2016 QCCA 1707, 2016 QCCA 1707

Stevens c. R. 2016 QCCA 1707 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-003054-140 (105-01-000532-114) DATE: October 24, 2016 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. NICHOLAS KASIRER, J.A. ÉTIENNE PARENT, J.A. LAWRENCE STEVENS APPELANT – accused v. HER MAJESTY THE QUEEN RESPONDENT – prosecutrix JUDGMENT AMENDED To record Publication ban (pursuant to

section 486.4 Cr. C ) [ 1 ] Lawrence Stevens appeals from a judgment of the Court of Quebec, Criminal and Penal Division, District of Bonaventure (the Honourable Judge Jules Berthelot), rendered April 23, 2014, and convicting him of rape and indecent assault, offences set out in the Criminal Code , R.S.C. 1970, c. C-34; [ 2 ] For the reasons of Kasirer, J.A., with which Doyon and Parent, JJ.A. agree, THE COURT: [ 3 ] ALLOWS the appeal; [ 4 ] OVERTURNS the judgment of the Court of Quebec; [ 5 ] ORDERS a new trial. FRANÇOIS DOYON, J.A. NICHOLAS KASIRER, J.A. ÉTIENNE PARENT, J.A.

Mtre Yves Desaulniers Desaulniers avocats For the appellant Mtre Pascale Gaudette Directeur des poursuites criminelles et pénales For the respondent

Date of hearing: May 10, 2016 REASONS OF KASIRER, J.A. [ 6 ] This appeal brings to the fore an important aspect of the implementation of the right to counsel guaranteed by s. 10(

b) of the Canadian Charter of Rights and Freedoms . On interrogation following arrest, it is not enough for police officers to inform the suspect of his or her right to counsel or even to provide an opportunity to contact an attorney.

The police must also permit the effective implementation of the constitutional right to counsel by providing a reasonable opportunity to exercise this right. [1] When police officers have clear indications that attorney-client communication has not been sufficiently established, they may not refuse to fulfill their duty under the pretext that the accused is entitled to only [ translation ] “one phone call”. Moreover, police officers cannot knowingly deprive detainees of the information necessary to obtain access to legal counsel.

Otherwise, evidence obtained in such circumstances may be excluded. *** I Background [ 7 ] Lawrence Stevens appeals from a judgment of the Court of Quebec, rendered on April 23, 2014, convicting him of rape and indecent assault in connection with events that took place thirty years prior. [2] [ 8 ] In broad outline, the facts of the case can be summarized as follows. [ 9 ] In May 1980, the appellant was separated from his spouse and living in the family residence near Bonaventure, on the Gaspé Peninsula.

A high school teacher and part-time construction contractor, he had custody of two of his three children, including his youngest daughter, who was nine years old. To help him care for his daughter and keep house, the appellant hired a nanny, J.P., a young woman of 19 from the local village whose father he knew. Starting in late summer 1981, Ms. P. lived in the appellant’s house during the week, returning home to her parents’ on weekends. In March 1982, the appellant terminated her employment. [ 10 ] On …, 1982, Ms. P. gave birth to a daughter.

According to the appellant, it was only in 2011, on the basis of DNA tests carried out in the course of the police investigation, that he found out about this child whom he had fathered. [ 11 ] In 2011, on the strength of an information sworn by Ms. P., by then 50 years old, an arrest warrant for rape and indecent assault was issued against the appellant, then 68 years old. The complainant stated that the appellant raped her on four occasions during the period of her employment in 1981 and 1982, including three times in the bedroom she had been given in his home.

According to the complainant, another rape took place in the appellant’s room. Mr. Stevens denies the charges outright. Instead, he says he had consensual sexual intercourse with the complainant and that this happened only once. [ 12 ] On the morning of October 11, 2011, police officers arrested the appellant at his residence on the basis of that information, as well as that of another complainant, Jo. P. He was taken to the Sûreté du Québec station in Pabos to be interrogated in a room with a video recording system. The interrogation began shortly after 9:00 a.m. and lasted roughly five hours.

It was conducted by Officer Benoît Corriveau. [ 13 ] The admissibility of the video recording of this interrogation and its potential probative value were central issues at trial. [ 14 ] Around 9:13 a.m., after reading the appellant the charges against him and his constitutional rights, Officer Corriveau led him to another room so that he could exercise his right to counsel. The appellant managed to reach Mtre Damien St-Onge by telephone, but the lawyer, who specialized in civil matters, was unable to help him.

Mtre St-Onge gave him the name of a local criminal lawyer, Mtre Yves Desaulniers, whose name the appellant jotted on a piece of paper he brought with him to the interrogation room. [ 15 ] During the interrogation, Mtre Desaulniers left messages for the appellant at the police station, but these were not delivered to the appellant. As a matter of fact, the appellant was not able to reach Mtre Desaulniers until the end of the day. I will return to this below. [ 16 ] When he returned to the interrogation room around 9:28 a.m., the appellant was questioned by Officer Corriveau.

The appellant left the room several times. What happened during these periods was not captured on videotape. [ 17 ] After the interrogation, the appellant appeared at the New Carlisle courthouse on the two charges relating to J.P. II The judgment on the voir dire and the judgment on conviction under appeal [ 18 ] The trial began on September 9, 2013, and lasted nine days. [ 19 ] The prosecution first called the complainant and Francine Chicoine, the appellant’s former cleaning lady.

The prosecution also filed an expert biology report analyzing the genetic profile of the complainant’s child, born in 1982, to establish the child’s filiation. [ 20 ] The prosecution then announced its intention to call Officer Corriveau and to introduce into evidence the video recording of the October 11, 2011 interrogation. The appellant requested that a voir dire be held to challenge the admissibility of the recording. In a notice of objection sent to the prosecution (not reproduced in the record on appeal), he maintained that his right to counsel guaranteed by s. 10(

b) of the Canadian Charter of Rights and Freedoms was breached during the interrogation and that the admission of the statement into evidence would bring the administration of justice into disrepute. The appellant also alleges a breach of his constitutional right to silence, enshrined at s. 7 of the Charter .

[ 21 ] During the voir dire , the prosecution called Officer Corriveau to testify and played the video of the interrogation, also filing an unofficial transcript of the video’s content. The appellant called no witnesses at that stage of the proceedings. [ 22 ] In his submissions during the voir dire , counsel for the appellant explained that he challenged the admissibility of the video not merely on the basis of violations of ss. 7 and 10(

b) of the Charter , but also because of the lack of evidence that the statements it contained were free and voluntary. In his view, the prosecution had not made such a demonstration because the appellant left the room a few times during his interrogation and these sequences were not filmed.

In his opinion, since it was possible that the appellant was pressured or intimidated during these periods, the prosecution had failed in its duty to demonstrate beyond a reasonable doubt that the entire statement was free and voluntary. [ 23 ] Counsel for the prosecution said she was surprised by this allegation and asked the judge to reopen the inquiry as to whether the statement was free and voluntary.

