R. v. Beaudry (A.), (2007) 356 N.R. 323 (SCC)

• Judge: McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 12, 2006
• Jurisdiction: Canada (Federal)
• Citations: (2007), 356 N.R. 323 (SCC);2007 SCC 5;43 MVR (5th) 1;216 CCC (3d) 353;[2007] 1 SCR 190;[2007] ACS no 5;276 DLR (4th) 1;[2007] SCJ No 5 (QL);EYB 2007-112960;71 WCB (2d) 862;JE 2007-280;[2007] CarswellQue 235;356 NR 323;44 CR (6th) 57

R. v. Beaudry (A.) (2007), 356 N.R. 323 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2007] N.R. TBEd. JA.024

Alain Beaudry (appellant) v. Her Majesty The Queen (respondent) and Attorney General of Canada and Canadian Professional Police Association (intervenors)

(31195; 2007 SCC 5; 2007 CSC 5)

Indexed As: R. v. Beaudry (A.)

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

January 31, 2007.

Summary:

The accused, a police officer, was charged with obstructing justice under s. 139(2) of the Criminal Code.  It was 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. The accused argued 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. The accused was tried by a judge sitting alone and was convicted. The accused appealed.

The Quebec Court of Appeal, Chamberland, J.A., dissenting, in a decision reported [2005] R.J.Q. 2536, 2005 QCCA 966, dismissed the appeal. The accused appealed.

The Supreme Court of Canada, Fish, J., dissenting (McLachlin, C.J.C., Bastarache and Deschamps, JJ.A., concurring) dismissed the appeal.

Criminal Law - Topic 521

Obstructing or perverting course of justice - General - The Supreme Court of Canada discussed the relationship between the offence of obstructing justice and the improper use of police discretion - See paragraphs 49 to 53.

Criminal Law - Topic 521

Obstructing or perverting course of justice - General - The Supreme Court of Canada stated that the distribution of responsibilities between Crown prosecutors and the police did not eliminate police discretion - See paragraphs 47 and 48.

Criminal Law - Topic 523

Obstructing or perverting course of justice - What constitutes - The accused, a police officer, was charged with obstructing justice under s. 139(2) of the Criminal Code - It was 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 - The accused argued 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 - The accused was tried by a judge sitting alone and was convicted - The accused appealed as of right - The Quebec Court of Appeal dismissed the appeal - The accused appealed - The Supreme Court of Canada dismissed the appeal - The court held that the issue on appeal was a question of law as to whether the trial judge's verdict was unreasonable within the meaning of s. 686(1)(a)(i) of the Criminal Code - The court held that trial judge's verdict was reasonable and was supported by a perfectly plausible interpretation of the evidence - The trial judge made no error of law - See paragraphs 53 to 75.

Criminal Law - Topic 523

Obstructing or perverting course of justice - What constitutes - The Supreme Court of Canada discussed the relationship between the offence of obstructing justice (Criminal Code, s. 139(2)) and the improper use of police discretion - The court stated that "as the trial judge aptly noted, the accused [a police officer] cannot be convicted of the offence provided for in s. 139(2) solely because he has exercised his discretion improperly. Therefore, it seems worth noting at the outset that, although they have some points in common, the review of the exercise of police discretion and the determination whether the offence of obstructing justice has been committed must not be confused. Although, in most cases, the evidence relied upon to establish that a course of conduct was not a proper exercise of the discretion can also be relied upon to establish the offence of obstructing justice, two separate analyses must perforce be conducted" - See paragraph 49 - The court thereafter set out the analysis that should be conducted to determine when an exercise of police discretion could give rise to a conviction for obstructing justice - See paragraphs 50 to 53.

Criminal Law - Topic 523

Obstructing or perverting course of justice - What constitutes - The Supreme Court of Canada discussed the analysis that should be conducted to determine when an exercise of police discretion could give rise to a conviction for obstructing justice - The court stated that the exercise of police discretion must be justified on the basis of objective factors, even where there was no dishonest intention on the part of a police officer - Where the discretionary power was relied upon, the analysis of the actus reus of the offence of obstruction had to be carried out in two stages - First there had to be a determination of whether the conduct in issue could be regarded as a proper exercise of police discretion and if so there was no need to go any further - If, beyond a reasonable doubt, the conduct in issue could not constitute a proper exercise of police discretion, the analysis had to proceed to the second stage - At the second stage, it had to be determined whether the offence of obstructing justice had been committed by establishing both the actus reus and mens rea of that offence - See paragraphs 50 to 53.

