R. v. Beaudry, 2007 SCC 5, [2007] 1 SCR 190

                                                 SUPREME COURT OF CANADA

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.

______________________________

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 law, they are crucial and are part of the very essence of the proper administration of the criminal justice system, or to use the words of s. 139(2), are perfectly consistent with the “course of justice”.  The ability — indeed the duty — to use one’s judgment to adapt the process of law enforcement to individual circumstances and to the real‑life demands of justice is in fact the basis of police discretion.  What La Forest J. said in R. v. Beare, [1988] 2 S.C.R. 387, at p. 410, is directly on point here:  

Discretion is an essential feature of the criminal justice system.  A system that attempted to eliminate discretion would be unworkably complex and rigid.

Thus, 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.

38                               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 (reasons of Chamberland J.A., at para. 41).  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.

39                               Hence, the exercise of police discretion must also be justified on the basis of objective factors.  I agree with Doyon J.A. that 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.  However, I do not agree with him on the importance of the factors he regarded as part of the legal context, that is, the administrative directives and the administration of justice in the province.

4.1.1    Material Circumstances

40                               First, it is self‑evident that the material circumstances are an important factor in the assessment of a police officer’s decision: the discretion will certainly not be exercised in the same way in a case of shoplifting by a teenager as one involving a robbery.  In the first case, the interests of justice may very well be served if the officer gives the young offender a stern warning and alerts his or her parents.  However, this does not mean that the police have no discretion left when the degree of seriousness reaches a certain level.  In the case of a robbery, or an even more serious offence, the discretion can be exercised to decide not to arrest a suspect or not to pursue an investigation.  However, 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.  Thus, while some exercises of discretion are almost routine and are clearly justified, others are truly exceptional and will require that the police officer explain his or her decision in greater detail.

41                               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.  The officers originally intervened because Mr. Plourde was driving at high speed with a flat tire.  He also drove 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 Sergeant Beaudry suspected that the individual had been drinking, he had to be even more circumspect in deciding how to act.  To re‑emphasize the seriousness of offences associated with drunk driving, and as a caveat against trivializing them, I reproduce without reservation the comment made by Cory J. in R. v. Bernshaw, [1995] 1 S.C.R. 254:  

Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction.  From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime.  In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country.  [para. 16]

42                               The situation in Canada has improved since Cory J. made this damning observation, but only because both the authorities and society itself have made extensive efforts to raise public awareness and crack down on impaired driving.  The vigilance and diligence of police forces have played a crucial role in this process.  Both Assistant Director Rocheleau and retired officer Lapointe testified eloquently on this subject.  It is clear from their testimony that Repentigny’s police force considers drunk driving offences to be very serious.  Both these experienced police officers asserted that the attitude of the police has changed considerably over the years and that the days of tolerating and trivializing these offences are indeed over.  This is also clear from the administrative directives set out in the police practices manual of Repentigny’s public safety service, which I will discuss below.

4.1.2    Legal Context

43                               There are two points regarding the impact of the legal context on police discretion on which I am not in complete agreement with Doyon J.A.  I will discuss, first, the administrative directives and, second, the distribution of responsibilities between the police and Crown prosecutors.

4.1.2.1    Administrative directives are not conclusive in determining intent to commit an offence

44                               While the existence of administrative directives that apply to the situation in issue is far from being totally irrelevant, it cannot be as conclusive a factor as Doyon J.A. suggests.  After quoting the passages from the police practices manual of Repentigny’s public safety service on the procedure to follow in impaired driving cases, he concluded as follows:  

[translation]  In my opinion, these passages demonstrate the authorities’ clear intention that impaired driving offences should first be thoroughly investigated, although this does not preclude a subsequent decision not to prosecute.  It must be noted that the period of time for taking breath samples is relatively short, which means that the investigation must be completed diligently and that this directive should be followed.

A police officer who is familiar with such a directive and who has solemnly affirmed, under the Police Act (R.S.Q., c. P‑13.1), that he or she will perform the duties of his or her office honestly cannot be unaware of how serious the state considers this type of offence to be.  In fact, the appellant’s superior officer himself concluded, after being informed of the events, that breath samples should have been taken.  [paras. 78‑79]

45                               Doyon J.A. seems to be attributing to the administrative directives set out in the police practices manual a normative value that they do not have.  It should be pointed out that these directives do not have the force of law.  They therefore 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 police practices manual cannot transform the discretion to decide whether or not samples should be taken into a binding legal rule: Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2.

