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CELL PHONES AND THE RIGHT TO CONTACT COUNSEL WITHOUT DELAY

R. c. TREMBLAY, 2021 QCCA 24, JANUARY 13, 2021. [Unofficial English Translation of the Judgment of the Court].

FACTS: The police stopped a motor vehicle the accused was driving. An ASD demand was made and a fail recorded. The accused was arrested and advised of her right to contact counsel.  The accused asked to use her cellular telephone to do so.  The Court of Appeal of Quebec noted that “[o]ne 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 ‘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” (at paragraph 14). The trial judge found that the accused’s right to contact counsel without delay was infringed and excluded breath analysis results subsequently obtained. A Crown appeal to the summary conviction appeal court was dismissed.  The Crown sought leave to appeal to the Court of Appeal. 

The Quebec Court of Appeal described the issue raised in the following manner:

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.

HELD: The appeal was dismissed.

The Court of Appeal indicated that it agreed that “the presence of a cell phone is not, in and of itself, a circumstance forcing police officers to allow it to be used to communicate with counsel. This technology does not in all cases answer the question of when the ‘first reasonably available opportunity’ arises. Nevertheless, it is a circumstance that must be taken into account when answering this question…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 of the road does not authorize police officers, in all cases, to postpone access to counsel to the police station. The same goes for a cell phone: the law does not oblige police officers to allow its use. Rather, it obliges them to take the cell phone into consideration, like all other circumstances, when making their decision…In short, hypotheses and assumptions, such as those raised by the appellant (as the Court of Québec judge concluded), are not sufficient for it to discharge its burden, which requires proof of real obstacles, such as an emergency, a danger or a rule of law” (at paragraphs 50 to 53).

In dismissing the appeal, the Court of Appeal held that “the cell phone issue [was] not the real issue” (at paragraphs 77 and 78):

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.

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.