Bich, Bouchard, Healy
Appeal from a conviction. Allowed; a new trial is ordered.
The appellant appeals against a verdict of guilt for second-degree murder pronounced by jury. He submits that the trial judge erred in dismissing a motion to exclude an incriminating statement made by the appellant to police officers due to the violation of his right to counsel protected by section 10(b) of the Canadian Charter of Rights and Freedoms (R.S.C. 1985, App. II, No. 44, Schedule B, Part I).
The appellant claims that the police violated his right to counsel by refusing to allow him to continue his telephone consultation with counsel at the police station and instead proceeding to interrogate him. He submits that his consultation was not complete because it was interrupted when his lawyer informed him that he would come meet him at the police station and that it did not fulfil or exhaust his right to the effective assistance of counsel.
The central question in this appeal is whether the appellant had exhausted his right to counsel at the conclusion of the telephone call with his lawyer. If yes, the police had discharged their duties under section 10(b) of the Charter and were entitled to question the appellant without allowing further consultation between him and his counsel in accordance with the principles established in R. v. Sinclair (S.C. Can., 2010-10-08), 2010 SCC 35, SOQUIJ AZ-50677841, 2010EXP-3245, J.E. 2010-1803,  2 S.C.R. 310, R. v. McCrimmon (S.C. Can., 2010-10-08), 2010 SCC 36, SOQUIJ AZ-50677842, 2010EXP-3244, J.E. 2010-1802,  2 S.C.R. 402, and R. v. Willier (S.C. Can., 2010-10-08), 2010 SCC 37, SOQUIJ AZ-50677843, 2010EXP-3243, J.E. 2010-1801,  2 S.C.R. 429. If not, the police violated the appellant’s right to counsel because they had the duty to allow a continuation of the consultation according to the principles expressed in Stevens c. R. (C.A., 2016-10-24 (corrected judgment dated 2016-10-24)), 2016 QCCA 1707, SOQUIJ AZ-51335630, 2016EXP-3387, J.E. 2016-1843.
The appellant was diligent in asserting his right to counsel, and the police fulfilled their informational duties. Apart from the lawyer’s request that the police refrain from questioning the appellant until after he met the appellant at the police station, the evidence demonstrates that the appellant indeed expected to meet the lawyer at the station to continue the consultation that began on the telephone.
The police concertedly and deliberately frustrated the continuation of this consultation. They made misrepresentations to the appellant to prevent the continuation of the consultation. They refused any chance for the appellant’s lawyer to have access his client at the station. This decision was based on the police’s narrow and formalistic assessment of the circumstances. It can be supported only by an equally narrow and formalistic interpretation of the principles established in Sinclair. The jurisprudence in Sinclair and related cases does not permit investigators to behave in a manner that frustrates the right to counsel. That jurisprudence is consistent with a purposive interpretation of the right, as demonstrated in Stevens. In this case, the police denied the appellant’s right to the effective assistance of counsel by refusing to allow the continuation of the consultation that had begun on the telephone. That determination was inconsistent with their implementation duties under section 10(b) of the Charter.
The violation of the appellant’s right to the effective assistance of counsel is a major breach resulting from a deliberate and concerted decision to suspend the implementation of that right in a manner fundamentally inconsistent with its nature and purpose. In this respect, it affects not only the appellant’s rights in the circumstances of this case, but also the standards applicable for the administration of justice in all cases. The criteria set out in R. v. Grant (S.C. Can., 2009-07-17), 2009 SCC 32, SOQUIJ AZ-50566222, J.E. 2009-1379,  2 S.C.R. 353, compel the exclusion of the statement made by the appellant.
*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca