R. v. Beaudry

R. v. Beaudry
Collection
Supreme Court Judgments
Date
2007-01-31
Neutral citation
2007 SCC 5
Report
[2007] 1 SCR 190
Case number
31195
Judges
McLachlin, Beverley; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
Quebec
Subjects
Criminal law
Notes
SCC Case Information: 31195
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Beaudry, [2007] 1 S.C.R. 190, 2007 SCC 5
Date: 20070131
Docket: 31195
Between:
Alain Beaudry
Appellant
and
Her Majesty The Queen
Respondent
‑ and ‑
Attorney General of Canada and
Canadian Professional Police Association
Interveners
Official English Translation: Reasons of Charron J.
Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 75)
Concurring Reasons:
(paras. 76 to 80)
Dissenting Reasons:
(paras. 81 to 116)
Charron J. (LeBel, Abella and Rothstein JJ. concurring)
Binnie J.
Fish J. (McLachlin C.J. and Bastarache and Deschamps JJ. concurring)
______________________________
R. v. Beaudry, [2007] 1 S.C.R. 190, 2007 SCC 5
Alain Beaudry Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Canada and
Canadian Professional Police Association Interveners
Indexed as: R. v. Beaudry
Neutral citation: 2007 SCC 5.
File No.: 31195.
2006: May 12; 2007: January 31.
Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for quebec
Criminal law — Appeals — Power of appellate court — Unreasonable verdict — Police discretion — Police officer convicted of obstructing justice for deliberately failing to take breath samples needed to lay impaired driving charge against fellow officer — Whether verdict unreasonable — Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1) (a)(i).
Criminal law — Obstructing justice — Elements of offence — Police officer convicted of obstructing justice for deliberately failing to take breath samples needed to lay impaired driving charge against fellow officer — Relationship between offence of obstructing justice and police discretion — Criminal Code, R.S.C. 1985, c. C‑46, s. 139(2) .
The accused, a police officer, was charged with obstructing justice under s. 139(2) of the Criminal Code for deliberately failing to gather the evidence needed to lay criminal charges against P, another police officer, who he had reasonable grounds to believe had been operating a motor vehicle while intoxicated. At trial, the accused contended that his decision was a proper exercise of police discretion, while the Crown argued that the decision was founded on preferential treatment. The trial judge concluded that the accused had not exercised his discretion when he had deliberately failed to take breath samples, but that he had instead granted preferential treatment to P. The judge accordingly convicted him. The majority of the Court of Appeal upheld the conviction. This is an appeal as of right, and the issue is whether the verdict was unreasonable within the meaning of s. 686(1) (a)(i) of the Criminal Code .
Held (McLachlin C.J. and Bastarache, Deschamps and Fish JJ. dissenting): The appeal should be dismissed and the conviction upheld.
Per LeBel, Abella, Charron and Rothstein JJ.: A police officer who has reasonable grounds to believe that an offence has been committed, or that a more thorough investigation might produce evidence that could form the basis of a criminal charge, may exercise his or her discretion to decide not to engage the judicial process. But this discretion is not absolute. The exercise of the discretion must be justified subjectively, that is, the discretion must have been exercised honestly and transparently, and on the basis of valid and reasonable grounds; it must also be justified on the basis of objective factors. In determining whether a decision resulting from an exercise of police discretion is proper, it is therefore important to consider the material circumstances in which the discretion was exercised. The justification offered must be proportionate to the seriousness of the conduct and it must be clear that the discretion was exercised in the public interest. In the case at bar, it is clear from the evidence that, while the events that led to the police action did not represent the gravest of all possible situations, they were nonetheless serious. P, who was driving at high speed with a flat tire, went through a stop sign, almost hit the median, and continued to drive for some distance even though the patrol car’s lights were flashing. Once the accused suspected that P had been drinking, he had to be even more circumspect in deciding how to act. [37‑41]
While the administrative directives that apply to the situation in issue can shed light on the circumstances of the exercise of the discretion, they cannot be determinative. These directives do not have the force of law and cannot alter the scope of a discretion that is founded in the common law or a statute. Section 254(2) of the Criminal Code is the only legislative provision that applies in the instant case and it gives peace officers the power, but does not impose on them a duty, to take breath samples. Thus, the municipality’s police practices manual cannot transform the discretion to decide whether or not samples should be taken into a binding legal rule. Finally, although in Quebec it is a Crown prosecutor who authorizes the laying of criminal charges, the police officer’s discretion is not limited by the discretion of the Crown prosecutor. In discharging their respective duties, both the police officer and the prosecutor have a discretion that must be exercised independently of any outside influence. [44‑48]
