2021 QCCA 305, 2021 QCCA 305

Unofficial English Translation of the Judgment of the Court Cyr-Desbois c. R. 2021 QCCA 305 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-003699-191 (200-36-002795-185) (Que. Mun. Ct.: 17CC010795) DATE: February 23, 2021 CORAM: THE HONOURABLE JULIE DUTIL, J.A. DOMINIQUE BÉLANGER, J.A. JOCELYN F. RANCOURT, J.A. MYRIAM CYR-DESBOIS APPELLANT – Appellant v. HER MAJESTY THE QUEEN RESPONDENT – Respondent JUDGMENT [ 1 ] The appellant appeals from a judgment rendered on September 5, 2019 by the Superior Court, District of Quebec (the Honourable Mr.

Justice Jean-François Émond), which dismissed her appeal [1] from a judgment rendered by the Municipal Court of Quebec that convicted her of operating a vehicle with a blood alcohol level greater than 80 mg of alcohol in 100 ml of blood. [2] [ 2 ] For the reasons of Bélanger, J.A., with which Dutil and Rancourt, JJ.A. agree; THE COURT : [ 3 ] ALLOWS the appeal; [ 4 ] GRANTS the application to exclude evidence; [ 5 ] ENTERS an acquittal. JULIE DUTIL, J.A. DOMINIQUE BÉLANGER, J.A. JOCELYN F. RANCOURT, J.A. Mtre Éric Tremblay Tremblay & Tremblay Avocats inc.

For the appellant Mtre Catherine Gouin-Vallerand Giasson & Associés For the respondent

Date of hearing: September 24, 2020 REASONS OF BÉLANGER, J.A. [ 6 ] The issue in this appeal pertains to an application for the exclusion from evidence of the breathalyzer certificate of analysis where the right to counsel of choice was violated within the scope of an arrest for an impaired driving offence. [ 7 ] In assessing the infringement of the right to counsel of choice and the impact of that infringement on the long-term repute of the administration of justice, courts must consider the circumstances of each case. [ 8 ] In the present matter, when considering the second Grant line of inquiry, that is, the impact of the infringement on the appellant’s rights, the relationship of trust between the appellant, who was being detained by the police, and her lawyer should have been taken into consideration and not disregarded.

This second line of inquiry cannot be trivialized to the point where the breach no longer has an impact, under the pretext that the appellant was able to speak with duty counsel. Indeed, the police officers made no effort to facilitate the appellant’s right to counsel of choice. This had to be taken into account and weighed in the balance.

The balancing process, which is qualitative in nature, requires that the court weigh all of the factors separately and then as a whole, while considering the long-term repute of the administration of justice. [3] [ 9 ] Thus, everything turns on the circumstances, which circumstances the trial court must assess.

Where the trial judge has considered the proper factors and has not made an unreasonable determination, the appellate court must accord deference to that determination. [4] The reviewing court, however, can and must intervene in the presence of an apparent error as to the applicable principles or rules of law. [5] [ 10 ] It should also be noted that leave to appeal to the Court of Appeal was authorized solely on a matter of law. [6] [ 11 ] The appellant must therefore prove such an error, and if she meets this burden, the Court will be entitled to intervene in order to correct the error. [7] [ 12 ] For the following reasons, I am of the view that this is the situation in the matter at hand. *** Context [ 13 ] The facts of this case are not in dispute. [ 14 ] On March 9, 2017, at approximately 10:30 p.m., the appellant was intercepted by two police officers.

The officers, who noted signs of alcohol consumption, asked her to provide a breath sample using an approved screening device (“ASD”). The appellant complied and, at 10:36 p.m., the result indicated “fail”. The police officers then arrested her and brought her to the police station. She arrived there at 10:57 p.m. [ 15 ] Shortly after arriving at the police station, the appellant asked for her cellular telephone so she could call her father.

Her father had the contact information for the family’s lawyer and the appellant wanted to obtain immediate advice from that lawyer. [ 16 ] The police officers refused to give her her cellular telephone and also refused to let her contact her father. At their suggestion, the appellant then spoke with duty counsel. Her telephone conversation with duty counsel lasted two minutes, from 11:03 p.m. to 11:05 p.m., and the appellant made sure to tell him that she wanted to speak with the family’s lawyer and not with him.

