Court of Appeal of Quebec

Drolet c. R.

Gagné, Hamilton, Beaupré

Application for leave to appeal with respect to three grounds of appeal. Granted in part. Appeal from a judgment of the Superior Court dismissing the appeal from a judgment of the Municipal Court that dismissed an application to exclude evidence and convicted the appellant. Allowed; the application to exclude evidence is granted and the appellant is acquitted.

The trial judge dismissed the application to exclude evidence after finding that the right to counsel had not been violated and convicted the appellant of failing to comply with a demand made by a peace officer. The appeal judge held that there was no reason to intervene.

Under s. 10(b) of the Canadian Charter of Rights and Freedoms (R.S.C. 1985, App. II, No. 44, Schedule B, Part I), when the police detain or arrest someone, they must inform that individual of his or her right to retain and instruct counsel without delay, and allow that individual to exercise that right at the first reasonable opportunity. Moreover, the police must hold off from trying to elicit incriminatory evidence from the individual. This means that detainees must not be forced to make a decision with serious legal consequences until they have had a reasonable opportunity to exercise their right to counsel.

The police must consider whether detainees ought to be allowed to use their cellphone at the scene of the arrest and determine whether there are good reasons not to do so, rather than systematically delay access to counsel until they are at the station. The judge's failure to address this issue is a reviewable error of law. The trial judge also erred in law by finding that a telephone call made from the police car was not confidential, because the evidence did not support that conclusion. The Court cannot interfere with the judge’s decision, however, to accept the police officer’s testimony that the appellant was handcuffed for safety reasons and who determined that the first reasonable opportunity to reach counsel was at the police station.

The problem here is not the decision to deny the appellant access to counsel when he was in the police car, given the safety concerns, but instead to force the appellant to incriminate himself before he could speak with counsel. Indeed, the appellant, once informed of his right to counsel, said that he wanted to avail himself of that right. The police nevertheless proceeded and demanded that he follow them to the station to provide a breath sample. That demand placed the appellant in a delicate situation: he could either go to the station to provide evidence likely to incriminate him or refuse to comply, which could constitute a criminal offence. In the circumstances, the police should at least have refrained from requiring the appellant to respond to their demand or from recording his refusal before he had had the opportunity to consult counsel. The application part of s. 10(b) of the Charter was therefore breached.

With respect to the remedy, the seriousness of the Charter-infringing state conduct and the impact of the breach on the appellant’s rights favour excluding the evidence. As to society’s interest, it is important that the Courts not condone conduct similar to that of the police officers in this case. The trial judge therefore erred in law when he dismissed the application to exclude evidence, as did the appeal judge when, without any analysis, he confirmed the judge’s mistaken conclusions. Once the evidence of refusal is excluded, the appellant must be acquitted.

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