Supreme Court of Canada
Appeal Heard: December 3, 2021 Judgment Rendered: April 29, 2022 Docket: 39330
Between: Her Majesty The Queen — Appellant and Patrick Dussault — Respondent
— and —
Attorney General of Ontario, Criminal Lawyers' Association, Association québécoise des avocats et avocates de la défense and Association des avocats de la défense de Montréal‑Laval-Longueuil — Interveners
Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.
Reasons for Judgment: (paras. 1 to 58)
Moldaver J. (Wagner C.J. and Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. concurring)
Indexed as: R. v. Dussault
2022 SCC 16
2021: December 3; 2022: April 29.
Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.
on appeal from the court of appeal for quebec
Headnote
Constitutional law — Charter of Rights — Right to counsel — Accused speaking with lawyer on telephone from police station — Call ending in belief that police had agreed to allow them to continue conversation at station — Police refusing to let accused meet with lawyer when he arrived at station — Police subsequently conducting interrogation resulting in accused making incriminating statement — Whether police required to provide accused with further opportunity to consult counsel before interrogation — Canadian Charter of Rights and Freedoms, s. 10(b).
Summary
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 by phone with a lawyer for roughly 10 minutes. The lawyer said he was coming to the police station and asked that the investigation be suspended. The officer's response was ambiguous — it could reasonably be interpreted as accepting this request. The lawyer then spoke with the accused again and confirmed he was coming; he told the accused to remain silent in the meantime and wait for him to arrive.
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 told him there was no point in coming. The lawyer arrived anyway but was refused entry. When the police subsequently approached the accused to bring him for interrogation, the accused asked where his lawyer was. The officer gave an ambiguous non-answer.
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. The Court of Appeal allowed the appeal and excluded the statement.
Held: The appeal should be dismissed.
In the unique circumstances of the instant case, the police were required to provide the accused with a further opportunity to consult counsel before questioning him. There were objectively observable circumstances indicating that the legal advice provided to the accused had been undermined by the police, triggering a renewed right to consult counsel under s. 10(b) of the Charter.
Section 10(b) of the Charter provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. Stated at its broadest, the purpose of s. 10(b) is to allow detainees to obtain legal advice relevant to their legal situation. Once a detainee has consulted with counsel, the police are only exceptionally required to provide a further opportunity to receive legal advice. The law has recognized three categories of changed circumstances that can renew a detainee's right to consult counsel: new procedures involving the detainee, a change in jeopardy facing the detainee, or reason to believe the detainee may not have understood the initial advice.
Undermining is not limited to intentional belittling of defence counsel. Police conduct can unintentionally undermine the legal advice provided to a detainee. The focus should remain on the objectively observable effects of the police conduct. Where the police conduct has the effect of undermining the detainee's confidence in counsel or the advice received, a renewed right to counsel arises.
In the present case, two separate acts of the police officer combined to have the effect of undermining the legal advice provided to the accused. First, when the lawyer said that he was coming to the police station, the officer's ambiguous response led both the lawyer and the accused to believe that an in-person consultation would occur. Second, when the officer subsequently told the accused it was time for interrogation, the accused pointed out that his lawyer had said he would be there — and the officer's response did not correct the accused's misapprehension. During the interrogation itself, the accused repeatedly expressed confusion about his lawyer's absence, constituting objectively observable indicators that the legal advice had been undermined. The Crown conceded that if there was a s. 10(b) violation, the statement should be excluded under s. 24(2).
Counsel
Justin Tremblay and Isabelle Bouchard, for the appellant.
Célia Hadid and Michel Marchand, for the respondent.
Davin Michael Garg and Natalya Odorico, for the intervener the Attorney General of Ontario.
Anil K. Kapoor and Victoria Cichalewska, for the intervener the Criminal Lawyers' Association.
Mairi Springate, for the intervener Association québécoise des avocats et avocates de la défense.
Jean‑Philippe Marcoux and Jean‑Sébastien St‑Amand Guinois, for the intervener Association des avocats de la défense de Montréal‑Laval‑Longueuil.