The accused cannot be convicted of the offence provided for in s. 139(2) of the Criminal Code solely because he has exercised his discretion improperly. Where the discretionary power is relied upon, the analysis of the actus reus of the offence of obstructing justice must be carried out in two stages. It must first be determined whether the conduct in issue can be regarded as a proper exercise of police discretion. If so, there is no need to go any further, since it would be paradoxical to say that conduct that tends to defeat the course of justice can at the same time be justified as an exercise of police discretion. If, beyond a reasonable doubt, the answer is no, it must then be determined whether the offence of obstructing justice has been committed. The actus reus of the offence will thus be established only if the act tended to defeat or obstruct the course of justice. Regarding mens rea, this is a specific intent offence. The prosecution must prove beyond a reasonable doubt that the accused did in fact intend to act in a way tending to obstruct, pervert or defeat the course of justice. A simple error of judgment will not be enough. An accused who acted in good faith, but whose conduct cannot be characterized as a legitimate exercise of the discretion, has not committed the criminal offence of obstructing justice. [49‑52]
In the instant case, the guilty verdict is reasonable and is supported by a perfectly plausible interpretation of the evidence. The trial judge made no error of law, and it is apparent from the record that there was evidence to support each element of the offence. The resolution of the determinative issue turned on the credibility of the accused, and the trial judge was in the best position to assess the credibility of the witnesses and to determine whether the evidence left room for a reasonable doubt. His findings of fact provide ample support for his conclusion that the accused had, beyond a reasonable doubt, breached his duty by giving preferential treatment to P because P was a peace officer, and that he had had the specific intent to obstruct, pervert or defeat the course of justice by not taking the breath samples that would have been needed to lay a charge against P. [4] [55] [74]
The analysis of the evidence made by the dissenting judge in the Court of Appeal is incompatible with the role of an appellate court in reviewing whether a verdict is unreasonable. He exceeded the limits of his role in reinterpreting the evidence presented at trial and interfering with the assessment of the credibility of certain witnesses without showing appropriate deference to the trial judge’s findings. His analysis should have focussed on the question whether the verdict was reasonable. [4] [27]
Per Binnie J.: Where the findings of facts essential to the verdict are “demonstrably incompatible” with evidence that is neither contradicted by other evidence nor rejected by the trial judge, such a verdict would lack legitimacy and would properly be treated as “unreasonable” under s. 686(1) (a)(i) of the Criminal Code . However, the circumstances of this case do not meet the test proposed by the minority. The key issue at trial was credibility and the faults identified by the minority in the trial judge’s reasons have neither the centrality to the verdict nor the incompatibility with the record sufficient to justify a reversal. [79‑80]
Per McLachlin C.J. and Bastarache, Deschamps and Fish JJ. (dissenting): At least in non‑jury cases, appellate courts may find a verdict to be unreasonable under s. 686(1) (a)(i) of the Criminal Code even where the verdict was available on the record. No one should stand convicted on the strength of manifestly bad reasons. A verdict that was reached illogically or irrationally is hardly made reasonable by the fact that another judge could reasonably have convicted or acquitted the accused. While an appellate court, in determining whether a trial judge’s verdict is unreasonable, cannot substitute its own view of the facts for that of the judge, a verdict cannot be reasonable within the meaning of s. 686(1) (a)(i) if it is made to rest on findings of fact that are demonstrably incompatible with evidence that is neither contradicted by other evidence nor rejected by the judge. [96‑98]
This is a case where the trial judge’s reasons suffer, in the language of Biniaris, from flaws in the evaluation and analysis of the evidence that justify reversal. This is particularly true with regard to the only real issue in the case: whether the accused had acted corruptly or dishonestly, with the requisite intent to obstruct justice. The accused’s conduct in this affair has been marked throughout by transparency, not concealment, and none of the evidence relied upon by the trial judge provides a reasonable foundation for the findings of fact upon which he caused his verdict to rest. More particularly, none of it can reasonably be said to establish that the accused failed to obtain breath samples from P because he wished, for an improper motive, to hinder or foreclose P’s prosecution. Therefore, the trial judge’s verdict is “unreasonable” within the meaning of s. 686(1) (a)(i). Although there was evidence upon which a trier of fact could reasonably find the accused guilty as charged, the accused was nonetheless entitled to a decision that was supported by the reasons upon which it was said to be founded. In the circumstances, a new trial would be more appropriate than an acquittal. [83] [101] [110‑111] [115]
Cases Cited
By Charron J.