46                               In R. v. Jageshur (2002), 169 C.C.C. (3d) 225, the Ontario Court of Appeal addressed this question in a context that was very similar to the one now before us.  That case concerned the legality of a police operation carried out in compliance with the applicable law but not with the applicable administrative directives.  Doherty J.A. wrote the following for a unanimous court:  

An officer’s duties and hence his or her responsibilities cannot be equated with instructions as to how those duties and responsibilities should be carried out.  Police policies speak to the manner in which police should carry out their responsibilities, but do not define or limit those responsibilities.

                                                                   . . .

My conclusion that the officers’ responsibilities were not circumscribed by the RCMP policy concerning major drug operations and reverse stings is fortified by a consideration of the nature of these policies.  Section 21(1)(b) of the Royal Canadian Mounted Police Act authorizes the Governor in Council to make regulations for the conduct and performance of duties by members of the RCMP.  Section 21(2)(b) authorizes the Commissioner of the RCMP to make rules (standing orders) for the conduct and performance of duties by members of the RCMP.  Section 38 of the same Act authorizes the Governor in Council to make regulations governing the conduct of members (Code of Conduct).  The policies in issue on this appeal did not spring from any of these statutory sources. . . . [Emphasis added; paras. 50 and 52.]

In short, evidence of the existence of directives of this nature and evidence that the accused was, or is presumed to have been, aware of them at the time of the conduct in issue can shed light on the circumstances of the alleged exercise of his discretion.  The same is true of evidence about the police service’s usual procedures, such as the testimony of Assistant Director Rocheleau and retired officer Lapointe in the case at bar.  However, such evidence cannot be conclusive.

4.1.2.2      The distribution of responsibilities between Crown prosecutors and the police does not eliminate police discretion

47                               Doyon J.A. also seems to suggest that, in Quebec, where it is a Crown prosecutor who authorizes the laying of criminal charges, Sergeant Beaudry’s discretionary power did not allow him to deal with Patrick Plourde’s case otherwise than by taking breath samples and arresting him.

48                               With respect, I do not believe it is necessary to go that far.  In my opinion, the proper functioning of the criminal justice system requires that all actors involved be able to exercise their judgment in performing their respective duties, even though one person’s discretion may overlap with that of another person.  The police have a particular role to play in the criminal justice system, one that was initially founded in the common law, and it is important that they remain independent of the executive branch: R. v. Campbell, [1999] 1 S.C.R. 565, at paras. 27 to 36, and R. v. Regan, [2002] 1 S.C.R. 297, 2002 SCC 12.  Doyon J.A.’s hierarchical vision according to which a police officer’s discretion is limited by the discretion of the Crown prosecutor should therefore be rejected.  In discharging their respective duties, both the police officer and the prosecutor have a discretion that must be exercised independently of any outside influence: Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372, 2002 SCC 65.  The limits of each official’s discretion are inherent in that person’s role and duties.  However, the responsibilities of Crown prosecutors do not serve to limit the scope of police discretion.

4.2    Relationship Between the Offence of Obstructing Justice and Police Discretion

49                               As the trial judge aptly noted, the accused 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.

50                               In his dissenting reasons, Chamberland J.A. noted that, in the case at bar, the analyses of the actus reus and of the mens rea intersect, because both require that the honesty of the exercise of the discretion be considered.  However, the mere fact that there was no dishonest intention does not prove that the discretion has been exercised properly.  The exercise of the discretion must also be justified on the basis of objective factors.  In every case, it must be determined what a police officer acting reasonably would do in the same situation.  It is necessary to identify those factors that in the eyes of an objective observer would justify the exercise of the discretion.  Although one may assume that in most cases the underlying intention will be the decisive factor both for reviewing the exercise of the discretion and for determining whether there has been an obstruction of justice, it seems preferable to me to link the analysis of the exercise of the discretion with that of the actus reus.

51                               Where the discretionary power is relied upon, the analysis of the actus reus of the offence must therefore be carried out in two stages.  First, it must 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, as I have already mentioned, police discretion is an essential component of our criminal justice system.  It would therefore 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 conduct in issue cannot constitute a proper exercise of police discretion, the analysis must be pursued further.

