Les limites que doit respecter une partie quand elle désire présenter son témoin sous son meilleur jour

R. c. Rodriguez-Farinas, 2022 QCCS 2240

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[46]         La Cour d’appel de l’Alberta a souligné qu’une partie peut, d’une manière introductive, présenter son témoin sous son meilleur jour[6]; l’équité commandait cependant que celui-ci ne le soit pas avec un lustre inapproprié[7].

 

[47]         De cet exemple et d’autres, les auteurs discutent des limites de la règle[8]. Je reproduis ci-après trois extraits qui décrivent fort utilement celle-ci et qui affectent la discussion en l’espèce :

 

•         “In general, a party is not entitled to call evidence whose sole purpose is to bolster the character or credibility of its own witness until the other side has attempted to impeach it”[9];

 

•         “The rule against oath helping operates to exclude only evidence that is extraneous to the allegations being tried. […] [T] he rule is engaged when the sole or principal thrust of the evidence goes to the witness’s character or credibility rather than the substance of the issues in dispute”[10];

 

•         “The law distinguishes between improper bolstering of one’s own witness and pre-emptive efforts to address an anticipated challenge from the other side. Within limits, the latter is permissible. For instance, it is permissible for the Crown to elicit its own witness’s criminal record in chief, thereby blunting the force of an anticipated defence attack. Defence counsel can do the same for the accused. Although this might “steal the thunder” of opposing counsel, there is nothing wrong with presenting a warts-and-all picture of one’s own witness. However, the rule against oath helping is breached when the Crown goes on to elicit evidence about the rehabilitation and subsequent good behaviour of its putatively unsavoury witness. This kind of evidence is seen as an improper thumb on the evidentiary scales”[11].

Les aspects à considérer quant au droit à l'avocat dans un contexte de difficultés linguistiques de la personne détenue

R. v. Ukumu, 2019 ONSC 3731

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[32]           General considerations and principles in that regard include the following:

a.      The right to counsel guaranteed by s.10(b) of the Charter encompasses a right to be informed of the right and its components in a comprehensible and meaningful way, and the right to exercise that right in a meaningful and comprehensible fashion.  In particular, it is not sufficient for a police officer, upon the detention or arrest of a person, to merely recite the rights guaranteed by section 10 of the Charter.  As s.10(b) of the Charter stipulates, the detainee or accused must be “informed”.  Individuals who are detained or arrested are in a vulnerable position, and the rights conferred by s.10(b) of the Charter are one of the central protections to allow such individuals the ability to understand their situation and make informed decisions in relation to that situation.  A detainee or accused therefore must understand what is being said to him or her, and understand what the options are, in order that he or she may make a choice in the exercise or waiver of the rights guaranteed by the Charter.  Similarly, meaningful exercise of the right to counsel requires an ability to fully understand the advice and instructions of counsel, in order to make a fully informed choice to follow or disregard such advice and instructions.[3]

b.      The police are not required to go to extreme means in order to respect the rights of a detainee or accused under section 10 of the Charter.  Generally, in relation to language comprehension, if there are no circumstances that subjectively or objectively suggest an issue regarding comprehension of English, it is fair to infer that an individual understands his or her legal rights as read to him or her in English, and will understand legal advice provided to him or her in English.[4]

c.      However, “special circumstances” may exist in relation to linguistic comprehension of legal rights.  In particular, there may be objective indicia that an individual’s knowledge of English may be limited for various reasons, such that he or she may not have sufficient comprehension of the matter.  Where such “special circumstances” exist, police officers dealing with a detainee or accused are obliged to act reasonably in the circumstances; i.e., by taking further reasonable steps to ascertain and ensure that the individual actually understands his or her legal rights, and is able to exercise those rights in a meaningful way.[5]

