A detained person’s right to counsel is guaranteed by s. 10(b) of the Charter. It imposes on police a duty to “hold off” on trying to elicit incriminating evidence from the detainee “until he or she has had a reasonable opportunity to reach counsel”: R. v. Prosper,  3 S.C.R. 236, at p. 269.
On February 19, the Supreme Court of Canada held that this duty to hold off prevents police from asking a detainee “do you wish to say anything?” after the detainee has invoked his or her right to counsel: R. v. G.T.D., 2018 SCC 7. Though it was unanimous on the s. 10(b) issue, the five-judge panel split on whether, in the case at bar, the statement that G.T.D. made in response to the police’s Charter-infringing question ought to be excluded under s. 24(2). The majority decided that the statement should be excluded, the appeal allowed, and a new trial ordered. Chief Justice Wagner disagreed; he would have dismissed the appeal.
For Supreme Court watchers, two aspects of G.T.D. are worth noting: (1) that the Court gave oral, as opposed to written, reasons for judgment; and (2) that Brown J. delivered Wagner C.J.’s dissenting reasons along with his own for the majority.
Another Decision from the Bench
Despite the jurisprudential significance of the Court’s disposition of the s. 10(b) issue, the appeal was decided from the bench. As my former colleague James Foy has noted, this is further evidence of a multi-year trend. According to the Court’s own data, an average of 5.4 judgments were delivered orally from the bench during each of the seven years between 2007 and 2013. In the last four years, by contrast, the Court has disposed of an average of 16.75 appeals each year without written reasons. That’s more than a three-fold increase in the space of a decade.
Workload alone cannot explain the shift towards oral judgments. Between 2007 and 2013, the Court decided an average of 71.85 appeals each year. Between 2014 and 2017, the average number of appeals decided each year dropped to 68.75. And the last two years have been among the lightest in ten years, with just 57 and 65 appeals decided in 2016 and 2017, respectively.
These data refer to judgments rendered in a particular year, not the number of appeals heard, and so they may not reflect precisely how busy the Court truly was during any particular 12-month period. Still, it is noteworthy that the Court is deciding fewer cases year on average — and yet disposing of far more appeals from the bench — than it did a decade ago.
Is this a problem? Time will tell. As the Court noted in R. v. Henry, 2005 SCC 76,  3 S.C.R. 609, the Supreme Court of Canada is responsible not just for correcting errors, but also for stewarding the development of jurisprudence: Henry, at para. 53. Its judgments are authoritative not only for the specific questions they decide, but also for the Court’s “wider circle of analysis which is … intended for guidance”: Henry, at para. 57. When the Court gives only brief oral reasons for judgment, it narrows its circle of its analysis almost to the vanishing point. Lower courts — and lawyers, and clients — looking for authoritative guidance are largely left to search elsewhere.
G.T.D. makes the point. The Court interpreted s. 10(b) of the Charter to bar a “standard” police practice, but provided just two sentences’ worth of reasoning to support this conclusion:
The first issue in this appeal is whether the question “Do you wish to say anything?”, asked at the conclusion of the standard caution used by the Edmonton Police Service after G.T.D. had already invoked his right to counsel, violated this duty to “hold off”. We are all of the view that it did, because it elicited a statement from G.T.D. [Emphasis added.]
Does this mean that any police conduct that has the effect of “elicit[ing] a statement” from a detained person who has invoked his or her right to counsel will run afoul of s. 10(b)? What about police conduct that could have elicited a statement, but did not — or did not immediately? And what are the limits, if any, to the reach of the Court’s reasons for deciding this case?
When the Court issues a written judgment, its analysis can help future courts and litigants answer these questions. Without a written judgment, the law may prove more difficult to settle.
The problem is only exacerbated where, as here, the Court has delivered a divided oral judgment. We know that Wagner C.J. broke with his colleagues on the issue of whether the evidence obtained by the police’s Charter-infringing conduct ought to be excluded pursuant to s. 24(2). We have Brown J.’s brief sketch of Wagner C.J.’s reasons for disagreeing — more on this in a moment — but hardly any insight into where, why, and how the majority and the dissent parted company. We know that the majority “relie[d] substantially” on the reasons of the dissenting judge in the court of appeal. But we do not know how much, if any, of that judge’s s. 24(2) analysis found favour with the entire Court, or if there is anything in the dissenting appeal judge’s reasons with which the Supreme Court majority did not entirely agree. What is a trial or appellate court to do the next time it is asked whether to exclude evidence under s. 24(2) that was obtained in breach of s. 10(b)? G.T.D. will be of little assistance in this regard.
Justice Brown’s Double Duty
I teach a course on appellate litigation at the University of Toronto. Shortly after the Court decided G.T.D., one of my students emailed me, confused. Why did Brown J. deliver his own reasons, as well as Wagner C.J.’s reasons for dissenting?
Here is what may have happened.
After G.T.D.’s lawyer finished his reply submissions, the Chief Justice announced that, “the Court will take its morning break, and would ask counsels to remain at our disposal”. (You can see this at about 58:30 on the webcast, here.) The five judges retired to their conference room, behind the courtroom.
When the Court decides an appeal from the bench, it is usually the president (i.e., the most senior member) of the panel who delivers the oral judgment. But here, the president (Wagner C.J.) was in dissent. This would have become clear during the judges’ post-hearing conference. Once it did, it was decided that Wagner C.J. would not announce a majority judgment that he had not joined, and that Brown J. would deliver oral reasons on behalf of the majority, instead.
It is not the Supreme Court of Canada’s practice to have multiple judges give oral reasons when an appeal is allowed or dismissed from the bench. When one or more judges dissents, the judge who delivers the majority judgment also states the dissenter(s) reasons for dissenting: see, e.g., R. v. Millington, 2017 SCC 53; R. v. Robinson, 2017 SCC 52; R. v. Clifford, 2017 SCC 9; British Columbia Teachers’ Federation v. British Columbia, 2016 SCC 49,  2 S.C.R. 407. Usually, it is the president who delivers the oral judgment. (But not always: see Pintea v. Johns, 2017 SCC 27,  1 S.C.R. 470.) G.T.D. indicates that, when the president is in dissent, the task will be left to a member of the majority.
When the Court reconvened in G.T.D., Wagner C.J. stated that “the Court is ready to release its decision, and Justice Brown will read the decision”. And so he did.
The Bottom Line
The brevity of the Supreme Court of Canada’s oral judgment in G.T.D. belies its significance. The manner in which the Court disposed of G.T.D.’s appeal confirms a trend towards deciding appeals from the bench, even in cases of jurisprudential consequence — and even in cases in which leave to appeal has been granted: see Pintea; British Columbia Teachers’ Federation. G.T.D. also offers a glimpse of the Supreme Court of Canada’s internal practices concerning oral judgments.
For participants in appeals to Canada’s highest court, and particularly appellants, G.T.D. suggests that a winning strategy may be to focus as much on the error sought to be corrected as on the broader development of the law or the question of public importance on which leave to appeal was granted. The Court’s guidance may be less forthcoming than it might have been even a few years ago.
R. v. G.T.D., 2018 SCC 7
Date of Decision: February 19, 2018