Court File and Parties

Court of Appeal for Ontario Date: 2024-01-12 Docket: M54763 (COA-22-CR-0095)

Lauwers J.A. (Motions Judge)

Between:

His Majesty the King Respondent (Responding Party)

and

Cadence Gordon Beauparlant Appellant (Applicant)

Counsel: Matthew Gourlay, appearing as duty counsel Jon Geiger, for the responding party

Heard: January 9, 2024

Endorsement

[1] The applicant, Cadence Beauparlant, seeks state funding under s. 684 of the Criminal Code, R.S.C. 1985, c. C-46 for counsel on his appeal. For the reasons that follow, his application is granted.

Overview

[2] Police received a report of a two-vehicle collision. The initial 9-1-1 dispatch reported that a male driver of one of the vehicles had fled the scene and provided his description. A responding officer, P.C. Lee, received this initial report.

[3] P.C. Lee soon came upon Mr. Beauparlant, who was walking in a rural area. The officer believed that he matched the description of the alleged driver from the initial dispatch. P.C. Lee followed Mr. Beauparlant in his cruiser and called out to him, but he did not respond and continued walking. P.C. Lee then arrested Mr. Beauparlant for failing to remain at the scene of the collision and searched him incident to arrest. The officer found illegal drugs, a prohibited knife, and cash. At about the same time as the arrest, officers at the scene of the collision spoke to a woman who advised them that she, and not Mr. Beauparlant, had been the driver.

[4] After a blended hearing, the trial judge dismissed Mr. Beauparlant’s application to exclude the seized evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms for alleged breaches of ss. 8, 9, and 10(b). The trial judge found breaches to ss. 8 and 9, but not s. 10(b).

[5] The trial judge found that, although P.C. Lee subjectively believed he had grounds to arrest Mr. Beauparlant, his belief was not objectively reasonable because he had accepted “at face value” the information he received from the initial dispatch. P.C. Lee did so without taking steps to verify whether Mr. Beauparlant was the driver – a passenger is free to leave the scene of an accident – despite knowing that information contained in initial 9-1-1 dispatch calls is “often unreliable,” as he testified. The trial judge found that this failure to verify led to a breach of Mr. Beauparlant’s rights under s. 9 of the Charter (arbitrary detention), which, when he was searched incident to his arrest and the drugs were seized, then led to the breach of his Charter rights under s. 8 (unreasonable search and seizure).

[6] The trial judge found that admitting the seized evidence would not bring the administration of justice into disrepute, assessing the three factors from the test in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society's interest in an adjudication on the merits. In assessing the first factor, the trial judge found that the Charter-infringing conduct of the police was not flagrant or serious such that the court needed to dissociate itself from it by excluding the evidence obtained from the search. This was based, in part, on his finding that the police had acted in good faith.

[7] Mr. Beauparlant seeks funding under s. 684 of the Criminal Code to pursue one ground of appeal – that the trial judge erred in his assessment of the first Grant factor, which had knock-on effects on the assessment of the second and third factors. Mr. Beauparlant wishes to argue on appeal that P.C. Lee committed serious Charter breaches from which the court should dissociate itself by excluding the resulting evidence. The trial judge erred, the applicant wishes to contend, in finding that P.C. Lee acted in good faith in arresting and searching him.

Analysis

[8] Section 684(1) of the Criminal Code provides for the appointment of appellate counsel in certain circumstances:

A court of appeal or a judge of that court may, at any time, assign counsel to act on behalf of an accused who is a party to an appeal or to proceedings preliminary or incidental to an appeal where, in the opinion of the court or judge, it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance.

[9] The court must be satisfied, in the words of s. 684(1), that “it appears desirable in the interests of justice that the accused should have legal assistance.” The onus is on the applicant: R. v. Abbey, 2013 ONCA 206, 115 O.R. (3d) 13, at para. 31. In Abbey, Watt J.A. observed, at para. 29, that the phrase “the interests of justice” is a “legal chameleon that takes its meaning from its surroundings” and explained that it “contemplates a judicial discretion exercisable on a case-by-case basis,” citing R. v. Bernardo (1997), 121 C.C.C. (3d) 123 (Ont. C.A.), at para. 16.

