The Charter provides all Canadian citizens with a variety of rights that take legal authority above any other law that exists in Canada. Many of those rights relate to individuals who are charged or arrested in relation to a criminal offence and outline the manner by which an accused is to be dealt with as they work their way through the criminal justice system.

However, while all Canadians hold these rights, they also hold the right to waive those rights. That being said, waiving a constitutional right is not like waiving the whipped cream on your mochachino at Starbucks – it’s a lot more serious. The Supreme Court of Canada has outlined the thresholds for waiving a constitutional right in R v Manninen, 1987 CarswellOnt 99 (SCC). The SCC held that a waiver may be either explicit or implicit. Explicit waivers are relatively straight forward. When asked about the whipped cream, if you respond “no thanks,” it’s understandable that the barista will serve you a whipped cream-free mochachino. Similarly, when asked if you would like to speak with a lawyer now, if you state “no,” this constitutes a valid waiver of that element of your 10(b) right.

The difficulty arises, however, when the answer given is equivocal. What if you tell the barista “I probably shouldn’t… but on the other hand I do really love whipped cream.” What is expected of the barista? Did you waive your right to whipped cream or not?

This is where whipped cream and Charter rights are different (a sentence I never thought I would write). The barista can probably be forgiven whether she gives you whipped cream or not. She’s got a lot of coffee’s to make, and is too busy misspelling your name to really engage in any follow-up. But this sort of equivocal waiver typically will not constitute a valid waiver of a constitutional right. According to the Supreme Court in Manninen, the threshold for these sorts of implicit or equivocal waivers is “very high,” and it must be proven by the party alleging that a waiver was made (typically the Crown). In order to ensure a waiver is valid, therefore, in the case of an equivocal waiver the police are required to ask follow up questions to ensure that the accused understands their right, understands the consequences of waiving their right, and that in light of this information that they are, in fact, waiving that right.

As such, many Charter applications hinge on whether an accused provided a valid waiver. Did they provide a valid waiver of their section 8 right prior to being searched? Did they provide a valid waiver of their section 12 right prior to receiving a cruel and unusual punishment? (I haven’t actually seen this one argued).

However, what happens when a single Charter right has multiple elements? Does a valid waiver require a waiver of each element of that right?

An excellent example is the 10(b) right to counsel. The Supreme Court in Manninen has told us that 10(b) has two elements: an informational element (which requires the police to inform the accused of the right to counsel, their right to speak to counsel, and the availability of duty counsel to speak to them free of charge); and, secondly, an implementational element (which requires the police to give the accused a reasonable opportunity to speak with counsel without delay).

With respect to the informational component, the question is typically phrased “do you understand your right,” to which a yes or no answer is provided. In response to the implementational component, the question is normally phrased “do you want to speak to a lawyer now,” again to which the typical answer is a yes or no.

But what happens when an accused provides a clear answer to the first question, and an equivocal answer to the second? Enter the Ontario Court of Appeal.

The issue was explicitly addressed in Owens, 2015 CarswellOnt 14602. This was a typical impaired charge. Mr. Owens was pulled over, provided a sample into an ASD, failed, was arrested, and received his typical rights read by the arresting officer. With respect to the informational component of his right to counsel, Mr. Owens states that “yes” he understood. However, when asked “do you wish to call a lawyer now,” Mr. Owens replied “No, not right now.” An interesting (although not atypical) answer. Was this a valid waiver? Does Mr. Owens get served whipped cream or not? Or does he get his mochachino now, and return for his whipped cream later? Is the barista required to put his whipped cream aside and offer it to him again when he returns?

The Court of Appeal’s answer: you’re asking the wrong question. According to the ONCA, lower courts have often engaged in this incorrect analysis and the Court expressed at paragraph 19 that it hopes its decision in Owens decision will expressly clarify the law on this point to assist trial courts going forward.

In summary, the ONCA held that the issue of waiver for 10(b) only arises after the accused invokes his right to speak to counsel. In other words, it is not a two-step analysis of whether the accused understood his right, and whether the accused waived his right. Rather, what is required is a three part analysis, and the onus shifts between the parties at each step. The proper analysis for 10(b), therefore, is as follows:

Did the accused understand the implementational component of his 10(b) right? [Onus on the Crown]
Did the accused invoke his right to counsel, on a balance of probabilities? [Onus on the accused]
Did the accused provide a valid waiver of his right to counsel? [Onus on the Crown]

The Court found that Mr. Owen’s reply “No, not right now” did not constitute an invocation of his right to speak with counsel, so the issue of waiver should never have arisen: the right must be asserted before it can be waived.

So don’t be caught off guard – ask for whipped cream, or any statement you make to the barista may be admissible in court.