Cases Cited
Applied: R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310; considered: R. v. Burlingham, [1995] 2 S.C.R. 206; referred to: Stevens v. R., 2016 QCCA 1707; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527; R. v. McCallen (1999), 43 O.R. (3d) 56; R. v. Daley, 2015 ONSC 7145; R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7, 10(a), (b), 24(2).
APPEAL from a judgment of the Quebec Court of Appeal
R. v. Dussault, 2020 QCCA 746, 388 C.C.C. (3d) 362, 63 C.R. (7th) 319, [2020] AZ‑51690253, [2020] Q.J. No. 3677 (QL), 2020 CarswellQue 4090 (Bich, Bouchard and Healy JJ.A.). Appeal dismissed.
Reasons for Judgment
The judgment of the Court was delivered by
Moldaver J. —
I. Introduction
1Patrick 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 his lawyer came away from that call under the impression that they would continue their consultation in person at the police station. The police, however, refused to allow the in-person meeting and, instead, proceeded to interrogate Mr. Dussault. During the interrogation, Mr. Dussault repeatedly voiced his confusion about why his lawyer had not yet arrived, as promised. After these exchanges, Mr. Dussault made an incriminating statement.
2At 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 second opportunity to consult counsel before questioning him.
3For reasons that I will explain, 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. I would therefore dismiss the appeal.
II. Facts
4The facts as summarized are based on findings made by the trial judge.
5On the afternoon of August 28, 2013, Gatineau police made a dynamic entry into the home of Mr. Dussault and arrested him on charges of murder and arson. The police informed Mr. Dussault of his rights, including his right to counsel. Mr. Dussault clearly stated that he wished to exercise his right to counsel.
6The police transported Mr. Dussault to the police station. They arrived at 2:36 p.m. Mr. Dussault was presented with a list of local defence lawyers. He chose Jean-François Benoît at random. He was provided with a phone to call Mr. Benoît.
7The two conversed for roughly nine minutes. Mr. Benoît explained the charges and Mr. Dussault's right to remain silent. He was left with the impression that Mr. Dussault was not processing or understanding everything he was being told, so he decided to continue the consultation in person at the police station.
8Mr. Benoît spoke with Officer Chicoine for roughly three minutes. He said that he was coming to the police station and asked that the investigation be suspended. Officer Chicoine responded [translation] "OK, I understand." He neither accepted nor rejected Mr. Benoît's request.
9Mr. Benoît spoke again with Mr. Dussault for roughly one minute. He confirmed that he was coming to the police station to meet with Mr. Dussault and he explained that, in the interim, Mr. Dussault should wait for him and remain silent.
10At 3:20 p.m., Officer Chicoine, accompanied by Detective Sergeant Ian Gosselin, spoke to the lead investigators on the file, reporting that the arrest went well and that Mr. Dussault had exercised his right to counsel. Based on these discussions, it was decided that Mr. Benoît would not be permitted to come to the police station.
11In line with these instructions, Officer Chicoine phoned Mr. Benoît and told him that there was no point in coming to the police station. He said that Mr. Dussault had exercised his right to counsel. Mr. Benoît nonetheless came to the police station.
12After this call, Officer Chicoine began to doubt himself. He reported to a lead investigator, who decided that a prosecutor from the office of the Director of Criminal and Penal Prosecutions should be consulted. The prosecutor confirmed that the police were not required to let the lawyer meet with Mr. Dussault.
13Mr. Benoît arrived at the police station at approximately 4:15 p.m. He was not permitted to meet with Mr. Dussault. At 6:30 p.m., he left to tend to family matters, leaving behind a handwritten note for Mr. Dussault, which Mr. Dussault never received.
14At 5:18 p.m. and again at 8:50 p.m., Officers Chicoine and Gosselin approached the cellblock supervisor to ask whether Mr. Dussault had spoken about his lawyer. The answer on both occasions was no.
15After their second check-in with the cellblock supervisor, the officers went to Mr. Dussault's cell. At 8:52 p.m., Officer Chicoine told Mr. Dussault that Detective Sergeant Frédérick Simard was ready to meet with him. Mr. Dussault said: [translation] "And my lawyer, where is he? He was supposed to be here." Officer Chicoine responded: [translation] "He called." He did not say anything further.
