r v. CAROLINE TREMBLAY, 2021 QCCA 24

Unofficial English Translation of the Judgment of the Court R. c. Tremblay 2021 QCCA 24 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-003672-198 (150-36-000304-185) (150-01-052376-176) DATE: January 13, 2021 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. MARTIN VAUCLAIR, J.A. JOCELYN F. RANCOURT, J.A. HER MAJESTY THE QUEEN APPELLANT – Prosecutor v. CAROLINE TREMBLAY RESPONDENT – Accused JUDGMENT [ 1 ] The appellant appeals against a judgment of the Superior Court, District of Chicoutimi (the Honourable Mr.

Justice Richard Grenier), rendered on May 14, 2019, that dismissed its appeal and upheld the judgment of the Court of Québec dated December 3, 2018 (the Honourable Pierre Lortie). The Court of Québec had granted the respondent’s motion and had ordered the exclusion of evidence, namely, the results of the breathalyzer test, and had subsequently acquitted the respondent of the charges of impaired driving and having a blood alcohol level exceeding the legal limit. [ 2 ] For the reasons of Doyon, J.A., with which Vauclair and Rancourt, JJ.A. agree, THE COURT : [ 3 ] DISMISSES the appeal. FRANÇOIS DOYON, J.A.

MARTIN VAUCLAIR, J.A. JOCELYN F. RANCOURT, J.A. Mtre Sébastien Vallée Mtre Gabriel Bervin DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the appellant Mtre Charles Cantin Mtre Sylvain Morissette CANTIN, BOULIANNE For the respondent

Date of hearing: October 22, 2020 REASONS OF DOYON, J.A. [ 4 ] Is the possibility of using a portable telephone (“cell phone”) relevant for assessing reasonable delay before having access to counsel? This is the central issue in this appeal. [ 5 ] The appellant appeals against a judgment of the Superior Court, dated May 14, 2019, that dismissed its appeal and upheld the judgment of the Court of Québec dated December 3, 2018. The Court of Québec had granted the respondent’s motion ( R. c. Tremblay , 2018 QCCQ 9214 ) and had ordered the exclusion of evidence, namely, the results of the breathalyzer test.

It had subsequently acquitted the respondent of the charges of impaired driving and driving with a blood alcohol level exceeding the legal limit. [ 6 ] The appellant argues that the judges erred in law by finding that there was an infringement of the right to counsel set out in s. 10(

b) of the Canadian Charter of Rights and Freedoms (the “ Charter ”) and by excluding the evidence under s. 24(2) of the Charter . CONTEXT [ 7 ] One evening in March 2017, two police officers were patrolling in their patrol car on Bagot Street, in a residential area of the city of Saguenay. They saw a car swerve left to right, partially cross over the centre line and then return to its lane. There was little traffic at this time. [ 8 ] They decided to intercept the vehicle at 11:32 p.m. I would point out that in this type of matter, the hour can be important. [ 9 ] The street lighting was fully adequate.

The road was dry. At the time of interception, the respondent spontaneously apologized. She explained to the police officers that her driving was due to the fact that she was [ translation ] “texting at the wheel”. She showed them her cell phone to prove her point. One of the officers asked her for the usual documents and noticed that her eyes were red and her breath smelled of alcohol. He therefore asked her to turn off the engine and follow him so he could check her condition.

While walking with the police officer, she told him that she had drunk some vodka. [ 10 ] The police officer, having reasonable grounds to suspect the presence of alcohol in the respondent’s system, asked her on two occasions, namely, at 11:34 p.m., immediately after the interception, and at 11:36 p.m., in the police car, to provide a breath sample by blowing into an approved screening device (“ASD”), in accordance with s. 254(2) Cr.C . in force at the time (now s. 320.27 (

b) Cr.C . ). [ 11 ] She did so at 11:38 p.m. and the result indicated “fail”. [ 12 ] At 11:40 p.m., the police officer arrested the respondent for driving a motor vehicle while impaired by alcohol. He informed her of her right to remain silent and her right to counsel and ordered her to follow him to the police station to provide the required breath samples via a breathalyzer.

