Asking question at end of standard caution after accused invoked right to counsel violating accused’s Charter rights

After their relationship ended, accused had non-consensual sexual intercourse with complainant. When he was arrested, accused stated he wanted to consult counsel. Police officer delivered standard caution, which asked whether accused wished to say anything. Accused said that he did not think it was rape because of prior relationship. Trial judge convicted accused of sexual assault and held that there was no breach of accused’s right to counsel. Majority of Court of Appeal dismissed accused’s appeal. Majority held that standard caution delivered by officer breached accused’s rights under s. 10(b) of Canadian Charter of Rights and Freedoms, but found that statement should not be excluded under s. 24(2) of Charter. Breach was of minimal gravity, was at lowest end of spectrum of violation of implementational duty, and was not case of wilful or systematic violation of Charter rights. Accused appealed. Appeal allowed and new trial ordered. Asking question at end of standard caution, after accused had invoked his right to counsel, violated police’s duty to “hold off” from attempting to elicit incriminatory evidence until accused had reasonable opportunity to reach counsel, because it elicited statement from accused. Breach warranted exclusion of accused’s statement under s. 24(2) of Charter, for reasons provided by dissenting Court of Appeal judge. Crown had ample opportunity to call further evidence about police service’s training or policy but did not.

R. v. G.T.D. (2018), 2018 CarswellAlta 288, 2018 CarswellAlta 289, 2018 SCC 7, 2018 CSC 7, Wagner C.J.C., Abella J., Côté J., Brown J., and Martin J. (S.C.C.); reversed (2017), 2017 CarswellAlta 1549, 2017 ABCA 274, Frans Slatter J.A., Barbara Lea Veldhuis J.A., and Frederica Schutz J.A. (Alta. C.A.).