52                               Second, it must be determined whether the offence of obstructing justice, the parameters of which are well established, has been committed.  To sum up, the actus reus of the offence will be established only if the act tended to defeat or obstruct the course of justice (R. v. May (1984), 13 C.C.C. (3d) 257 (Ont. C.A.), per Martin J.A.; see also R. v. Hearn (1989), 48 C.C.C. (3d) 376 (Nfld. C.A.), per Goodridge C.J.N., aff’d [1989] 2 S.C.R. 1180).  With respect to mens rea, it is not in dispute that this is a specific intent offence (R. v. Charbonneau (1992), 13 C.R. (4th) 191 (Que. C.A.)).  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.

53                               As I said in my introductory comments, the purpose of the foregoing remarks is to clarify the legal concept of police discretion and the relationship between the improper exercise of police discretion and the offence of obstructing justice.  However, this appeal raises only one question of law: whether the verdict of Judge Beaulieu of the Court of Québec was unreasonable.  I will now address this question.

4.3    Findings of Judge Beaulieu

54                               It should first be noted that the trial judge made no error of law.  Judge Beaulieu began by clearly and unambiguously stating the principles applicable to the burden of proof and to his assessment of the credibility of the accused’s testimony.  He then correctly described police discretion and its importance.  He also correctly delimited the scope of application of the criminal law and that of disciplinary law, by recognizing that an unjustified exercise of the discretion does not necessarily mean that the offence provided for in s. 139(2) has been committed.  Likewise, he correctly identified the constituent elements of the offence, including the need for the Crown to prove a specific intent to obstruct the course of justice.  In short, Judge Beaulieu accurately stated the issue before him:

[translation]  In the case at bar, if the Court is satisfied beyond a reasonable doubt that the accused decided not to have Plourde take a breathalyzer test because he was a Sûreté du Québec officer, a peace officer, and to give him a chance, that exercise of the discretion was unacceptable.

55                               I agree with the majority of the Court of Appeal that it was reasonable for the trial judge to find that the accused had breached his duty by giving preferential treatment to Mr. Plourde because he was a peace officer.  The standard to be applied in reviewing a verdict was established in R. v. Yebes, [1987] 2 S.C.R. 168, and R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15, and it is not in issue in this appeal.  In Biniaris, Arbour J. summarized it as follows:

The test for an appellate court determining whether the verdict of a jury or the judgment of a trial judge is unreasonable or cannot be supported by the evidence has been unequivocally expressed in Yebes as follows:

[C]urial review is invited whenever a jury goes beyond a reasonable standard. . . . [T]he test is “whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered”.

(Yebes, supra, at p. 185 (quoting Corbett v. The Queen, [1975] 2 S.C.R. 275, at p. 282, per Pigeon J.).)

That formulation of the test imports both an objective assessment and, to some extent, a subjective one.  It requires the appeal court to determine what verdict a reasonable jury, properly instructed, could judicially have arrived at, and, in doing so, to review, analyse and, within the limits of appellate disadvantage, weigh the evidence.  [Emphasis added; para. 36.]

56                               I respectfully disagree with my colleague’s analysis.  Fish J. relies on the following passage from Biniaris to assert that there is a “fundamental distinction between jury verdicts and verdicts rendered by trial judges” where the application of s. 686(1)(a)(i) is concerned:

The Yebes test is expressed in terms of a verdict reached by a jury.  It is, however, equally applicable to the judgment of a judge sitting at trial without a jury.  The review for unreasonableness on appeal is different, however, and somewhat easier when the judgment under attack is that of a single judge, at least when reasons for judgment of some substance are provided.  In those cases, the reviewing appellate court may be able to identify a flaw in the evaluation of the evidence, or in the analysis, that will serve to explain the unreasonable conclusion reached, and justify the reversal.  [Emphasis added; para. 37.]

57                               Fish J. is correct in saying that a verdict can be unreasonable even if it can be supported by the evidence and that, in such a case, the court should order a new trial rather than entering an acquittal.  This Court addressed this question as follows in R. v. Pittiman, [2006] 1 S.C.R. 381, 2006 SCC 9, at para. 14:

Where a conviction is set aside on the ground that the verdict is unsupported by the evidence, the court of appeal, absent legal errors in respect of the admissibility of evidence, will usually enter an acquittal.  As noted by Doherty J.A. in R. v. Harvey (2001), 160 C.C.C. (3d) 52 (Ont. C.A.), at para. 30, “[a]n acquittal is the appropriate order because it would be unfair to order a new trial and give the Crown a second opportunity to present a case on which a reasonable trier of fact could convict.”  However, where the verdict is found to be unreasonable on the basis of inconsistency of verdicts, but the evidence against the appellant supported the conviction, the appropriate remedy will usually be a new trial.

