Doyon, Vauclair, Rancourt
Appeal from a Superior Court judgment dismissing an appeal from the acquittals on counts of impaired driving and with a blood alcohol concentration exceeding the legal limit. Dismissed.
The trial judge excluded evidence (the breathalyzer results) after finding that the police officers had infringed the respondent’s right to retain and instruct counsel without delay, which is protected by s. 10(b) of the Canadian Charter of Rights and Freedoms (R.S.C. 1985, App. II, No. 44, Schedule B, Part I). The judge determined that the respondent had clearly expressed her wish to consult a lawyer immediately upon her arrest. He rejected the police officers’ arguments that they refused to allow the respondent to use her cellphone to call her lawyer because they were worried about confidentiality and security. The judge instead concluded that they had not considered any alternative to the usual procedure of facilitating access to a lawyer only at the police station. The Superior Court dismissed the appeal.
The appeal, which was authorized under s. 839 of the Criminal Code (R.S.C. 1985, c. C-46), may involve only a question of law. In this case, the Court of Quebec judge found, based on the evidence and the circumstances as a whole, that a confidential secure telephone call would have been possible both in the police car and in the respondent’s own car or, at the very least, that the police officers had to consider this possibility in the circumstances. These are findings of fact and the appellant cannot contest, as it does, the judge’s finding that the police officers’ reasons were [translation] “theoretical” and were therefore mere assumptions and speculations. Moreover, the Court of Quebec judge did not err in law by deciding to exclude the evidence under s. 24(2) of the Charter, and the Superior Court judge did not err in refusing to intervene.
That a detained person might use a cellphone to exercise the right to retain and instruct counsel without delay must be considered by police officers as part of their duty to facilitate the exercise of this right at the “first reasonable opportunity” and is relevant when assessing the reasonableness of the delay before accessing a lawyer. R. c. Piazza (C.A., 2018-06-08), 2018 QCCA 948, SOQUIJ AZ-51502151, 2018EXP-1702, which describes the difficulties in using a cellphone at the scene, does not apply in this matter because it concerns the period before an approved screening device has been used, when the right to counsel is suspended.
The police did not fulfill their well-known duty to facilitate the respondent’s exercise, at the first reasonable opportunity, of her constitutional right to retain and instruct counsel. The problem is not that they refused to allow the respondent to telephone her lawyer using her cellphone. The problem is that they failed to consider this possibility because there was no directive authorizing them to do so, which constitutes systemic conduct that ignores well-established case law. This is unacceptable.
Text of the decision: Http://citoyens.soquij.qc.ca