Criminal Law - Topic 523

Obstructing or perverting course of justice - What constitutes - The Supreme Court of Canada, in discussing the offence of obstruction of justice (in this case by a police officer), stated that "... the actus reus of the offence will be established only if the act tended to defeat or obstruct the course of justice ... With respect to mens rea, it is not in dispute that 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" - See paragraph 52.

Criminal Law - Topic 527

Obstructing or perverting course of justice - Elements - [See third and fourth Criminal Law - Topic 523 ].

Criminal Law - Topic 528

Obstructing or perverting course of justice - Intention or mens rea - The Supreme Court of Canada, in discussing police discretion and its relationship to the offence of obstruction of justice, stated  that administrative directives, while not totally irrelevant, were not conclusive in determining intent to commit an offence  - See paragraphs 44 to 46.

Criminal Law - Topic 528

Obstructing or perverting course of justice - Intention or mens rea - [See third and fourth Criminal Law - Topic 523 ].

Criminal Law - Topic 5020

Appeals - Indictable offences - Setting aside verdicts - Verdict unreasonable or unsupported by evidence - Section 686(1)(a)(i) provided that "on the hearing of an appeal against a conviction ... the court of appeal: (a) may allow the appeal where it is of the opinion that (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence" - The Supreme Court of Canada, per Charron, J.,  rejected the notion that there was a fundamental distinction between jury verdicts and verdicts rendered by trial judges where the application of s. 686(1)(a)(i) was concerned - In either case, the test to be applied was "... 'whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered'. In every case, it is the conclusion that is reviewed, not the process followed to reach it. I agree that, as Arbour, J., explained in the passage quoted above, errors or a faulty thought process in a judge's reasons can sometimes explain an unreasonable conclusion reached by the judge. But a verdict is not necessarily unreasonable because the judge has made errors in his or her analysis. The review must go further than that. In every case, the court must determine whether the verdict is unreasonable and, to do so, it must consider all the evidence ..." - See paragraphs 56 to 58.

Criminal Law - Topic 5020

Appeals - Indictable offences - Setting aside verdicts - Verdict unreasonable or unsupported by evidence - Section 686(1)(a)(i) provided that "on the hearing of an appeal against a conviction ... the court of appeal: (a) may allow the appeal where it is of the opinion that (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence" - The Supreme Court of Canada, per Charron, J., in discussing the powers of a court under s. 686(1)(a)(i), stated that "I readily appreciate that the deference owed to a trial court's findings of fact must not become a pretext for an appellate court to evade its responsibility to set aside an unreasonable verdict. This is why no finding of fact is entirely exempt from appellate court scrutiny. Nonetheless, as this Court has consistently said, the integrity of our judicial system requires that the trial judge's privileged position in assessing the facts be respected. It should also be borne in mind that the question whether a verdict is unreasonable is not the same as the question whether a different verdict would have been reasonable had the evidence presented at trial been interpreted differently ... In my view, the need to adhere to this fundamental principle is even more acute when, as in the instant case, what is in issue is the trial judge's assessment of the credibility of the witnesses ..." - See paragraphs 62, 63.

Police - Topic 3007

Powers - General - Discretion respecting charges - [See first Criminal Law - Topic 521 , all Criminal Law Topic 523 and first Criminal Law - Topic 528 ].

Police - Topic 3007

Powers - General - Discretion respecting charges - The Supreme Court of Canada discussed police discretion - See paragraphs 34 to 48 - The court stated, inter alia, that "... 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. Far from having carte blanche, police officers must justify their decisions rationally. The required justification is essentially twofold. First, 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 ... Thus, a decision based on favouritism, or on cultural, social or racial stereotypes, cannot constitute a proper exercise of police discretion. However, the officer's sincere belief that he properly exercised his discretion is not sufficient to justify his decision. Hence, the exercise of police discretion 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 important to consider the material circumstances in which the discretion was exercised ..." - See paragraphs 35 to 39.

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 13].