58                               However, it must not be forgotten that, as Arbour J. clearly indicated, the Yebes test does not vary depending on whether the trial is a jury or a non-jury trial.  The test to be applied is “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.  Arbour J. explained this as follows in R. v. A.G., [2000] 1 S.C.R. 439, 2000 SCC 17:

In embarking on the exercise mandated by s. 686(1) (a)(i) of the Criminal Code , the reviewing court must engage in a thorough re-examination of the evidence and bring to bear the weight of its judicial experience to decide whether, on all the evidence, the verdict was a reasonable one. [para. 6]

59                               In his analysis, Fish J. criticizes the trial judge for errors made in interpreting the evidence.  He then finds that these errors were serious enough to require a new trial.  I do not agree that the trial judge made such errors.  Moreover, it is important to note that that is not the issue before this Court.  This is an appeal as of right concerning the question of law whether the verdict is unreasonable within the meaning of s. 686(1)(a)(i).  Although there may be a connection between an error made in interpreting evidence and an unreasonable verdict, the two issues must not be confused.  Doherty J.A. of the Ontario Court of Appeal explained this well in R. v. Morrissey (1995), 97 C.C.C. (3d) 193, as follows:

A misapprehension of the evidence does not render a verdict unreasonable.  Nor is a finding that the judge misapprehended the evidence a condition precedent to a finding that a verdict is unreasonable.  In cases tried without juries, a finding that the trial judge did misapprehend the evidence can, however, figure prominently in an argument that the resulting verdict was unreasonable.  An appellant will be in a much better position to demonstrate the unreasonableness of a verdict if the appellant can demonstrate that the trial judge misapprehended significant evidence . . . .  [Emphasis added; p. 220.]

60                               Thus, it is not enough to determine that the trial judge made errors.  The analysis must be taken further.  Laskin J.A. of the Ontario Court of Appeal summarized the analysis as follows in R. v. G. (G.) (1995), 97 C.C.C. (3d) 362:

When an appellate court finds error, it has a duty to consider the nature of the error, its effect on the verdict, and when the verdict is rendered by a judge alone, on the reasoning process by which the verdict was reached. Obviously, not every error in the apprehension or appreciation of evidence or in the drawing of a conclusion from the evidence warrants quashing a conviction.  But s. 686(1) (a) of the Criminal Code  requires this court to intervene if the error leads to an unreasonable verdict, or if the error is an error of law which cannot be cured by s. 686(1)(b)(iii), or if the error results in a miscarriage of justice.

The appellant submitted that once all the evidence is fairly assessed, no properly instructed trier of fact could reasonably have convicted him.  I do not think this is a tenable submission.  A.G.’s evidence did not legally require corroboration.  Her evidence, even in the context of the other evidence in this case, was evidence which could reasonably support the appellant’s conviction.  Therefore, I cannot say the verdict was unreasonable.  [p. 377]

61                               In his analysis, Fish J. does not consider all the evidence in determining whether the verdict is unreasonable.  Hence, the reasoning that leads him to an order for a new trial seems to me rather to involve a finding under s. 686(1)(a)(iii) “that . . . on any ground there was a miscarriage of justice”.  That is not the question before the Court.  Moreover, the question whether the judge misapprehended the evidence to such an extent that there was a miscarriage of justice is a mixed question of fact and law.  An appellate court that considers a question such as this must bear in mind the privileged position of the trial judge.

