Law Times

PAGE 6 COMMENT Law Times Group Publisher ......... Karen Lorimer Associate Publisher ........ . Gail J. Cohen Editor .............. .Gretchen Drummie Associate Editors .......... .Helen Burnett Staff Writer ............ Robert Todd Copy Editor .............. .Matt LaForge CaseLaw Editor ......... .Jennifer Wright Art Director ............ Alicia Adamson Production Co-ordinator ..... Mary Hatch Electronic Production Specialist ................ Derek Welford Advertising Sales ........ Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ............. Sandy Shutt No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times Inc. disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. ©Law Times Inc. 2008 All rights reserved. Editorial Obiter very surprised when broken Trenton caterer Brenda Martin was convicted by a Mexican judge of participating in an on- line investment scheme hatched by her former boss Alyn Waage. Nor were they likely shocked when the Talk about Montezuma's revenge. Conspiracy theorists probably weren't 51-year-old was sentenced to five years of hard time, with no parole. The emotion-ravaged woman — who fervently denies wrongdoing — has already spent two grueling years slowly dissolving into a tragic puddle of tears while plunked in the Puente Grande Women's Prison awaiting trial in the $60-million scam. But, while she hoped things might go her way before Judge Luis Nunez Sandoval found her guilty of a charge of accepting il- licit funds (10 measley grand), deep in her gut Martin seems to have known how this APRIL 28, 2008 / LAW TIMES Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign address- es. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Helen Steenkamer at: hsteenkamer@clbmedia.ca or Tel: 905-713-4376 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clbmedia.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia.ca, Kathy Liotta at 905-713-4340 kliotta@clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Mexican hat dance yer Guillermo Cruz Rico told the Toronto Star, understating what had to be a hideous scene when the hard news was delivered. "She started crying and she was screaming." At press time Martin's fate was still being determined. It seemed clear that Canadian and Mexican officials had already agreed to process an application to transfer her to a prison here, and perhaps by this reading that has now taken place, or will any day. It did appear it was a matter of when, not if. But while lawyers reacting to the story seem to agree Martin probably wouldn't was going to play out: "I told you the fix was in. I told you I would get five years," she sobbed in a voice mail message to Canwest News Service. This while her supporters kept the faith; so expectant were they of an innocence finding, news reports say a flight was booked in vain to deliver her to our soil. "It was an emotional moment," her law- have even been convicted here on the evi- dence — the burden of proof is essentially on the defendant in Mexico — there was a surprising lack of unanimous opinion about what would happen in terms of further imprisonment to someone in her circumstances once they're back home. News stories in the wake of her convic- tion indicated that while she will be eligible for parole, it was still uncertain late last week how much time Martin will serve here. One story quoted a source saying she may serve only a few weeks before release, after con- verting the term to a Canadian equivalent, and factoring in pretrial custody. But a response from Public Safety Min- Board has authority in the matter. Meanwhile, according to reports, San- Everyone agrees the National Parole doval didn't mention Martin's dead time, but Cruz told Naumetz Mexican law requires their government to deduct time served from the sentence. Here it would be factored in by the judge typically as two-for-one credit, leaving the fragment. However, in cases of extreme hardship, ister Stockwell Day's office to Law Times reporter Tim Naumetz left open the pos- sibility Martin might have to stay in prison for as many as 20 months before being eligible for full parole. ting in a tiny Mexican cell, with 10 women and a baby, awaiting trial isn't hardship . . . So, however they can do it, perhaps t happened here, but if rot- like pretrial custody during a strike or SARS, three-for-one credit has been awarded by our judges. That hasn' through the administrative rules relating to conditional release, there must be some way for Martin to get home to her mother sooner rather than later. It's time. — Gretchen Drummie W for you." "Am I under arrest?" "No, no, I just have a few questions, if you don't mind an- swering them." "Do I have to?" "Well you don't have any- thing to hide do you?" "Well, OK." From these brief exchanges come difficult issues. In a democratic society people "Sir, I have a few questions e see it in every police procedural on televi- sion. some petty larceny involving the use of a stolen credit card in Coburg and was ultimately found guilty of two minor of- fences and given a sentence of three months plus 12 months probation. Key evidence was obtained by police after Suberu was detained by a police officer and asked a few preliminary ques- tions before being formally read his rights. His incriminating answers were used against him at trial. It's a fairly commonplace situa- have the right to venture in the public without fear of arbitrary arrest or unlawful interference by the police. But where the police are investigating a crime and are not exercising any arrest powers, do they have the right to stop and question those they reasonably be- lieve have information germane to their investigation? Do the police have to caution everyone before they ask any questions? If no cau- tion is given, are the answers ad- missible at trial? peal heard by the Supreme Court of Canada on April 15 in R. v. Suberu. Musibau Suberu engaged in All of this brings us to an ap- Investigative detention Social Justice By Alan Shanoff tion. The officer was investigating reported criminal activity. He didn't have reasonable cause to arrest but he needed information. He didn't want to caution Suberu presum- ably because human nature is such that people may be less likely to be forthcoming once read their rights. But s. 10 of the Charter throws a potential monkey wrench into this scenario when it states that "[e] veryone has the right on arrest or detention . . . to retain and instruct counsel without delay and to be in- formed of that right." It may seem strange but it wasn't until the R. v. Simpson decision in 1993 that the Ontario Court of Appeal ruled the police have the legal right to actually detain people right in R. v. Mann provided "there are reasonable grounds to suspect . . . that the individual is connected to a particular crime," but the de- tention "must be brief," and "there is no obligation on the detained individual to answer questions." As well, the reason for the "detention" must be disclosed. Last year in the Suberu case the OCA ruled that police needn't immediately advise people of their Charter rights provided that the delay is but a "brief interlude" www.lawtimesnews.com on the street or in their cars merely to ask questions relating to an in- vestigation. Prior to this, the police relied on voluntary compliance or their arrest powers, as there is noth- ing in the Criminal Code concern- ing investigative detentions. The OCA ruled that police do have the right to engage in investigational detentions provided they have "ar- ticulable cause" to do so. In 2004 the SCC upheld this in the Suberu case is what does "without delay" mean in the context of an investigatory de- tention. Must police advise peo- ple of their right to retain and in- struct counsel every time they want to ask a few questions connected to an investigation? The answer seems self-evident to me. Do we really want police to caution every person they speak with? Remember we're not dealing with the questioning of persons who have been arrested. If police have reasonable and prob- able cause to arrest, they must give the s. 10 caution, but why should this be necessary for all investiga- tory questioning? Unfortunately the Suberu case is not likely to answer other equal- ly important questions raised by these detentions. Just how brief is brief? If there is no obligation to answer, can the person being questioned just turn around and walk away, or may the police use force to enforce the brief deten- tion? Can the detained person re- fuse to identify himself? Can the so that the officer can make a "quick assessment" to deter- mine if more than a brief de- tention is warranted. What's at stake at the SCC police require that the questioning take place "at the station?" Having the courts handle these issues on a case-by-case basis is a poor use of scarce legal resources. If we have to wait for each issue to arise and go through each level of the courts to get guidance, it will take many years before we have answers to all of the questions that relate to investigatory detentions. That's not fair to the police who need to have specific guidelines to assist them in effective investiga- tions, and it's not fair to the pub- lic who have to potentially endure violations of their rights and go through potentially unnecessary court hearings. If we want to reconcile these competing interests, let's have the federal government listen to all interested parties and introduce legislation setting forth reasonable standards. There's no reason to have a legislative vacuum for this important area. LT Alan Shanoff was counsel to Sun Me- dia Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Hum- ber College. His e-mail address is ashanoff@gmail.com

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