Referred to: R. v. W. (D.), [1991] 1 S.C.R. 742; R. v. Metropolitan Police Commissioner, [1968] 1 All E.R. 763; Hill v. Chief Constable of West Yorkshire, [1988] 2 All E.R. 238; R. v. Beare, [1988] 2 S.C.R. 387; R. v. Bernshaw, [1995] 1 S.C.R. 254; Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2; R. v. Jageshur (2002), 169 C.C.C. (3d) 225; R. v. Campbell, [1999] 1 S.C.R. 565; R. v. Regan, [2002] 1 S.C.R. 297, 2002 SCC 12; Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372, 2002 SCC 65; R. v. May (1984), 13 C.C.C. (3d) 257; R. v. Hearn (1989), 48 C.C.C. (3d) 376, aff’d [1989] 2 S.C.R. 1180; R. v. Charbonneau (1992), 13 C.R. (4th) 191; R. v. Yebes, [1987] 2 S.C.R. 168; R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15; R. v. Pittiman, [2006] 1 S.C.R. 381, 2006 SCC 9; R. v. A.G., [2000] 1 S.C.R. 439, 2000 SCC 17; R. v. Morrissey (1995), 97 C.C.C. (3d) 193; R. v. G. (G.) (1995), 97 C.C.C. (3d) 362; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33; R. v. Burke, [1996] 1 S.C.R. 474.
By Binnie J.
Referred to: R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26.
By Fish J. (dissenting)
R. v. Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17; R. v. Yebes, [1987] 2 S.C.R. 168; R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26; R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15; R. v. Burns, [1994] 1 S.C.R. 656; R. v. Burke, [1996] 1 S.C.R. 474; R. v. W. (R.), [1992] 2 S.C.R. 122; H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25; R. v. Kerr (2004), 48 M.V.R. (4th) 201, 2004 MBCA 30.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1985, c. C‑46, ss. 139(2) , 253 , 254(2) , 649 , 686(1) (a).
Police Act, R.S.Q., c. P-13.1, s. 48.
Authors Cited
Ceyssens, Paul. Legal Aspects of Policing, vol. 1. Toronto: Earlscourt Legal Press, 1994 (loose‑leaf updated January 2003, release 16).
APPEAL from a judgment of the Quebec Court of Appeal (Chamberland, Doyon and Giroux JJ.A.), [2005] R.J.Q. 2536, [2005] Q.J. No. 15282 (QL), 2005 QCCA 966, upholding the accused’s conviction on a charge of obstructing justice. Appeal dismissed, McLachlin C.J. and Bastarache, Deschamps and Fish JJ. dissenting.
Gérald Soulière and Tristan Desjardins, for the appellant.
Charles Levasseur and Daniel Grégoire, for the respondent.
François Lacasse, for the intervener the Attorney General of Canada.
Ronald Picard, for the intervener the Canadian Professional Police Association.
English version of the judgment of LeBel, Abella, Charron and Rothstein JJ. delivered by
1 Charron J. — The appellant police officer, Alain Beaudry, is charged with obstructing justice under s. 139(2) of the Criminal Code, R.S.C. 1985, c. C‑46 . It is alleged that he deliberately failed to gather the evidence needed to lay criminal charges against a suspect who he had reasonable grounds to believe had been operating a motor vehicle while intoxicated. In answer to the charge, Mr. Beaudry contended that his decision was a proper exercise of police discretion. The Crown argued that the decision was founded not on police discretion, but on preferential treatment of a fellow police officer. Mr. Beaudry was tried by a judge sitting alone and was convicted. The decision of Judge Beaulieu of the Court of Québec was upheld by the Quebec Court of Appeal, Chamberland J.A. dissenting: [2005] R.J.Q. 2536, 2005 QCCA 966. Chamberland J.A. considered it unreasonable to [translation] “reject the appellant’s explanations, or at least to find that they did not raise a reasonable doubt as to whether he had honestly exercised his discretion as a police officer not to involve the courts in the case” (para. 65). Mr. Beaudry has appealed to this Court as of right.