62                               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.  With respect, it is my view that Chamberland J.A. considered the latter question in his dissenting reasons.  Moreover, his analysis does not take into account the trial judge’s privileged position in assessing the evidence.  With respect, Fish J. does not take it into account either.  The comments of Iacobucci and Major JJ. for the majority of the Court in Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33, are worth repeating:

While the theory has acceptance, consistency in its application is missing.  The foundation of the principle is as sound today as 100 years ago.  It is premised on the notion that finality is an important aim of litigation.  There is no suggestion that appellate court judges are somehow smarter and thus capable of reaching a better result.  Their role is not to write better judgments but to review the reasons in light of the arguments of the parties and the relevant evidence, and then to uphold the decision unless a palpable error leading to a wrong result has been made by the trial judge.  [para. 4]

63                               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.  That is why in R. v. Burke, [1996] 1 S.C.R. 474, Sopinka J. stated that the appellate courts’ power of review must be exercised sparingly when the verdict rests on a question of credibility (paras. 5-6).  He added that instances where a trial court’s assessment of credibility cannot be supported on any reasonable view of the evidence were “rare” (para. 7).  It is therefore with this caveat in mind that I will now consider Judge Beaulieu’s interpretation of the evidence.

64                               There is no doubt that Mr. Plourde was operating his vehicle while intoxicated, and indeed in an advanced state of intoxication.  It has also been clearly established that Sergeant Beaudry decided not to gather the evidence that would have been needed in order to lay criminal charges.  The charge against Sergeant Beaudry is in fact based on his decision not to obtain breath samples.  The Crown submits that in deciding not to do so, he was obstructing justice, since he knew that this evidence was necessary to prove the offence alleged against Mr. Plourde under s. 253  of the Criminal Code .  It is important to note that the charge is not based on an allegation that Sergeant Beaudry attempted to conceal the commission of an offence by Mr. Plourde.  If I understand Fish J.’s reasons correctly, he concludes that the verdict is unreasonable, at least in part, because, in his view, there is no evidence capable of supporting a finding that Sergeant Beaudry attempted to conceal the fact that Mr. Plourde had committed an offence (see, inter alia, para. 111 of Fish J.’s reasons).  But that is not the issue.  What is in fact in issue is Sergeant Beaudry’s decision not to obtain breath samples.  In the present case, was this an acceptable exercise of police discretion?  If not, did it constitute an obstruction of the course of justice?

65                               In his analysis, Judge Beaulieu first described the facts that were relevant to the question whether Sergeant Beaudry’s decision constituted a proper exercise of his discretion.  On this point, the evidence as a whole was such that it was reasonable to find that the circumstances were very serious.  Admittedly, there were no accidents or injuries on the night in question.  Nonetheless, there is no doubt that what took place before Sergeant Beaudry intervened was serious.  Patrick Plourde was speeding and was driving on a public roadway with a flat tire, and he failed to make a stop and just missed the median.  Then, when the police gave chase, he continued along his way for some distance before bringing his vehicle to a stop.  After pulling over, he ignored Sergeant Beaudry for several minutes, sat with his head down on the wheel, cried, spoke in a confused manner, and fell down when he got out of his vehicle.

66                               Furthermore, although I do not agree completely with the weight Doyon J.A. gave to the administrative directives set out in the police practices manual, the fact remains that the directives, as well as the testimony of Assistant Director Rocheleau and retired officer Lapointe regarding the procedure normally followed in impaired driving cases, justifiably prompted the trial judge to require more convincing evidence in support of the claim that the discretion had been exercised for a humanitarian reason.  As Doyon J.A., writing for the majority of the Court of Appeal, pointed out, [translation] “[i]n light of the seriousness of these circumstances, it was open to the judge to be circumspect, as he was, in considering [Sergeant Beaudry’s] version” (para. 71).

67                               The trial judge was also careful in weighing the testimony of the two officers, Constable Boucher and Constable Bélisle, who were with the accused on the night of September 22, 2000.  Constable Boucher said that he had not taken the initiative to have Mr. Plourde take a breathalyzer test because he only suspected him of impaired driving.  The appellant concedes that the judge correctly characterized that statement as a lie.  Constable Bélisle stated that it was hard for him to say whether this was an impaired driving case.  Once again, the judge made no error in finding that this was a lie.  It was certainly open to the trial judge, in deciding whether the exercise of police discretion was appropriate in this case, to consider the testimony of the other officers who had also been in a position to assess the circumstances of the case.  While only Sergeant Beaudry’s decision was in issue, the testimony of the other two officers was nonetheless important contextual evidence.  That testimony was quite likely to enlighten the trial judge in his assessment of the situation the police had been dealing with that night.  The fact that Sergeant Beaudry’s colleagues lied to the court cannot help but raise doubts about what really happened at the roadside, and subsequently at the police station.

