Monthly Archives: July 2016

Delay in implementation of 10(b) Charter rights.

R. v. Tieu 2016 ABQB 344 – this was a drug investigation that focused on two individuals; Tieu not being either of them. Tieu entered the surveillance area unexpectedly one day and he was arrested after a short meeting with one of the male targets of the investigation.  Tieu drove into the lot where one of the targets was parked. Tieu had arrived in a Mitsubishi, opened the trunk, went to target’s truck and entered on the passenger side. Tieu and the target then left the lot in the truck and returned a short while later, at which time Tieu exited the truck. Tieu then walked back to his car with a laptop bag (subsequently found to contain 30 ounces of cocaine) . The Cpl in charge of the investigation, although not on scene at the time, was given this information by officers that were on scene.  After receiving the information, the Cpl ordered that Tieu be arrested for trafficking.  The target that Tieu had met with was arrested an hour later.

Upon arresting Tieu, three constables took him out of the car. One of those officers read Tieu his Charter rights. He asked Tieu if he understood, and Tieu said yes. Further, he asked Tieu if he wanted to call a lawyer, and Tieu said “yes.” No other statements were given by Tieu at the time. Following his arrest, Tieu was taken to the Airdrie RCMP detachment which was a 50 minute drive away from the surveillance area. This location was staffed only by guards without any authority to provide telephones to arrested persons. When questioned at trial on why a police station nearby was not utilized to provide Tieu with his Charter rights, an officer responded that it is police policy to take any person arrested by the RCMP in Calgary to the Airdrie detachment, or else to another station outside the city of Calgary that contains an RCMP cell block. When asked why a Calgary cell block location closer to the scene of the arrest could not have been used, the officer stated:

“We utilize RCMP detachments and resources. We don’t take prisoners to the Calgary Police Service stations. We’re not familiar with their processes. We’re not familiar with how they do things. So we would typically take anyone that we arrested within Calgary and shuttle them up to Airdrie detachment, as being the closest serving detachment for the RCMP.”

During the 50 minute drive through Calgary to the Airdrie RCMP detachment, the arresting officer and driver of the police vehicle, gave evidence that he and Tieu engaged in conversation. He made no notes of this conversation, nor could he recall with any certainty what was or was not talked about. This was significant in a section 10(b) analysis, as the Supreme Court of Canada has imposed a duty of restraint on police officers to refrain from eliciting evidence from detainees until he or she has been given a reasonable opportunity to retain and instruct counsel (R. v. Prosper [1994] 3 SCR 236).

The officers sought a search warrant to search the target’s residence.  Officers testified that Tieu was not given access to counsel to prevent the destruction of evidence (until the search warrant was executed) and for officer safety.  Yet, following the initial (“clearing”) search of the target’s residence, another 2 hours lapsed before Tieu was finally given access to a phone to call a lawyer.

Tieu was not provided the opportunity to contact counsel for 5 1/2 hours after his arrest, 4 1/2 hours after Pearson’s arrest, and 2 hours after Pearson’s apartment was entered without a warrant (the warrant was issued some 4 1/2 hours following the officers “clearing” and securing the target residence). The ABQB stated that any delay in facilitating an arrestee’s section 10(b) rights will amount to a breach, except in those rare instances when “urgent,” exigent or extraordinary circumstances interrupt the facilitation of the right to counsel.

The extraordinary or exigent circumstance justification under 10(b) is reserved for rare situations in which police have reasonable grounds to suspect that delay is (i) necessary to prevent imminent bodily harm or death to any person, and; (ii) to believe that evidence is present and that the delay is required to prevent the imminent loss or imminent destruction of evidence ….

The court ruled that the exigent circumstance exception to facilitating a person’s 10(b) rights is not and must not become a common or default approach used by police on a regular basis. The justification is necessarily narrow and will only excuse a breach of section 10(b) in genuinely extraordinary circumstances. To find otherwise would effectively condone police behaviour that blatantly disregards the Charter rights of accused persons, while also undermining those situations in which extraordinary circumstances are actually present and a delay is properly justified. In this case, the court did not find such urgent circumstances existed and the evidence was excluded.

While the Court did not find that the police were operating in bad faith, there was knowledge of and intention to delay Tieu’s right to counsel. It was not a mistake or result of oversight; rather the breach was deliberate. This placed the conduct at the serious end of the spectrum, and is the type of police conduct the Court said it must denounce and distance itself from.

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