The judge refused the prosecution’s request, stating, [ translation ] “the defence would be prejudiced if the Court ordered the inquiry to be reopened, which might even lead the accused to testify during the voir dire ”. II.A Judgment on voir dire [ 24 ] In his judgment on the voir dire , delivered from the bench on October 3, 2013, the judge found that the appellant’s right to counsel and right to silence had not been breached. He was also of the view that the prosecution had fulfilled its duty to demonstrate that the appellant’s videotaped statements were free and voluntary.

He therefore declared the recording admissible into evidence. [ 25 ] For the judge, the evidence demonstrated beyond a reasonable doubt that the police officers had fulfilled their duty to inform the appellant of his rights under s. 10(

b) of the Charter : [ translation ] “the accused was informed of his right to counsel of his choice”, the judge stated. The judge added that the video evidence demonstrated, also beyond a reasonable doubt, that [ translation ] “the accused had a reasonable opportunity to exercise this right and... even reached a [lawyer]”. [ 26 ] On the basis of the evidence, the judge held that the appellant wrote Mtre Desaulniers’s name on a piece of paper after speaking to Mtre St-Onge.

Referring to the conversations between Officer Corriveau and the appellant in the interrogation room, the judge stated, [ translation ] “Regarding this sequence, the investigator returned to the point, to the fact that Mtre Desaulniers was trying to contact him”. [ 27 ] The judge emphasized that Investigator Corriveau gave the appellant another opportunity to contact a lawyer and found that the appellant’s negative answer was [ translation ] “categorical and unequivocal”. The judge concluded that the appellant did not want to call the lawyer suggested by Mtre St-Onge.

In these circumstances, the judge decided, [ translation ] “the investigator was not required to do anything else”. [ 28 ] As for the supposed violation of the constitutional right to silence, the judge noted that this right is not absolute and that police officers are not prohibited from interrogating a detainee or even obtaining a confession [ translation ] “after [the detainee] has consulted a lawyer”. In the circumstances, the judge saw no s. 7 Charter breach. [ 29 ] The judge rejected the appellant’s argument that the prosecution had failed in its duty to prove that the statement was free and voluntary.

He noted that the appellant had left the interrogation room with the investigator and that these sequences were not filmed. He pointed out, however, that once they were back in the interrogation room, Investigator Corriveau provided [ translation ] “recaps”, in the appellant’s presence, of what had happened outside the room. The judge also highlighted that, on the video, the appellant was [ translation ] “jovial” and that the [ translation ] “atmosphere” during the interrogation revealed [ translation ] “nothing coercive”.

In short, the judge concluded that the prosecution had discharged its burden of demonstrating that the statement was made without any promises or threats. [ 30 ] The judge therefore declared that the video was admissible in evidence. *** [ 31 ] When the hearing resumed after the voir dire , the video recording, which is several hours long, was adduced into evidence. [ 32 ] Counsel for the appellant then requested the exclusion of excerpts of the interrogation concerning the appellant’s relationship with the other woman not connected with the charges, being of the view that these might contain illegal similar fact evidence.

The judge rejected the request on the spot. In his opinion, the Court would be able to [ translation ] “make the necessary distinction as to what constitutes the accused’s testimony about another person and what is about the complainant in this file”. [ 33 ] The video and transcript were filed, and the prosecution closed its case. [ 34 ] The appellant testified in his defence and denied committing the offences. He called his niece, Claudine Lelièvre, to testify. She had also been a nanny at the appellant’s home at the time of the events. The judge allowed the prosecution to recall Ms.

Chicoine to give rebuttal evidence. II.B Judgment on conviction [ 35 ] In a judgment delivered orally, the judge first reviewed the testimony of the complainant and of Ms. Chicoine. He summarized the defence evidence, considering the appellant’s testimony in detail, notably by comparing it to the contents of the video recording. [ 36 ] Having found that the complainant and appellant’s versions of the alleged assaults were contradictory, the judge proceeded to analyze the evidence following the three-step analysis set out in R. v.

W.(D.) . [3] [ 37 ] First, he explained why, in his view, the appellant’s version could not be believed. The appellant was not credible, the judge stated, [ translation ] “because from the beginning of that videotaped statement, you see his body language, you see his answers, it’s as clear as day”. Noting that, during the interrogation, the appellant first said that he did not remember having sexual intercourse with the

complainant but then changed his story when faced with the police officer’s questions, the judge concluded that the appellant was not credible. He faulted the appellant because, among other things, in the video, [ translation ] “he didn’t know who the complainant in this case was until the fact was raised that he might be the father of the child that was born”. The judge compared the answers given by the appellant in the video to the version he gave at trial, where he stated that he remembered the sexual relations, which he claimed were consensual, [ translation ] “in great detail, several years later”.

The judge repeated that he did not believe him. [ 38 ] The appellant’s testimony also failed to raise a reasonable doubt in the judge’s mind. In this respect, the judge said: [ translation ] To believe that the sexual relations were consensual in this case, in light of the statement made in the video, which the Court has already analyzed; to believe that a reasonable doubt exists as to whether there were consensual sexual relations between Ms. P. and the accused, when a police officer discredited the accused’s last denials during interrogation, would be absurd.

His manner of testifying does not in any way, in light of his testimony and the evidence as a whole, raise any reasonable doubt whatsoever. [ 39 ] As for the third stage of the W.(D.) test, the judge was of the view that the prosecution had discharged its burden of establishing the appellant’s guilt beyond a reasonable doubt. Noting that the prosecution’s evidence was based essentially on the complainant’s testimony and the video recording, the judge concluded as follows: [ translation ] Admittedly, certain contradictions emerge from Ms. P.’s testimony.

Some contradictions concern merely secondary elements, and can only be qualified as such by splitting hairs. The most flagrant example is that of the ... episode of skinny dipping in the pool. The complainant in this file does not describe a hundred and fifty (150), two hundred (200) incidents; she relates thr... four (4) specific incidents that she described in great detail before the Court. The Court wholly believes that the accused subjected her to these sexual acts.

The prosecution has established the guilt of the accused beyond a reasonable doubt. [ 40 ] The judge convicted the appellant on the charges of rape and indecent assault. III Grounds of appeal [ 41 ] The appellant raises six grounds of appeal. [ 42 ] The first three grounds may be grouped together as they all impugn the judge’s decision to declare the video recording admissible in evidence. The appellant maintains that (

i) the judge erred in law by finding that there was no violation of his constitutional rights to counsel and to silence; (ii) the judge erred in law by finding that the prosecution had demonstrated that the statement was free and voluntary; and (iii) the judge once more erred in law by admitting similar fact evidence without holding a voir dire on this point. In the appellant’s view, each of these first three grievances, taken on its own, could ground a ruling on appeal to exclude the video.

