R. v. Dussault, 2020 QCCA 746, 2022 SCC 16 (39330)
“In August 2013, the accused was arrested on charges of murder and arson. The police informed him of his rights, including his right to counsel under s. 10(b) of the Charter. At the police station, the accused spoke to a lawyer on the phone who explained the charges against him and his right to remain silent. The lawyer was left with the impression that the accused was not processing or understanding his advice. He offered to come to the station to meet in person, and the accused accepted. The lawyer then spoke with a police officer, informed him that he was coming to the police station and asked that the investigation be suspended. The police officer responded that this would be no problem or no trouble. The lawyer spoke again with the accused. He confirmed that he was coming to the police station to meet with him and he explained that, in the interim, he would be placed in a cell. The lawyer also told him not to speak to anyone.
Subsequently, during a conversation between the police officer and the lead investigators on the file, it was decided that the lawyer would not be permitted to meet with the accused. The police officer phoned the lawyer and informed him of this decision. The lawyer nevertheless came to the police station, but was not permitted to meet with the accused. The police officer later went to the accused’s cell and told him that another officer was ready to meet with him. The accused asked whether his lawyer had arrived, to which the police officer responded that the lawyer was not at the police station. The accused was then subjected to an interrogation, during which he made an incriminating statement.
At trial, the accused moved to exclude the statement on the basis that it was obtained in violation of his Charter rights, notably his right to counsel under s. 10(b). The trial judge held that the incriminating statement was admissible. She found that the accused had exercised his right to counsel, and that the police could reasonably presume that he had done so in a satisfactory manner. The accused was convicted of murder, and appealed from the conviction on the basis that the trial judge erred in dismissing his motion to exclude the incriminating statement. The Court of Appeal unanimously allowed the appeal, quashed the verdict, and ordered a new trial. It concluded that the accused’s phone call with the lawyer did not constitute a complete consultation for the purposes of s. 10(b) and that, as a result, the accused’s right to the effective assistance of counsel was breached.” The SCC (9:0) dismissed the appeal.
Justice Moldaver wrote as follows (at paras. 1-3, 45, 56):
“Patrick Dussault was arrested on charges of murder and arson. He was read his rights and taken to the police station, where he spoke with a lawyer for roughly 10 minutes on the telephone. He and the lawyer ended the call in the belief that the police had agreed to allow them to continue their conversation at the station. When the lawyer came to the station, the police did not let him meet with Mr. Dussault. Before Mr. Dussault spoke again with the lawyer, he was questioned and made an incriminating statement.
At issue in this appeal is whether the police provided Mr. Dussault with a reasonable opportunity to consult counsel and, more particularly, whether they were required to provide Mr. Dussault with a further opportunity to consult counsel before interrogating him. The trial judge held that they were not required to do so because, in all the circumstances, they could reasonably presume that Mr. Dussault had exercised his right to counsel during the 10-minute telephone call with his lawyer. The Court of Appeal reached the opposite conclusion, holding that Mr. Dussault’s telephone call did not constitute a “complete” consultation for the purposes of s. 10(b) of the Canadian Charter of Rights and Freedoms, and that the police were required to allow Mr. Dussault to continue this consultation at the station.
…in the unique circumstances of this case, I am satisfied that the police were required to provide Mr. Dussault with a further opportunity to consult counsel before questioning him. My reasons for reaching that conclusion, however, differ from those of the Court of Appeal. In my opinion, there were objectively observable indicators that the police conduct in this case had the effect of undermining the legal advice that the lawyer provided to Mr. Dussault during their telephone call. Therefore, even if the call was a complete consultation in its own right, the police were nevertheless required to provide Mr. Dussault with a second opportunity to consult counsel. They failed to do so and thereby breached his s. 10(b) rights.
Simply put, the purpose of s. 10(b) is to provide the detainee with an opportunity to obtain legal advice relevant to their legal situation. As noted earlier, the legal advice is intended to ensure that “the detainee’s decision to cooperate with the investigation or decline to do so is free and informed”. The legal advice received by a detainee can fulfill this function only if the detainee regards it as legally correct and trustworthy. The purpose of s. 10(b) will be frustrated by police conduct that causes the detainee to doubt the legal correctness of the advice they have received or the trustworthiness of the lawyer who provided it. Police conduct of this sort is properly said to “undermine” the legal advice that the detainee has received. If there are objectively observable indicators that the legal advice provided to a detainee has been undermined, the right to a second consultation arises. By contrast, the right to reconsult will not be triggered by legitimate police tactics that persuade a detainee to cooperate without undermining the advice that they have received. As Sinclair makes clear, police tactics such as “revealing (actual or fake) evidence to the detainee in order to demonstrate or exaggerate the strength of the case against him” do not trigger the right to a second consultation with counsel: para. 60.
In R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, Doherty J.A. described the right to counsel as a “lifeline” through which detained persons obtain legal advice and “the sense that they are not entirely at the mercy of the police while detained”: para. 45; see also R. v. Tremblay, 2021 QCCA 24, at para. 40 (CanLII). I agree. In this case, the conduct of the police had the effect of undermining and distorting the advice that Mr. Dussault had received. The police ought to have offered him a second opportunity to re-establish his “lifeline”, but they did not. In failing to do so, they breached his s. 10(b) rights.”
R. v. Dussault, 2020 QCCA 746, 2022 SCC 16 (39330)