2021 QCCA 620, 2021 QCCA 620

Official English Version of the Judgment of the Court Cormier c. R. 2021 QCCA 620 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-006867-186 (705-36-000771-178, 705-01-088122-157) DATE: 19 April 2021 CORAM: THE HONOURABLE ROBERT M. MAINVILLE, J.A. PATRICK HEALY, J.A. STÉPHANE SANSFAÇON, J.A. CARL CORMIER APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT Introduction [ 1 ] This is an appeal against a judgment of the Superior Court, [1] sitting as a

summary-conviction appeal court (“SCAC”), that dismissed an appeal against a finding of guilty of one count under sections 253(1) (

b) and 255 of the Criminal Code (driving “over 80”). [2] The SCAC dismissed the appeal on the ground that the trial judge did not err “in fact or in law” under section 24(2) of the Canadian Charter of Rights and Freedoms (“ Charter ”) in admitting evidence obtained following a violation of

section 8 of the Charter . In this court the appellant submits that the SCAC erred in this conclusion and, further, that its reasons for doing so were insufficient. The SCAC also dismissed a second ground that the trial judge should have excluded under section 24(2) evidence allegedly obtained in violation of sections 9 and 10(

b) of the Charter . The appellant submits that the reasons of the SCAC on this ground are insufficient and allow this court to review the issue. [ 2 ] The principal issue before the Court is whether the SCAC erred under section 24(2) in not allowing the appeal against the decision of the trial judge to admit evidence obtained in violation of

section 8 of the Charter . Context [ 3 ] At about 2h00 in the morning of 21 August 2014, two police officers responded in person to a complaint of noise and disturbance from the open spaces of a farm, which was a residential address. The officers entered on the property without lawful authority of any kind. [3] While the officers were on the property, they concealed themselves to avoid observation or detection until they intercepted the appellant as he was driving an all-terrain vehicle. At that point they illuminated their flashlights and identified themselves.

The appellant asked the officers to leave the property. The officers detected indications of intoxication by alcohol. The two officers called for assistance and two more officers arrived and joined them on the property with a roadside screening device. A screening test was administered on the property. The appellant failed the test, was arrested and transported to a police station. A breath test was administered, which the appellant also failed. [ 4 ] The prosecution did not dispute on appeal that the entry and presence of the officers on the property was a violation of

section 8 of the Charter . [4] The appellant sought the exclusion of evidence obtained following this violation, notably the evidence relating to the screening test and the subsequent breath test. Trial judge [ 5 ] The trial judge agreed that there was a violation of

section 8 when the officers entered upon the property but he declined to exclude the evidence. He did so because in his view the application of the three criteria in Grant [5] militated against exclusion. With respect to the first criterion, the judge was satisfied that the police could not have acted otherwise in the investigation of the alleged breach of a municipal by-law concerning disturbances and public order, especially in view of the large outdoor space where the alleged disturbance was occurring.

The judge was also satisfied that alternatives courses of action were impractical, including extended observation of the scene, obtaining a warrant, prior announcement of the officers’ presence at the residence or elsewhere on or near the property. Further, the judge was satisfied that the police officers acted in good faith as they proceeded under circumstances that left them no practical alternative to proceed otherwise.

[ 6 ] With regard to the second criterion in Grant , the judge was satisfied that the violation of

section 8 was minimal and that the intrusiveness of the police actions was no greater than is typical of most suspected cases of impaired driving. For this reason he concluded that the circumstances did not justify the exclusion of evidence relating to the screening test or the breath test. [ 7 ] With respect to the third criterion in Grant , the judge noted that in the district of Joliette the problem of impaired driving is a scourge that magnifies the public interest in the prosecution of alleged offences. Accordingly, he concluded that the third criterion militated in favour of admission and not the exclusion of evidence.

Summary Conviction Appeal Court [ 8 ] The observations of the SCAC concerning the judge’s conclusions with respect to Grant are brief.