Shortly after that conversation, the appellant took and failed the breathalyzer test twice, once at 11:11 p.m. and then at 11:34 p.m. The alcohol levels recorded were 118 mg/100 ml of blood and 111 mg/100 ml of blood, respectively. [ 17 ] At trial, the appellant asked for the exclusion from evidence of the technician’s certificate confirming the breathalyzer test results, on the ground that the police officers had deprived her of the opportunity to exercise her constitutional right to obtain advice from her counsel of choice, in breach of s. 10(

b) of the Charter . Municipal Court judgment [ 18 ] The Municipal Court judge acknowledged that the appellant’s right to retain and instruct counsel of choice without delay and to be informed of that right under s. 10(

b) of the Charter had been breached . Although the appellant was indeed able to speak with counsel without delay, the latter was not her counsel “of choice”. She wanted to speak with a specific lawyer, the family’s lawyer, and not with duty counsel. The judge indicated that the right to counsel is not an absolute right regardless of the circumstances and that if the lawyer could not be reached within a reasonable time, the person would be expected to contact another lawyer or duty counsel. She noted that this is not what happened and that there was no urgency that evening justifying reliance on duty counsel.

Moreover, the appellant was very cooperative and the police officers had no reason to believe she was trying to stall for time. The judge stated that she was unaware

of the reasons the police officers had refused to let the appellant use her cellular telephone. [ 19 ] The judge concluded that the police officers had deprived the appellant of part of her s. 10(

b) Charter right by denying her, without valid reason, the use of her cellular telephone or the opportunity to call her father in order to obtain the contact information of her counsel of choice. She wrote that, in doing so, the police officers had obliged the appellant to relinquish part of her right, that is, the right to speak with counsel of choice. Having found that the appellant’s right had been breached, the judge nevertheless decided that the use of the technician’s certificate of analysis would not bring the administration of justice into disrepute.

She stated the following: [ translation ] In light of all of the evidence presented to me, I am of the opinion that the breach of the applicant’s constitutional right to retain and instruct counsel of choice, despite all the importance I attach to it, that is, despite its grave, serious and deliberate nature, had no impact on the applicant, who suffered absolutely no harm. [8] [ 20 ] She then set out the elements she took into account and weighed them, in accordance with the analytical framework established by the Supreme Court in R. v.

Grant . [9] [ 21 ] As regards the seriousness of the breach , the judge reiterated that the breach of the applicant’s constitutional right to retain and instruct counsel of choice was [ translation ] “ grave, serious and deliberate” , while emphasizing that this breach, if it were to be placed on a continuum, was not of the highest order, because the police officers appeared to have acted in good faith. There was no indication that they had attempted to deprive the appellant of her right to counsel and no evidence other than the results of the breathalyzer test had been gathered while she was detained.

In her view, this was the only factor weighing in favour of excluding the evidence. [ 22 ] She continued by stating that the actual extent of the impairment was minimal because the appellant had indeed received the advice of duty counsel. Thus, the fact that she had wanted to speak with someone else did not mean that the advice she had received was unsatisfactory. In fact, she had never mentioned that she was not satisfied.

The appellant had had few options available to her and the judge stated that she was personally convinced that the appellant would have obtained substantially the same advice if she had spoken with her lawyer. The judge added that, in any event, there was no certainty that the appellant would have been able to reach her father and/or counsel of choice, so it can be assumed that she would have continued to cooperate with the police officers and would have submitted to the breathalyzer test one way or another.

In her opinion, these elements clearly and unequivocally favoured the use of the technician’s certificate of analysis as evidence. [ 23 ] Lastly, the judge was of the view that since the evidence was reliable, specific and clearly relevant for the Crown, its exclusion rather than its inclusion would bring the administration of justice into disrepute in a societal context in which drunk driving is a persistent social scourge that must continue to be fought. [ 24 ] The judge concluded that the evidence should not be excluded and that the higher and long-term interests of the administration of justice favoured using the certificate of analysis as evidence. [ 25 ] Lastly, stating that she was aware of the rule of stare decisis and of the decision rendered by Cournoyer, J.S.C., as he then was, in R. c.