While reading her her rights using a card in their possession for that purpose, the police officers informed her that she had the right to retain and instruct counsel without delay and asked her if she wished to do so. [ 13 ] According to one of the police officers, she answered “yes”. According to the other officer, she stated that she did not want to [ translation ] “talk to a lawyer immediately”.

The respondent testified that she made such a request and wanted to use her cell phone to contact a lawyer she knew, which she was not allowed to do because the police officers had seized her phone. [ 14 ] One of the police officers explained that he did not let the respondent phone her lawyer at the scene, in the police car, using her cell phone, because [ translation ] “there’s no internal policy that says it’s immediately in the patrol car”. Both officers added that it is impossible to ensure the confidentiality of such a call.

On cross-examination, however, they acknowledged that police officers have been known to allow a person to speak to a lawyer in the patrol car. [ 15 ] They added that such a call could have jeopardized their own safety because of the configuration of the scene (on the side of the road, with a snow bank near the car) and, consequently, because of the danger of standing outside the vehicle during the call.

They also argued the need to monitor the respondent, the importance of keeping an eye on her at all times (particularly because she might regurgitate or consume a product that could affect the reliability of the test) and the impossibility of controlling the use she might make of her cell phone. [ 16 ] At 12:01 a.m., a towing company employee arrived on the scene. After five minutes, the police officers left the area with the respondent and proceeded to the police station.

They arrived there at 12:20 a.m. [ 17 ] From 12:28 a.m. to 12:32 a.m., the respondent spoke with her lawyer using a telephone at the police station. [ 18 ] At 12:36 a.m. and 12:55 a.m., she provided breath samples. The results were 99 mg and 93 mg/100 ml of blood. [ 19 ] The respondent was released and later charged by

summary conviction with two counts: operating a motor vehicle with a blood alcohol level above the legal limit (at the time, ss. 253(1) (

b) and 255(1) Cr.C .) and operating such a vehicle while her ability to operate the vehicle was impaired by alcohol or a drug (at the time, ss. 253(1) (

a) and 255(1) Cr.C . ).

THE JUDGMENTS BELOW [ 20 ] The factual findings of the Court of Québec judge are as follows: the respondent expressed a desire to consult, immediately after her arrest, a lawyer she knew (Mtre Cantin); this was a [ translation ] “serious” request; when she was intercepted, she was in possession of a cell phone; a period of 26 minutes elapsed between the arrest and the departure for the police station. [ 21 ] The judge rejected the confidentiality argument.

According to him, this right belongs to the detained person, who may choose, if he or she so wishes, to exercise the right to counsel immediately, under the known conditions, or later, in complete confidentiality. Furthermore, he considered that it would have been possible for the respondent to consult her lawyer confidentially by sitting in the back of her own vehicle or in the back of the police car while the police officers waited outside and watched her.

He also noted that she was not in an advanced state of intoxication, that she understood the situation well and that she could therefore have made an informed choice if the police officers had given her that opportunity. [ 22 ] He also rejected the safety argument. In his opinion, the police officers testified about [ translation ] “theoretical possibilities that do not fit the present situation”. He noted that the respondent was polite and cooperative and that the symptoms described by the police officers were mild, such that, in fact, they did not handcuff her.

Therefore, no safety risk, danger of the respondent fleeing or emergency was shown. [ 23 ] In concluding that there had been a violation of the right to counsel without delay, the judge wrote, in particular, that the police officers did not consider any alternative to the usual procedure of facilitating access to a lawyer only at the police station: [ translation ] All in all, by prioritizing confidentiality and security on a theoretical basis, the police officers considered only one option: consultation at the police station, according to a practice that applies automatically.