d.      The determination of whether such “special circumstances” exist is a question of fact and law.  In particular, even where a court accepts that a detainee or accused person understood his or her constitutional rights as explained in the English language, the factual findings may still raise “special circumstances” which require the police to take additional steps to ensure that the accused understands the content of the right to counsel, and makes a meaningful exercise of that right.[6]

e.      The test for special circumstances is an objective rather than subjective one.  In particular, the subjective belief of police officers that an accused fully understood his or her legal rights, (even where a court accepts police testimony in that regard), or was “playing games” by pretending to understand less than he or she actually did, accordingly is not determinative of whether or not such “special circumstances” exist.  Again, issues relating to linguistic comprehension of Charter rights involve a question of law, and accordingly are not decided by assessments of credibility alone.  It is a reversible error of law to conclude that there are no special circumstances on the basis of a police officer’s subjective belief about the ability of a detainee or accused to understand his or her legal rights.[7]

f.      Such “special circumstances” may exist where there is objective evidence that English is not the first language of a detainee or accused, and there is sufficient objective evidence of some lack of understanding of the right to counsel or other information provided to the detainee or accused by police at the time of the detention or arrest.[8]

g.      However, each case turns on its own facts, and there is no comprehensive list of situations in which such “special circumstances” may arise.[9]  Determination of whether such circumstances exist may include consideration of factors such as the following:

                                                              i.      The personal circumstances of the individual, including such matters as:

1.      the person’s age, education, sophistication and mental condition;

2.      the person’s place of birth, residential history, and length of time in Canada;

3.      the person’s first language, and the extent to which the person has studied or otherwise received training in English as a second language;  

4.      the extent to which the person’s familial connections have required or involved an ability to speak and understand English;

5.      the extent to which the person’s social circles have required or involved an ability to speak and understand English;

6.      the nature of the person’s employment, and the extent to which that employment has required or involved an ability to speak and understand English;

7.      the extent to which the person routinely purchases or receives goods, services and/or medical treatment using the English language;

8.      the extent to which the person has required or used the services of a translator to understand English in relation to work, social, medical, legal or other matters; and

9.      more generally, evidence relating to the person’s demonstrated ability to communicate in English, and the person’s level of sophistication and ability in that regard.[10]

                                                            ii.      Whether the individual complied with police instructions and demands communicated in English.[11]

                                                         iii.      Whether the individual consistently spoke to police in English or used another language at times.[12]

                                                         iv.      Whether the individual spoke to police in English but with a noticeable accent – although an accent alone is not sufficient to warrant a finding of special circumstances.[13]

                                                            v.      Whether the individual spoke to police slowly, using only simple grammatical terms, and/or in “broken” English; e.g., using incomplete sentences, employing improper syntax, omitting certain words, and/or making obvious grammatical errors.[14]

                                                         vi.      Whether the individual responded to questions with silence, paused before giving answers to police, was slow or laboured in his or her responses, or otherwise struggled to find words.[15]

                                                        vii.      Whether the individual demonstrated looks of confusion while communicating with the police.[16]

                                                      viii.      Whether the individual repeated himself or herself.[17]

                                                         ix.      Whether the individual appeared to simply repeat or “parrot” words being said to him or her in English.[18]

                                                            x.      Whether the individual asked for things to be repeated, or exhibited difficulty understanding certain words or concepts.[19]

                                                         xi.      Whether the individual frequently answered questions with answers that were mono-syllabic, consisted of one or two words, or were otherwise simple.[20]

                                                        xii.      Whether the individual answered a succession of questions in the same way; e.g., by responding “yes” to all questions, or “no” to all questions.[21]

                                                      xiii.      Whether the individual provided answers to questions that were non-responsive, unclear, unintelligible, non-sensical, (e.g., indicating that he or she had not spoken with a lawyer, or asking to speak with a lawyer, after a telephone call with duty counsel has already taken place), inconsistent, or otherwise inappropriate.[22]