68                               Moreover, the trial judge noted that the evidence established beyond a reasonable doubt that, even while at the roadside, the accused had remembered meeting the individual a little over a week earlier, on September 12, 2000.  As of that point, therefore, he knew that he was dealing with a Sûreté du Québec officer.  This finding is crucial, because it is the cornerstone of Judge Beaulieu’s verdict.  Moreover, the evidence establishes that it was also at the roadside that Sergeant Beaudry decided not to follow the usual procedure.  There are thus two possibilities: Sergeant Beaudry decided not to pursue the investigation either out of favouritism because Mr. Plourde was a peace officer, or because he knew that Mr. Plourde was depressed and needed help.  The parties agree that if Sergeant Beaudry acted out of favouritism he is guilty of the offence with which he is charged.

69                               This, then, is the question on which the case turns, and Judge Beaulieu devoted the largest portion of his reasons to it.  He believed the version of Sergeant Beaudry and his colleagues with respect to the description of Mr. Plourde himself and of Mr. Plourde’s conduct, but he was of the opinion that the [translation] “climate of distress” was raised after the fact to try to justify Sergeant Beaudry’s actions.  The logic behind Judge Beaulieu’s finding that Alain Beaudry was guilty is clear.  The main points of his reasoning are as follows.

70                               Judge Beaulieu examined in detail Sergeant Beaudry’s claim that he had decided not to take breath samples because he wanted to help Mr. Plourde, knowing him to be depressed.  However, the judge expressed scepticism regarding that explanation.  To justify the decision he had made at the very scene of the incident, Sergeant Beaudry claimed to have recalled that Mr. Plourde’s depressive state had been discussed in the course of the interview on September 12, ten days earlier.  Mr. Plourde, however, did not, in testifying, remember any discussion about this.  Nor did the incident report written at the time mention it.  In any event, the trial judge asked why Sergeant Beaudry had not taken Mr. Plourde to the hospital if he was so depressed that he posed a danger to himself.  In the judge’s opinion, if the accused had been so worried about Mr. Plourde’s health, he should have ignored his refusal to go to the hospital, particularly when the accused expressly admitted in his testimony that it would have been preferable to take Mr. Plourde to the hospital.  Judge Beaulieu also rightly observed that detaining Mr. Plourde in a room under video surveillance would have obviated the risk of a suicide attempt even if breath samples had been taken.

71                               The trial judge also could not understand why Mr. Plourde’s depressive state was not mentioned anywhere in the file if that fact was so striking.  For example, in his own activity log, the accused described Mr. Plourde as being in an advanced state of intoxication and noted that he had to “sleep it off”.  It therefore seems that Sergeant Beaudry had inferred from the signs of distress exhibited by Mr. Plourde when he was stopped that he was drunk, not that he was depressed.  The conclusion noted by Sergeant Beaudry, that Mr. Plourde was in an advanced state of intoxication, was perfectly reasonable, given the difficulty, to say the least, in distinguishing an abnormal mental state from a state of intoxication combined with the stress inherent in this kind of interaction with the police.  The trial judge also could not have failed to notice that the handwritten memorandum stapled to the report prepared for Assistant Director Rocheleau did not mention depression or any other humanitarian reason, but referred only to the fact that Patrick Plourde was a police officer.  This leads to the inexorable conclusion that more would be needed before a clinical diagnosis of severe depression or suicidal tendencies could be considered likely.

72                               In addition to rejecting Sergeant Beaudry’s justifications based on humanitarian reasons, the trial judge also concluded, beyond a reasonable doubt, that the accused had acted knowingly and out of favouritism when he had failed to take timely breath samples.  On this point, Chamberland J.A. was of the opinion (at para. 55) that Sergeant Beaudry had acted transparently and that he had never attempted to conceal anything.  Judge Beaulieu, however, was of a very different opinion, and in my view his  conclusion was perfectly reasonable.

73                               First, the trial judge believed Constable Dagenais’s testimony that when he had asked the accused whether he should obtain biometric information (photograph and fingerprints) from Mr. Plourde, the accused had replied that Mr. Plourde was under arrest for impaired driving.  Here again, the trial judge was justified in wondering why the accused had not instead seen fit to explain to his colleague that Mr. Plourde had been brought to the police station for his own safety, because he was depressed and needed help more than anything else.  The judge also believed Constable Dagenais when he added that Sergeant Beaudry had told him to wait because he had to make a decision.  But Sergeant Beaudry had already decided to characterize the incident as an “unclassified” one.  It was certainly open to the trial judge to conclude, unlike Chamberland J.A., that in acting in this way, the accused had not been candid.