This would, he argues, justify an order for a new trial. [ 43 ] The other three grounds, all of which concern the assessment of the evidence at trial, are more directly aimed at the judgment convicting the appellant. The appellant is of the view that (

i) the judge erred in law in his application of the R. v. W.(D.) test; (ii) the judge erred in law by failing to explain why he convicted the appellant despite evidence in his favour; and (iii) the judge also erred in law by rendering an unreasonable verdict, in particular, by failing to take into account the contradictions in the complainant’s testimony. [ 44 ] In the relief sought on the appeal, the appellant asks the Court to overturn the conviction and to enter in its stead an acquittal on both charges against him. In the alternative, he requests a new trial. IV Merits of the appeal (

A) Grounds for excluding the video recording from evidence [ 45 ] Although the video does not contain any admissions per se , the appellant maintains that it played a crucial role in the judgment on the merits once admitted into evidence. In his view, the judge relied on many excerpts from the video to find that he was not credible and that the version he gave of his relationship with the complainant raises no reasonable doubt. The appellant submits that if the judge had correctly excluded the video from evidence he would not have been convicted of the offences alleged. The judge therefore made a determinative error by allowing the video into evidence. (

i) Did the judge err in finding that the appellant’s right to counsel and right to silence were not breached? [ 46 ] In the appellant’s view, Officer Corriveau’s conduct constituted a violation of his s. 10(

b) Charter rights because he did not give the appellant a reasonable opportunity to exercise his right to counsel. He also argues that the judge erred by indicating that the police officer had told him that Mtre Desaulniers was trying to reach him. According to the appellant, the facts reveal that the police officer did not actually give him this information until the end of the interrogation.

Moreover, the judge should have recognized that the officer had ignored clear indications that the assistance provided by Mtre St-Onge was insufficient, such as the fact that the appellant wrote Mtre Desaulniers’s name on a piece of paper and the messages the lawyer left for him. These events, which took place after the first phone call, were new facts that required the police to once again inform the appellant of his right to counsel.

In short, the judge erred in finding that the appellant’s rights had been respected and, in the circumstances, should have excluded the video recording from the evidence, the whole in application of the analytical framework developed in the case law rendered under s. 24(2) of the Charter . [ 47 ] The respondent, for its part, maintains that the judge did not make a determinative error in the judgement on the voir dire and that his decision characterizing the evidence as admissible is not reviewable by the Court.

[ 48 ] Noting that the appellant had the opportunity to consult counsel as soon as the interrogation began, the respondent argues that s. 10(

b) of the Charter does not require that the police officer review the quality of the counsel received by the detainee once attorney- client communication is established. The respondent reminds us that when Officer Corriveau was told that Mtre Desaulniers was trying to reach the appellant, the police officer tried to clarify the situation, even offering the appellant the opportunity to make another phone call. In any event, the respondent says, the case law establishes that the right to counsel essentially applies once, with rare exceptions that do not apply here.

In short, the respondent submits, the judge was right to note that the appellant had exercised his right to counsel, guaranteed by s. 10 ( b ), and the video recording was validly admitted into evidence. [ 49 ] For the reasons that follow, and with respect for the trial judge, I find that the appellant is right to argue that his right to counsel was violated.

In the circumstances, I am of the opinion that the video recording should have been excluded from evidence at the end of the voir dire . [ 50 ] I turn to the evidence adduced at the voir dire and how the judge dealt with it. [ 51 ] No one disputes that the officer gave the appellant the opportunity to contact a lawyer and that the appellant spoke with Mtre St-Onge around 9:13 a.m. During his telephone conversation with Mtre St-Onge, the appellant wrote Mtre Desaulniers’s name on a document.

When the appellant returned to the interrogation room around 9:28 a.m., Officer Corriveau saw Mtre Desaulniers’s name on the piece of paper and recognized it as the name of a local criminal lawyer he had previously encountered. Officer Corriveau testified that when he saw Mtre Desaulniers’s name he inferred that the appellant had written it down during his conversation with Mtre St-Onge. [ 52 ] In addition, the appellant clearly told Officer Corriveau that Mtre St-Onge was not a criminal lawyer and that he had [ translation ] “recommended” Mtre Desaulniers, which is why he jotted down the telephone number.

The appellant also told the police officer that, his understanding of what the officer had said earlier was that he could not contact Mtre Desaulniers right away because after his call to Mtre St-Onge, he had no right to another phone call. [ 53 ] Indeed, when he saw that the appellant wanted to contact the criminal lawyer Mtre St-Onge had recommended, Officer Corriveau told the appellant that he could not phone Mtre Desaulniers immediately because his right to counsel had already been exercised.

When cross-examined on [ translation ] “the piece of paper episode” during the voir dire , the officer explained that when he saw Mtre Desaulniers’s name on the piece of paper, he told the appellant that his right to counsel had been exercised in calling Mtre St- Onge: [ translation ] Officer Corriveau: Your Honour, I would like to explain the piece ... the piece of paper episode, it’s important. The Judge: The piece of paper ... when you refer to the piece of paper, it’s not VDD-1 but the warrant [on which the appellant wrote Mtre Desaulniers’s name]? Officer Corriveau: It’s the warrant. When I returned, Mr.

Stevens had spoken to ... Mtre St-Onge. I entered the room. At that moment, Mr. Stevens wasn’t saying to me: I want to call Mtre Desaulniers. – At that point, that wasn’t the question. I was the one who saw “Yves Desaulniers” and a phone number on the arrest warrant. I asked him: What’s that? He told me: It’s the lawyer I’m going to call later. I said: Anyway, I said, you have the right to one phone call to a lawyer . That’s all. We left again, and went back downstairs. Mtre Desaulniers: But you don’t say that on the tape, do you? Officer Corriveau: No, no. That was upstairs.

It was upstairs, in the room, before going back down. Mtre Desaulniers: So [the appellant said] “that’s the lawyer I’m going to call later.” You told him, on that point: In any event, you have the right to one phone call. Officer Corriveau: Indeed , he had a conversation with a lawyer, Mtre St-Onge, then there was no other call . His status didn’t change. It was the same arrest warrant, and his right to counsel had been exercised .

Mtre Desaulniers: That means that Stevens, ultimately, when he said that he thought, as of eleven-thirty-one (11:31 a.m.): You told me this morning that I had the right to one phone call. – He was right? Officer Corriveau: He was right. When he made ... We’re referring to that event. Yes, it’s true, I told him: You have the right to one phone call. It should be noted, Your Honour, that on several occasions I mentioned the toll-free, 1-800 number, and he’s the one who chose to call Mtre St-Onge. He chose. He made ... He’s the one who chose to call him. Me?

I didn’t suggest a lawyer: his choice was respected ... … Mtre Desaulniers: So at [lines] 3418, 3419 [of the transcript of the interrogation at the police station], Lawrence Stevens says: “Because, why this morning, this morning, it’s because you told me that I had the right to one phone call”. [“]And that would have been the second one[”]? Officer Corriveau: Well, he was right to say that.