They never evaluated the alternative based on the situation at hand: consultation at the scene. For them, the “without delay” of the Charter means that the consultation occurs at the police station. [ 24 ] Before examining s. 24 (2) of the Charter , the judge cited various decisions that deal with the use of cell phones in the exercise of the right to counsel and conclude that it is violated when the police do not allow the detainee to use this means of communication at the scene: R. c. Whitehead , 2017 QCCQ 6788 ; R. c. Boivin , 2017 QCCQ 8130 ; R. c. Maurice , 2015 QCCQ 12023 ; R. c.

Lauzier , 2014 QCCQ 11937 and R. c. Chassé , 2012 QCCQ 2448 . [ 25 ] In short, Quebec court decisions on the importance of taking into account the presence of a cell phone date back to 2012, five years before the events in question. [ 26 ] In his analysis of s. 24(2) of the Charter , the judge concluded that the Charter -infringing state conduct was serious.

The right involved is a fundamental right and, despite the fact that the respondent clearly expressed her desire to exercise it without delay, the police officers unilaterally denied her that right, contrary to the very text they had just read to her, a conduct from which [ translation ] “the Court must disassociate itself”. [ 27 ] As regards the impact of the violation on the respondent’s rights, he pointed out that the result of the breath sample taken constitutes conscriptive evidence, which favours exclusion of the evidence, given the infringement of the right to counsel. [ 28 ] Despite society’s obvious interest in the adjudication of the case on its merits, he concluded that a balancing of all the factors had to lead to the exclusion of the evidence and the acquittal of the respondent. [ 29 ] The appellant appealed to the Superior Court and, during discussions with the lawyers, the judge made certain comments that can enlighten us on the oral judgment he rendered subsequently from the bench. [1] He indicated that if the respondent had been arrested for possession of drugs for the purpose of trafficking, she might not have been justified in complaining that she was not allowed to use her cell phone.

Moreover, he said that, in the present case, the quantity of alcohol was not very large, the respondent was not aggressive in any way, the police officers seemed to be raising pure hypotheses (the Superior Court judge used two expressions indicating that some of those hypotheses could even be described as fanciful: [ translation ] “It’s starting to get a bit far-fetched” and “these hypotheses should not be pushed too far”) and, lastly, there is an administrative policy that limits the scope of action of police officers. [ 30 ] Consequently, when, in rendering judgment, the Superior Court judge gave the example of a person arrested in possession of a large quantity of drugs who is refused cell phone use by the police, we understand that, in his view, the respondent’s situation was very different because of the circumstances of the case.

In fact, that is what he went on to say: [ translation ] I fully agree, as a judge of the Court of Québec stated, that the advent and proliferation of cell phones do not create an additional constitutional right. However, like the trial judge, I am of the view that police officers must adapt to the social reality and that, in some cases, where circumstances permit, an accused could be allowed to communicate privately with a lawyer before arriving at the police station. [ 31 ] He then referred to the standard of review and concluded that he saw no [ translation ] “reason to intervene in this case”.

He therefore dismissed the Crown’s appeal. ANALYSIS [ 32 ] This appeal can only be on a question of law and requires leave: s. 839 Cr.C . The motion for leave to appeal was granted by one of my colleagues on this Court: R. c. Tremblay , 2019 QCCA 1221 .

[33] The appellant raises two issues: (1) did both judges err in law by [translation] “finding that s. 10(

b) of the Charter was breached”,and (2) did they err in law by excluding the evidence under s. 24(2) of the Charter? [34] Since the appeal must deal with the errors allegedly committed by the Superior Court judge, it should be understood that theappellant argues that he erred in law by refusing to overturn the judgment of the Court of Québec, which itself allegedly committed twoerrors of law. [35] This appeal must fail. With respect to the first issue, I am of the view that the appellant seeks to have the Court intervene on aquestion of fact underlying the question of law it raises.

As I will discuss below, the Court of Québec judge concluded, based on theevidence and all of the circumstances, that a confidential and secure telephone call would have been possible in both the police car andthe respondent’s vehicle or, at the very least, that, given the circumstances, the police officers should have considered this possibility.These are findings of fact that have nothing to do with the law, and the appellant cannot challenge, as it is doing, the judge’s conclusionthat the reasons given by the police officers were [translation] “theoretical” and therefore constituted mere hypotheses and conjecture. [36] As for the exclusion of evidence, it raises a question of law insofar as it does not relate to the assessment of the evidence and islimited to the decision to exclude evidence.