In the recent case of R v JWC, 2011 ONCA 550 the Court of Appeal considered "back channelling" in the context of the implementational component of section 10(b). The appellant was charged with fourteen sexual offences relating to eight different complainants. The assaults occurred while the appellant was a counsellor at group homes for persons with special needs. The Crown's case depended upon the statement of the appellant as the complainants were developmentally and largely unable to communicate [para 1].

At trial the appellant sought to exclude his confession alleging there had been a violation of his right to counsel under section 10(b) of the Charter. The trial judge dismissed the application, the appellant was convicted and he appealed.

On appeal the appellant challenged the ruling on the 10(b) motion. In doing so, the appellant also advanced a new aspect to the alleged violation.

The first part of the 10(b) argument - which was advanced at trial - related to whether the appellant had "a reasonable time to consider whether he should exercise his right to counsel", something he never did do [para 19]. The Court of Appeal, accepting the trial judge's rejection of this argument, noted that the trial judge took into account that the appellant was first read his rights when he was picked up by the police from the place he was residing - a psychiatric facility - and again read them at the station prior to interview [para 19]. The trial judge held that there was "twelve minutes or so" in this time frame and that this was sufficient time for the appellant - despite the fact he was "admittedly depressed" - to consider contacting counsel; this finding was held not to be unreasonable by the Court of Appeal.

The second part of the 10(b) argument - which was not advanced at trial - focused on duty to hold off and waiver. The argument was summarized by the court as follows: "...the appellant's equivocal response, 'I don't know', required the police to obtain a clear waiver from the appellant..the circumstances known to the police compel this result" [para 21]. The circumstances included the depression and that the appellant was residing at a psychiatric facility. This argument was premised on the following exchange that took place at the police station:

BASKEY: Um now I'm gonna read a couple of things to you. I've already read them to you once but I'm gonna go over them again.

APPELLANT: Okay

BASKEY: Alright. Ah it's my duty to inform you that you have the right to obtain and instruct [counsel] without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a Legal Aid Lawyer. If you are charged with an offence you may apply to the Ontario Legal Aid Plan for legal assistance. 1-800-265-0451 is a toll free number that will put you in contact with Legal Aid Duty [Counsel] Lawyer for free legal advice right now, do you understand?

APPELLANT: Mm huh

BASKEY: Ah do you wish to call a lawyer now?

APPELLANT: Ah I don't know.

BASKEY: Okay. Um but you do understand this [is] a, a phone number for free legal advice?

APPELLANT: Mm huh

BASKEY: And that we'll provide you with an opportunity to call that number, you do understand that right?

APPELLANT: Right

BASKEY: Um do you wish to say anything in an, now you're not charged with anything right now. Um do you wish to say anything ah you're not obliged to say anything unless you wish to do so but whatever you say may be given in evidence do you understand that?

APPELLANT: Mm huh

BASKEY: We're recording this and that we can use it as evidence?

APPELLANT: Okay

BASKEY: Okay. So what I'll do is I'll, I'll get you to um, ah just tell me a little bit about yourself and tell me why you called today. Okay? [Emphasis in original].

In considering the issue Rosenberg JA noted and relied upon the recent trilogy from the Supreme Court: R v Sinclair, 2010 SCC 35, R v Willier, 2010 SCC 37 and R v McCrimmon, 2010 SCC 36. He then offered the following in rejecting this argument:

In this case, the appellant's response to the second caution was simply, "Ah, I don't know". If that phrase constituted a positive indication of uncertainty as to the content of the right to counsel, the police would be obliged to provide the appellant with further and better information. As the court said in R. v. Willier at para. 31, "should a detainee positively indicate that he or she does not understand his or her right to counsel, the police cannot rely on a mechanical recitation of that right and must facilitate that understanding". However, that is not this case. In this case, "Ah, I don't know" was not an expression of uncertainty about the content of the right, which the appellant admitted he understood. Nor was it an invocation of the right to counsel and, by itself, would not trigger an obligation on the police to obtain a clear waiver. After the appellant said "Ah, I don't know", Constable Baskey confirmed with the appellant that he understood his rights:

Baskey: Okay. Um but you do understand that this [is] a, a phone number for free legal advice?

Appellant: Mm hum

Baskey: And that we'll provide you with an opportunity to call that number, you do understand that right?

Appellant: Right

Even taking into account the appellant's psychiatric condition as was appropriate, there is nothing to indicate that the appellant did not understand that he had the right to immediately consult counsel, if he wished to do so. There is no aspect of the interview that indicates that the appellant did not understand his right to counsel or that he was in any way deprived of the opportunity to exercise that right had he chosen to do so [paras 25-26]. [Emphasis added].Even taking into account the appellant's psychiatric condition as was appropriate, there is nothing to indicate that the appellant did not understand that he had the right to immediately consult counsel, if he wished to do so. There is no aspect of the interview that indicates that the appellant did not understand his right to counsel or that he was in any way deprived of the opportunity to exercise that right had he chosen to do so [paras 25-26]. [Emphasis added].

DG Mack