Mtre Desaulniers: So... Officer Corriveau: Sorry if there is more to your question ... He was right to say that, because after I went back into the room when he had just finished his call to Mtre St-Onge, well I’m the one who ... at that point he wasn’t saying: I want to talk to Yves Desaulniers. – I saw the telephone number and asked what it was. He said; It’s the lawyer I’m going to call later. -– Then I told him; Anyway, you have the right to one phone call to a lawyer. It’s been exercised, now .

That’s what you’re referring to. [Emphasis added] [ 54 ] No one disputes that Mtre Desaulniers telephoned the police station on the morning of the interrogation, after the appellant and Mtre St-Onge spoke, and that he left messages for the appellant before 11:00 a.m. [4] Officer Corriveau testified that he himself received at least one message from Mtre Desaulniers, on a pink slip of paper prepared by the station’s switchboard operator. This pink paper, which is filed in evidence, bears Mtre Desaulniers’s telephone number along with the name “Mr.

Stevens” as the person to whom the message is addressed, with the [ translation ] “call back” box checked off. At trial, Officer Corriveau stated that he had received it [ translation ] “around 11:00 a.m.”, that is about 90 minutes into an interrogation that lasted roughly five hours. [5] [ 55 ] It is not disputed that the police officer did not give the appellant the pink piece of paper on the spot, but only once the interrogation was over, as he explained at trial: [ translation ] I know that I’m the one who gave it to Mr.

Stevens at the end of the day because Mtre Desaulniers had called, and “call back” was checked. There was no indication that it was an emergency. [ 56 ] The conversations recorded on video after 11:00 a.m. confirm that the officer chose not to tell the appellant that the lawyer was trying to reach him. According to the transcript filed by the prosecution at the voir dire , Officer Corriveau merely asked the appellant if he was waiting for a call: [ translation ] Officer Corriveau: ... we’re going to chat a little more. Appellant: About what? Officer Corriveau: Chat.

To avoid being bothered today, and all that during our meeting, are you expecting any important telephone calls that [sic] might call you today, or anything like that? No one might call you here? Appellant: No, I don’t see who would. Officer Corriveau: O.K. Appellant: I have no plans. Officer Corriveau: You have no plans. You’re not waiting for... there’s no one who might call you here today saying I want to talk to you and all that? Appellant: My wife might call me. Officer Corriveau: O.K., to see and all that. But you’re not waiting for any other calls? Appellant: No, no.

No, I don’t see who, you know. [ 57 ] Contrary to what the judge found, Officer Corriveau did not inform the appellant that Mtre Desaulniers was trying to contact him during the interrogation, even though he knew the appellant wanted to speak with this lawyer eventually, since he had written his name on the piece of paper. With respect, when the judge stated in his judgment on the voir dire that [ translation ] “...the investigator came back to this point, to the fact that Mtre Desaulniers was trying to contact him”, he was mistaken and committed a palpable error.

Nowhere in the video recording does Officer Corriveau tell the appellant about this. [ 58 ] At the appeal hearing, the respondent conceded that the judge erred on this point, but argued that this error had no impact on the merits of the decision that the evidence was admissible. [ 59 ] As for the appellant, he maintains that this error was vital to the judge’s conclusion that his right to counsel had not been violated, and that this error warrants overturning the judgment on appeal. [ 60 ] I share the appellant’s view.

In arguing the contrary, the respondent unduly restricts the scope of the right enshrined at s. 10(

b) of the Charter and ignores nearly 30 years of established case law regarding the duties of police officers in implementing the right to counsel. [ 61 ] Since Maninnen , [6] rendered in 1987, it is understood that, beyond the duty to inform detainees of their rights, s. 10 (

b) imposes at least two duties on police officers . First, if a detainee indicates that he or she wishes to exercise this right, the police officer must, barring emergency, provide the detainee with a reasonable opportunity to do so. Second, the police officer must refrain from eliciting evidence until the detainee has had that reasonable opportunity. [7] [ 62 ] The duty imposed on officers to give detainees the reasonable opportunity to exercise their right to counsel, which is distinct from the duty to inform, flows from the very wording of s. 10(

b) of the Charter , [8] as doctrinal authors remind us. [9] We may go even

further and say that a joint reading of the French and English versions provides a dual perspective on the “application” aspect of the right to counsel. [10] The expression “to retain and instruct counsel without delay” in the English text emphasizes the act of communication undertaken by the detainee with the lawyer; with the words “ d’avoir recours sans délai à l’assistance de l’avocat ”, the French text, for its part, focuses on the opposite perspective, the actual provision of legal advice by a lawyer to a detainee, who is here seen as the recipient of the advice. [ 63 ] The versions are not inconsistent; together, they contribute to the expression of a common meaning encompassing the full scope of the Charter -enshrined right. [11] The right to counsel includes the right to inform the counsel retained of the situation in which the detainee finds himself or herself (”the right to retain and instruct counsel”), and its corollary, the right to obtain advice from the attorney retained (“ le droit...à l’assistance de l’avocat ”).

Implicit in the term “ assistance ” is the notion of instructing counsel in an attorney-client relationship, which is explicit in the term “instruct” in the English version. Similarly, “to instruct counsel” also implies receiving “ assistance ” from a lawyer, which is explicit in the French text. The two versions combine to express the bilateral relationship of attorney-client communication at the heart of this Charter -enshrined right. [ 64 ] Moreover, the recognition of this two-way relationship is necessary to fulfill the objective of s. 10 ( b ). As the Supreme Court noted in R. v.

Willier , [12] “ s. 10 ( b )’s text remains the starting point in its

interpretation, an understanding of its animating purposes is essential to a full understanding of its content”. [13] The purposive

interpretation proposed by the Supreme Court takes into account the objective of the right to counsel, which seeks to mitigate the power imbalance between the detainee and the State when the former is being interrogated by police officers. [14] This

interpretation –focused on the right to counsel as a bulwark against the abusive deprivation of freedom and a buttress for the right to silence – is consistent with the relationship of bilateral communication protected by the two versions of s. 10( b ). [ 65 ] From this perspective, it was indeed the duty to give the appellant a reasonable opportunity to exercise his right to counsel without delay that was breached by the police officers in this case.

Technically speaking, it is true that the appellant did have “ recours ” to Mtre St-Onge as a result of the information provided by the officer and the opportunity he gave him to make a call at the police station. When the officer observed, however, that the appellant had written the name of a criminal lawyer on a piece of paper during his conversation with Mtre St-Onge, the officer should necessarily have inferred that the appellant had not been able to benefit from the “ assistance ” of a lawyer and his right to “instruct counsel”. He did nothing, however, to redress this situation.

Worse still, he misled the appellant by allowing him to believe that his constitutional right had been exhausted with the [ translation ] “one phone call” to which he was entitled and by keeping quiet about the messages from the lawyer with whom the appellant wanted to speak.

