was repeated at other times prior to arriving at the police station but these instances occurred after the arrest. See ¶25.


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