74                               Accordingly, these findings of fact, particularly with respect to Sergeant Beaudry’s credibility, provide ample support for the judge’s conclusion that on September 22, 2000, Sergeant Beaudry acted out of favouritism and 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 Patrick Plourde under s. 253  of the Criminal Code .

5.      Conclusion

75                               For these reasons, I find that Judge Beaulieu’s verdict was not unreasonable and I would dismiss the appeal.

The following are the reasons delivered by

76                               Binnie J. — I agree with my colleague Justice Charron that the appeal should be dismissed.  As she notes, the verdict turned on issues of credibility and “[t]he 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” (para. 4).

77                               Quite apart from the merits of the appeal, however, Justice Fish urges the Court to reconsider the traditional scope of s. 686 (l)(a)(i) of the Criminal Code , R.S.C. 1985, c. C-46 .  In particular, Fish J. contends that an appellate court’s finding that a verdict is “unreasonable or cannot be supported by the evidence” should be available in a case where the verdict is dependent on findings of fact made by the trial judge “that are demonstrably incompatible . . . with evidence that is neither contradicted by other evidence nor rejected by the judge” (para. 98); in other words, in cases where on examination the substratum of findings on which the verdict rests disappears.

78                               As Charron J. points out, the law has traditionally focussed on the reasonableness of the verdict, not on the quality of the reasons given for reaching it.  Nevertheless, Charron J. accepts that “there may be a connection between an error made in interpreting evidence and an unreasonable verdict” (para. 59).

79                               In R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26, we held that a trial judge’s failure to deliver reasons sufficient to permit meaningful appellate review was an “error of law” within the scope of s. 686(1)(a)(ii).  The dissent in this case of Chamberland J.A. was  not based on an “error of law” ([2005] R.J.Q. 2536, 2005 QCCA 966); accordingly, s. 686(1)(a)(ii), is not available to the appellant/accused here, even if it was thought to be applicable.  However, it is useful to recall that in Sheppard we observed more broadly that:

. . . the requirement of reasons is tied to their purpose and the purpose varies with the context.  At the trial level, the reasons justify and explain the result.  The losing party knows why he or she has lost. . . . Interested members of the public can satisfy themselves that justice has been done, or not, as the case may be.  [para. 24]

As a practical matter, these functional concerns are equally applicable to an appellate court’s consideration of an appeal based on the allegations of unreasonable verdict or a verdict that cannot be supported by the evidence.  In the eyes of the litigants and the public, 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, I think, be treated as “unreasonable”.

80                               My disagreement with Fish J., therefore, is with his conclusion that the circumstances of this case meet the test he has proposed.  The key issue, as stated, is credibility.  In my view, with respect, the faults he has identified in the trial judge’s reasons have neither the centrality to the verdict nor the incompatibility with the record sufficient to justify a reversal.  For that reason, I concur with Charron J. in the dismissal of the appeal.

The reasons of McLachlin C.J. and Bastarache, Deschamps and Fish JJ. were delivered by

Fish J. (dissenting) —

I

81                               A police officer is entitled, like any other accused, to be presumed innocent until reasonably and properly convicted — even when another officer is the beneficiary of the alleged offence. 

82                            In this case, Alain Beaudry, an experienced municipal police officer with an impeccable record, stands convicted of obstruction of justice for having failed to perform his duties upon the arrest of Patrick Plourde, a member of the Quebec police force (the “Sûreté du Québec”).  The uncontradicted evidence is that Mr. Plourde was in an advanced state of intoxication when arrested at the wheel of his car.  He was taken to the station, but was not asked to provide the breath or blood sample necessary to determine the concentration of alcohol in his blood.

83                            The decisive question at trial was whether Mr. Beaudry had refrained from asking for that sample because Mr. Plourde was a police officer.  The trial judge answered that question in the affirmative and the issue on this appeal is whether the judge’s decision is “unreasonable”, within the meaning of s. 686(1) (a)(i) of the Criminal Code , R.S.C. 1985, c. C-46 .  In my respectful view it is, because the judge’s conclusions are not supported by the reasons upon which he caused them to rest — and because his reasons are fundamentally incompatible with the uncontradicted evidence at trial.