Lefebvre , [10] she noted that other judgments rendered by that Court [11] had come to a contrary conclusion regarding the application of s. 24(2). She determined that, in light of the divergent case law, she was not bound by any of the lines of authority. [ 26 ] I note in passing that, in R. c.

Lefebvre , Justice Cournoyer decided that, in certain circumstances, excluding evidence is the only means for courts to properly dissociate themselves from police conduct and maintain the repute of the administration of justice in the long term: [ translation ] [416] As the entirety of the foregoing analysis indicates, excluding the evidence is the only means for the courts to properly dissociate themselves from the police conduct and maintain the repute of the administration of justice in the long term, notwithstanding the seriousness of the offence with which the appellant is charged and notwithstanding the reliability of breathalyzer evidence. [12] [ 27 ] I would also add that other judgments in which the Superior Court sat in appeal followed. [13] Although the law is well settled, in recent years applications for the exclusion from evidence of certificates of analysis in situations in which the right to counsel was violated in breathalyzer cases have led to abundant case law.

Nonetheless, it is worthwhile to repeat that each case turns on its facts, as Doyon, J.A. recently reiterated. [14] Superior Court judgment [ 28 ] The crux of the appellant’s argument before the appellate court relied on R. c. Lefebvre . [ 29 ] The appellant submitted that the trial judge had failed to consider the relationship of trust and the deeply personal nature of the right to counsel of choice.

The appellate judge dismissed that argument as follows: [ translation ] [48] By finding that the police officers had violated the appellant’s right to counsel of choice, the judge necessarily acknowledged the importance of the relationship of trust between her and “her family’s” lawyer. That said, if the judge did not elaborate further on this point, it can only be due to the weak evidence on that issue. Here, the lawyer was the family’s lawyer. He was never said to be the appellant’s lawyer.

We know nothing about the relationship of trust between her and this lawyer, whose contact information, and even name, she did not know, as she testified during her examination-in-chief. Admittedly, the appellant may have trusted the family’s lawyer because the family trusted him. But this is the only evidence presented in the case at bar regarding that relationship of trust. If a relationship of trust did indeed exist between the appellant and her family’s lawyer, which the judge implicitly acknowledged by finding

that the right to counsel of choice had been breached, the fact remains that the evidence on this point is, in this Court’s view, quite tenuous. [49] Had the appellant been able to identify the lawyer in question or had she insisted on the fact that she wanted speak to this lawyer rather than follow the police officers’ suggestion regarding duty counsel, things might have unfolded differently. [References omitted] [ 30 ] He therefore rejected the argument that the trial judge had failed to consider the importance of the relationship of trust as a relevant factor in her analysis of the second Grant line of inquiry. [ 31 ] Although the judge seems to have acknowledged the judgment’s deficiencies, he concluded that the trial judge’s findings were nevertheless reasonable. [ 32 ] He therefore found that the judge’s reference to the good faith of the police officers was of no consequence since, in any event, she had properly characterized the seriousness of the breach by describing it as grave, serious and deliberate. [ 33 ] As for the trial judge’s prognostications, he stated that they did not appear unreasonable in light of all the other circumstances of the case.

He acknowledged that it would have been preferable for the trial judge to refrain from speculating on what might have happened if the appellant had been in a position to contact her father’s lawyer, or on the usefulness of the lawyer’s advice. That said, he asserted that the trial judge could not have disregarded the fact that the appellant had nevertheless had access to the advice of a lawyer, that she had not insisted on contacting the family’s lawyer and that she had continued to cooperate with the police officers.

In his view, it was important to acknowledge that the appellant had had very few options available to her. [ 34 ] For these reasons, the appellate judge was of the opinion that the trial judge’s findings were not unreasonable and did not authorize him to undertake a fresh analysis. [ 35 ] With respect to the third line of inquiry, he added that society’s interest in the adjudication of the case on the merits clearly favoured admitting the evidence. [ 36 ] Before concluding, Émond, J.S.C. distinguished the facts in the case at bar from those in R. c.