With respect to the first criterion, the SCAC repeated the judge’s characterisation of the breach as minimal and affirmed this characterisation as blameless even if the evidence disclosed that after entering upon the property the officers took steps to conceal their presence for some time in order to conduct their surveillance surreptitiously. [ 9 ] With respect to the second criterion, the SCAC refers to a “hierarchy of places” to justify the conclusion that there is a diluted expectation of privacy in the perimeter space around a dwelling and thus a lesser violation of

section 8 if officers enter onto that ground rather than into the dwelling. [6] [ 10 ] With respect to the third criterion, the SCAC relies on Grant itself to affirm that if evidence obtained in violation of the Charter is real evidence, including evidence of bodily substances, the public interest in adjudication on the merits will generally militate in favour of admission of the evidence because it is inherently reliable.

Standard of Review [ 11 ] The SCAC owes a significant degree of deference to the trial judge’s conclusions under section 24(2) and this court turn owes a significant degree of deference to the decision of the SCAC. But that decision is not immune to review, as the Supreme Court affirmed in Vu : [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 . [7] […] [ 12 ] This passage makes clear that the decision of the SCAC under section 24(2) is subject to review either because it failed to apply the criteria in Grant or applied them in an unsustainable manner. In the present case the trial judge and the SCAC explicitly address the criteria in Grant and, accordingly, the decision of the SCAC is entitled to deference unless its application of those criteria is unsustainable.

As an appeal from the SCAC is restricted to a question of law, it can proceed only if that court failed to apply the criteria in Grant or misapplied those criteria in a manner that is tantamount to a failure to apply them. General observations about Grant [ 13 ] Section 24(2) does not confer an exclusionary discretion. It imposes an obligation to exclude evidence if its admission, despite a violation of a substantive right, would bring the administration of justice into disrepute. It also does not create or impose an automatic rule of exclusion once a breach is established.

It imposes a rule of exclusion that must be observed according to the relative gravity and effect of the violation in relation to the objectives of criminal justice. Although Grant has been cited over five thousand times, it does not allow an application that would permit a judge to rank relevant considerations in a preferred order of priority. For this reason it is useful to recall from time to time what the Court actually said in Grant about the application of section 24(2) to ensure an

interpretation that vindicates the purpose of the provision. [ 14 ] The Supreme Court restated the approach that should be followed in the application of section 24(2) : [67] The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice. The term “administration of justice” is often used to indicate the processes by which those who break the law are investigated, charged and tried.

More broadly, however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole. [68] The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case.

Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter , would conclude that the admission of the evidence would bring the administration of justice into disrepute. [69] Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice.

Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.

[70] Finally, s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system. [71] A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits.

The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

The Supreme Court summarises its views later in its reasons: [107] […] [A]dmissibility should be determined by inquiring into the effect admission may have on the repute of the justice system, having regard to the seriousness of the police conduct, the impact of the Charter breach on the protected interests of the accused, and the value of a trial on the merits. [108] The first inquiry informing the s. 24(2) analysis — the seriousness of the Charter -infringing conduct — is fact-specific.

Admission of evidence obtained by deliberate and egregious police conduct that disregards the rights of the accused may lead the public to conclude that the court implicitly condones such conduct, undermining respect for the administration of justice. On the other hand, where the breach was committed in good faith, admission of the evidence may have little adverse effect on the repute of the court process. [109] The second inquiry assesses the danger that admitting the evidence may suggest that Charter rights do not count, thereby negatively impacting on the repute of the system of justice.

This requires the judge to look at the seriousness of the breach on the accused’s protected interests. In the context of bodily evidence obtained in violation of s. 8, this inquiry requires the court to examine the degree to which the search and seizure intruded upon the privacy, bodily integrity and human dignity of the accused. The seriousness of the intrusion on the accused may vary greatly. At one end of the spectrum, one finds the forcible taking of blood samples or dental impressions (as in Stillman ).

At the other end of the spectrum lie relatively innocuous procedures such as fingerprinting or iris- recognition technology. The greater the intrusion on these interests, the more important it is that a court exclude the evidence in order to substantiate the Charter rights of the accused. [110] The third line of inquiry — the effect of admitting the evidence on the public interest in having a case adjudicated on its merits — will usually favour admission in cases involving bodily samples.

Unlike compelled statements, evidence obtained from the accused’s body is generally reliable, and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favour of admission. [111] While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused’s privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability.

On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused’s body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive.

