The following analysis presumes that there is no stipulated right to counsel in the policy manual or employment contract. This raises the need for such protection to be included in the employment constitutional documents. A document which denies this right would not impact that which follows.

Right to Legal Counsel

The right to counsel arises from the application of the Charter of Rights and Freedoms. To this extent presently, the assumption is that there is no government actor, that is, the employer is not a provincial ministry or federal public body with statutory powers.

Parenthetically on this issue of a government actor, not every employee of a public entity will necessarily activate Charter considerations. Such was the finding of the Saskatchewan court in 2014 holding that every employee of a provincial Crown corporation will be "a de facto state agent", noting: ¹

I see no reason why a security manager in the employ of SaskTel would be a state agent when an employee of Bell Canada acting in a similar capacity would not be a state agent simply because one is employed by a Crown corporation and the other is employed by a publicly held corporation.

Foundational Steps

To engage Charter protections in this context, there must be conduct from the investigator which can be considered to be an arrest and detention. If so, the second question will be whether such conduct effected by a private entity, as opposed to a government actor, engages Charter rights.

Arrest and Detention

The case law on the right to counsel starts with the question of whether the suspected person has been arrested or detained. In the course of a workplace investigation, this will become a factual issue as to whether the investigator has arrested the individual.

To abbreviate this issue, if the investigator tells the person questioned that he or she is free to leave at any time in the course of the interview, there can be no arrest and detention and hence there can be no Charter application and no issue of right to counsel as a Charter issue will arise.

It would be unusual for an investigator to make this statement as it would complicate the interview process and the employee's duty, contracted or otherwise, to comply with the investigation.

Given the case law noted below, it is arguable that this context may give rise to "arrest and detention" which may be found where there is " psychological coercion where 'the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist'".

The secondary legal question then becomes, presuming this fact in place, whether a private individual is required in law to advise the person of his Charter right to counsel in advance of asking any relevant questions and also extend other Charter protections.

Again to condense the rather long explanation which follows, the case law on the subject is divided. Ontario, British Columbia and Nova Scotia courts have concluded a private arrest does not attract Charter protections while the law in Alberta is to the contrary.

This will place certainly the investigative process in Alberta subject to the right to counsel and likely places a duty of the investigator to so advice those interviewed.

The issue, however, may be one which is governed not solely by an examination of Charter rights.

Many cases have considered the particular vulnerability of the employee in a position of unequal bargaining power. The Bhasin principles have added the duty of honest performance throughout the employment relationship. A submission may be made that this imposes a duty on the employer and its proxy, the investigator, to provide a caution to the suspected one of the wisdom of retaining legal counsel.

That being said, the following is a review of the application of the Charter to this context.

Ontario Court of Appeal – Private Detention –  No Charter Rights

The Ontario Court of Appeal in 1989 considered these issues in R. v Shafie.

The case arose due to the concerns of an owner of a parking lot who had hired a private investigator to interview certain employees.

The accused was taken into the office of the private investigator by a supervisor, who believed that it would have been an act of act of insubordination of the accused to decline this request.

The door to the office was closed but not locked, as the court noted. In the course of the interview, the accused made statements which were contrary to his interest.

There was no submission made as to the statements being contrary to the common law confession rule, discussed subsequently. The sole issue was whether the statements were not admissible due to Charter violations as no advice was given to him as to his right to counsel under section 10(b) of the Charter, which states:

Everyone has the right on arrest and detention

(b) to retain and instruct counsel without delay and to be informed of that right;

Where the evidence has been obtained in such a manner contrary to the Charter, it is not a given result that it will be excluded from evidence at trial. The Charter gives the Court the further obligation to consider whether the admission of the controverted evidence will bring the administration of justice into disrepute. Section 24(2) states:

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

The accused did not assert that he was arrested. He did, however, maintain that he was detained and no advice was given to him as to his right to counsel.

The issues hence became (1) was the accused arrested and detained and (2) was the Charter applicable to such action taken by a private citizen against another?

Definition of Detention

With respect to the definition of arrest and detention, as noted by the Ontario Court of Appeal, the trial judge did not have the benefit of the Supreme Court of Canada decision decided in the interim between trial and appeal which concluded that a detention is not limited to one involving physical means:

The trial took place in October and November, 1984. The trial judge accordingly did not have the benefit of the decision of the Supreme Court of Canada in Regina v. Therens (1985), 1985 CanLII 29 (SCC), 18 C.C.C. (3d) 481, which held that a detention was not confined to physical restraint but could occur with psychological coercion where "the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist".