2 The issue is therefore whether the trial judge’s verdict was unreasonable within the meaning of s. 686(1) (a)(i). This issue cannot be settled properly without first discussing police discretion generally and, more specifically, its relationship to the offence of obstructing justice. Once the applicable legal principles have been established, it will be possible to consider how the trial judge applied them to the evidence.
3 The fact that police discretion is an essential component of both our criminal justice system and the work of a police officer is not in issue. This discretion makes it possible to apply the law more fairly in real‑life situations faced by the police. On this subject, I cannot agree completely with the reasons of the majority of the Court of Appeal, which were written by Doyon J.A. Rather, I agree with the legal analysis of Chamberland J.A., in dissent. With respect, I believe that Doyon J.A. has unduly limited the scope of the discretionary power by considering extrinsic factors such as internal directives, which do not have the force of law, and the discretion of Crown prosecutors. However, this aspect of his analysis has no impact on the question before us: whether the verdict was unreasonable. On this point, I agree with the majority.
4 As I will explain, the verdict of the Court of Québec judge is reasonable and it is supported by a perfectly plausible interpretation of the evidence. With respect, I believe that Chamberland J.A.’s analysis of the evidence is incompatible with the role of an appellate court in reviewing whether a verdict is unreasonable. In the instant case, the trial judge made no error of law. It is apparent from the record that there was evidence to support each element of the offence. The resolution of the determinative issue turned on the credibility of the accused. The trial judge was in the best position to assess the credibility of the witnesses and to determine whether the evidence left room for a reasonable doubt. I would therefore dismiss the appeal.
1. Facts
5 At the time of the events that led to this appeal, Alain Beaudry was an officer — a sergent chargé de la relève (shift supervisor) — of the police service of the city of Repentigny. On September 22, 2000, at about 3:30 a.m., Sergeant Beaudry was assisting Constable Martin Boucher and Constable Hugo Bélisle in a routine operation when they heard a vehicle coming toward them making an unusual noise, as if it was running on a flat tire. Taking the lead, Sergeant Beaudry returned to his patrol car and set off in pursuit of the vehicle, followed closely by his two colleagues. At that point, Sergeant Beaudry estimated that the vehicle, a minivan, was travelling at between 60 and 70 km/h, which was over the speed limit. He also had the impression that it was a stolen vehicle. Constable Boucher testified that, during the pursuit, the driver of the minivan drove through a stop sign and almost hit the median. Sergeant Beaudry communicated with the dispatcher at the police station, who told him that the vehicle had not been reported stolen and that it belonged to a resident of Repentigny named Patrick Plourde.
6 When the minivan finally stopped, Sergeant Beaudry was the first officer to approach the vehicle. The driver of the vehicle did not seem to pay much attention to Sergeant Beaudry, as he was trying to restrain a German shepherd inside the vehicle. Sergeant Beaudry ordered him, several times, to keep his hands on the steering wheel. The driver did not respond, but began to bang his head on the wheel. Sergeant Beaudry approached the vehicle and tried to speak with the driver, who was crying and talking in a confused manner. He also asked the driver whether he wanted to be taken to the hospital and to have someone look after his dog. This elicited no response either. After a few minutes, the driver got out of the vehicle and threw himself on the ground. While the police were helping him up, Mr. Plourde said, [translation] “I do the same job as you do”, and showed them his police badge.
7 At that point, Sergeant Beaudry remembered that he had met Constable Patrick Plourde about ten days earlier, when a colleague had asked him to act as a witness to a conversation he was having with a woman and Mr. Plourde. Although the woman did not want to file a complaint against Mr. Plourde, she wanted to warn him that she was not going to put up any more with his incessant telephone calls and threats to have his fellow police officers give her tickets if she kept refusing to date him. According to Sergeant Beaudry, she also said that she knew Mr. Plourde was depressed and was being treated by a physician. According to Mr. Plourde, however, the matter had not been raised. The occurrence report prepared by Constable Simard and countersigned by Sergeant Beaudry notes that the woman claimed that Mr. Plourde was [translation] “mentally disturbed”.
