R. V. G.T.D.: The Supreme Court Of Canada Decides A Charter Case From The Bench — Again

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, [1994] 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...