                                                      xiv.      Whether the individual expressly indicated he or she was born, raised and/or had resided in another country or countries where English is not commonly spoken, or otherwise indicated that his or her first language was not English – although a finding of special circumstances is not warranted merely on the basis that the individual’s first language was not English.[23]

                                                        xv.      Whether the police were in possession of other information or documentation, (e.g., the individual’s birth certificate or driver’s licence from another jurisdiction), indicating that the individual was from another country or other area of Canada where English is not commonly spoken, had recently immigrated to Canada from such a country, or information otherwise indicating that English was not the individual’s first language.[24]

                                                      xvi.      Whether the individual made any express statements to the police indicating an ability or inability to understand English, or a limited comprehension of English, (e.g., by stating that he or she understands or speaks English “a little” or “a little bit”, does “not speak the best English”, does “not speak English very well”, speaks “not much” English, speaks English that is “okay”, “sometimes does not pick up things in English”, was not understanding “many few words” spoken in English, “sometimes
 understood” words spoken in English, understood “almost everything” or “probably 90 percent” of what was said in English, or otherwise was not at ease communicating in English), and later testimony of the individual about such ability or inability.[25]

                                                   xvii.      Whether police officers speaking to the individual in English felt the need to speak slowly, repeat questions or statements they were making, explain things in more simple or plain terms, and/or use hand gestures to make their meaning clear.[26]

                                                  xviii.      Whether police officers speaking to the individual in English felt the need to repeat or paraphrase statements made by the individual, to confirm understanding of what the individual had said.[27]

                                                      xix.      Whether police officers speaking to the individual in English felt it advisable to refer the individual to a written document translating a desired communication from English into another language.[28]

                                                        xx.      Whether the individual expressly indicated a lack of understanding of things said in English, either proactively or by providing a negative response to questions asking whether things said in English had been understood – although an individual’s failure to do so is not determinative, as he or she has no duty in that regard, and may have lacked the ability to comprehend the need for such an indication or to make such an indication.[29]

                                                      xxi.      Whether there were difficulties encountered when the individual was put in touch with duty counsel, (e.g., requiring the placing of multiple calls in that regard), and/or other indications that the individual was dissatisfied with advice given by duty counsel.[30]

                                                   xxii.      Whether the individual asked to speak in his or her own language and/or for an interpreter, officer and/or lawyer who spoke his or her first language – although an individual’s failure to do so is not determinative, as he or she may not be aware that such accommodations exist, and there is no duty or onus on such an individual to make such a request.[31]

                                                  xxiii.      Whether the individual was offered but declined the services of an interpreter, officer and/or lawyer who spoke his or her first language.[32]

h.      When determining whether such “special circumstances” exist, courts recognize that mastery of a language is not an “all or nothing” proposition, and that the situation of an individual detained or arrested by police, and attempting to understand his or her legal rights, is not an everyday situation.  To the contrary, it frequently will be an unfamiliar situation.  It also is a stressful situation in which the individual is inherently vulnerable, and may feel compelled to seem agreeable to authority figures.  An individual who may be able to manage day to day in English, (e.g., after living and/or working in English-speaking areas of Canada for years), may nonetheless not be comfortable communicating in English, or sufficiently comprehend English, when dealing with the complexities of understanding or exercising his or her legal rights in a situation where he or she is detained and/or arrested, and the legal jeopardy he or she may be facing.  Understanding of language in certain contexts is not the same thing as understanding rights.[33]

i.        Where such “special circumstances” exist, a determination of whether or not police took further adequate and reasonable steps to address the special circumstances sufficiently, (i.e., to ascertain and ensure that the accused or detainee actually understood his or her legal rights, and was able to exercise those rights in a meaningful way), also depends on the facts of any given case.  Depending on the circumstances, such further steps may include one or more of the following measures:

                                                              i.      in some cases, depending on the individual’s level of English, by a police officer providing a more careful explanation of the right to counsel;

                                                            ii.      by advising the individual that he or she may consult legal counsel in another language;

                                                         iii.      by ensuring that the individual is informed of his or constitutional rights in his or her own language; e.g., by means of an appropriate written translation card, use of an interpreter, and/or by requesting the assistance of an appropriately bilingual officer and/or lawyer; and/or

                                                         iv.      by ensuring that the individual exercises his or her constitutional rights in his or her own language; e.g., by use of an interpreter and/or appropriately bilingual lawyer.[34]

Est-ce possible pour un individu détenu de contacter un tiers afin de valablement exercer le droit à l'avocat de son choix?