8 After Mr. Plourde was back on his feet, the officers took him to the patrol car of Constable Boucher and Constable Bélisle. Mr. Plourde then banged his head several times on the hood of the vehicle, and the officers decided to handcuff him. He resisted, and it was while trying to get him under control that Sergeant Beaudry and his two colleagues first smelled alcohol. On cross‑examination, Sergeant Beaudry expressly acknowledged that this was when he suspected Mr. Plourde of driving while impaired. Mr. Plourde was then taken to the Repentigny police station in the vehicle of Constable Bélisle and Constable Boucher.
9 While Sergeant Beaudry was en route to the station, the dispatcher asked him how to classify the occurrence. He told her: [translation] “Enter it as ‘Assistance to the public’ for now.” He testified that when he arrived at the station, he went to see Mr. Plourde, who was still sitting in the back seat of the patrol car. He offered once again to take him to the hospital, but Mr. Plourde refused. Mr. Plourde did not want anyone to be asked to come and pick him up either. Sergeant Beaudry decided to put him in the youth detention room to let him calm down. He testified that it was at this moment, when he saw Mr. Plourde staggering, that he had reasonable and probable grounds to believe that Mr. Plourde had in fact committed the offence of driving while impaired.
10 This was also when he decided not to demand that Mr. Plourde take a breathalyzer test. He felt that Mr. Plourde was depressed and that he needed treatment. I would note in passing that it is uncontested that a qualified breathalyzer technician — Constable Boucher — was present and that samples could accordingly have been taken within the time provided for by law.
11 Later, Constable Boucher asked Sergeant Beaudry whether he should prepare an occurrence report. Sergeant Beaudry said yes. After looking at the list of occurrence codes, he told Constable Boucher to use the code for [translation] “unclassified activity”. Constable Boucher’s report, which Sergeant Beaudry later countersigned, mentions, among other things, that Mr. Plourde was in an advanced state of intoxication. Sergeant Beaudry attached to his report a memorandum to Assistant Director Rocheleau stating that Patrick Plourde was an officer of the Sûreté du Québec and that his immediate superior might have to be contacted.
12 After being informed of the incident, Assistant Director Rocheleau called Sergeant Beaudry into his office. He asked him where the impaired driving report and breathalyzer results were. Sergeant Beaudry replied that he had exercised his discretion and decided neither to arrest Mr. Plourde nor to have him take a breathalyzer test. He explained that in his opinion Mr. Plourde was more in need of a helping hand than a blow to the head. Assistant Director Rocheleau did not accept this explanation and ordered Sergeant Beaudry to prepare an impaired driving report. About a half hour later, the assistant director asked him if the report was ready. Sergeant Beaudry replied that he had not started to write it, because he had asked his union if he had to obey the order, and was waiting for the union’s answer. In response to pressure from the assistant director, an occurrence report entitled [translation] “Impaired Driving” was filed. The report was signed by all the members of Sergeant Beaudry’s team. As the report was only a few lines long, the senior officers of the Repentigny police were not satisfied with it, and they required that a proper report be written. A detailed report was not submitted until later that night.
2. Court of Québec
13 After setting out the evidence introduced by the parties in great detail, Judge Beaulieu reviewed the applicable law. He began by discussing the burden of proof, and correctly pointed out that the Crown had the onus of proving the guilt of the accused beyond a reasonable doubt. Because the accused had testified at trial, and because it was necessary to assess the credibility of his testimony, Judge Beaulieu instructed himself in accordance with the principles set out by this Court in R. v. W. (D.), [1991] 1 S.C.R. 742. He observed that to find the accused guilty requires more than just disbelief of his version of the facts. It must also be determined whether that version raises a reasonable doubt, or whether it is possible, based on the evidence as a whole, to find beyond a reasonable doubt that the accused is guilty.
14 Judge Beaulieu then considered the offence of obstructing justice and noted that the Crown had to prove beyond a reasonable doubt that the accused had the specific intent to obstruct, pervert or defeat the course of justice when he chose not to have Patrick Plourde take a breathalyzer test even though he had reasonable grounds to believe that Mr. Plourde had been driving while impaired. Judge Beaulieu added that more than a breach of ethics, inappropriate or unprofessional conduct, or an error in judgment was needed for the accused to be found guilty.
