Section 10(b) of the Charter imposes duties on the state authorities towards detainees upon arrest. These duties have been described as the informational and implementational duties to inform the detainee of his right to contact counsel and to facilitate the detainee’s attempt to do so (R. v. Manninen,  1 S.C.R. 1233 at paras 21 and 23). In order to fulfill these obligations, police are obliged to refrain from attempting to extract evidence from the accused until such time that the accused has been afforded a reasonable opportunity to contact and instruct counsel (R. v. Prosper,  3 S.C.R. 236, at p. 269). This means that when an officer extracts verbal evidence from the accused before the accused had the chance to contact counsel, the evidence will have been attained via a breach of the accused’s section 10(b) Charter right. There is no express right to silence or right to be informed of that right, which necessitates the strengthening of the detainee’s section 10(b) Charter right to counsel (R. v. GTD, 2017 ABCA 274).
Police often read cautions to detainees upon arrest, which are meant to have the effect of informing the detainee of his right to silence. However, in Edmonton, at the time of the accused’s arrest in R v GTD, the cautions the arresting officer read to the detainee ended with the question “Do you have anything to say?”. The detainee then responded “I didn’t think it was rape” which was admitted as evidence (R. v. GTD, 2017 ABCA 274). An important question for the court then was whether or not the officer breached the detainee’s section 10(b) Charter right by eliciting evidence from the detainee before the detainee was afforded a chance to contact and instruct counsel.
At trial, the judge described the breach of the accused’s section 10(b) Charter right as “minor” and at the Court of Appeal, the appellant judge found that the breach of the accused’s section 10(b) Charter right was of “minimal gravity”. These findings are important because of their ramifications on the section 24(2) Charter analysis. The evidence was deemed admissible. The SCC ended up ordering a new trial, not because the majority has a different view on the severity of the breach, but because of the lack of evidence brought by the Crown having to do with the arresting officer’s policy training (R. v. G.T.D, 2018 SCC 7).
The purpose of this blog is to show that, in relation to Charter breaches of the duties imposed on state authorities under s. 10(b), most courts tend to take a superficial view as to what constitutes a violation that is minimally impairing, or “minor” and of “minimal gravity” as expressed by the trial and appellant judges in GTD. I propose that there is too much contrary evidence in the fields of pragmatics and discourse analysis to justify such a simplified view of the impact of the state authority’s words on the detainee’s 10(b) Charter right. Actually, anything said by the state authority to the detainee that encourages speaking should be seen as more than a minimal violation of the accused’s section 10(b) right when it occurs before the accused has been afforded the chance to contact counsel. The reason for this lies in relevance theoretical principles, to which we are all subject whenever we communicate.
Linguistic theories in pragmatics, in particular, Relevance Theory, in its application to discourse in propria persona, establishes that there should be some apprehension when judges are too quick to conclude that an officer’s words amounted to a minimal breach of the accused’s section 10(b) right due to a failure to “hold off” from verbally extracting evidence.
Relevance theory is a psycholinguistic theory of utterance interpretation. Its basic principle is that humans are always maximizing relevance in communication.
So when someone is speaking to us, we extract meaning from what is spoken by making the most relevant inferences given the context in which it is spoken. This theory explains how a human can understand, for example, that another is asking him or her to open the window when the other person says “it’s really hot in here”.
According to these principles, literal meaning is not the only meaning extracted in communication, but meaning extracted by continuous inferences that incorporate context is also at play. When the relational dynamic is that between an arresting officer and detainee, the context that the accused’s inferences of the meaning behind the officer’s words “Do you have anything to say” involves this quintessential power imbalance where the accused’s liberty has been taken away by the arresting officer who is acting on behalf of the state.
There are many possibilities as to what interpretation an accused could have given the officer’s words. This is not to suggest that a 10(b) analysis should be subjective, but rather that the analysis should incorporate the likely meaning a detainee would give to the arresting officer’s question or statement. For example, perhaps the detainee in GTD felt it was more like a command (like the “it’s hot in here" example above) and felt he was simply complying with the officer’s command.
This suggests that there should be an imposition of a duty on an arresting officer to say nothing to the detainee that might be understood by the detainee as a colloquial way of demanding information even if the literal meaning might serve to indicate that the state conduct was a minimal impairment of a section 10(b) Charter right. Without attention to relevance theoretical principles, the state conduct is protected because the interlocutory dynamics that actually occurred between the state and the detainee are stripped from the analysis.
In order to better protect section 10(b) Charter rights, the courts should take into account theoretical principles in their analysis of the discourse between the state and the detainee when establishing whether or not the breach of the accused 10(b) Charter right was minimal, or actually quite severe.. This can operate as valuable tool for courts to better assess the reality of the experience of the detainee by incorporating the meaning the detainee would have inferred from the officer’s words as opposed to only focusing on the literal meaning of the officer’s words. An analysis of the literal meaning in words does not allow anyone to decode what was actually understood to be the circumstances by the detainee.
R. v. Manninen,  1 S.C.R. 1233.
R. v. Prosper,  3 S.C.R. 236.
R. v. GTD, 2017 ABCA 274.
R. v. G.T.D, 2018 SCC 7.
On Relevance Theory, see:
Billy Clark, Relevance Theory (Cambridge University Press: 2013).