16Officer Simard commenced the interrogation shortly before 9:00 p.m. Mr. Dussault could not understand why he had not yet spoken to his lawyer. It is worth reproducing in full a number of the questions and answers from the early portion of the interrogation:
[translation]
Q. . . . [O]nce you were arrested, at 12 Trottier, is it true that [Detective Sergeant Chicoine is] the same man who brought you here, who read you your rights?
A. Yes.
Q. He had that form, in fact it's a copy of his form.
A. That, my lawyer told me he was supposed to be here because he wanted to attend this interview, and he isn't here, and they told me . . . he told me to wait till he was here, and he still hasn't arrived.
Q. OK. We're going to clarify that actually, that step, whether you got your rights with Mr. Chicoine. . . .
Q. OK. Well, I'll tell you. We're a team here, it's like a big family. So how did things go with those two people, those two police officers?
A. It was fine.
Q. Yes?
A. But that, my lawyer, he told me to . . . why did he tell me to remain . . . He just told me to give my name, my things, and he told me to remain silent until he was here. Why did he tell me that?
Q. Why did he tell you that? He gave you advice, and it's privileged for you.
A. No, I know.
Q. I can't get involved in that conversation.
A. Yeah.
Q. It's because it's your privilege to consult a lawyer.
A. Because he told me he'd be here. Now I feel like I'm a bit on my own. He told me he'd be here to come . . .
Q. But what I want to clarify is: did you have a chance to speak to a lawyer?
A. Yes.
Q. Who was your lawyer?
A. It's . . . fuck, I don't have the name, but he's . . .
Q. If I tell you Mr. Benoît?
A. Yes.
Q. That's right?
A. Yes.
Q. Were you able to speak to him in confidence, alone?
A. Yes, and he told me to remain silent until he met with me.
Q. . . . So the right to counsel, I'm happy, you were able to exercise your right, that's perfect. You got advice and that's the number one thing. I will set that aside. [Underlining added.]
(A.R., vol. X, at pp. 10-11 and 14-17)
17After these exchanges, the interrogation proceeded, and Mr. Dussault made an incriminating statement.
III. Decisions Below
A. Voir Dire, Superior Court of Quebec (Di Salvo J.)
18Mr. Dussault moved to exclude the statement on the basis that it was obtained in violation of ss. 7, 10(a), and 10(b) of the Charter. Only the last of these alleged violations is at issue in this appeal.
19Defence counsel argued that Sinclair, and in particular para. 52 of this case, was the principal governing authority:
[translation] So we'll get to the heart of the matter. And here I quote paragraph fifty-two (52), copying my friend. Paragraph fifty-two (52):
"More broadly, this may be taken to suggest that circumstances indicating that the detainee may not have understood the initial section ten (b) (10(b)) advice of his right to counsel impose on the police a duty to provide a further opportunity to consult counsel."
(A.R., vol. IX, at p. 67)
20Counsel argued that there had been objectively observable circumstances indicating that Mr. Dussault had not understood Mr. Benoît's initial legal advice. Two such circumstances stood out. The first was Mr. Dussault's statements during the interrogation. The second was that Mr. Dussault did not know why Mr. Benoît had told him to remain silent, though the trial judge declined to rely on this circumstance.
21The trial judge rejected this argument and held that the incriminating statement was admissible. She made three significant findings in support of this conclusion:
- first, that Mr. Benoît adequately explained the right to silence;
- second, that Mr. Dussault understood Mr. Benoît's explanation of the right to silence;
- third, that Mr. Dussault did not mention to police that he did not understand the right to silence or his rights more generally.
Based on these conclusions, and in consideration of all the evidence, the trial judge found that Mr. Dussault had exercised his right to counsel, and that the police [translation] "could reasonably believe that [Mr. Dussault] had in fact consulted with his lawyer."