15 The main argument advanced by the defence was that Sergeant Beaudry’s decision not to gather the evidence needed to lay criminal charges against Patrick Plourde was, as he had explained to Assistant Director Rocheleau at the first interview, a proper exercise of his discretionary power. Judge Beaulieu therefore considered this question first. He observed that no directions can be found in the Criminal Code concerning the exercise of police discretion. Nonetheless, he noted that law enforcement and the proper functioning of the criminal justice system require that it be exercised on a daily basis.
16 According to Judge Beaulieu, when a peace officer claims to have exercised his or her discretion as in the present case, the court must determine the underlying intention of the exercise of the discretion in order to ascertain whether the peace officer exercised it honestly, and not arbitrarily, out of favouritism or with any other dishonest intention. He therefore concluded that the outcome of the trial turned entirely on whether the court was satisfied beyond a reasonable doubt that Alain Beaudry had decided not to have Mr. Plourde take a breathalyzer test because Mr. Plourde was a Sûreté du Québec officer. In short, if Sergeant Beaudry was lenient because Mr. Plourde was a peace officer, the exercise of his discretion was unacceptable.
17 Then, in reviewing the evidence, Judge Beaulieu did not call into question the description given by the accused and his colleagues of Mr. Plourde’s behaviour during the police intervention. However, he was of the opinion that the justifications offered by the three police officers who were at the scene were lies and were designed to explain, after the fact, the decision not to pursue the investigation. As for Constable Boucher, Judge Beaulieu characterized as a lie his statement that he had not taken the initiative to have Mr. Plourde take a breathalyzer test because he had only a suspicion of impaired driving. Constable Boucher’s testimony was inconsistent with his incident report, in which he had stated that [translation] “[w]e quickly observed that the individual was in an advanced state of intoxication.” Judge Beaulieu also rejected the explanation given by Constable Bélisle. Even though Constable Bélisle had signed the report prepared by Constable Boucher, he testified that it had been difficult for him to determine that night whether the case was one of impaired driving, whereas it had seemed obvious to him that Mr. Plourde was in a crisis situation.
18 Judge Beaulieu also rejected the justification offered by the accused, Alain Beaudry, characterizing it as [translation] “an argument thought of after the fact to try to explain why he acted as he did on September 22”. In the judge’s opinion, it was not until his actions were questioned that Sergeant Beaudry invoked Mr. Plourde’s health to justify his decision.
19 Judge Beaulieu first observed that Sergeant Beaudry had tried to conceal the true nature of the intervention by originally describing it as assistance to the public and then opting to call it an “unclassified activity” even though he knew that it was an impaired driving case.
20 Judge Beaulieu then turned to the allegation that Mr. Plourde was in a depressive state. In his opinion, if Mr. Plourde was so depressed that it was inappropriate either to arrest him or to detain him in a cell for fear that he would do something unfortunate, the accused should have disregarded his refusal and taken him to the hospital. Likewise, Judge Beaulieu found no explanation for the failure to mention this consideration in the documents prepared that night — namely the occurrence report countersigned by the accused and his own activity log — even though Sergeant Beaudry had said at trial that it was what had convinced him to make his decision. In Judge Beaulieu’s opinion, Sergeant Beaudry’s explanation, that he had been thinking of the case of a police officer who had committed suicide at home after undergoing a breathalyzer test, did not make sense, because Mr. Plourde was safe in a room under camera surveillance.
21 Judge Beaulieu also questioned Sergeant Beaudry’s statement that he had had the interview of September 12 in mind that night. According to Sergeant Beaudry, the woman had advised Mr. Plourde to go back to see his doctor because he was in a state of depression. The judge noted that Mr. Plourde himself did not remember that his sick leave had been mentioned. Furthermore, the occurrence report written after that interview and countersigned by the accused made no mention of a depressive state. Rather, it said that the woman was complaining about being harassed and that she believed Mr. Plourde to be mentally disturbed.