While the trial judge’s decision whether or not to exclude evidence is a question of law, anappellate court must nevertheless defer to the factual findings leading to the decision, as the Superior Court judge noted and as Arbour, J.pointed out in R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, para. 44: In light of the above, a distinction has been drawn between the judicial adjudication of disrepute, which involves an appreciation ofevidence in the exercise of discretion, and the judicial decision to exclude, which is a duty flowing from a finding of disrepute.

Decidingwhether each of the preconditions to exclusion is met requires an evaluation of the evidence and the exercise of a substantial amount ofjudgment which mandates deference by appellate courts. […] This Court has emphasized on numerous occasions the importance ofdeferring to the s. 24(2) Charter findings of lower court judges. […] It was recently recalled by this Court in Law, supra, at para. 32: While the decision to exclude must be a reasonable one, a reviewing court will not interfere with a trial judge’s conclusions on s. 24(2)absent an “apparent error as to the applicable principles or rules of law” or an “unreasonable finding” . . . . [37] I see no such error here.

On the contrary, the judge followed the applicable rules of law and made an entirely reasonabledecision. [38] Let us now consider the matter in greater detail. Infringement of the right to counsel [39] It should be noted from the outset that the importance of this right no longer has to be elaborated upon. The right to counselunder s. 10(

b) of the Charter is intended to ensure a fair adjudicative and judicial process for arrested or detained persons by giving themthe opportunity to be informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercisethose rights and fulfil those obligations: Clarkson v. The Queen, (SCC), [1986] 1 S.C.R. 383, at p. 394; R. v. Manninen, (SCC), [1987] 1 S.C.R. 1233, at pp. 1242 and 1243; R. v.

Bartle, (SCC), [1994] 3 S.C.R. 173. [40] Persons who are detained by state authorities are at a disadvantage in their dealings with the state; they are deprived of libertyand risk incriminating themselves. The right to counsel is therefore crucial and also enables detained persons not to feel entirely at themercy of the police. As Doherty, J.A. wrote in R. v. Rover, 2018 ONCA 745: [45] The right to counsel is a lifeline for detained persons.

Through that lifeline, detained persons obtain, not only legal advice andguidance, […] but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access tocounsel without delay should not be underestimated. [41] The appellant writes in its memorandum [translation] “that the advent and proliferation of cell phones do not bring about a newconstitutional era in which an individual could consult the lawyer of his or her choice at the side of the road while waiting for the towtruck to arrive”.

If this means that it cannot be decreed, in all cases, that the person must be authorized to do so, I agree. On the otherhand, if it means that it can never be done, I disagree entirely. It all depends on the circumstance and I disagree with the appellant whenit adds: [translation] “This is the essence of the debate”. The essence of the debate is not whether the advent of the cell phone changesthe law and allows its use.

Rather, in my view, the essence of the debate is to determine what police officers should take into account indeciding whether or not to authorize its use for the purpose of consulting a lawyer. [42] As early as 2004, in R. v.

George, , 187 C.C.C. (3d) 289, in a case in which the accused had a cell phone in hispossession, the Ontario Court of Appeal pointed out, at para. 33, that “[o]n the record, contact with counsel could have beenaccommodated either through the cellular telephone” and “[…] the ready availability of a telephone is a relevant factor for the court toconsider in determining whether a detainee had a reasonable opportunity to consult counsel […]”. This passage has been cited a numberof times, including in R. c. Lauzier, supra, and in R. v. Quansah, 2012 ONCA 123.

I am aware that this decision deals with the periodpreceding the taking of a breath sample with an ASD. Therefore, I refer to it with that caveat.