In so doing, through his unwillingness to inform the appellant that Mtre Desaulniers was trying to contact him, Officer Corriveau knowingly prevented the appellant from exercising his constitutional right. [ 66 ] In its submissions, the respondent argued that the police officer’s behaviour was not [ translation ] “police trickery” and that the situation was [ translation ] “deplorable” but apparently also excusable, as it saw no Charter violation. [ 67 ] The respondent is mistaken.

Its account of the police officer’s conduct finds no support in the evidence and is based on an incomplete review of the case law. [ 68 ] By concealing Mtre Desaulniers’s message from the appellant – vulnerable because he was detained at the police station – precisely when the state had an interest in the appellant waiving his right to silence, the police officer deliberately denied him a reasonable opportunity to instruct and obtain the assistance of counsel.

Instead of stopping the interrogation to allow him the opportunity to contact Mtre Desaulniers without delay, Officer Corriveau chose to continue his questioning without regard for the appellant’s constitutional rights. [ 69 ] The officer took advantage of the appellant’s poor comprehension of his situation by attempting to pry from him a final waiver of his right to counsel, when the appellant believed that his right to counsel allowed him to place [ translation ] “one phone call”.

This is revealed in the following conversation: [ translation ] Appellant: I said [to Mtre St-Onge] do you have someone to recommend? Officer Corriveau: O.K. Appellant: You know. He gave me this guy’s name [i.e., Mtre Desaulniers]. … Officer Corriveau: O.K. Would you like to speak with that individual? Appellant: Well look, I don’t see the use of talking to him right away. Officer Corriveau: O.K. … Appellant: Because why this morning... this morning it’s because you told me that I had the right to one phone call and that would have been the second one if he hadn’t … Officer Corriveau: No, it’s that...

Appellant: It would still be the second one.

Officer Corriveau: If you want to talk to him, that’s not how I understood it this morning, ok. I saw that you had that word written on a piece of paper. … Officer Corriveau: O.K. But if you want to call him now, the way I understood you, from what you said, it’s that you’re going to call him after our meeting.

Appellant: Ah, yeah, yeah, for sure. [ 70 ] By not mentioning Mtre Desaulniers’s messages and allowing the appellant to believe that his right had been exhausted in any event, Officer Corriveau tried to trick the appellant by asking him if he wanted to make another phone call, while encouraging him to stick to his plan to call after the interrogation. In his conversations with the appellant, he did not mention the lawyer’s name.

The appellant said that Mtre Desaulniers did not know him, that he did not even know that he existed, and the police officer did not correct him, making no mention whatsoever of the attorney’s attempts to contact him: [ translation ] Officer Corriveau: ... from the way you said that earlier it’s I’ll call him after this meeting with you, he says you have ... Appellant: That’s right, that’s right, no doubt I’ll probably do that. Officer Corriveau: Do you wish to call this lawyer now? Appellant: I don’t know. You’re asking me the question just like that. I don’t mind waiting ... waiting till I’m done.

Because it was so easy this morning, I said do you know someone who can, he [i.e., Mtre St-Onge] told me I don’t do ... don’t do criminal law, seems to me he said that. Officer Corriveau: O.K. Appellant Well I said do you know any [lawyers] who do? He said not many in the area, but he said there’s this guy here. Officer Corriveau: O.K. But, so that lawyer, that guy there, if I understand correctly… Appellant He doesn’t even know I exist. Officer Corriveau: Oh, O.K. Appellant I’ve never seen the guy. Is he fifty (50) years old, is he ten (10) years old, is he ... I have no idea.

Officer Corriveau: O.K. [Emphasis added] [ 71 ] Officer Corriveau clearly kept the appellant in the dark and said nothing to correct his mistaken understanding of the assistance Mtre Desaulniers was trying to provide him.

When cross-examined by Mtre Desaulniers himself at trial [15] in connection with his reaction to the appellant’s comment that [ translation ] “he doesn’t even know I exist”, the police officer finally admitted that he had been aware that Mtre Desaulniers knew very well that the appellant [ translation ] “existed”, since the attorney had left messages for him at the police station: [ translation ] Mtre Desaulniers: So you had the information that I knew that he [i.e., Stevens] existed. That means that when Stevens said, [ translation ] “He doesn’t even know I exist” you knew it was false.

Officer Corriveau: Uh... at that time I would say that I did. [ 72 ] Still in cross-examination, Officer Corriveau explained why he did not give the appellant the message: [ translation ] Mtre Desaulniers: ... Why didn’t you give him more information about me?

Officer Corriveau: Well, I was giving him the opportunity to call you later. [ 73 ] Not only did Officer Corriveau conceal the messages, he also let the appellant believe that he could not telephone Mtre Desaulniers because his right to counsel had already been exercised. [ translation ] “Well”, the police officer testified at the voir dire , “his constitutional rights had already been exercised. I gave him his rights earlier. He exercised them.

His right to counsel, he exercised it”. [ 74 ] Noting that the appellant was able contact Mtre St-Onge, the judge ruled that he had a reasonable opportunity to exercise his right to counsel. I do not share his opinion. In the circumstances of this case, it is wrong to say that, by calling Mtre St-Onge at 9:13 a.m., the appellant exhausted his s. 10 (

b) right . Giving the appellant [ translation ] “one phone call” was clearly not sufficient to fulfill the police officer’s duty in relation to [ translation ] “implementing” the right enshrined at s. 10 ( b ). [ 75 ] According to the majority opinion in R. v. Sinclair , it is true that “normally, s. 10 (

b) affords the detainee a single consultation

with a lawyer.”[16] However, if the circumstances demonstrate that, despite the call, the right to counsel has not been exercised becausethe detainee was not able to “instruct counsel” and did not receive the “assistance” of a lawyer, the [translation] “one phone call” doesnot suffice. What constitutes a “reasonable opportunity” to exercise the right to counsel necessarily varies according to the facts of eachcase.

Section 10(

b) gives the detainee the right to the assistance of counsel, not, like in the movies, a constitutional right limited to[translation] “one phone call”.[17] [76] In this respect, McLachlin, C.J. and Charron, J. wrote the following in Sinclair, supra: [57] ... It is assumed that the initial legal advice received was sufficient and correct in relation to how the detainee should exercise hisor her rights in the context of the police investigation. The failure to provide an additional opportunity to consult counsel will constitute abreach of s. 10(

b) only when it becomes clear, as a result of changed circumstances or new developments, that the initial advice, viewedcontextually, is no longer sufficient or correct. This is consistent with the purpose of s. 10(

b) to ensure that the detainee’s decision tocooperate with the police or not is informed as well as free. Our colleague’s proposed test does not, in our respectful view, capture thecircumstances in which additional advice may be required. [77] For example, in Badgerow,[18] after talking to a lawyer on the phone, the detainee had made ambiguous comments to the policeofficers “that raised at least the possibility that he had not exercised his right to counsel”. The Court of Appeal for Ontario found that, inthe circumstances, Badgerow had not had a reasonable opportunity to exercise his s. 10(

b) right and that, as a result, the police officerscould not continue the interrogation. On this point, Simmons, J. wrote: [45] As the trial judge noted, there is also ample authority that what the police are required to say and do in a particular case to fulfilltheir duties under s. 10(

b) will depend on what the accused says and does and what the police could reasonably surmise in thecircumstances: see, for example, R. v. Ross, (SCC); R. v. Tremblay, (SCC); R. v. Top, 1989 ABCA 98. [46] Although the police cannot be expected to be mind readers, they are not entitled to ignore statements by an accused that raise areasonable prospect that the accused has not exercised his or her s. 10(

b) rights. Rather, where an accused makes such a statement, thepolice must be diligent in ensuring that an accused has a reasonable opportunity to exercise his or her rights, and may not rely on answersto ambiguous questions as a basis for assuming that an accused has exercised his or her rights. [Emphasis added] [78] In this case, there was a [translation] “clear” indication that the legal counsel obtained by the appellant during his phone callwith Mtre St-Onge was not adequate.

