Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In Cyr-Desbois c. R., 2021 QCCA 305, February 23, 2021, the accused was convicted of the offence of operating a motor vehicle with a blood alcohol level greater than 80 milligrams of alcohol in 100 millitres of blood.  She appealed from conviction, arguing that the trial judge erred in falling to exclude as evidence the results of the analysis conducted on her breath, pursuant to sections 10(b) and 24 (2) of the Charter.

The Quebec Court of Appeal described the circumstances involved (official Court of Appeal translation) in the following manner (at paragraphs 14 to 17):

On March 9, 2017, at approximately 10:30 p.m., the appellant was intercepted by two police officers. The officers, who noted signs of alcohol consumption, asked her to provide a breath sample using an approved screening device (“ASD”). The appellant complied and, at 10:36 p.m., the result indicated “fail”. The police officers then arrested her and brought her to the police station. She arrived there at 10:57 p.m.

Shortly after arriving at the police station, the appellant asked for her cellular telephone so she could call her father. Her father had the contact information for the family’s lawyer and the appellant wanted to obtain immediate advice from that lawyer.

The police officers refused to give her her cellular telephone and also refused to let her contact her father. At their suggestion, the appellant then spoke with duty counsel. Her telephone conversation with duty counsel lasted two minutes, from 11:03 p.m. to 11:05 p.m., and the appellant made sure to tell him that she wanted to speak with the family’s lawyer and not with him. Shortly after that conversation, the appellant took and failed the breathalyzer test twice, once at 11:11 p.m. and then at 11:34 p.m. The alcohol levels recorded were 118 mg/100 ml of blood and 111 mg/100 ml of blood, respectively.

At trial, the appellant asked for the exclusion from evidence of the technician’s certificate confirming the breathalyzer test results, on the ground that the police officers had deprived her of the opportunity to exercise her constitutional right to obtain advice from her counsel of choice, in breach of s. 10(b) of the Charter.

 The appeal was allowed and an acquittal entered.  The Court of Appeal noted that “[w]hile it is not disputed that the appellant’s right to retain and instruct counsel of choice was infringed, it is worthwhile reiterating that a detainee can consult with counsel of choice,  without delay, having regard to the circumstances.  Consequently, state agents have not only the obligation to inform detainees of their right to counsel, but also to facilitate that right.  As the Supreme Court stated, however, ‘[…] the Charter does not guarantee detainees an absolute right to retain and instruct a particular counsel at the initial investigative stage regardless of the circumstances’.  A detainee must act diligently and accept an alternative, such as a legal aid lawyer or duty counsel, if the detainee’s counsel of choice is not available within a reasonable period of time, which is liable to happen when the arrest is made after business hours” (at paragraph 42).

The Court of Appeal concluded that the analysis conducted on the accused’s breath should have been excluded because of the seriousness of the breach of section 10(b) that occurred (at paragraphs 54, 71 and 72):

We are therefore faced with a complete and unexplained refusal on the part of the police officers to allow the appellant’s exercise of her right to counsel of choice, suggesting that they were completely ignorant of their duty. This is not a situation in which the police officers attempted, although insufficiently, to permit the exercise of that choice. It is this complete refusal that resulted in a grave, serious and deliberate infringement, as the trial judge stated—one that is not minimal. Contrary to the judge’s finding, this infringement is at the high end of the seriousness spectrum. Given that the police officers made no effort to facilitate the appellant’s exercise of her right to counsel, the infringement is sufficiently serious to strongly support exclusion of the evidence.

Given that the infringement is grave, serious and deliberate because the police officers made no effort to facilitate the right to counsel of choice—indeed preventing the appellant from exercising that right—we must conclude that, in the present case, the long-term interests of the administration of justice weigh in favour of excluding the evidence. As the majority in R. v. Le indicated, the sum of the first two lines of inquiry, taken together, significantly tip the balance towards exclusion, such that the third line of inquiry is insufficient to find otherwise.[1]

For these reasons, I would allow the appeal, exclude the technician’s certificates of analysis from the evidence and enter an acquittal.

[1]     R. v. Le, 2019 SCC 34, paras. 141-142.