Nonetheless, these comments are stillrelevant in demonstrating the importance of cell phones when it comes to access to counsel. [43] That having been said, the appellant would like to always exclude the use of a cell phone, at the scene, to facilitate access tocounsel, as indicated by this excerpt from its memorandum: [translation] […] it is difficult to imagine a situation where an individual could have a private and secure conversation with his or her lawyer at theside of the road or in the patrol car. This is not reasonably practicable.

In contrast, the solution we propose, that the right to counsel beexercised at the police station, combines all the elements mentioned above […]”.

[44] It should first be noted that the appellant’s arguments as to the impossibility of allowing the respondent to telephone her lawyer[translation] “at the side of the road” are in direct conflict with the factual findings of the Court of Québec judge in this case, and theSuperior Court judge was right to show him deference. [45] Moreover, it seems to me that the appellant is reversing the burden of proof. [46] In R. v.

Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, Abella, J. wrote: [24] The duty to inform a detained person of his or her right to counsel arises “immediately” upon arrest or detention (Suberu, atparas. 41-42), and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee’s request to speak to counsel.The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonablyavailable opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances (R. v.

Luong (2000),2000 ABCA 301 , 271 A.R. 368, at para. 12 (C.A.)). Whether a delay in facilitating access to counsel is reasonable is a factualinquiry. [47] Consequently, not only is the question of whether the delay can be characterized as reasonable a question of fact, but it is theCrown that has the burden of proving it.

The Crown must therefore do so on the basis of the evidence, not on the basis of an immutablerule stating that this can never be [translation] “reasonably practicable”. [48] A question of fact must be analyzed in light of the evidence and not by relying on hypotheses that one would like to extend to allcases.

The Crown will therefore only be able to discharge its burden by demonstrating that access was facilitated at the first reasonablyavailable opportunity, according to the circumstances of the case. [49] In the case before us, we understand that the Court of Québec judge concluded, in the circumstances, that the first reasonablyavailable opportunity to have access to counsel arose at the very site of the interception, after the arrest that followed the result of theASD sample collection.

However, it took an additional 54 minutes for the respondent to have access to her lawyer at the police station.This was therefore not the first reasonably available opportunity, since the judge rejected the police officers’ explanations for waitinguntil they arrived at the police station. The Superior Court judge was therefore justified in dismissing the appeal on this point. [50] I agree that the presence of a cell phone is not, in and of itself, a circumstance forcing police officers to allow it to be used tocommunicate with counsel.

This technology does not in all cases answer the question of when the “first reasonably availableopportunity” arises. Nevertheless, it is a circumstance that must be taken into account when answering this question. As Abella, J. notedin Taylor, supra: [28] But the police nonetheless have both a duty to provide phone access as soon as practicable to reduce the possibility of accidentalself-incrimination and to refrain from eliciting evidence from the individual before access to counsel has been facilitated.

While s. 10(b)does not create a “right” to use a specific phone, it does guarantee that the individual will have access to a phone to exercise his right tocounsel at the first reasonable opportunity. [51] In the same case, which also involved an arrest for impaired driving, Abella, J. reiterated the importance of considering all of thecircumstances to determine whether access was given within a reasonable time, as some cases may warrant a longer wait: [31] […] As this Court noted in Bartle, a police officer’s implementational duties under s. 10(

b) are necessarily limited in urgent ordangerous circumstances. But those attenuating circumstances are not engaged in this case. […] [32] The duty of the police is to provide access to counsel at the earliest practical opportunity.

To suggest, as the trial judge did, that itis presumptively reasonable to delay the implementation of the right to counsel for the entire duration of an accused’s time waiting forand receiving medical treatment in a hospital emergency ward, without any evidence of the particular circumstances, undermines theconstitutional requirement of access to counsel “without delay”. [33] Not everything that happens in an emergency ward is necessarily a medical emergency of such proportions that communicationbetween a lawyer and an accused is not reasonably possible.

Constitutional rights cannot be displaced by assumptions of impracticality.Barriers to access must be proven, not assumed, and proactive steps are required to turn the right to counsel into access to counsel. [52] Just as a visit to the hospital does not authorize police officers, in all cases, to wait for the end of treatment, waiting by the side ofthe road does not authorize police officers, in all cases, to postpone access to counsel to the police station. The same goes for a cellphone: the law does not oblige police officers to allow its use.