The appellant clearly told Officer Corriveau that, [translation] “if I had known, I wouldn’t havecalled him, because [Mtre St-Onge] doesn’t do criminal law”. Just as clearly, the appellant told him that the lawyer recommended byMtre St-Onge was a criminal lawyer. In the circumstances, the fact that there was a handwritten note bearing Mtre Desaulniers’s name,which the police officer saw, should have led the officer to stop the interrogation and take reasonable measures to ensure that the right tocounsel was properly exercised.

Similarly, and even more obviously, Mtre Desaulniers’s telephone messages for the appellant were,when taken with the rest of the evidence, a [translation] “clear” indication dictating that an inference should be drawn that the appellanthad not yet had a reasonable opportunity to exercise his constitutional right.

These facts, taken as a whole, indicated that the right tocounsel had not been correctly exercised by way of the call to Mtre St-Onge and, in the words of the Supreme Court in Willier, the policeofficer should have told the appellant that his “unsuccessful attempts to reach counsel did not exhaust the s. 10(

b) right”.[19] [79] Officer Corriveau, however, knowingly ignored these facts so that he could continue the interrogation without interruption. Theofficer understood, when he saw Mtre Desaulniers’s name on the piece of paper, or at the latest when he received the telephone messagefor the appellant, that the appellant had not had a reasonable opportunity to exercise his right to counsel. He continued questioning him,violating his duty with respect to the implementation of the right provided at s. 10(

b) of the Charter, as described in Maninnen, supra. Attrial, Officer Corriveau explained that he did not think he had to inform the appellant that the attorney was trying to speak with him: [translation] Mtre Desaulniers: You were in the process of interrogating a suspect who was named in an arrest warrant. You learned that I waslooking... that I was trying to contact him... Officer Corriveau: Yes. Mtre Desaulniers: Did you say: O.K. Stevens can call him back at such-and- such a number? Officer Corriveau: No. I...

At that point, Your Honour, and based on the principle that it’s the right to counsel and not the right ofcounsel to speak with the client. O.K. That means that it’s based on the principle that he had already spoken to a lawyer that morning;Mr. Stevens did not express a desire to speak with Mtre Desaulniers. When he made ... when Mr. Stevens wanted to talk to MtreDesaulniers, he could talk to him, but the inverse wasn’t possible. Mtre Desaulniers: But did you tell him, Stevens, that I tried to call?

Officer Corriveau: No. [80] This explanation reflects an inexcusable misunderstanding of the right to counsel in these circumstances.

Sinclair cannot beused to justify a right limited to [translation] “one phone call” in this case: the way the appellant behaved and what he said demonstratethat it could not be assumed “that the initial legal advice received was sufficient and correct in relation to how the detainee shouldexercise his or her rights in the context of the police investigation”.[20] In reality, the sincerity of the police officer’s words isquestionable, because, as soon as the appellant returned to the interrogation room, he knew that the appellant wanted to contact MtreDesaulniers.

Remember that even counsel for the prosecution had left a message at the police station. [81] A final point remains to be considered: despite the preceding, did the appellant waive his right to counsel when Officer

Corriveau gave him a new opportunity to make a phone call? [82] With respect, it is my view that the judge’s conclusion that the appellant’s negative response to the invitation was [translation]“categorical and unequivocal” was erroneous and constitutes a palpable and overriding error. Contrary to the judge’s finding, theappellant did not validly waive his right to counsel by answering as he did.

While the police officer did ask the appellant whether hewanted to speak with the lawyer Mtre St-Onge had mentioned, he deliberately refrained from telling him that this lawyer was in facttrying to reach him during the interrogation. It seems to me that the judge’s first error – believing that Officer Corriveau told theappellant that Mtre Desaulniers was trying to contact him – led to a second error, that of interpreting the appellant’s choice to put offcalling the lawyer until later as a [translation] “categorical and unequivocal [answer that] he did not want to call him”.

In thecircumstances, what the appellant said cannot be interpreted as a valid waiver of his rights. It is settled law that, for a waiver to bedeemed valid, the detainee must understand the nature and consequences of what he or she is waiving.[21] [83] In short, the appellant’s statement on the video recording was obtained in violation of s. 10(

b) of the Charter. *** [84] Should the evidence therefore be excluded? [85] Since the judge did not find a violation of s. 10(b), he refrained from performing the analysis under s. 24(2) of the Charter todetermine whether the video statement should be excluded from the evidence. This analysis should therefore be carried out here. [86] Relying on the analytical framework proposed by the Supreme Court in R. v. Grant,[22] I find that the statement obtained inviolation of the right to counsel here is likely to bring the administration of justice into disrepute.

I would therefore exclude it. [87] According to Grant,[23] three avenues of inquiry are engaged when determining whether or not evidence should be admittedpursuant to s. 24(2) of the Charter: (1) the seriousness of the Charter-infringing state conduct (admission may send the message that the justice system condones seriousstate misconduct), (2) the impact of the breach on the Charter-protected interest of the accused (admission may send the message that individual rightscount for little), and (3) society’s interest in the adjudication of the case on its merits. [88] The more serious they are in actual fact, the more heavily the first two factors identified in Grant weigh in favour of excludingthe illegally obtained evidence.

On the other hand, when society’s interest in establishing the truth is pressing, this factor weighs infavour of its inclusion. After weighing these criteria, a judge must determine whether the admission of the disputed evidence could bringthe administration of justice into disrepute.[24] [89] In McGuffie,[25] a recent judgment of the Court of Appeal for Ontario, Doherty, J.A. outlined the three interacting criteria asfollows: [62] The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence.

The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of theclaim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society’s interests in anadjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where theevidence 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. [63] In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly towardthe exclusion of the evidence: see e.g. Harrison, at paras. 35–42; Spencer, at paras. 75–80; R. v. Jones, 2011 ONCA 632, 107 O.R. (3d)241, at paras. 75–103; Aucoin, at paras. 45–55. If the first and second inquiries make a strong case for exclusion, the third inquiry willseldom, if ever, tip the balance in favour of admissibility: see e.g. R. v. Côté, 2011 SCC 46 , [2011] 3 S.C.R. 215, at paras. 81–89; R. v.

