Court of Appeal of Quebec

Simon c. R.

Morissette, Hogue, Sansfaçon

Appeal from convictions. Dismissed.

The appellant was convicted on two counts of possession of heroin for the purpose of trafficking and two counts of possession of property obtained by crime. He argues that the trial judge erred in concluding that the connection between himself, the narcotics, and his residence was sufficient to ground the inference that things related to drug trafficking were there and that the suspension of his right to counsel for four hours was justified.

The facts alleged in the information constitute reasonable grounds to believe that evidence relating to the offences was on the premises covered by the search warrants. However, the judge erred in concluding that the appellant’s right to counsel had not been violated. Despite this error, following the analysis under s. 24(2) of the Canadian Charter of Rights and Freedoms (R.S.C. 1985, App. II, No. 44, Schedule B, Part I), there was no cause to exclude the evidence.

The exercise of the right to counsel was suspended as soon as the appellant was informed of that right, and remained so until the end of the police operation, when another individual concerned by it had also been arrested. Contrary to the judge’s conclusion, circumstances did not justify postponing the exercise of this right. She did not question whether the police officers’ choice to carry out their operation in two stages was dictated by compelling reasons. It is not up to the courts to determine how a police operation should unfold. When police officers choose a method that will cause them to suspend fundamental rights, however, they must be able to support this choice with compelling reasons. In the absence of such reasons, it is presumed that the suspension of the appellant’s right to counsel could have been avoided and thus was unacceptable.

The physical evidence the appellant is trying to exclude consists of, among other things, 203.5 grams of heroin, $107,576, and accounting documents found in his residence. It is therefore evidence whose existence or discovery does not arise from the violation of his constitutional right. Although the violation is serious, it is mitigated by the fact that the officers did not act in bad faith and abstained from interrogating the appellant until he had had the opportunity to exercise his right. This first factor therefore weighs slightly in favour of excluding the evidence. The appellant must have been concerned and worried during his arrest, but nothing suggests that he suffered particularly from the situation. The absence of connection between the evidence discovered and the violation of the right to counsel should be considered. This second factor weighs against excluding the evidence. The offences alleged against the appellant are serious and he played an important role in the trafficking ring. Admitting the evidence would not jeopardize the integrity of the legal system or diminish the public’s trust in it. Weighing these factors, society’s interest in the adjudication of the case on its merits must prevail and justifies admitting the evidence.

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