2018 QCCA 1269, 2018 QCCA 1269

Unofficial English Translation of the Judgment of the Court Catellier c. R. 2020 QCCA 850 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-006798-183, 500-10-006919-185 (500-01-092636-130) DATE: June 25, 2020 ________________________________________________________________ CORAM : THE HONOURABLE MANON SAVARD, J.A. PATRICK HEALY, J.A. BENOÎT MOORE, J.A. ________________________________________________________________ CÉDRIC CATELLIER APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutor ________________________________________________________________ JUDGMENT ________________________________________________________________ [ 1 ] The appellant appeals against a judgment of the Court of Québec, district of Montreal, [1] that found him guilty of breaking and entering a dwelling-house and committing an assault therein, [2] as well as committing an assault while carrying a weapon. [3] [ 2 ] The appellant also seeks leave to appeal against the sentence imposed on him, which is a term of imprisonment of 47 months and 25 days on each of the counts, to be served concurrently. [4] [ 3 ] For the reasons of Healy, J.A., with which Savard and Moore, JJ.A., agree, the Court; [ 4 ] DISMISSES the appeal against the convictions; [ 5 ] GRANTS the motion for leave to appeal the sentence; [ 6 ] DISMISSES the appeal against the sentence; [ 7 ] ORDERS the appellant to surrender to the prison authorities no later than 4:00 p.m. on June 29, 2020.

MANON SAVARD, J.A. PATRICK HEALY, J.A. BENOÎT MOORE, J.A. Mtre Nazar Saaty Mtre Jimmy Beaudoin

SIMARD SAATY BEAUDOIN, AVOCATS For the appellant Mtre Marie-Ève Mayer Director of criminal and penal prosecutions For the respondent Date of hearing: January 15, 2020 _________________________________________________________________ REASONS OF HEALY, J.A. _________________________________________________________________ [ 8 ] The appellant appeals against a judgment of the Court of Québec, district of Montreal, [5] that found him guilty of breaking and entering a dwelling-house and committing an assault therein, [6] as well as committing an assault while carrying a weapon. [7] He argues that the trial judge erred in law in concluding that there was no breach of his right to retain and instruct counsel [8] under s. 10(

b) of the Canadian Charter of Rights and Freedoms [9] (“ Charter ”) and that the incriminating statement he gave to the police should be excluded on that ground. In addition, he claims that the guilty verdicts were unreasonable. [ 9 ] The appellant accepts the

summary of the salient facts outlined by the judge in the judgment on the verdict and in the judgment on sentencing. He does not challenge the applicable principles as stated, but rather their application. For the reasons set out below, the appeal should be dismissed. The judge’s conclusions are rigorously reasoned and in keeping with the applicable principles of law. The errors alleged by the appellant do not warrant the intervention of this Court. The right to counsel [ 10 ] The appellant is incorrect in claiming that his right protected under s. 10(

b) of the Charter was violated.

The judge correctly concluded that the police officers respected the two duties under the “implementation” component of the right to counsel, namely, the duty to provide him with a reasonable opportunity to exercise his right and the duty to refrain from eliciting evidence from him until he had that reasonable opportunity. [10] [ 11 ] It is worth repeating the facts accepted by the judge, as the evidence is contradictory on this issue. [ 12 ] The “implementation” component of the right to counsel – that is, the duty to give the appellant a reasonable opportunity to exercise his right to counsel and the correlative duty to refrain from eliciting evidence from him – was triggered at the operations centre at approximately 11:40 a.m.

According to the evidence accepted by the trial judge, that was when that the appellant first asked to speak with Mtre Larouche. This request demonstrates that, at 11:40 a.m., the appellant had been properly informed of his right to counsel and understood it properly. [ 13 ] At 11:42 a.m., police officer Legault made a call to the accused’s chosen counsel. Since the latter did not answer, the police officer left a message. He informed the appellant that a message had been left for Mtre Larouche. [ 14 ] At 1:40 p.m., police officer Dupont went to the accused’s cell and led him to an interview room.

She explained to him the reason for his arrest and made sure that he understood properly. At 1:41 p.m., she again read him his rights from a statement form. Essentially, she told him that he had the right to retain and instruct counsel of his choice without delay and that, if he was eligible, he could benefit from the legal aid program. She also told him that he could immediately call duty counsel and obtain preliminary legal advice, free of charge. She asked him, [translation] “Do you understand?

Would you like to do so?” The accused answered in the affirmative and told her that he had already asked to call Mtre Larouche. The police officer then learned from her colleagues that Mtre Larouche had still not called back. [ 15 ] Rephrasing in her own words, police officer Dupont offered him the opportunity to contact other counsel: [translation] “it’s free, you have the right to speak with counsel, there is a duty counsel who is always here”. The accused refused. He answered: [translation] “no, I don’t want to speak with someone else”.