[10] The elements of the test under s. 684(1) of the Criminal Code were summarized by Gillese J.A. in R. v. Staples, 2016 ONCA 362, 352 O.A.C. 392, at para. 34:

1. Does the applicant have the means to hire counsel privately?
2. Has the applicant advanced arguable grounds of appeal?
3. Does the applicant have the ability to effectively advance his or her appeal without the assistance of counsel?

[11] I deal with each element in turn. First, the Crown conceded in oral argument that Mr. Beauparlant lacks the means to hire counsel privately. Second, the Crown conceded that he has advanced an arguable ground of appeal because, as Watt J.A. said in Abbey at para. 32, “[t]his standard or threshold of an arguable case is a modest one.” This leaves in contention only the third element, which is whether the applicant has the ability to effectively advance his appeal without counsel’s assistance.

[12] Duty counsel made three arguments. First, he proffered the complete legal opinion to Legal Aid Ontario (which is only partly excerpted in the motion record) in which opinion counsel took the position that “the trial judge erred in his assessment of the first line of inquiry in Grant, which had a knock-on effect of skewing his final balancing of the factors towards admission, rather than exclusion.”

[13] After reviewing the trial judge’s reasons, opinion counsel noted:

There are several errors in the trial judge’s analysis. First, the conclusion that PC Lee arrested Beauparlant in “good faith”, was wrong and inconsistent with the facts. The officer did not make even perfunctory inquiries to confirm whether Beauparlant was, in fact, the driver of the car – as it is not an offence for a passenger to leave the scene of an accident. Had he made such rudimentary efforts, then he would have known that there was no basis for arrest. Indeed, PC Lee’s sole basis for arresting Beauparlant was, as the trial judge found in his review of the evidence, “the information obtained from the police dispatch.”

[14] Opinion counsel added: “These findings are impossible to square with any ‘good faith’ on the part of the officers. Any reasonable police officer faced with these circumstances would have made inquiries before arresting someone for a crime – particularly if the officer was aware that initial dispatch information is ‘often inaccurate’.” In short, duty counsel argued that there is more to this case than might first appear.

[15] Second, duty counsel cited the Supreme Court’s recent decision in R. v. Zacharias, 2023 SCC 30. He submitted that Zacharias shows that the assessment of the Grant factors is now more nuanced. He noted that the appeal would pick up on the assertion in the Legal Aid opinion that the trial judge erred in his assessment of the relationship between the initial s. 9 breach and the consequential s. 8 breach under the first Grant factor. He submitted that, with Zacharias and the open debate between the majority and the dissent, this argument has more credence. In view of the now unsettled state of the law, duty counsel argues that Mr. Beauparlant, a grade 11 graduate who is only 23 years old, cannot be expected to argue his appeal effectively.

[16] Third, duty counsel submitted that it would be wrong for this court to rely on duty counsel as a basis for refusing the appointment of counsel in an application for state-appointed counsel under s. 684 of the Criminal Code, citing R. v. Lubin, 2016 ONCA 780, at para. 18.

[17] In response, the Crown argues that Mr. Beauparlant does not require the assistance of counsel to effectively advance his appeal. The Crown points out that the applicant “has not alleged any unreasonable findings of fact, and the facts of this case are brief and relatively straightforward.” This is a simple case: “The single ground of appeal advanced is a discrete argument regarding the trial judge’s application of the facts as he found them to settled law.” The Crown argues that the appeal will come down to an analysis of whether the trial judge erred in finding that the arresting officer conducted himself in good faith.

[18] In my view, Zacharias does not quite support the argument duty counsel says is now newly available. Zacharias did not unsettle the law under Grant. Perhaps it would have, had the dissent prevailed. But Zacharias presents as a straightforward application of the Grant factors. However, if the panel hearing the appeal wishes to drill down on the implications of Zacharias, Mr. Beauparlant will not be able to offer any assistance. I conclude that this is an appeal that calls for the appointment of counsel under s. 684 of the Criminal Code.

Disposition

[19] The application to appoint s. 684 counsel is granted. The applicant will be represented by counsel appointed under s. 684(1) and counsel’s fees and disbursements shall be paid by the Attorney General under s. 684(2) of the Criminal Code.

“P. Lauwers J.A.”