22 Judge Beaulieu also accepted Constable Raymond Dagenais’s testimony that, when he had asked Sergeant Beaudry what Mr. Plourde was doing in the detention room for minors, Sergeant Beaudry had replied that Mr. Plourde was under arrest for impaired driving. In addition, he believed Constable Dagenais’s statement that Sergeant Beaudry had told him to wait before photographing Mr. Plourde, because he had to make a decision about him. Again, Judge Beaulieu found these answers to be inconsistent with Sergeant Beaudry’s explanation. Why would he have told Constable Dagenais that Mr. Plourde was under arrest if Mr. Plourde was in the room for minors for humanitarian reasons? And why would he have told Constable Dagenais to wait before photographing Mr. Plourde if it had already been decided to characterize the case as an “unclassified activity”? In Judge Beaulieu’s view, the sole purpose of the occurrence report and the memorandum addressed to Assistant Director Rocheleau was to divert attention from the fact that Sergeant Beaudry had already decided at the scene of the traffic stop not to make the investigation that was called for under the circumstances.
23 This is what led the judge to conclude that on September 22, 2000, Alain Beaudry had deliberately failed to perform his duty, instead giving [translation] “a chance, preferential treatment, a privilege” to Patrick Plourde, a peace officer of the Sûreté du Québec. Sergeant Beaudry could not have been unaware that breath samples were necessary items of evidence for laying a charge against Mr. Plourde under s. 253 of the Criminal Code . The judge therefore found him guilty.
3. Quebec Court of Appeal, [2005] R.J.Q. 2536, 2005 QCCA 966
3.1 Chamberland J.A. (dissenting)
24 Chamberland J.A. began his analysis by noting that the trial judge had regarded the failure to gather evidence as the actus reus of the offence. In his opinion, however, this was the case only if Sergeant Beaudry had a legal obligation to gather that evidence. Since the officer had exercised his discretion, he did not have an obligation to gather evidence that could be used to lay criminal charges.
25 According to Chamberland J.A., police discretion exists in matters of criminal justice and is a response to, among other things, the community’s wish that not all those who commit minor offences should be arrested by the police or prosecuted. He added that the police may exercise this discretion in respect of anyone, including a fellow police officer, as long as they do so honestly, transparently, and on valid and reasonable grounds.
26 Referring to Sergeant Beaudry’s testimony concerning the instruction he had received at the Institut de police and to the police practices manual (Guide de pratiques policières) of Repentigny’s public safety service, Chamberland J.A. concluded that Sergeant Beaudry was right to believe that he had the discretionary power to deal with Patrick Plourde’s case otherwise than through prosecution. In his view, whether Sergeant Beaudry had a duty to gather evidence depends, in short, on whether the discretion was exercised honestly.
27 I agree with the essence of Chamberland J.A.’s analysis regarding the nature and scope of the discretion. However, I feel that he exceeded the limits of his role in reinterpreting the evidence presented at trial and interfering with the assessment of the credibility of certain witnesses without showing appropriate deference to the trial judge’s findings. His analysis should have focussed on the question whether the trial judge’s verdict was reasonable.
28 Chamberland J.A. cited a number of facts in respect of which he disagreed with the trial judge’s interpretation:
· Sergeant Beaudry explained that he was motivated to do what he did by Mr. Plourde’s depressive state.
· That explanation was not contradicted either by the fact that Sergeant Beaudry decided at the scene of the traffic stop not to involve the criminal courts or by the use of the R‑400 code for “unclassified activity”.
· Sergeant Beaudry did not at any time conceal anything. The occurrence report he countersigned stated that the individual was in an advanced state of intoxication and smelled strongly of alcohol. He also mentioned in his log book that the appellant was [translation] “sleeping it off”.
· Sergeant Beaudry took Mr. Plourde to the police station and put him in a room equipped with a surveillance camera.
· If Sergeant Beaudry had decided to help Mr. Plourde because he was a police officer, he could simply have driven him home.
· The fact that the word “depression” does not appear anywhere in the accused’s report cannot be determinative in the instant case. The report also contains an objective description of what some would associate with depressed behaviour: crying fits, and the need to protect Mr. Plourde by putting him in the room reserved for young offenders.
· Sergeant Beaudry suggested that his superior officer contact Mr. Plourde’s superior officer at the Sûreté du Québec, which is not indicative of an intent to cover the case up.