B. Court of Appeal of Quebec, [2020 QCCA 746](https://www.canlii.org/en/qc/qcca/doc/2020/2020qcca746/2020qcca746.html), 388 C.C.C. (3d) 362 (Bich, Bouchard and Healy JJ.A.)
22Mr. Dussault pled guilty to the charge of arson and was convicted by a jury on the charge of second degree murder. He appealed from the murder conviction on the basis that the trial judge erred in admitting the statement.
23The central issue, as framed by the Court of Appeal, was whether Mr. Dussault's telephone call with Mr. Benoît constituted a complete consultation for the purposes of s. 10(b). If the answer was no, the police were required to facilitate a more complete consultation.
24The court concluded that the telephone conversation was not a complete consultation and that the police "were fully aware that [Mr. Dussault] and his counsel expected the consultation to continue" in person. The court also concluded that the police failed to inform Mr. Dussault that his lawyer had come and gone, and that this was a Charter breach.
25The reasons of the Court of Appeal depart markedly from those of the trial judge in terms of their characterization of the conduct of the police. Whereas the trial judge concluded that the police had acted in good faith, the Court of Appeal concluded that the police conduct was "deliberate" and "calculated."
IV. Analysis
26The only issue in this appeal is whether the factual findings of the trial judge support the legal conclusion that the police provided Mr. Dussault with a reasonable opportunity to consult counsel and, in particular, whether they were required to provide him with a second opportunity to consult counsel before questioning him.
27In my opinion, the police failed to provide Mr. Dussault with a reasonable opportunity to consult counsel. I would therefore dismiss the appeal. My reasons for reaching this conclusion, however, differ from those of the Court of Appeal.
28For reasons which will become apparent, I find it unnecessary to decide whether the police were entitled to presume that the phone conversation constituted a "complete" consultation. Nor is it necessary for me to decide whether the police had an obligation to inform Mr. Dussault that his lawyer had come and gone.
29As I see it, the principles set out in Sinclair suffice to resolve this appeal. Sinclair states that the police must provide a detainee with a second opportunity to consult counsel where there are changed circumstances that undermine the legal advice a detainee has already received.
A. The Legal Principles
(1) *Sinclair* and the Right to a Second Consultation
30Section 10(b) of the Charter provides that everyone has the right on arrest or detention "to retain and instruct counsel without delay and to be informed of that right". Stated at its broadest, the purpose of s. 10(b) is to allow detainees to obtain legal advice relevant to their legal situation so that they can make informed choices about whether and how to assert other legal rights, including the right to silence.
31Section 10(b) places corresponding obligations on the state. Police must inform detainees of the right to counsel (the informational duty) and must provide detainees who invoke this right with a reasonable opportunity to consult counsel before proceeding with the investigation (the implementational duty).
32Police can typically discharge their implementational duty by facilitating "a single consultation at the time of detention or shortly thereafter": *Sinclair*, at para. 47. In this context, the single consultation serves the purpose of s. 10(b) by ensuring that the detainee has the opportunity to receive legal advice at the relevant time.
33On this point, it is worth reiterating what the Sinclair majority made clear: Detainees do not have a right to obtain, and police do not have a duty to facilitate, the continuous assistance of counsel throughout the investigation: Sinclair, at para. 26. Police can ask questions and otherwise proceed with an investigation once the consultation has been completed.
34Once a detainee has consulted with counsel, the police are entitled to begin eliciting evidence and are only exceptionally obligated to provide a further opportunity to receive legal advice. In Sinclair, the majority recognized three categories of changed circumstances that can renew a detainee's right to consult counsel: (1) new procedures involving the detainee; (2) a change in jeopardy facing the detainee; or (3) reason to believe the detainee may not have understood the initial advice.
35As a specific example of the third category listed above, the majority explained, at para. 52, that the right to counsel may be renewed if police "undermine" the legal advice that the detainee has already received:
Similarly, if the police undermine the legal advice that the detainee has received, this may have the effect of distorting or nullifying it. This undercuts the purpose of s. 10(b). In order to counter this effect, the police may be required to afford the detainee a further opportunity to consult counsel: see R. v. Burlingham, [1995] 2 S.C.R. 206.
