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Charter - 'Suspension' of Rights. R. v. McGowan-Morris
In R. v. McGowan-Morris (Ont CA, 2025) the Ontario Court of Appeal allowed a Crown criminal appeal, here from an acquittal where "the trial judge’s findings that the respondent’s rights were violated or, alternatively, his decision to exclude the evidence of under s. 24(2) of the Charter".
Here the court considers s.10(b) ['right to counsel'] and it's 'suspension', which is apparently(?) different from a s.1-justified breach of a Charter right:[84] In applying Orbanski in this context, it is helpful to consult first principles. The trigger for all the rights under s. 10 of the Charter is an arrest or a detention. As noted above, in Suberu, the Supreme Court of Canada discussed the limits of investigative detentions and the correlative duties of police officers. McLachlin C.J.C. and Charron J. said, at para. 42: “Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention” (emphasis added). I note that several cases have more broadly concluded that “exceptional circumstances” – not just safety concerns – may warrant a suspension of s. 10(b): R. v. Brunelle, 2024 SCC 3, 92 C.R. (7th), at para. 83; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 74; and R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, at p. 1242.[4] Those other exceptional circumstances, however, are not relevant to the present appeal.
[85] Suberu and other caselaw, therefore, make clear that suspensions of s. 10(b) will be lawful in at least two circumstances. First, where there are concerns for officer and public safety: Suberu, at para. 42; R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, at pp. 998-999; R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 33; R. v. Brown, 2024 ONCA 763, at para. 35; and R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at paras. 57-63. And, second, where a limit on the relevant right is prescribed by law and justified under s. 1: Suberu, at para. 42; Orbanski, at para. 33; and Thomsen, at p. 650.
[86] Suspensions stemming from concerns for officer and public safety are distinct from suspensions flowing from justified limits under s. 1. Safety concerns are case-specific and do not entitle a court to declare that individuals’ rights are suspended in each and every CCA investigation. That is because those concerns are not a limit “prescribed by law”; they cannot form the basis of a generalized suspension of individual rights under s. 1. Rather, in those exceptional circumstances, the scope of the right is limited internally, meaning that s. 10(b) accommodates a delay in furnishing access to counsel when the police and public face an imminent risk of harm.
[87] By contrast, a limit that is prescribed by law and justified under s. 1 does entitle a court to generally declare that a statute suspends a right in each and every case. That analysis is not case-specific. For present purposes, the relevant question is whether a prescribed limit arises by necessary implication from “the operating requirements of a statute”. The question is not whether a limit arises from the operating requirements of a particular investigation. If it was, then the limit would not be prescribed by law and could not be subject to s. 1. Therefore, the inquiry into whether s. 10(b) is suspended is only case-specific when there are relevant officer and public safety concerns (or other exceptional circumstances). At paras 88-104 the court explores whether Charter s.10(b) was 'suspended' in this Cannabis Control Act (CCA) case.
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