Case information

Criminal law — Charter of Rights — Right to counsel — Exclusion of evidence — Whether majority of Court of Appeal erred in law in finding that questions submitted by Crown were questions of fact in respect of which there was no right of appeal — Whether majority of Court of Appeal erred in law in upholding trial judge’s conclusion that there was violation as regards two aspects of right to counsel: (a) exercise of right to counsel at first reasonably available opportunity; and (b) right to counsel of one’s choice — Canadian Charter of Rights and Freedoms, ss. 10(b), 24(2).

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The respondent, Éric Giroux, was involved in an all-terrain vehicle accident and was arrested for driving while impaired by alcohol. After his rights were read, he asked to speak to his lawyer. Since Mr. Giroux did not have a cell phone, the police officer told him that he could reach his lawyer once he was at the police station. During the ride, Mr. Giroux spontaneously admitted that he had consumed 12 beers. At the station, the police officer tried to reach his lawyer, but she was on maternity leave. When Mr. Giroux asked to speak to another lawyer from the same firm, the officer merely left a voicemail. Because it was late and the firm would soon close, the call was unlikely to be returned; Mr. Giroux therefore asked to speak to a legal aid lawyer, whom he was able to contact. In addition to the count of driving while impaired by alcohol, Mr. Giroux was also charged with having a blood alcohol concentration equal to or exceeding 80 mg of alcohol in 100 mL of blood. Alleging a violation of his right to counsel, he sought to have his spontaneous statement and the breathalyzer results excluded. The trial judge granted the motion to exclude the evidence, finding that the right to counsel guaranteed by s. 10(b) of the Charter had been violated. Mr. Giroux was therefore acquitted of the two counts. The Crown appealed the acquittals. It did not challenge the exclusion of the spontaneous statement, but it argued that the right to counsel had not been violated and that the breathalyzer results should have been admitted or, in the alternative, that the evidence should have been admitted under the framework laid down in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The majority of the Quebec Court of Appeal dismissed the appeal, finding that there was no error of law and declining to intervene as regards the application of s. 24(2) of the Charter on the ground that the Crown’s arguments essentially challenged factual assessments to which deference was owed on appeal. Hardy J.A., dissenting, would have allowed the appeal, set aside the acquittals and the decision to exclude the breathalyzer test results, and remitted the case to the trial judge for the continuation of the trial, as he was of the view that the standard imposed on the police was too high and that there had been no violation of the right to counsel.