Rather, it obliges them to take the cell phone into consideration, like allother circumstances, when making their decision. [53] In short, hypotheses and assumptions, such as those raised by the appellant (as the Court of Québec judge concluded), are notsufficient for it to discharge its burden, which requires proof of real obstacles, such as an emergency, a danger or a rule of law: R. v.Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460; R. v. Strachan, (SCC), [1988] 2 S.C.R. 980. Recently, in R. v.

La, 2018ONCA 830, the Ontario Court of Appeal emphasized that factual evidence of particular circumstances is required to justify a delay, andmere suppositions are not sufficient: [39] Those concerns must be circumstantially concrete. General or theoretical concern for officer safety and destruction of evidence willnot justify a suspension of the right to counsel: R. v. Wu, 2017 ONSC 1003, 35 C.R. (7th) 101, at para. 78; R. v. Patterson, 2006 BCCA24, 206 C.C.C. (3d) 70, at paras. 41-42, and R. v. Proulx, 2016 ONCJ 352, at para. 47.

Rather, the assessment of whether a delay orsuspension of the right to counsel is justified involves a fact specific contextual determination: Wu, at para. 78. [54] This, in fact, echoed Abella, J.’s reasons in paragraphs 32 and 33 of Taylor, supra. [55] In R. v. Archambault, 2012 QCCA 20, para. 36, this Court also reiterated the need for [translation] “exceptional” circumstancesto justify a delay before access to counsel is granted, such as a threat to the safety of police officers or the public, or an imminent risk that

evidence will be destroyed or lost or that another ongoing police operation may be compromised. [ 56 ] The appellant made much of the fact that the trial judge used the expression “without delay”. I do not understand that argument. The text of s. 10(

b) itself uses it: “[…] to retain and instruct counsel without delay […] / […] avoir recours sans délai à l’assistance d’un avocat […]”. Clearly, as we have seen, according to the case law, “without delay” means “at the first reasonably available opportunity”, but I see no indication in the Court of Québec judgment that the judge did not take this qualification into account. [ 57 ] The appellant refers to R. c. Piazza , 2018 QCCA 948 , in support of its argument that it is difficult, if not impossible, to allow the use of a cell phone [ translation ] “at the side of the road”.

This calls for two comments. [ 58 ] First, that case deals with the period preceding the use of the ASD, such that the right to counsel is suspended because of a rule of law ( s. 254(2) Cr.C . at the time) which states that the breath sample must be provided “forthwith”. Thus, s. 10(

b) of the Charter did not apply. As my colleague, Vauclair, J.A. wrote, at para. 112 of Piazza , regarding access to counsel: [ translation ] “I think it is a spurious problem, because the right is suspended...” in these circumstances.

It cannot therefore be argued that this ruling can be of use to us here, when my colleague referred to the difficulties of using a cell phone at the time of an arrest. [ 59 ] Second, while, at paras. 113 and 114, my colleague set out a series of difficulties that are likely to make the possibility of consulting counsel at the scene using a cell phone illusory, he did so in the context of the waiting period prior to the use of the ASD and in response to the suggestion that such consultation becomes necessary in order to authorize the use of the ASD.

He did not rule on the period that follows the taking of a breath sample using the ASD, since this was not the situation being considered in that judgment. [ 60 ] Finally, the appellant submits that allowing the use of a cell phone would be unfair to those who do not have a cell phone. In my opinion, this argument does not hold water. Turning a blind eye to a reasonable opportunity to contact a lawyer out of concern for fairness to other individuals, who are in different circumstances, seems to me to be inconsistent with the scheme of the Charter , which must be interpreted liberally and generously.