Seriousness of the breach [ 15 ] The observations of the Supreme Court on this criterion are succinct: [72] The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct.

The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law. [73] This inquiry therefore necessitates an evaluation of the seriousness of the state conduct that led to the breach. The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence.

The main concern is to preserve public confidence in the rule of law and its processes. In order to determine the effect of admission of the evidence on public confidence in the justice system, the court on a s. 24(2) application must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter . [74] State conduct resulting in Charter violations varies in seriousness.

At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.

[75] Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of policeconduct that results in a Charter breach: R. v. Silveira, (SCC), [1995] 2 S.C.R. 297, per Cory J. “Good faith” on the partof the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charterstandards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, (SCC), [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v.

Kokesch, (SCC), [1990] 3 S.C.R. 3, at pp. 32-33,per Sopinka J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those verypersons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It followsthat deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence.

It should also bekept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because theydid not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from thisbehaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion. [16] Since Hunter v. Southam Inc.[8] Canadian jurisprudence has affirmed unwaveringly that in the absence of prior authorisation asearch or seizure will violate

section 8 of the Charter. The law zealously protects the expectation of privacy in premises, especiallyresidential premises, including not only the interior but the exterior precincts. A violation of this expectation is presumptively serious andin practical terms the burden to rebut that conclusion will lie with the state.

The “hierarchy of places” referred to by the SCAC[9] thatmight imply a dilution of the expectation of privacy in land adjacent to a dwelling does not mean that the expectation is reduced to nil. [17] In the present case the police entered onto the appellant’s property without legal authority of any kind. They were trespassers.Their actions in doing so displayed patent disregard for the legal requirements of prior authorisation. It is difficult to avoid the conclusionthat they arrogated to themselves the discretion to disregard the imperatives imposed by

section 8. [18] The Code of Penal Procedure affords no justification, before or after the fact, for the officers’ conduct.

Section 83 of the Codeexpressly disallows entry onto the property unless such entry is allowed by exception under articles 84 or 85: 83. No peace officer may, for the purposes of this chapter, enter any place that is not accessible to the public, except in the casesprovided for in articles 84 and 85 and in

Chapter II.1. 84. A peace officer may enter a place that is not accessible to the public if he has reasonable grounds to believe that a person there iscommitting an offence which may result in danger to human life or health or the safety of persons or property and that arresting him isthe only reasonable means available to him to put an end to the commission of the offence.

Before entering the place, the peace officer shall, if possible, depending on whether persons or property need to be protected, give anotice of his presence and of the purpose thereof to a person in the place and state his name and quality. 85. A peace officer who has reasonable grounds to believe that a person is fleeing from arrest may pursue him into the place where heis taking refuge.

Before entering the place, the peace officer shall give a notice of his presence and of the purpose thereof to a person in the place andstate his name and quality, unless he has reasonable grounds to believe that that might allow the person to be arrested to abscond. [19] In the circumstances of the present case

article 84 provides no assistance to justify the officers’ actions and it is not open to thoseofficers to claim either good faith or ignorance of the law that governs their conduct.[10] [20] There was no urgency to enter the property. There was no apparent danger. There were no exigent circumstances. There was norisk of flight.

This was not a perimeter search.[11] In the investigation of a reported noise disturbance, in possible violation of amunicipal by-law, it was not impossible or even impracticable to obtain a telewarrant.[12] This was not an approach to private propertythat could be characterised as a response to an implied invitation to approach.[13] There were alternative courses of action that mightwell have ended the reported disturbance, such as the illumination of lights on the police car and even a brief use of a siren as warnings.In short, the conduct of the police was manifestly intrusive and disproportionate as a violation of the expectation of privacy.

Theseriousness of this breach, in patent disregard of the law, is self-evident. Accordingly, the first criterion in Grant militates in favour ofexclusion. Effect on protected interests of the accused [21] Again, the Supreme Court’s comments on this point in Grant were succinct: [76] This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. Itcalls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed.

The impact ofa Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused’s protectedinterests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are oflittle actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. [77] To determine the seriousness of the infringement from this perspective, we look to the interests engaged by the infringed right

and examine the degree to which the violation impacted on those interests. For example, the interests engaged in the case of a statementto the authorities obtained in breach of the Charter include the s. 7 right to silence, or to choose whether or not to speak to authorities (Hebert) — all stemming from the principle against self-incrimination: R. v. White, (SCC), [1999] 2 S.C.R. 417, atpara. 44.

