Court of Appeal of Quebec

R. c. Brunelle

200-10-003569-188, 200-10-003663-197

Thibault, Hogue, Beaupré

Appeals from two judgments of the Superior Court ordering a stay of proceedings. Allowed. New trial are ordered.

After a large-scale investigation, the respondents were accused of having committed various indictable offences relating to the production and trafficking of drugs. Some of them were also accused of a criminal organization offence. The trial judge granted a motion for a stay of proceedings and to exclude evidence on the ground that the police officers responsible for the investigation had committed the following breaches: (1) they infringed the respondents’ right to counsel by systematically waiting until they got to the police station before allowing them to exercise that right; (2) they failed to notify third parties in a timely fashion of the secret searches; and (3) they failed to have the search warrants obtained in another district stamped in the district where the warrants were executed.

The judge erred in discussing the breach of the right to counsel without taking into consideration, for each respondent, the reasonableness of the delay before the opportunity to consult a lawyer was given. The situation of each accused must be considered individually, because the rules on standing provide that a remedy may be granted only to an individual whose constitutional rights have been infringed. In this case, the evidence establishes that some of the respondents were informed of their right to counsel and expressly waived it or spontaneously stated that they wanted to wait until they were at the police station to exercise it, and that three of them even availed themselves of that right immediately. The judge therefore ordered a stay of proceedings for the benefit of all of the respondents, regardless of whether their rights had been infringed.

The judge also failed to consider the other remedies available besides a stay of proceedings and to assess whether the nature of the accepted infringement constituted one of the clearest of cases requiring the draconian remedy of a stay of proceedings. In this case, he had to consider whether a reduction of the sentence or an order to pay costs or damages could constitute a less severe remedy than a stay of proceedings to correct the harm caused to the administration of justice and to dissociate the court from the breach observed.

To correct some of the conclusions in the contested judgments and frame the analysis for the judge who will rule on the motions in a new trial, the Court notes that the obligations imposed on police officers relating to the right to counsel must be analyzed in light of the distinctions made in R. c. Tremblay (C.A., 2021-01-13), 2021 QCCA 24, SOQUIJ AZ-51735148, 2021EXP-270, and Freddi c. R. (C.A., 2021-02-15), 2021 QCCA 249, SOQUIJ AZ-51744203, 2021EXP-654. Those two judgments must guide the Superior Court in assessing the circumstances of each respondent’s arrest and then in ruling on their motion for a stay of proceedings and to exclude evidence. The new judge must also assess the impact of the two other breaches alleged against the police officers.

Text of the decision: Http://citoyens.soquij.qc.ca

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