On this issue, the Court of Appeal concluded that there were sufficient grounds on the facts and the law to find that there was a detention as defined in the Charter.

The decision continued, however, to state that a detention by a private security investigator would not by caught by the Charter’s definition:

It is apparent from the cases to which I have referred that the weight of judicial opinion, although perhaps not authority in the strict sense, is that actions that, at the hands of the police or other state or governmental agents, would be a detention, do not amount to a detention within the meaning of s. 10(b) of the Charter when done by private or non-governmental persons. However weakly this conclusion may be based on authority, I believe that it is supported by principle. ²

This conclusion was reached, even though the incriminating statement was then given to the police and used against the accused at the trial:

In a very able argument, Mr. Taylor submitted that the Charter must be given a liberal interpretation to ensure that the rights guaranteed by the Charter are best protected. In determining whether the appellant was denied his right to be advised of the right to counsel before his incriminating statement was taken, we should, he submitted, consider the purpose for which the interrogation was undertaken. It is not clear to me that it was for the purpose of a prosecution but, for present purposes, I am prepared to assume that it was. Another way, perhaps, of putting the argument is that although private action may not trigger the application of s. 10(b) of the Charter, when the state later proposes to use a statement as part of a prosecution, state action then occurring, the earlier breach of s. 10(b) would then engage s. 24(2) of the Charter. In my view, however, the question whether a person's s. 10(b) rights were infringed must be tested as at the time the alleged detention occurred. Any other conclusion would result in the judicialization of private relationships beyond the point that society could tolerate. The requirement that advice about the right to counsel must be given by a school teacher to a pupil, by an employer to an employee or a parent to a child, to mention only a few relationships, is difficult to contemplate.

For these reasons, I conclude that the appellant's interview by his employer's private investigator did not amount to a detention within the meaning of s. 10(b) of the Charter. As no Charter right of the appellant was infringed, the evidence was admissible. Despite his reasons, the trial judge's ruling was right. Accordingly the appeal from conviction must be dismissed.

Hence, based on this decision a forcible arrest and detention by a private authority would carry with it no mandate to advise the accused of his right to counsel.

Private Arrest – A Contrary View – Charter Applies

However, this decision remains in controversy. The law is not settled that a private detention does not attract Charter protection.

In 1986, the Alberta Court of Appeal held in R. v Lerke that the Charter does apply when one citizen arrests another. The Court concluded that the arrest of one citizen by another is a public function, regardless of whether the person making the arrest is a police officer or the average Joe:

In my opinion the facts of this case do not raise the issue whether the Canadian Charter of Rights and Freedoms applies to the actions of one private citizen to another. In my view the arrest of a citizen is a governmental function whether the person making the arrest is a peace officer or a private citizen. I reach this conclusion from a consideration of the long legal history of citizen’s arrest from its common law origins to the statutory expression of the present powers of arrest contained in the Criminal Code of Canada or in the Petty Trespass Act.

Conflicting Views

It may suffice to say presently that there remains controversy in Canada as to whether a private arrest attracts Charter protections. Lerke remains good law in Alberta. No other Canadian jurisdiction has come to this conclusion.

A concise summary of the debate is found in the Alberta Court of Appeal decision in R. v Dell in which the court stated the conflicting authorities as follows:

In Lerke, supra, this Court discussed the long legal history of citizen’s arrest and its current statutory expression, noting that the foundation of the whole system of criminal procedure was the King’s prerogative of keeping the peace. At that point in history, each citizen had a part to play in the criminal justice system, with not only the right to make arrests, but the duty to do so in appropriate cases. The right and duty were derived directly from the sovereign himself. The Court in Lerke held that because the power of citizen’s arrest is derived from the sovereign, it is the exercise of a state function: at paras. 17 and 21. English historians conclude, the Court noted, that the citizen’s right of arrest should not be analyzed as being derived from, or as consisting of some portion of, the rights and powers of a peace officer. Rather, a peace officer possesses the rights of a citizen with some additions: at para. 18.

[12]           Lerke has not been uniformly applied. Many lower courts have followed it, including: ......However, three appellate courts have held that the actions of private persons performing citizen’s arrests are not subject to the Charter: .... In the first two decisions, the courts arrived at this conclusion on the basis that private persons (in N.S. a security guard and in J.(A.M.) victims of a burglary) do not become agents of the state when effecting a citizen’s arrest. Notably, the specific government function exception relied on in Lerke, and recognized in Buhay, was not canvassed.

[13]           In the third decision, Skeir, supra, the argument centred around whether a private security guard, in effecting a citizen’s arrest, was exercising a specific government function. The Court referred to Buhay and concluded that because the citizen’s arrest power in s. 494 of the Criminal Code is not an express delegation or abandonment of the police arrest function to private citizens, the Charter does not apply. The Court also indicated that the suggestion that s. 494 subjects private security officers’ arrests to the Charter is “inconsistent with the message in Buhay, at para. 31": at para. 18.

[14]           In Skeir, the Nova Scotia Court of Appeal declined to follow Lerke. ..

³

Saskatchewan

The Provincial Court of Saskatchewan, as noted below with respect to common law confession rule with respect to the pre-arrest statement, in R. v Nowoselski, a 1990 decision, also considered the application of the Charter to the actions of the private arrest conducted prior to the arrival of the police.

The Ontario Court of Appeal decision of Shafie was clearly argued, a submission which the court rejected:

[34]      The facts before me are similar to the Shafie decision.  However, they appear more compelling and reveal the need to closely scrutinize the actions of a private person before and after he or she effects an arrest. Unless the actions of the person receiving an admission are closely examined for potential abuse there is the risk that the role of the Charter as it affects subsequent actions and any evidence obtained may be rendered meaningless and that the pre-arrest actions will have implications for the fairness of the trial and the administration of justice.

The court continued to determine that the statements given to the private loss prevention supervisor, post-arrest, were in violation of the accused Charter rights and further that the admission of same into evidence would bring the administration of justice into disrepute:

In this case the Loss Prevention Supervisor failed to advise the Accused of how she might access Legal Aid duty counsel and he gave the false impression that Legal Aid would be made available if she couldn’t afford a lawyer. These are two irreparably serious flaws in the advice given to the Accused. She was not told that she would be provided a free phone number so that she could make a phone call should she wish to contact Legal Aid duty counsel. She was also not told that free duty counsel could be made available; that is that she could get legal advice right away from a Legal Aid duty counsel, irrespective of her financial circumstances.

….

Accordingly, Brydges had the effect of adding two new elements to the information component of s. 10(b):

(1) information about access to counsel free of charge where an accused meets prescribed financial criteria set by provincial Legal Aid plans (“Legal Aid”); and

(2) information about access to immediate, although temporary legal advice irrespective of financial status (“duty counsel”).”

[42]      Further when the Loss Prevention Supervisor purported to  provide the “standard police warning”, he told her that she had nothing to hope from any promise of favour and he told her that anything she said may be taken down and used in evidence. She was not told the 2^nd aspect of the warning; i.e. that she had nothing to fear from any threats.

This view was contradicted in a 2003 decision. ⁴ The accused was arrested by an off duty "peace officer". ⁵ He was determined to a private citizen acting under the authority given to same by the Criminal Code. No Charter infractions took place. Had the Charter applied, the accused, an then an alleged drunk driver, would have been able to assert that there had been an arbitrary detention under S. 9 of the Charter and was given notice of his right to counsel by S. 7.

Curiously, the court did not reference the prior decision of the same court in R. v Nowoselski.

The law in Saskatchewan remains in debate.

Lerke Still Good Law ?

The Supreme Court of Canada reviewed this issue of a private actor invoking Charter protections in its  2003 decision, some 17 years following Lerke. ⁶

The facts in this case showed private security guards in the Winnipeg bus depot had noticed the smell of marijuana coming from a locker. They opened it and searched it. The Supreme Court concluded that they were not exercising a government function, nor were they state agents. This was not the ratio of the decision, however. Lerke was not considered.

The case hinged upon subsequent conduct of the police. The security guards had placed the suspected contraband back in the locker and contacted the police, who searched the locker without a warrant. This conduct was found to be a s. 8 Charter violation, the evidence was seen as admissible and the accused was acquitted.

A recent Saskatchewan decision, recent as in 2023, debated the present status of Lerke and considered its value as a precedent very much in doubt. ⁷

Accordingly, the present status of the law on this subject is that Alberta courts are likely bound to follow Lerke, notwithstanding the above, while the remaining Canadian jurisdictions, with Saskatchewan in doubt, have taken the view that actions of a private citizen do not attract Charter protections, including the right to counsel.

The result is that a private employer may well engage in the search of a person's locker, desk and similar storage facilities, and likely, his or her person without attracting Charter protections. This does not apply to electronically stored materials within the employer's control as reviewed here.