· Although the trial judge saw Assistant Director Rocheleau’s testimony that Sergeant Beaudry had exercised his discretion [translation] “to give [Mr. Plourde] a chance” as an indication that the accused was lying about his intention, this comment by the accused was in fact neutral.
· The record contains no evidence of falsification or alteration of documents or of an intention to mislead anyone regarding Mr. Plourde’s condition at the time of the events.
Chamberland J.A. accordingly concluded that it was unreasonable to reject the appellant’s explanation, or at least to decide that the explanation did not raise a reasonable doubt as to whether he had decided honestly to exercise his discretion not to set the judicial process in motion. The dissenting judge would therefore have substituted an acquittal for the guilty verdict.
3.2 Doyon J.A.
29 Doyon J.A., writing for the majority of the Court of Appeal, did not dispute the existence of police discretion. However, it was his opinion that an assessment of the exercise of that discretion requires consideration of both the facts in issue and the legal context.
30 He began by stating that the circumstances giving rise to the police action led by Sergeant Beaudry were sufficiently serious that the trial judge had to be circumspect in considering the appellant’s version of the facts. As I will explain below, I agree with Doyon J.A. on this point.
31 Where we disagree, however, is on the weight to be attached in the analysis to the legal context. On this point, Doyon J.A. noted that in Quebec, criminal charges are generally authorized and laid by a Crown prosecutor. Sergeant Beaudry’s decision to exercise his discretion by not arresting Mr. Plourde and not requiring him to take a breathalyzer test must be assessed in that light. The consequence of the failure to take breath samples despite the existence of reasonable grounds to believe that an offence had been committed was to prevent the prosecutor from performing his or her functions. Doyon J.A. was accordingly of the opinion that, in determining whether a discretionary power has been properly exercised, the impact of the decision on the administration of justice, and in particular on the Attorney General’s ability to discharge his or her duties based on all the useful and relevant information, must not be overlooked.
32 Further, still on the subject of the legal context, Doyon J.A. noted that the police practices manual of Repentigny’s public safety service contained, in addition to the passage quoted by Chamberland J.A., detailed instructions regarding the procedure to be followed in impaired driving cases, and that those instructions showed that the authorities clearly intended such offences to be investigated thoroughly from the outset. He therefore felt that it was open to the trial judge to find that Sergeant Beaudry had not exercised his discretion honestly.
33 Doyon J.A. then rejected Chamberland J.A.’s interpretation of the evidence. In so doing, he too indulged in a reinterpretation of the evidence rather than analysing the basis for the verdict. Unlike the dissenting judge, however, Doyon J.A. came to the conclusion that there was no fatal error in the trial judgment.
4. Analysis
34 Before considering the main issue in the appeal — whether the trial judge’s verdict was unreasonable — I would like to make a few comments regarding police discretion and its relationship to the offence of obstructing justice.
4.1 Police Discretion
35 There is no question that police officers have a duty to enforce the law and investigate crimes. The principle that the police have a duty to enforce the criminal law is well established at common law: R. v. Metropolitan Police Commissioner, [1968] 1 All E.R. 763 (C.A.), per Lord Denning, M.R., at p. 769; Hill v. Chief Constable of West Yorkshire, [1988] 2 All E.R. 238 (H.L.), per Lord Keith of Kinkel; P. Ceyssens, Legal Aspects of Policing (loose‑leaf ed.), vol. 1, at pp. 2‑22 et seq.
36 Moreover, this principle is codified in s. 48 of the Police Act, R.S.Q., c. P‑13.1:
48. The mission of police forces and of each police force member is to maintain peace, order and public security, to prevent and repress crime and, according to their respective jurisdiction as set out in sections 50 and 69, offences under the law and municipal by‑laws, and to apprehend offenders.
In pursuing their mission, police forces and police force members shall ensure the safety of persons and property, safeguard rights and freedoms, respect and remain attentive to the needs of victims, and cooperate with the community in a manner consistent with cultural pluralism. Police forces shall target an adequate representation, among their members, of the communities they serve.
37 Nevertheless, it should not be concluded automatically, or without distinction, that this duty is applicable in every situation. Applying the letter of the law to the practical, real‑life situations faced by police officers in performing their everyday duties requires that certain adjustments be made. Although these adjustments may sometimes appear to deviate from the letter of the l