(2) Undermining Legal Advice Includes Undermining Confidence in Counsel
36The majority in Sinclair did not expand on the type of police conduct that could "undermine the legal advice that the detainee has received" and thereby give rise to a renewed right to consult counsel. The cited example was Burlingham, in which detectives sought to actively dissuade the accused from engaging his counsel. The question left open is whether the concept of "undermining" in Sinclair is broader than it was in Burlingham.
37The reference to R. v. Burlingham, [1995] 2 S.C.R. 206, at the end of para. 52 in Sinclair sheds light on the type of police conduct that can "undermine" legal advice in this context. In Burlingham, the Court held that s. 10(b) was violated by the manner in which the police spoke about the accused's lawyer:
. . . s. 10(b) specifically prohibits the police, as they did in this case, from belittling an accused's lawyer with the express goal or effect of undermining the accused's confidence in and relationship with defence counsel.
38It is notable that Burlingham speaks of undermining confidence in counsel, whereas Sinclair speaks specifically of undermining legal advice. The implied premise of the Sinclair citation to Burlingham is that undermining confidence in counsel can, in turn, undermine legal advice, and vice versa. That is to say, a detainee who lacks confidence in their lawyer, or in the lawyer's advice, cannot meaningfully rely on that advice.
39A detainee's confidence in counsel anchors the solicitor-client relationship and allows for the effective provision of legal advice: R. v. McCallen (1999), 43 O.R. (3d) 56, at p. 74. It follows that police conduct that undermines a detainee's confidence in counsel, or in the advice received from counsel, can trigger a renewed duty under s. 10(b).
(3) "Undermining" Is Not Limited to Intentional Belittling of Defence Counsel
40The most notable cases in this area of the law are those, such as Burlingham, in which the police expressly call into question the competence or trustworthiness of defence counsel. Burlingham remains the paradigm case of "undermining" in the s. 10(b) context. But the Sinclair framework should not be read as limiting "undermining" to such cases.
41The Sinclair analysis does not, however, distinguish between intentional and unintentional undermining of legal advice. The focus remains on the effects of the police conduct. Where the police conduct — whether deliberate or inadvertent — has the effect of undermining the legal advice provided to a detainee, a renewed right to consult counsel may arise under s. 10(b).
42This conclusion follows from a consideration of the basic principles that underlie the Sinclair framework. Sinclair mandates that police provide a second opportunity to consult counsel where "changed circumstances" arise, suggesting the inquiry is an objective one focused on the impact of circumstances rather than the subjective intent of police.
43The case law also demonstrates that police conduct can unintentionally undermine the legal advice provided to a detainee: see, e.g., R. v. Daley, 2015 ONSC 7145, at para. 42 , per Fairburn J. (as she then was).
44Nor is there any principled reason to think that police conduct must amount to the "belittling" of defence counsel in order to "undermine" legal advice in the Sinclair sense of that term. Recall that the purpose of the right to a second consultation is to ensure that a detainee has access to legal advice relevant to their situation, such that the detainee can make informed choices about whether and how to assert other legal rights.
45Simply 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 can make informed choices about whether and how to assert other legal rights, including the right to silence. If police conduct has the effect of distorting or nullifying the legal advice provided to a detainee, the purpose of s. 10(b) is undercut, regardless of whether the police intended that result.
B. Application
46I am satisfied that the police conduct in this case had the effect of leading Mr. Dussault to believe, first, that an in-person consultation with Mr. Benoît would occur and, second, that Mr. Benoît had not come to the police station. Both of these beliefs were false. The combination of these two false beliefs effectively undermined the legal advice that Mr. Benoît had given to Mr. Dussault.
(1) The Police Misled Mr. Dussault
47In my opinion, two separate acts of Officer Chicoine combined to have the effect of undermining the legal advice provided by Mr. Benoît.
48The first act occurred during Officer Chicoine's first telephone conversation with Mr. Benoît. When Mr. Benoît said that he was coming to the police station to meet with Mr. Dussault and asked that the investigation be suspended, Officer Chicoine responded: [translation] "OK, I understand." This response — which Officer Chicoine then relayed in substance to Mr. Dussault — gave the false impression that the police accepted Mr. Benoît's request and that the investigation would be suspended pending an in-person consultation.