R v Ector, 2018 SKCA 46

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[48]           To be clear, the s. 10(b) right embraces the right to speak with legal counsel and not to a non-lawyer. That said, the law also recognizes that the right to retain and instruct counsel includes the right to contact third parties for the purpose of obtaining counsel. Thus, where the detainee expresses a desire to speak with a third party for purposes of obtaining the name of legal counsel, and there are no investigative concerns arising from that request, denial of the right to access the third party may constitute a s. 10(b) breach (Tremblay; R v LaPlante (1987), 1987 CanLII 209 (SK CA), 40 CCC (3d) 63 (Sask CA); R v Menard, 2010 BCSC 1416 at para 46, 11 BCLR (5th) 162; R v Blake, 2015 ONCA 684 at para 14; R v Ferris, 2014 SKPC 6 at paras 27–31 [Ferris]).

[49]           The right to speak with a third party to obtain the name of counsel is not absolute and it, too, is fact dependent. This point was explained in R v Kumarasamy, [2002] OJ No 303 (QL) (Sup Ct):

[26]      This is not to say that a detainee is always entitled to make one or a series of calls to friends or relatives. The determination must be made on a case by case basis. No doubt there will be rare cases where a call to a friend or relative in private could jeopardize an ongoing investigation. For example, if the detainee has accomplices who had not been arrested, or if persons or property could be placed in jeopardy by permitting a call to someone other than a lawyer, a delay might be justified. That is not the case here.

Quelles sont les limitations raisonnables au droit à l'avocat de son choix à procès?

R v Yates, 2023 SKCA 47

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[53]           There is no doubt that courts possess the jurisdiction to remove or disqualify counsel of choice to protect their clients or to protect the administration of justice. This “jurisdiction stems from the fact that lawyers are officers of the court and their conduct in legal proceedings … may affect the administration of justice” (MacDonald Estate v Martin, 1990 CanLII 32 (SCC), [1990] 3 SCR 1235 at 1245 [MacDonald Estate]). However, as I develop below, the exercise of that authority must proceed with caution.

[54]           The Ontario Court of Appeal in Speid framed the right to counsel of choice as one that, although not absolute, ought not be lightly interfered with:

[5] The right of an accused to retain counsel of his choice has long been recognized at common law as a fundamental right. It has been carried forth as a singular feature of the Legal Aid Plan in this province and has been inferentially entrenched in the Charter of Rights which guarantees everyone upon arrest or detention the right to retain and instruct counsel without delay. However, although it is a fundamental right and one to be zealously protected by the court, it is not an absolute right and is subject to reasonable limitations. It was hoped that these limitations would be well known to the bar, but if not honoured, the court has jurisdiction to remove a solicitor from the record and restrain him from acting.

[55]           Case law also supports the view that the right to retain counsel of choice is inferentially entrenched in ss. 7, 10(b) and 11(d) of the Charter: see R v Robillard (1986), 1986 CanLII 4687 (ON CA), 28 CCC (3d) 22 (Ont CA); R v McCallen (1999), 1999 CanLII 3685 (ON CA), 116 OAC 308 (CA); and R v Willett, 2018 ONSC 5031. As the Ontario Court of Appeal discussed in McCallen, “The solicitor–client relationship is anchored on the premise that clients should be able to have complete trust and confidence in the counsel who represent their interests” (at para 34). Thus, “[i]t therefore follows that the accused’s right to control the conduct of the defence free from unjustified state interference is a significant principle underlying the constitutional protection of the right to choice of counsel” (David Layton, “The Pre-Trial Removal of Counsel for Conflict of Interest: Appealability and Remedies on Appeal” (1999) 4 Can Crim L Rev 25 (WL) at 18).

