The Right to Retain and Instruct Counsel of Your Choice

The right to retain and instruct counsel, protected by section 10 (2) of the Canadian Charter of Rights and Freedoms, includes the right to chose one’s counsel. Its violation cannot be trivialized even if the person has been able to obtain the assistance of duty counsel. Where this right is infringed upon, its assessment and its impact on the justice will depend on the circumstances of the case.

“In view of the violation, the purpose of subsection 24 (2) is to ensure that the evidence does not further bring the justice system into disrepute. This provision is not intended to sanction the conduct of the police or to compensate the accused who saw his right to rtain and instruct counsel violated, but rather to assess the long-term repercussions of the use of the evidence ^[1]. ” [translated]

Cyr-Desbois c. R. 2021 QCCA 305

The Facts

On March 9, 2017, Ms. Cyr-Desbois was intercepted and arrested by the police for impaired driving. Upon arriving at the station, the appellant requested access to her cell phone in order to obtain the contact information for her family lawyer through her father. The police refused to give her the phone so that she could reach her father and suggested that she contact one of the duty lawyers instead, which she did. Following the call to duty counsel, the appellant continues to be cooperative with the police. During the trial, the appellant asked that the breathalyzer test results be excluded from the evidence on the grounds of that her right to retain and instruct a lawyer of her choice protected by article 10 (b) of the Charter was infringed upon.

The trial judge concluded, despite the serious and deliberate nature of the violation, that the reliability, precision and relevance of the evidence favored its admissibility. The Superior Court, acting as a court of appeal, refused to intervene in the appeal, despite the shortcomings noted, adding that the evidence relating to the relationship of trust between the appellant and the family lawyer is tenuous. The appellant appealed to the Court of Appeal.

The Judgment

The Court of Appeal (hereinafter the Court) allowed the appeal, excluded breathalyzer results of the evidence, and entered a verdict of acquittal.

The infringment on the right to retain and instruct counsel of one’s choice is not in doubt; the appeal concerns rather the exclusion of the evidence provided for by section 24 (2) of the Charter, namely the breathalyzer test results obtained after the violation. In doing so, the Court must assess the effect of the admission of this evidence, obtained in violation of the appellant’s rights, on public confidence in the justice system in order to determine whether the evidence should be excluded.

The trial judge erred by downplaying the severity of the intrusive conduct on the grounds that the police were acting in good faith. The deliberate refusal, for no apparent reason, to allow any action so that the appellant can communicate with the lawyer of her choice constitutes a disregard of Ms. Cyr-Desbois’ rights and is contrary to a conclusion of good faith. The complete refusal of the police constitutes a serious and deliberate infringment, certainly not minimal. This violation is serious enough to strongly support the exclusion of the evidence.

Furthermore, the trial judge erred in finding that the violation did not affect the appellant due to the fact that she had recourse to legal assistance. The judge’s reasoning underestimates the psychological importance of having recourse to the lawyer of one’s choice. Moreover, she ignores any advice the trusted lawyer might have given. The Court affirms that the right to the assistance of a lawyer of one’s choice does not depend on the personal knowledge of the lawyer. The requirement of proof of the pre-existing relationship constitutes an error of law. Therefore, this factor militates moderately in favor of excluding the evidence.

With regard to society’s interest in having the case decided on its merits, the Court recalled that despite the reliability of the breathalyzer certificates, this factor cannot be assessed as a simple question of formality. Where, as in this case, the first two factors militate in favor of the exclusion of the evidence, the third factor is seldom, if ever, sufficient to lead to the opposite conclusion. However, the reliability of the evidence cannot override the serious, serious and willful violation engendered by the conduct of the police. The Court concluded, then, that the long-term interests of justice required the exclusion of the evidence.