A police constable deployed to a retail store to investigate the reported use of a stolen credit card witnessed Musibau Suberu leaving the store as he arrived. As Mr. Suberu got into his vehicle, the constable approached him, saying: “Wait a minute. I need to talk to you before you go anywhere.” After a brief exchange, the constable received a radio communication from his colleagues, providing a vehicle description and license plate number which matched the vehicle in which Mr. Suebru was sitting. A search of the vehicle yielded stolen merchandise and resulted in Mr. Suberu being charged with fraud.
Suberu challenged the admissibility of the evidence against him on the basis that he had been arbitrarily detained, and not immediately informed of his right to retain and instruct counsel.
The Supreme Court of Canada rejected these arguments, finding that Suberu was not “detained” within the meaning of the Charter, and that mere questioning does not constitute a detention in circumstances where no actual physical or psychological restraint is used:
In the present case, while S was momentarily “delayed” when the police asked to speak to him, he was not subjected to physical or psychological restraint so as to ground a detention within the meaning of the Charter. S did not testify and the evidence does not support his contention that his freedom to choose whether or not to cooperate with the police was removed during the period of time prior to his arrest. The trial judge’s findings on the facts, supported by the evidence, lead to the view that a reasonable person in the circumstances would have concluded that the initial encounter was preliminary investigative questioning falling short of detention. Thus, S’s s. 10(b) right to counsel was not engaged during this period. It was only later, after the officer received additional information indicating that S was probably involved in the commission of an offence and determined that he could not let him leave, that the detention crystallized and S’s rights under s. 10 were engaged — a moment which, on the facts of this case, coincided with his arrest. Upon arresting S, the police officer promptly and properly informed him of his right to counsel and, therefore, there was no violation of s. 10(b) of the Charter.
Decided by the Supreme Court of Canada on July 17, 2009.
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