Section 24 (2) of the Charter [ 61 ] The appellant does not question the criteria analyzed by the judge, who rigorously considered the test factors described in R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353: the seriousness of the Charter -infringing state conduct; the impact of the breach on the Charter -protected interests of the accused; society’s interest in the adjudication of the case on its merits; and the balancing of these factors. The appellant essentially challenges the inferences drawn by the judge, without showing any error of law. [ 62 ] Some might believe that the judge’s conclusion is harsh.

After all, as soon as the exclusion of evidence results in an acquittal, the decision may seem harsh. Such a decision, however, is first and foremost one for the trial judge to make. [ 63 ] Deciding whether or not one or more factors favour the exclusion of evidence requires an overall assessment of all the circumstances and therefore mandates deference from an appellate court: R. v. Côté , 2011 SCC 46 , [2011] 3 S.C.R. 215, paras. 44 to 52 .

While the decision to exclude evidence must be reasonable, the reviewing court will not interfere with the trial judge’s findings in the absence of an “apparent error as to the applicable principles or rules of law” or an “unreasonable finding”: R. v. Law , 2002 SCC 10 , [2002] 1 S.C.R. 227, para. 32 . [ 64 ] As regards the seriousness of the state’s conduct as a factor, the appellant revisits the judge’s emphasis on the duty to act “without delay”. That argument is no more valid here. [ 65 ] It also invokes the good faith of the police officers, which, it argues, mitigates the seriousness of their conduct.

However, good faith should not be confused with the absence of bad faith. In other words, the absence of bad faith does not necessarily demonstrate good faith. The reverse is also true: Lévesque-Mandanici c. R., 2014 QCCA 1517 , paras. 83 to 87 , and R. v. Paterson , 2017 SCC 15 , [2017] 1 S.C.R. 202, para. 44 . In the present case, the Court of Québec judge concluded that the reasons given by the police officers were neither real nor sincere, which takes us a long way from good faith.

In fact, again according to the judge’s factual findings, which are well grounded in the evidence, the police created reasons for refusing to let the respondent use her cell phone. Thus, there cannot be good faith, especially since the police officers referred to a lack of directives, which suggests that this conduct is systemic or institutional, a determination that is not without importance: R. v. Paterson , supra . [ 66 ] In this regard, I refer once again to R. v.

Rover , supra , on the need to reject police conduct that is based on an immutable practice rather than on the circumstances of the case: [32] […] There is no evidence that any of the officers turned their mind to the specific circumstances of this case before deciding that the appellant would be arrested and denied access to counsel for several hours while the police sought, obtained, and executed a search warrant. On the evidence of the police, there was no need to consider the specifics of this case.

For them, the decision to arrest the appellant before seeking the search warrant dictated that the appellant would not be allowed to contact a lawyer until the warrant was executed. [33] In my view, to fall within the exception to the requirement that an arrested person be allowed to speak to counsel without delay, the police must actually turn their mind to the specific circumstances of the case, and they must have reasonable grounds to justify the delay. The justification may be premised on the risk of the destruction of evidence, public safety, police safety, or some other urgent or dangerous circumstance.

Furthermore, if the police determine that some delay in allowing an arrested person to speak to counsel is justified to permit execution of the warrant, then they must consider whether it is necessary to arrest the individual before they execute the warrant. […] [34] The effective implementation of the right to counsel guaranteed by s. 10(

b) depends entirely on the police. The police must understand that right and be willing to facilitate contact with counsel. The practice under which the officers involved in this case operated demonstrates a disregard of a fundamental constitutional right. The appellant’s right to speak with counsel was denied at the time of his

arrest, when the police refused his request to speak with counsel. [ 67 ] In short, the appellant has not shown any error on the part of the Court of Québec judge that could have justified the intervention of the Superior Court. [ 68 ] Furthermore, a general directive, or the absence of one, cannot replace the required fact-specific contextual analysis. It is the police officers who are required to examine the situation, which necessitates that they perform a case-by-case assessment: R. v. La , supra , para. 40 ; R. v. Rover , supra , paras. 32 and 33 .