Lefebvre . [15] He based his view of that difference, a considerable one in his opinion, on two observations. In that case, the evidence revealed a [ translation ] “a genuine relationship of trust” between the accused and his lawyer, which the trial judge had failed to consider. Moreover, the trial judge had not balanced the assessments under the three Grant lines of inquiry, which the trial judge in the case at bar did.

Analysis [ 37 ] It should be noted at the outset that this case does not call into question the fact that the appellant’s right to counsel was infringed. [ 38 ] The appellant argues that the appellate judge erred in law by failing to intervene despite the trial judge’s errors of law in applying the factors relevant to the analysis of the remedy set out in s. 24 (2) of the Charter . [ 39 ] For the most part, the appellant reiterates a number of the criticisms she had made in the Superior Court:

(1) The judge confused the absence of bad faith with the presence of good faith notwithstanding that it is well established that the absence of bad faith does not diminish the seriousness of the infringing conduct. The appellate judge, therefore, should have intervened.

(2) Both the trial judge and the appellate judge erred in analyzing the relevant factors for determining the impact of the breach on the appellant’s rights, such errors being [ translation ] “palpable and overriding errors of law”. In particular: (

a) The trial judge speculated and made assumptions regarding the possibility that the appellant might not have been able to reach her father or the lawyer; (

b) She assumed that the appellant would have received essentially the same advice from her lawyer; (

c) Both judges trivialized the right to counsel by failing to consider the relationship of trust and the deeply personal nature of the right to counsel of choice.

(3) In paragraph 49 of his judgment, the appellate judge came to an unreasonable conclusion regarding the notion of counsel of choice.

(4) The appellate judge and the trial judge erred in law in assessing society’s interest in the adjudication of the case on its merits, by treating this line of inquiry as a mere formality.

(5) Both judges erred when balancing the assessments under the lines of inquiry, by failing to consider the effect of admitting the evidence on the repute of the administration of justice in the long term. [ 40 ] The appellant is right. [ 41 ] Given the errors the appellate judge noted in the judgment at first instance, he should have intervened.

Moreover, he should not have minimized the relationship of trust between the appellant and her family’s lawyer, the trial judge having been careful not to do so. [ 42 ] While it is not disputed that the appellant’s right to retain and instruct counsel of choice was infringed, it is worthwhile reiterating that a detainee can consult with counsel of choice, [16] without delay, having regard to the circumstances. [17] Consequently, state agents have not only the obligation to inform detainees of their right to counsel, but also to facilitate that right. [18] As the Supreme

Court stated, however, “[…] the Charter does not guarantee detainees an absolute right to retain and instruct a particular counsel at the initial investigative stage regardless of the circumstances”. [19] A detainee must act diligently and accept an alternative, such as a legal aid lawyer or duty counsel, if the detainee’s counsel of choice is not available within a reasonable period of time, which is liable to happen when the arrest is made after business hours. [20] [ 43 ] The investigation of impaired driving is no different from any other criminal investigation, although the resources available to police officers are extensive.

It would be reductionist to assert that detainees can only be given one piece of advice, especially since the 2018 legislative amendments now open the door to a multitude of new situations. [ 44 ] The appellant was therefore entitled to ask that the evidence obtained in breach of her rights be excluded, pursuant to s. 24(2) of the Charter : 24. […]

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. 24. […]

(2) Lorsque, dans une instance visée au paragraphe (1), le tribunal a conclu que des éléments de preuve ont été obtenus dans des conditions qui portent atteinte aux droits ou libertés garantis par la présente charte, ces éléments de preuve sont écartés s’il est établi, eu égard aux circonstances, que leur utilisation est susceptible de déconsidérer l’administration de la justice. [ 45 ] In R. v. Grant , McLachlin, C.J. and Charron, J. provided a good description of the purpose of s. 24(2) of the Charter .

The analysis must focus on maintaining the integrity of, and public confidence in, the justice system in the long term, based on an objective assessment by a reasonable person, informed of all relevant circumstances and the values underlying the Charter . [ 46 ] Section 24(2) starts from the proposition that there has been a breach and seeks to ensure that the evidence does not do further damage to the repute of the justice system.