49The second act occurred at 8:52 p.m. By this time, Mr. Benoît had come and gone. When Officer Chicoine told Mr. Dussault that Officer Simard was ready to meet with him, Mr. Dussault asked pointedly: [translation] "And my lawyer, where is he? He was supposed to be here." Officer Chicoine responded: [translation] "He called." This response — effectively "your lawyer called" — gave Mr. Dussault no information about why his lawyer had not come as expected. The most reasonable interpretation of the response was that Mr. Benoît had not come to the police station at all.
50In oral argument before this Court, counsel for the Crown insisted that this was [translation] "a particularly delicate situation" for Officer Chicoine: transcript, at p. 9. Counsel stated that Officer Chicoine could not, without making things worse, tell Mr. Dussault that his lawyer had in fact come to the police station but had been turned away.
51I do not agree that Officer Chicoine successfully extricated himself from this delicate situation. The most reasonable interpretation of Officer Chicoine's response was that Mr. Benoît had not come to the police station at all — which was false. Mr. Dussault was left with the false impression that his lawyer had simply telephoned (presumably to say he was not coming), when in fact his lawyer had come in person.
(2) The Police Conduct Undermined the Legal Advice Provided to Mr. Dussault
52Two factors in particular support my conclusion that the above-described police conduct had the effect of undermining the legal advice that Mr. Benoît had provided to Mr. Dussault.
53The first is the content of the advice itself. Mr. Benoît advised Mr. Dussault that he was coming to the police station to meet with him in person; that, in the interim, Mr. Dussault would be protected by the right to silence; and that Mr. Dussault should remain silent until Mr. Benoît arrived. This advice was premised on the assumption that the in-person meeting would take place. Due to the misleading police conduct, Mr. Dussault did not know that this premise had been falsified.
54The second is the evidence of what Mr. Dussault said during the interrogation itself. He repeatedly expressed that his lawyer had told him he would be there ([translation] "That, my lawyer told me he was supposed to be here because he wanted to attend this interview, and he isn't here"), that he was confused about why his lawyer had not arrived ([translation] "Because he told me he'd be here. Now I feel like I'm a bit on my own. He told me he'd be here to come . . ."), and that he did not know why his lawyer had given him the advice he did ([translation] "But that, my lawyer, he told me to . . . why did he tell me to remain . . . He just told me to give my name, my things, and he told me to remain silent until he was here. Why did he tell me that?").
55When these statements are considered in their totality and in light of all relevant circumstances, it is clear that they were objectively observable indicators that the legal advice given to Mr. Dussault had been undermined. Mr. Dussault clearly did not appreciate why Mr. Benoît had told him to remain silent (presumably because he expected to receive more advice from Mr. Benoît), and he felt abandoned by his lawyer. The police were required to provide Mr. Dussault with a further opportunity to consult counsel in these circumstances.
56In 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 alone in confronting the power of the state": para. 34. In this case, the police conduct severed that lifeline. The police were required, at minimum, to reconnect it before proceeding with the interrogation.
C. Remedy
57The Crown has conceded, in my view properly, that Mr. Dussault's incriminating statement should be excluded under s. 24(2) of the Charter if it was obtained in violation of s. 10(b).
V. Disposition
58For these reasons, I would dismiss the appeal.
Appeal dismissed.
Solicitor for the appellant: Director of Criminal and Penal Prosecutions, Gatineau.
Solicitors for the respondent: Raby Dubé Le Borgne, Montréal.
Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Toronto.
Solicitors for the intervener the Criminal Lawyers' Association: Kapoor Barristers, Toronto.
Solicitors for the intervener Association québécoise des avocats et avocates de la défense: Jean‑Claude Dubé, Avocats, Laval.
Solicitors for the intervener Association des avocats de la défense de Montréal‑Laval‑Longueuil: Marcoux Elayoubi Raymond, Longueuil.