The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring theadministration of justice into disrepute. [78] Similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and morebroadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation ofprivacy, or that demeans his or her dignity, is more serious than one that does not. [22] The violation of

section 8 in this case was not only serious. As the officers acted with flagrant disregard for the law, it is equallyself-evident that the effect on the appellant’s expectation of privacy was complete. It was as if he had no expectation of privacyprotected by

section 8. There is nothing before the Court that could explain or justify a different conclusion. No further comment isrequired except to affirm that the second criterion in Grant militates strongly in favour of exclusion. Society’s interest in adjudication on the merits [23] Finally, on the third criterion and the relationship among the three: [79] Society generally expects that a criminal allegation will be adjudicated on its merits.

Accordingly, the third line of inquiryrelevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admissionof the evidence, or by its exclusion. This inquiry reflects society’s “collective interest in ensuring that those who transgress the law arebrought to trial and dealt with according to the law”: R. v. Askov, (SCC), [1990] 2 S.C.R. 1199, at pp. 1219-20.

Thusthe Court suggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of theevidence on the repute of the administration of justice, but the impact of failing to admit the evidence. [80] The concern for truth-seeking is only one of the considerations under a s. 24(2) application. The view that reliable evidence isadmissible regardless of how it was obtained (see R. v. Wray, (SCC), [1971] S.C.R. 272) is inconsistent with theCharter’s affirmation of rights.

More specifically, it is inconsistent with the wording of s. 24(2), which mandates a broad inquiry into allthe circumstances, not just the reliability of the evidence. [81] This said, public interest in truth-finding remains a relevant consideration under the s. 24(2) analysis. The reliability of theevidence is an important factor in this line of inquiry. If a breach (such as one that effectively compels the suspect to talk) undermines thereliability of the evidence, this points in the direction of exclusion of the evidence.

The admission of unreliable evidence serves neitherthe accused’s interest in a fair trial nor the public interest in uncovering the truth.

Conversely, exclusion of relevant and reliable evidencemay undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing theadministration of justice into disrepute. [82] The fact that the evidence obtained in breach of the Charter may facilitate the discovery of the truth and the adjudication of acase on its merits must therefore be weighed against factors pointing to exclusion, in order to “balance the interests of truth with theintegrity of the justice system”: Mann, at para. 57, per Iacobucci J.

The court must ask “whether the vindication of the specific Charterviolation through the exclusion of evidence exacts too great a toll on the truth-seeking goal of the criminal trial”: R. v. Kitaitchik (2002), (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.), at para. 47, per Doherty J.A. [83] The importance of the evidence to the prosecution’s case is another factor that may be considered in this line of inquiry. LikeDeschamps J., we view this factor as corollary to the inquiry into reliability, in the following limited sense.

The admission of evidenceof questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the caseagainst the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of theadministration of justice where the remedy effectively guts the prosecution. [84] It has been suggested that the judge should also, under this line of inquiry, consider the seriousness of the offence at issue.

Indeed, Deschamps J. views this factor as very important, arguing that the more serious the offence, the greater society’s interest in itsprosecution (para. 226). In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cutboth ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how peopleview the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)’s focus.

As pointed out inBurlingham, the goals furthered by s. 24(2) “operate independently of the type of crime for which the individual stands accused” (para.51). And as Lamer J. observed in Collins, “[t]he Charter is designed to protect the accused from the majority, so the enforcement of theCharter must not be left to that majority” (p. 282). The short-term public clamour for a conviction in a particular case must not deafenthe s. 24(2) judge to the longer-term repute of the administration of justice.

Moreover, while the public has a heightened interest inseeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that isabove reproach, particularly where the penal stakes for the accused are high. [85] To review, the three lines of inquiry identified above — the seriousness of the Charter-infringing state conduct, the impact of thebreach on the Charter-protected interests of the accused, and the societal interest in an adjudication on the merits — reflect what the s.24(2) judge must consider in assessing the effect of admission of the evidence on the repute of the administration of justice.