The provision is not aimed at punishing the police or providing compensation to the accused whose right to counsel has been infringed; rather, its focus is on the long-term impact of admission of the evidence. [21] [ 47 ] More recently, the Supreme Court reiterated that courts must consider the impact of the state misconduct not on the criminal trial, but on the administration of justice, and must focus on the “overall repute of the justice system, viewed in the long term”. [22] [ 48 ] When assessing the effect of admitting evidence on the public’s confidence in our justice system, the following three lines of inquiry must be pursued: (1) the seriousness of the Charter -infringing conduct; (2) the impact of the breach on the Charter -protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits.

Each of these lines of inquiry must be balanced having regard to all the circumstances of the case. [23] [ 49 ] This balancing exercise is a delicate one, not a mathematical one in which the results of the three lines of inquiry are simply added up.

Courts must weigh the appropriate factors in light of the long-term repute of the administration of justice. [24] [ 50 ] As can be seen—and it bears repeating—everything hinges on the circumstances. *** [ 51 ] As regards the seriousness of the infringement , the trial judge stated that the infringing conduct was grave, serious and deliberate, but was not of the highest order, given the good faith of the police officers.

This is a surprising statement. [ 52 ] The appellate judge pointed out the error, but noted that the trial judge had determined that this first line of inquiry pertaining to the seriousness of the infringing conduct would have led her to exclude the evidence. This is true. However, it is an error of law to state, as the trial judge did, that an infringement is [ translation ] “grave, serious and deliberate” and, in the same breath, to hold that the infringement is not at the high end of the seriousness spectrum. On the contrary, such an infringement is indeed situated at the high end of the spectrum.

When police officers make no attempt to facilitate access to an arrested individual’s counsel of choice, the infringement is quite serious.

In the case at bar, the appellant was faced with the police officers’ refusal to take any steps for the purpose of putting her in contact with her counsel of choice. [ 53 ] The absence of bad faith does not equate to good faith and does not diminish the seriousness of the infringement if it results from an unreasonable ignorance of the law. [25] The trial judge was not entitled to state that the police officers had acted in good faith if their conduct demonstrated their ignorance of the appellant’s rights.

At most, she could have found that they had not acted in bad faith. [ 54 ] We are therefore faced with a complete and unexplained refusal on the part of the police officers to allow the appellant’s exercise of her right to counsel of choice, suggesting that they were completely ignorant of their duty. This is not a situation in which the police officers attempted, although insufficiently, to permit the exercise of that choice. It is this complete refusal that resulted in a grave, serious and deliberate infringement, as the trial judge stated—one that is not minimal.

Contrary to the judge’s finding, this infringement is at the high end of the seriousness spectrum. Given that the police officers made no effort to facilitate the appellant’s exercise of her right to counsel, the infringement is sufficiently serious to strongly support exclusion of the evidence. [ 55 ] This significant—and not minimal—infringement, should therefore have weighed in the balance. [ 56 ] As regards the impact of the breach on the appellant’s rights , the trial judge stated that the breach had no effect on the appellant, who suffered absolutely no harm.

In her view, the actual extent of the infringement was minimal because the appellant had indeed received and understood the advice of duty counsel and had never mentioned that she was dissatisfied with the advice received.

According to the trial judge, the appellant would have received essentially the same advice from her counsel of choice, and it can therefore be assumed that she would have continued to cooperate with the police officers, provided breath samples and remained silent. The trial judge added that the appellant might not have been able to reach her father or the lawyer.

She therefore stated that the second line of inquiry clearly and unequivocally favoured the use of the evidence. [ 57 ] This line of reasoning is mistaken in several respects and the appellate judge, who noted the trial judge’s errors, should have intervened. [ 58 ] This second line of inquiry, just as the first, must be assessed on a scale of seriousness.

In the present case, this factor also supports exclusion of the evidence, albeit to a more limited extent. [ 59 ] First, as the appellant rightly states, the trial judge should not have speculated on what might or might not have happened if she had had the opportunity to try to contact her father or counsel of choice. [26] Speculating on the possibility that she might not have been able to reach them is not helpful to the debate. [ 60 ] Moreover, her comment to the effect that the appellant would have received substantially the same advice from the lawyer she trusted implies that a breach of the right to counsel in breathalyzer matters would have no impact, because the advice sought and received would be virtually the same.