When a routine police practice or directive unduly restricts a right, it tends to make the infringement more serious: R. v. La , supra , para. 40 ; [ 69 ] As to the impact of the breach, the Court of Québec judge took into account that the evidence in question was self-incriminating in nature. It goes without saying that exclusion cannot be automatic for this reason, but since all the circumstances must be considered, he was certainly not wrong to take this into account. [ 70 ] In R. v.

Grant 2009 SCC 32 , [2009] 2 S.C.R. 353, McLachlin, C.J. and Charron, J. wrote: [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. [Emphasis added] [ 71 ] It is true that breath samples are generally obtained by minimally intrusive means, which should favour their admission into evidence. However, to reiterate what I stated above, and as the Chief Justice and Charron, J. pointed out, all the circumstances must be taken into account, which is what the Court of Québec judge did, and the deference owed to him explains the decision of the Superior Court judge.

I note once again the context, one in which the police were guided in particular by the lack of a directive. In other words, this was systemic conduct, driven by the absence of a directive, from which the courts must distance themselves. [ 72 ] It is true that no evidence was discovered until after the respondent spoke with her lawyer, which one might be tempted to equate to an absence of actual prejudice. However, this is not so. First, there is no absolute requirement of a causal connection between the Charter violation and the discovery of the evidence; the temporal link usually figures prominently: R. v.

Strachan , supra , at p. 1005. Second, the respondent was unnecessarily deprived of all outside contact, including contact with her lawyer, for almost an hour, despite the fact she had requested permission to call him on her cell phone, which was denied without even considering the mere possibility of her doing so.

It should be noted that, nowadays, having a cell phone is so common that we no longer even wonder if someone has one; we take it for granted. [ 73 ] As I said earlier, the right to counsel is precisely intended to balance the right to liberty with the extraordinary power to detain a person against his or her will, so as to ensure adjudicative fairness between the accused and state agents.

There was nothing fair in the decision to let the respondent wonder for an hour what might happen next and what her options might be, when, due to a lack of directives, the police officers did not even consider whether they could authorize her to make a phone call. Even though we know she had very few options, a phone call would have at least allowed her to find this out without having to wait so long. I emphasize once again the importance of the psychological value of such a phone call. [ 74 ] Moreover, I would add that, in this case, the respondent’s trust in her lawyer (a fact which is not insignificant: R. c.

Lefebvre , 2018 QCCS 4468 , paras. 307 and 308 ) is an element that must be considered in assessing the impact of the police officers’ decision to delay her access to her lawyer. [ 75 ] The rest of the judge’s analysis also cannot be disputed. [ 76 ] In short, the Superior Court judge did not err in law by refusing to intervene. [ 77 ] To summarize, the cell phone issue is not the real issue.

Rather, the presence of a cell phone is a circumstance that police officers must take into account in determining when the “first reasonably available opportunity” to facilitate access to counsel arises, as it is their duty to do. In the case at bar, the trial judge’s findings of fact led to a finding that the respondent’s right had been infringed and that the evidence should be excluded.

In the circumstances, there would have been no reason for the Superior Court judge to intervene. [ 78 ] I stress the following point: the issue here is not that the respondent was not permitted to use her cell phone to call her lawyer. The problem is that the two police officers did not even consider this possibility, although it was their responsibility to do so. And why did they not consider this possibility? Due to the lack of a directive allowing them to do so.

This is where the responsibility of the system comes into play, which leads to systemic conduct, one that is obviously likely to be repeated and aggravates the situation.

All this comes twenty years after the judgments in Clarkson and Manninen , five years after Archambault , which requires exceptional circumstances to delay access to counsel, five years after the first in a series of judgments of the Court of Québec that reproached the police for not having let the detainee use his or her cell phone, and three years after Taylor , which reiterated that the duty to facilitate access to counsel arises immediately after the detainee has asked to speak with counsel, which means at the first reasonably available opportunity.

In other words, the police officers did not fulfil their duty—one that is well known—not by complying with a directive, but by refusing to do so because of the absence of a directive. This situation cannot be tolerated. [ 79 ] For these reasons, I would dismiss the appeal.

FRANÇOIS DOYON, J.A.