Morelli, 2010 SCC 8 , [2010] 1 S.C.R. 253, at paras. 98–112. Similarly, if both of the first two inquiries provideweaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: seee.g. Grant, at para. 140. [Emphasis added] [90] In this case, we find ourselves in the situation described by Doherty, J.A. in the underlined sentence in the preceding paragraph:society’s interest in seeing the appellant’s case adjudicated on the merits does not tip the balance in favour of the admissibility of thestatement.

The seriousness of the State’s Charter-infringing conduct and the significant impact of the violation of the right to counselweigh strongly in favour of excluding the evidence and, given the nature of the disputed evidence, the third factor is of lesser importance. [91] On this last point, it must be immediately noted that the statement is not highly reliable evidence in the search for truth.Recently, the Supreme Court noted that statements obtained in breach of the principle against self-incrimination “will almost always beexcluded under s. 24(2)” because of the possibility of a miscarriage of justice.[26] Moreover, the appellant’s statement is not strictlyincriminating: as I stated above, it does not contain an admission, but above all serves to undermine the appellant’s credibility at trial.

Byway of comparison, it is a long way from highly reliable material evidence which, establishes in itself the guilt of the appellant beyond areasonable doubt.[27] I find that the third factor in Grant does not weigh heavily in favour of the admissibility of the video recordingbecause of the unreliability of the statement in the search for truth. [92] In the case before us, however, the Charter-infringing state conduct is particularly serious. In Grant,[28] McLachlin, C.J.explains that actions resulting in Charter breaches vary in seriousness, some giving rise to breaches that are minor or that are caused

inadvertently by the police and minimally undermine public confidence. In my view, this is not that type of case. On the contrary, the evidence here was obtained through wilful disregard for the appellant’s constitutional rights. [ 93 ] In this case, not only did the police officer act without regard for the appellant’s right to counsel, he also took deliberate action to undermine the exercise of that right by purposefully concealing Mtre Desaulniers’s messages and allowing the appellant to believe that he had to wait until the end of the interrogation before being able to obtain his assistance.

The police officer was seeking to limit the appellant’s right to silence to further his investigation, without regard for his constitutional rights: this blameworthy conduct on the part of a police officer is an abuse of authority which falls near the most serious end of the scale referred to by the Supreme Court in Grant . In this respect, the remarks of Doherty, J.A. in McGuffie are also relevant here: [78] Courts, as representatives of the community, cannot be seen to condone the blatant disregard of the appellant’s rights that occurred in this case.

The only way the court can effectively distance itself from that conduct is by excluding the evidentiary fruits of that conduct. [ 94 ] The impact of the breach on the appellant’s right to silence was also major.

For the police officer, the search for the truth was an end that justified the means: providing misleading information as to the scope of the right to counsel, concealing information essential to the appellant’s understanding of his right to silence, turning a blind eye to the concerns expressed by the appellant about not having been able to consult a criminal lawyer, and lying by omission about whether Mtre Desaulniers “knew who he was” at the time of the interrogation. In reality, to borrow the words of Laskin J. in a recent judgment of the Court of Appeal for Ontario, “the s. 10 (

b) breaches … were neither technical nor fleeting”. [29] In this case, the appellant’s rights under s. 10 (

b) were disregarded, and he suffered extremely serious consequences as a result. The statement in dispute is the fundamental piece of evidence that the judge relied on to justify his conclusion as to the appellant’s lack of credibility and his finding that the evidence, including the appellant’s testimony, raised no reasonable doubt. [ 95 ] After weighing the three criteria in Grant , I find that it is appropriate to order the exclusion of the video recording.

Having assessed the long-term impact of the conduct in question on the administration of justice and public confidence therein, I, like the Supreme Court in that case, [30] am of the view that in this case the courts must dissociate themselves from the police conduct at hand, even at the cost of sacrificing society’s interest in using the statement in the trial on the merits. [ 96 ] Excluding the evidence in this case makes it necessary to hold a new trial. Remember that in the judgment convicting the appellant, the judge rejected his testimony as lacking in credibility.

His conclusion was based largely on the perceived contradictions between his statement recorded during his arrest and his narration of the facts at the trial. We can only conclude that the exclusion of the evidence means that this reasoning no longer stands. [ 97 ] Given my conclusion in this case that the evidence should be excluded due to the breach of s. 10 ( b ), it is not necessary to proceed with an analysis of the appellant’s arguments on the free and voluntary nature of the statement or on the so-called similar fact evidence.

These two arguments would, at best, result in the same order to exclude the evidence of the video recording. [ 98 ] Even if the judge had not made that error, however, I am unable to say that the appellant would have been acquitted of the charges against him. There is reason to question whether, despite the judge’s error, the evidence on the record would have justified the judge’s finding of guilt. The appellant maintains that this evidence is lacking and that the verdict must therefore be found to be unreasonable.

Having concluded that a new trial should be ordered given the breach of the right to counsel, I will now turn to the analysis of the grounds of appeal asking that an acquittal be substituted for the conviction. (

B) Grounds seeking to establish an unreasonable verdict [ 99 ] The appellant raises three grounds concerning the reasonableness of the verdict. In his arguments, he deals with them together. [ 100 ] First, he maintains that the trial judge erred in law in his application of the principles set out in R. v. W.(D.) .

He alleges that the judge made several errors in his assessment of the appellant’s testimony and, moreover, erred in assessing all of the evidence in the third stage of the W.(D . ) analysis by, among other things, ignoring contradictions in the complainant’s testimony. [ 101 ] As for the first two stages of W.(D.) , counsel for the appellant argues that the judge was mistaken in concluding that the appellant’s testimony at trial was not credible and that it raised no reasonable doubt because of the contradictions with his statements at the police station.

As noted above, the judge arrived at his negative conclusion respecting the appellant’s credibility by juxtaposing the content of his statement at the police station with his testimony at trial. Since the statement must be excluded from the evidence, this assessment no longer holds.

The judge’s analysis in the first two stages under W.(D.) is therefore flawed. [ 102 ] Other considerations, already raised or otherwise, could in my view undermine the reasonableness of the judge’s conclusion as to the weight of the appellant’s testimony, but it is not necessary to pursue this analysis any further here. [31] Suffice it to say that the judge’s conclusions that he does not believe the appellant and that the appellant’s testimony raises no reasonable doubt as to his guilt cannot be upheld on appeal given the exclusion of the statement. [ 103 ] What about the weight of the evidence adduced by the prosecution at trial? [ 104 ] Here, the appellant maintains that the order for a new trial is insufficient because of the error of law committed by the judge.

In finding that the appellant’s guilt had been established beyond a reasonable doubt, the judge failed to consider all of the evidence. The appellant’s argument regarding the third stage of the W.(D.) analysis is similar to his grounds alleging the judge’s failure to consider the evidence favourable to the appellant and his errors in analyzing the complainant’s testimony, thereby leading to an unreasonable verdict. [ 105 ] It should be noted that the judge was alive to the imperfections in the complainant’s testimony.