R. v. Metropolitan Police Commissioner; Ex parte Blackburn, [1968] 1 All E.R. 763 (C.A.), refd to. [para. 35].

Hill Estate v. Chief Constable of West Yorkshire, [1988] 2 All E.R. 238; 102 N.R. 241 (H.L.), refd to. [para. 35].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1, refd to. [para. 37].

R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1; 95 C.C.C.(3d) 193, refd to. [para. 41].

Maple Lodge Farms Ltd. v. Canada et al., [1982] 2 S.C.R. 2; 44 N.R. 354, refd to. [para. 45].

R. v. Jageshur (R.) (2002), 165 O.A.C. 230; 169 C.C.C.(3d) 225 (C.A.), refd to. [para. 46].

R. v. Campbell (J.) and Shirose (S.), [1999] 1 S.C.R. 565; 237 N.R. 86; 119 O.A.C. 201, refd to. [para. 48].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 210 N.S.R.(2d) 63; 629 A.P.R. 63; 209 D.L.R.(4th) 41; 161 C.C.C.(3d) 97; 2002 SCC 12, refd to. [para. 48].

Krieger et al. v. Law Society of Alberta, [2002] 3 S.C.R. 372; 293 N.R. 201; 312 A.R. 275; 281 W.A.C. 275; 2002 SCC 65,  refd to. [para. 48].

R. v. May (1984), 4 O.A.C. 383; 13 C.C.C.(3d) 257 (C.A.), refd to. [para. 52].

R. v. Hearn and Fahey (1989), 75 Nfld. & P.E.I.R. 13; 234 A.P.R. 13; 48 C.C.C.(3d) 376 (Nfld. C.A.), affd. [1989] 2 S.C.R. 1180; 102 N.R. 130; 80 Nfld. & P.E.I.R. 199; 249 A.P.R. 199,  refd to. [para. 52].

R. v. Charbonneau (1992), 46 Q.A.C. 1; 13 C.R.(4th) 191 (C.A.), refd to. [para. 52].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [paras. 55, 90].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [paras. 55, 94].

R. v. Pittiman (R.), [2006] 1 S.C.R. 381; 346 N.R. 65; 209 O.A.C. 388; 2006 SCC 9, refd to. [para. 57].

R. v. A.G., [2000] 1 S.C.R. 439; 252 N.R. 272; 132 O.A.C. 1; 2000 SCC 17, refd to. [para. 58].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 97 C.C.C.(3d) 193 (C.A.), refd to. [para. 59].

R. v. G.G. (1995), 80 O.A.C. 12; 97 C.C.C.(3d) 362 (C.A.), refd to. [para. 60].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33,  refd to. [para. 62].

R. v. Burke, [1996] 1 S.C.R. 474; 194 N.R. 247; 139 Nfld. & P.E.I.R. 147; 433 A.P.R. 147, refd to. [paras. 63, 95].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [paras. 79, 93].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 87].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 95].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, refd to. [para. 98].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 98].

R. v. Kerr (M.D.J.S.), [2004] Man.R.(2d) Uned. 14; 48 M.V.R.(4th) 201; 2004 MBCA 30, refd to. [para. 98].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 139(2) [para. 1]; sect. 686(1)(a)(i) [para. 56].

Authors and Works Noticed:

Ceyssens, Paul, Legal Aspects of Policing (1994) (2003 Looseleaf Update, Release 16), vol. 1, p. 2-22 ff.  [para. 35].

Counsel:

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.

Solicitors of Record:

Hébert, Downs, Lepage, Soulière & Carette, Montréal, Quebec, for the appellant;

Attorney General's Prosecutor, Trois- Rivières, Quebec, for the respondent;

Attorney General of Canada, Ottawa, Ontario, for the intervener the Attorney General of Canada;

Trudel, Nadeau, Montréal, Quebec, for the intervener the Canadian Professional Police Association.

This appeal was heard on May 12, 2006, before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada. The judgment of the court was delivered in both official languages on January 31, 2007, including the following opinions:

Charron, J. ( LeBel, Abella and Rothstein, JJ., concurring) - see paragraphs 1 to 75;

Binnie, J. (concurring) - see paragraphs 76 to 80;

Fish, J., dissenting (McLachlin, C.J.C., Bastarache and Deschamp, JJ., concurring) - see paragraphs 81 to 116.