Havingmade these inquiries, which encapsulate consideration of “all the circumstances” of the case, the judge must then determine whether, onbalance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute. [86] In all cases, it is the task of the trial judge to weigh the various indications. No overarching rule governs how the balance is to bestruck. Mathematical precision is obviously not possible. However, the preceding analysis creates a decision tree, albeit more flexiblethan the Stillman self-incrimination test.

We believe this to be required by the words of s. 24(2). We also take comfort in the fact thatpatterns emerge with respect to particular types of evidence. These patterns serve as guides to judges faced with s. 24(2) applications infuture cases. In this way, a measure of certainty is achieved. Where the trial judge has considered the proper factors, appellate courtsshould accord considerable deference to his or her ultimate determination.

[ 24 ] Society always has an interest in the adjudication of cases on their merits, including an accurate and reliable process of fact- finding with respect to relevant evidence. The three criteria in Grant affirm that this interest must sometimes yield to values in the administration of justice that are extrinsic to it. It is now well settled that where the first two criteria militate strongly in favour of exclusion the third will rarely compel admission of evidence obtained in violation of the Charter . [14] [ 25 ] There is no general exception to these principles if the evidence in question is real evidence.

The SCAC suggests that such evidence might militate in favour of admission due to an increased measure of inherent reliability, but the Supreme Court in Grant in no way suggested that the third criterion compels the admission of evidence obtained in violation of the Charter . Such a suggestion would effectively contradict jurisprudence that has affirmed, in instances where the first two criteria favour exclusion, that the third will rarely justify admission. Moreover, it would mark a regression to a state of the law that was abandoned when the Charter came into force.

At common law, before the Charter , illegally-obtained evidence was admissible if it was demonstrably relevant and probative for accurate and reliable fact-finding. [15] As the Supreme Court noted in its discussion of the third criterion in Grant , [16] that view was repudiated with the express affirmation that the administration of justice must also privilege other values. [ 26 ] This is a case where both of the first two criteria compel exclusion of the evidence obtained in violation of

section 8. The seriousness of the violation precludes any cogent argument that a prosecution for driving an all-terrain vehicle “over 80” on one’s own private property in circumstances that disclose no urgency or imminent danger could prevail over a reasonable expectation of privacy protected by a constitutional right that has been flagrantly violated with no demonstrable justification. [17] Immediacy and the right to consult counsel [ 27 ] On this appeal the parties addressed extensively the meaning of the statutory duty to provide access to counsel immediately [18] and its relation to the constitutional right to counsel that is guaranteed by

section 10(

b) of the Charter . This question has been recently addressed by the Court on several occasions, [19] most recently in a case that was heard by a panel of five judges. [20] [ 28 ] It is unnecessary in the present appeal to consider this question. The SCAC erred in affirming the conclusion of the trial judge not to exclude under section 24(2) the evidence obtained in violation of

section 8 of the Charter . This conclusion implies a complete resolution of this appeal and requires no consideration of further questions. Conclusion [ 29 ] As the Court’s conclusion is that the evidence should have been excluded, there remains no evidence for a new trial and there will therefore be an acquittal. At the hearing the respondent agreed that this is the appropriate conclusion in the circumstances of this appeal.

FOR THESE REASONS, THE COURT: [ 30 ] ALLOWS the appeal; [ 31 ] SETS ASIDE the judgment of the Superior Court dated 28 August 2018; [ 32 ] EXCLUDES the evidence gathered by the police officers in violation of the appellant’s constitutional rights; [ 33 ] SETS ASIDE the appellant’s conviction dated 13 December 2017; [ 34 ] ACQUITS the appellant. ROBERT M. MAINVILLE, J.A. PATRICK HEALY, J.A. STÉPHANE SANSFAÇON, J.A.

Mtre Marie-Pier Boulet BMD AVOCATS For the Appellant Mtre Simon Robin ATTORNEY OF DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the Respondent Date of hearing: 23 March 2021 [82] The standard of review is deferential: “Where 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” ( R. v. Côté , 2011 SCC 46 , [2011] 3 S.C.R. 215 , at para. 44 ). But where the relevant factors have been overlooked or disregarded, a fresh Grant analysis is both necessary and appropriate.