In the quotation reproduced in paragraph [39], above, the judge declared that the contradictions concerned only secondary elements, and that the facts reported by the plaintiff regarding the sexual assaults [ translation ] “are wholly believed by the Court”. [ 106 ] In the appellant’s view, the judge erred in law by ignoring these weaknesses and contradictions, when he stated, inter alia , that

the complainant described the four incidents [translation] “in great detail before the Court”. In so doing, and by characterizing thecontradictions as secondary without addressing them in any detail, the judge failed to apply the analytical framework of the third stage ofW.(D.) because he did not take all the evidence into account. [107] The appellant also argues that, in failing to take these contradictions into account, the judge ignored important evidencefavourable to the accused, which, according to Polo[32] and Lafleur,[33] constitutes an error of law.

More fundamentally, by ignoringthese weaknesses in the prosecution’s evidence, the judge rendered an unreasonable verdict within the meaning of the case law decidedunder subparagraph 686(1)(a)(

i) Cr. C., because he failed to take all of the evidence into account when convicting the appellant. [108] The appellant faults the judge for providing little detail in support of his conclusion. His counsel states that he had prepared a52-page table listing, among other things, the contradictions in the complainant’s narration of the facts. He allegedly gave the judge thistable during submissions, but the judge made no reference to it.

He reproduced this table before the Court, increasing the number ofpages devoted to his arguments accordingly.[34] [109] Did the judge err in law by failing to take the evidence into account, and did this error have a determinative effect on the verdictof guilt? [110] The Court must now determine on the whole of the evidence whether the conviction is one that a properly instructed jury, actingjudicially, could reasonably have rendered.[35] This measurement of the reasonableness of the verdict also applies to a verdict renderedby a judge sitting alone, as in this case.[36] [111] In R. v.

W.H.,[37] the Supreme Court, per Cromwell, J., outlined the specific features of the analysis of an unreasonable verdictwhen the verdict is based on the assessment of witness credibility: [30] The traditional test for unreasonable verdict applies to cases such as this one in which the verdict is based on an assessment ofwitness credibility. This was affirmed, in the context of a judge-alone trial, in R. v. W. (R.), (SCC), [1992] 2 S.C.R. 122,at p. 131.

However, in applying the test, the court of appeal must show great deference to the trier of fact’s assessment of witnesscredibility given the advantage it has in seeing and hearing the witnesses’ evidence: W. (R.), at p. 131. [112] How does this apply to this case, where the defence evidence must in any event be analyzed again in a new trial? [113] The appellant is of course right to say that the judge, in rendering the verdict, should have taken all of the evidence into account,including the weaknesses and contradictions in the complainant’s testimony.

As this Court noted in LSJPA–1238, however,[38] it[translation] “did not have to perform a surgical or sequential examination of the complainant’s answers or of her hesitations”. Moreover,a consideration of the list of weaknesses alleged by the appellant reveals that the proposed approach essentially involves repeating thetrial on the credibility of the witnesses.

This exercise goes beyond the role of an appellate court, even where the ground raised before itseeks to prove an error of law resulting in an unreasonable verdict.[39] [114] After considering all of the evidence with a view to determining whether the judge’s decision is reasonably justifiable, I find thatthe three grounds grouped here should be dismissed. The appellant has not convinced me that the W.(D.) framework was not applied, orthat the judge erred by failing to account for evidence in his favour, or that the judge rendered an unreasonable verdict.

The evidence isnot so flawed that the judge’s decision may be characterized as unreasonable. [115] The judge did not read the evidence concerning the complainant’s credibility the same way the appellant did. In the view of theCourt, whether or not the appellant ordered the complainant to disrobe or whether or not he rubbed and caressed her back are notessential issues in the debate. It is an

interpretation of the evidence that differs from that of the appellant, who sees in thesecontradictions and weaknesses a sign that the complainant is not telling the truth about the events that took place in 1981 and 1982. But adisagreement about the

interpretation of the evidence cannot form the basis of an error of law leading to a reasonable verdict. As mycolleague Doyon, J.A. recently explained in L.L. v. R.:[40] [79] The judge interpreted things differently, and this is not proof of an error. In Canadian law, appeals concern errors committed bythe judge, not the different ways evidence can be interpreted, unless the judge’s

interpretation is the result of a palpable and overridingerror of fact or of law that has an actual impact on the result. That was not the case here. [116] It is true that the judge could have been more explicit in dealing with the alleged weaknesses in the complainant’s testimony.But the reasons the judge gave to explain his disagreement with the appellant concerning the significance of the contradictions aresufficient in this case, and his conclusion is based on a reasonable

interpretation of the prosecution’s evidence. In short, it appears thatthe judge accepted the complainant’s explanations of the alleged contradictions. [117] It is also true, as the respondent concedes, that the judge’s comment – [translation] “to say that the accused raises a reasonabledoubt in the Court’s mind would be to subject ourselves to such intellectual violence that the Court would be in breach of its oath ofoffice” – is unfortunately worded.

I do not, however, share the appellant’s view that this remark indicates a lack of objectivity or theimpossibility, for the appellant, of raising a reasonable doubt in the judge’s mind. When read in context, the judge’s reference to the oathof office is merely a stylistic flourish indicating that the evidence does not justify his finding that the sexual relationship between theappellant and the plaintiff was consensual.

A reasonable person familiar with the case would not see this as inconsistent with the judge’sneutrality, which, it is important to recall, must be the “cardinal rule” guiding judicial conduct.[41] [118] Even taking into consideration the exclusion of the appellant’s statement from the evidence, I cannot rule that an acquittalshould be entered. Upon reconsidering the evidence as a whole, including the weaknesses in the complainant’s testimony raised by theappellant, I cannot conclude that there is no evidence to ground a judge’s reasonable conclusion that the appellant is guilty.

It is true that,when the new trial is held, this evidence will be assessed by the trier of fact hearing the case, but that does not mean that the acquittalsought here is justified in law at this stage. The contradictions and other arguments raised by the appellant do not permit the conclusionthat an acquittal is the only foreseeable outcome.

[ 119 ] In short, I would set aside the judgment a quo , order a new trial due to the exclusion of the evidence as the result of the breach of the appellant’s right to counsel, but dismiss his motion to substitute an acquittal for the verdict rendered. NICHOLAS KASIRER, J.A. 10. Chacun a le droit, en cas d'arrestation ou de détention : …

b) d'avoir recours sans délai à l'assistance d'un avocat et d'être informé de ce droit. 10. Everyone has the right on arrest or detention … (

b) to retain and instruct counsel without delay and to be informed of that right. [14] This objective is explained in Bartle , supra note 7 at 191, where Lamer, J. writes: This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him- or herself.

Accordingly, a person who is “detained” within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty. … [Emphasis in original]