[56]           Counsel of choice is also seen as being significant to the broader societal perception of fairness in the criminal justice system (McCallen):

[37] … Including with this fundamental right to counsel, the additional right to choose one’s own counsel enhances the objective perception of fairness because it avoids the spectre of state or court interference in a decision that quite properly should be the personal decision of the individual whose interests are at stake and whose interests the counsel will represent.

Put another way, the right to counsel of choice enhances the broader societal opinion and reputation of the administration of justice: see also E.G. Ewaschuk, Criminal Pleadings and Practice in Canada, loose-leaf (Rel 4 December 2022) 3d ed (Toronto: Thomson Reuters, 2022) at 31:848 (WL) [Ewaschuk], and R v Neil, 2002 SCC 70, [2002] SCR 631.

[57]           Although the right to counsel of choice has deep roots in Canadian law, that right is not absolute and is subject to reasonable limitations. There may be situations – a conflict of interest being one – where trial fairness might be imperilled or the public interest in the administration of justice justifies judicial intervention. Speid is just such a case. There, prior to trial it came to light that a legal partner of Mr. Speid’s trial counsel had briefly acted for Mr. Speid’s spouse in a criminal matter touching on Mr. Speid’s charges. As things turned out, Mr. Speid’s spouse subsequently became a Crown witness in the prosecution of her husband for the second degree murder of their infant child. On the first day of trial, the presiding judge directed the removal of Mr. Speid’s legal counsel. That ruling was challenged on appeal on the basis that Mr. Speid had improperly been denied the right to counsel of choice. He sought s. 24(1) Charter relief to remedy the alleged wrong.

[58]           Speaking for the Ontario Court of Appeal, Dubin J.A. stated that, in assessing the merits of a disqualification order, “the court must balance the individual’s right to select counsel of his own choice, public policy and the public interest in the administration of justice and basic principles of fundamental fairness. Such an order should not be made unless there are compelling reasons” (at para 6). That said, as Dubin J.A. went on to note, “no client has a right to retain a counsel if that counsel, by accepting the brief, puts himself in a position of having a conflict of interest between his new client and a former one” (at para 7): see also Willett.

[59]           Not only is the right to counsel of choice fundamental, but courts have repeatedly held that it should not be interfered with lightly. The standard or threshold that provides a lawful basis for disqualification has been described in various ways. In Speid the standard was expressed as a “compelling reason” (at para 6), and, in McCallen, it was said to be an “exceptional circumstance” (at para 69). In a more recent decision from the British Columbia Court of Appeal – R v Legebokof 2016 BCCA 386, 341 CCC (3d) 293, leave to appeal to SCC refused, 2017 CanLII 6743 – the Court expressed it this way: “courts will be slow to do anything that might interfere with an accused’s choice of counsel” (at para 56).

[60]           Regardless of how the test or standard is formulated, what I take from the jurisprudence is that an order disqualifying counsel of choice should not be made absent a good and compelling reason for such an order. As discussed more fully below, where the underlying concern is a conflict of interest, the decision in Neil describes it in terms of a “‘substantial risk that the lawyer’s representation of the client would be materially and adversely affected by the lawyer’s own interests or by the lawyer’s duties to another current client, a former client, or a third person’” (emphasis added, at para 31, quoting The American Law Institute, Restatement of the Law Third, The Law Governing Lawyers, vol 2 at §121 [The Law Governing Lawyers]); that includes “a substantial likelihood that the lawyer may be placed in an actual conflict of interest as the trial progresses” (Counsel Decision at para 45).