This reasoning completely fails to consider the deeply personal nature of the right to counsel, on which the relationship of trust between the appellant and her family’s lawyer was built. [27] It also disregards the range of advice this trusted lawyer, highly experienced in these types of cases, could have given her. [ 61 ] Yet the trial judge had accepted the appellant’s testimony, from which it is worthwhile to cite excerpts addressing her relationship of trust with the lawyer: [...] [ translation ] A. We then went to a room next door, at which point I was told I could call a lawyer.

But what I told them is that my lawyer, the family’s lawyer, I would need access to my phone in order to speak with my father so he could give me the contact information of the family’s lawyer, because I didn’t have it . And at that point they told me I couldn’t have my phone and couldn’t speak with my father, and they suggested the list that’s right there, and they suggested I call a lawyer from there . Which is what I did, because I do what I’m told, so I used the list of lawyers, they suggested two, three of them, I chose one of the ones suggested. Q. O.K.

So, when you were offered your right to a lawyer, you say that you asked to have your cell phone so you could contact your father? A. Yes, exactly, because I wanted to get the contact information of the lawyer, he’s the family’s lawyer that we’ve always used... we’ve always had this lawyer for a long time, and he’s someone we could trust, and my father always told me that if I had any problems, that he had the cell phone number of the lawyer, our family’s lawyer . Q. O.K. What did they answer about calling your father? A. Well, they told me I couldn’t call my father. Q. O.K.

And what did they answer about your cell phone? A. That I couldn’t have access to my cell phone either. Q. O.K. And then you say they showed you a list? A. Yes, there was a list of lawyers’ names, duty counsel, that they call, to call, so they suggested two, three, which I did. I didn’t want to be stubborn since this was the first time I had ever been arrested, I didn’t know the procedure . Q. O.K. So then you spoke with that lawyer, and how many minutes did that last, according to you? A.

About one or two minutes, I immediately told him that it wasn’t him I wanted to speak with, because I wanted to speak with my lawyer , and he understood the situation, but he said he would nevertheless call me the next day to make sure everything was all right. Q. O.K. And then, after that, you were done with the lawyer, correct? A. Yes, correct, I hung up with the lawyer. [...] Q. O.K. You say he’s the family’s lawyer, it’s your father and also... your entire family, right, he’s someone you... A. Yes, that’s right, he’s someone we trusted... we trust, so he was the family’s lawyer.

My uncles, everyone was with this lawyer, I knew that my father had had several cases and he’s someone the family trusted. Q. O.K. And why didn’t you want to speak with another lawyer, that this was the one you wanted to speak with? A. Well, because I didn’t trust a lawyer other than the one we already knew .

Further on, she testified as follows: Q. O.K. So what you told the policewoman is, “I know a lawyer”? A. Yes. [...] Q. So what she told you essentially is: even if you have the possibility of getting your lawyer’s number, you can’t go through an intermediary, you can’t go through your father? Is that correct? A. That’s right, yes. [Emphasis added] [ 62 ] The trial judge made no mention of the nature or extent of the relationship of trust between the appellant and [ translation ] “the family’s lawyer”. At no point did she characterize or assess the relationship of trust.

But she also did not question it. [ 63 ] The appellate judge, however, assessed and commented on the evidence relating to this relationship of trust. In so doing, the appellate judge went much further in assessing the evidence than the trial judge herself did. There is nothing in the trial judgment casting doubt on the fact that the appellant had full confidence in the family’s lawyer.

On the contrary, her entire testimony demonstrates that although she was unable to remember the lawyer’s name, due to stress, as she stated twice, she had full trust in him. [ 64 ] With all due respect, the appellate judge overstepped his role by characterizing the evidence anew [28] and he erred in law by thusly reinterpreting the evidence and providing his assessment of the quality of the relationship of trust, whereas the trial judge had been careful not to do so.

Paragraphs 48 and 49 of his judgment demonstrate this error of law. [ 65 ] I would also add that the right to counsel of choice is not contingent on the person knowing the lawyer in question well or even very well. A person who has been arrested could want to use the services of a reputable lawyer without ever having met that lawyer. [ 66 ] Requiring an accused to demonstrate the existence of a bond of trust based on a pre-existing relationship constitutes an error of law.