He wanted to speak with Mtre Larouche. [ 16 ] Police officer Dupont continued by giving the accused a warning. She told him that he did not need to say anything, that he had [translation] “nothing to hope from any promise or favour and nothing to fear from any threat”. She also told him that whether or not he said anything, whatever he did say would be written down and could be used as evidence against him. She made sure that he understood

and then began the interview. [ 17 ] In these circumstances, the judge correctly concluded that the two-hour waiting period was reasonable and that, accordingly, by refusing to speak with other counsel, the appellant had not acted diligently. The reasons for her decision reveal that she undertook a contextual review, taking into account all of the relevant factors. [11] The reasonableness of the period of time and the diligence of an accused are highly factual and depend on the circumstances as a whole.

The trial judge correctly applied the applicable rules of law and held that, with respect to the facts before her, the opportunity provided to the appellant was reasonable.

There is no reason to interfere with this conclusion. [12] Given the appellant’s categorical refusal at 1:42 p.m., which amounts to an explicit waiver of the right to retain counsel without delay, police officer Dupont was no longer under a duty to refrain from eliciting evidence from him. [13] [ 18 ] The issue regarding the Prosper warning now remains. [14] Were the police subject to the additional informational obligation in this case? [ 19 ] The parties do not dispute that the appellant was diligent in asking to speak with counsel.

The fact that the police officers undertook reasonable steps to facilitate his contact with Mtre Larouche when he requested it is also not disputed. In addition, everyone agrees that, at 1:41 p.m., the police officers suggested that the appellant consult other counsel or duty counsel. The appellant stated that he understood this offer, but he refused it and insisted on speaking with Mtre Larouche. [ 20 ] In these specific circumstances, it must be determined whether the police officers were subject to a Prosper additional informational obligation.

The judge concluded that such a warning was not necessary since the appellant had not acted diligently by refusing to consult counsel other than Mtre Larouche. In our opinion, it is unnecessary to determine the appellant’s level of diligence to answer the question as asked. It is clear that a Prosper warning was actually given to the appellant by police officer Dupont at 1:41 p.m.

Her words corresponded perfectly with the additional informational obligation as described by the Supreme Court in Willier : [32] Thus, when a detainee, diligent but unsuccessful in contacting counsel, changes his or her mind and decides not to pursue contact with a lawyer, s. 10 (

b) mandates that the police explicitly inform the detainee of his or her right to a reasonable opportunity to contact counsel and of the police obligation to hold off in their questioning until then. This additional informational obligation, referred to in this appeal as the duty to give a “ Prosper warning”, is warranted in such circumstances so as to ensure that a detainee is informed that their unsuccessful attempts to reach counsel did not exhaust the s. 10 (

b) right, to ensure that any choice to speak with the police does not derive from such a misconception, and to ensure that a decision to waive the right to counsel is fully informed. [15] [ 21 ] The appellant was informed that he could consult with counsel other than Mtre Larouche. The notice, given by police officer Dupont at approximately 1:41 p.m., was in substance the equivalent of a Prosper warning, and the judge concluded that the appellant understood its meaning. This factual finding does not warrant the intervention of this Court.

Ultimately, whether or not the appellant could have been more diligent in the exercise of his right to counsel matters little. The police officers fulfilled all of their obligations, both the informational obligation and the implementational duty. [ 22 ] For these reasons, this ground of appeal must fail. The circumstantial evidence [ 23 ] Aside from the appellant’s statement, the respondent’s evidence was essentially circumstantial.

The judge reviewed all of the elements of this evidence and carefully weighed them before concluding that the evidence established beyond a reasonable doubt that the only reasonable inference to draw from it was that the appellant was the person who had committed the crimes in question. Here, too, when examining all of the circumstantial evidence, she acted in accordance with the applicable principles. Her examination was detailed and reasoned.

There were no flaws or contradictions in her analysis, and for that reason there is no ground warranting the intervention of this Court. [ 24 ] The judge correctly noted that, even without the appellant’s statement to the investigators, the circumstantial evidence alone justified a conviction. The sentence [ 25 ] In sentencing the appellant, the judge listed all of the relevant factual elements and considered all of the mitigating and aggravating factors. She correctly stated all the principles that had to guide her analysis and relied upon the appropriate case law.

The judge acknowledged that sentences rendered in home invasion cases vary considerably due to the factual variability of these sorts of crimes. She stated that typical sentences range from 4 to 16 years. In the end, she imposed a sentence of 47 months and 25 days to be served concurrently on both counts. [ 26 ] The respondent concedes that the judge erred in taking into consideration the appellant’s racist remarks as an aggravating factor.

Offences motivated by bias, prejudices or hate are subject to an aggravating factor specifically provided for under the Criminal Code . [16] In this case, this factor was not put into evidence and should have been excluded from the relevant factors for purposes of sentencing.

In any event, given all of the factors considered by the judge, this error could not have had a decisive impact on the sentence imposed in this case. [ 27 ] It is well established that in the absence of an error in principle that has a material impact on the sentence, which includes exaggerating or minimizing a relevant factor, the Court will intervene only if the sentence is otherwise demonstrably unfit.

These criteria have not been met in this case. [ 28 ] For these reasons, I propose that the appeal against the convictions be dismissed, that leave to appeal the sentence be allowed, and that the appeal against the sentence be dismissed.

PATRICK HEALY, J.A.