Everything hinges on the circumstances and, in such matters, the requests made by a person under arrest and the answers provided by the police officers must be assessed having regard to the evidence as a whole. [ 67 ] Moreover, the fact that the appellant continued to cooperate and did not insist on speaking with the family’s lawyer after the phone call to duty counsel is a neutral factor.

It is not realistic to think that a reasonable person, who is under arrest for the first time ever and has no experience with police authorities, will refuse to cooperate and challenge the police officers’ conduct. [29] The appellant’s testimony, in fact, is to that effect. [ 68 ] Moreover, the seriousness of the breach will inevitably influence the assessment of its impact and, on this point, I agree with the remarks of Cournoyer, J.S.C., as he then was, in R. c.

Lefebvre , that the psychological value of access to one’s counsel of choice, even in breathalyzer matters, must not be underestimated. [30] This second line of inquiry therefore supports exclusion of the evidence, although not clearly and unequivocally, but only to a limited extent. [ 69 ] While society’s interest may pull in the direction of admitting breathalyzer certificates because they are reliable evidence, this line of inquiry cannot turn into a rubber stamp. In R. v.

Le , [31] a decision rendered after the judgments at issue here and which neither the trial judge nor the appellate judge had the benefit of reading, the majority stated that this third line of inquiry becomes important if one of the first two pulls towards exclusion: [142] The third line of inquiry, society’s interest in an adjudication of the case on its merits, typically pulls in the opposite direction — that is, towards a finding that admission would not bring the administration of justice into disrepute.

While that pull is particularly strong where the evidence is reliable and critical to the Crown’s case (see R. v. Harrison , 2009 SCC 34 , [2009] 2 S.C.R. 494, at paras. 33-34 ), we emphasize that the third line of inquiry cannot turn into a rubber stamp where all evidence is deemed reliable and critical to the Crown’s case at this stage. The third line of inquiry becomes particularly important where one, but not both, of the first two inquiries pull towards the exclusion of the evidence.

Where the first and second inquiries, taken together, make a strong case for exclusion, the third inquiry will seldom if ever tip the balance in favour of admissibility ( Paterson , at para. 56 ) .

Conversely, if the first two inquiries together reveal weaker support for exclusion of the evidence, the third inquiry will most often confirm that the administration of justice would not be brought into disrepute by admitting the evidence. [Emphasis added] [ 70 ] Having regard to the appropriate factors and the specific facts of the case, the trial judge’s errors should have led the appellate judge to undertake a fresh assessment of the lines of inquiry. This is the lesson that emerges from R. v.

Vu : [32] [67] Although in general, a reviewing court should defer to a trial judge’s s. 24(2) determination, I find I cannot do so in this case. In R. v. Côté , 2011 SCC 46 , [2011] 3 S.C.R. 215 , the majority of this Court found that “[w]here a trial judge has considered the proper factors and has not made any unreasonable finding, his or her determination is owed considerable deference on appellate review” (para. 44). However, where relevant factors have been overlooked or the trial judge has made an error, a fresh s. 24(2) analysis is necessary: Cole, at para. 82 .

In her decision to exclude evidence in this case, the trial judge relied heavily on her finding that the ITO contained no facts supporting a warrant to search for documents evidencing ownership or occupation of the residence. For the reasons I set out in relation to the first issue on appeal, I conclude that this finding was erroneous. I must therefore undertake my own s. 24(2) analysis , of course accepting all of the trial judge’s findings which are not tainted by any error. [Emphasis added]

[ 71 ] Given that the infringement is grave, serious and deliberate because the police officers made no effort to facilitate the right to counsel of choice—indeed preventing the appellant from exercising that right—we must conclude that, in the present case, the long-term interests of the administration of justice weigh in favour of excluding the evidence. As the majority in R. v.

Le indicated, the sum of the first two lines of inquiry, taken together, significantly tip the balance towards exclusion, such that the third line of inquiry is insufficient to find otherwise. [33] [ 72 ] For these reasons, I would allow the appeal, exclude the technician’s certificates of analysis from the evidence and enter an acquittal. DOMINIQUE BÉLANGER, J.A.