84                               I would therefore allow the appeal and set aside Mr. Beaudry’s conviction.  In the circumstances, however, I would order a new trial and not substitute an acquittal.

II

85                               I agree with Justice Charron’s analysis of s. 139(2)  of the Criminal Code . More particularly, I agree that the actus reus and the mens rea for obstruction of justice should not be conflated.  An improper exercise of discretion will amount to an obstruction of justice only when it is accompanied by an intent to “obstruct, pervert or defeat the course of justice”.  Mr. Beaudry must thus be shown to have acted corruptly or dishonestly — that is, beyond the scope of what he believed to be within his lawful discretion as a police officer.

86                               Like Justice Charron, I believe that police discretion is an essential element of the justice system in Quebec, as in other provinces.  It is neither narrowed by the attorney general’s authority to press charges independently of a police recommendation, nor displaced by the provisions of internal police directives.

III

87                               In R. v. Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17, Justice Deschamps and I, dissenting in the result, held that “[t]he duty of an appellate court is not limited to ensuring that ‘the verdict was available on the record’” (para. 36).  This is because s. 686(1) (a)(i) of the Criminal Code  specifically provides that a verdict may be set aside on appeal if it is “unreasonable or cannot be supported by the evidence”.

88                               The majority in Gagnon did not address this issue and I find it necessary and appropriate to revisit it here before proceeding to apply what I believe to be the appropriate test.

89                               Section 686(1)(a)(i) empowers a court of appeal to  allow the appeal “where it is of the opinion that . . . the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence”.  In my view, the disjunctive “or” indicates a clear Parliamentary intention to differentiate between verdicts that cannot be supported by the evidence and verdicts that may properly be characterized as unreasonable on some other ground.  To construe the test otherwise would be to permit for appeals, including appeals as of right, a narrower scope of curial review than for intervention by way of prerogative writ — where no appeal lies, with or without leave.

90                               It is important to remember that the unreasonable verdict test has more often than not been described and explained in cases involving jury trials, where particular  considerations govern: See, for example, R. v. Yebes, [1987] 2 S.C.R. 168.

91                               Unlike judges, juries are neither required nor even permitted to give reasons.  Their reasons, in this country at least, are forever shrouded in the compelled secrecy of  their deliberations:  Section 649  of the Criminal Code  prohibits the disclosure, subject only to narrow exceptions, of any information relating to the proceedings of a jury.  Why the jury concluded as it did is thus beyond the ken of the court, both at trial and on appeal.

92                               Appellate courts are no more entitled to speculate about than to know how or why the jury reached its verdict.  The jury is presumed to have been composed of reasonable people acting reasonably.  It follows that its verdict must be deemed to be reasonable unless no properly instructed jury could reasonably have reached that verdict or, in the words of s. 686(1)(a)(i), it “cannot be supported by the evidence”.

93                               The same, however, cannot be said for the verdict of a judge.  The delivery of reasoned decisions is inherent in the judge’s role: R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26.  And evaluating the reasonableness of those reasons is not a matter of speculation.  Moreover, while the necessary degree of detail will vary according to the circumstances of the case, the reasons must be sufficient to permit meaningful review on appeal.  There would be no need for this requirement if the sole test of unreasonableness under s. 686(1)(a)(i) is whether there is any evidence capable of supporting the verdict.

94                               This fundamental distinction between jury verdicts and verdicts rendered by trial judges was explicitly recognized in R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15, where Arbour J., speaking for the Court, explained the matter this way:

The review for unreasonableness on appeal is different, however, and somewhat easier when the judgment under attack is that of a single judge, at least when reasons for judgment of some substance are provided.  In those cases, the reviewing appellate court may be able to identify a flaw in the evaluation of the evidence, or in the analysis, that will serve to explain the unreasonable conclusion reached, and justify the reversal. [Emphasis added; para. 37.]

95                               See also  R. v. Burns, [1994] 1 S.C.R. 656, particularly at p. 665, and R. v. Burke, [1996] 1 S.C.R. 474.

96                               In short, the text of the governing provision of the Criminal Code  and its recent application by the Court suggest that, at least in non-jury cases, appellate courts may find a verdict to be unreasonable even where the verdict was available on the record.

97                               In Justice Charron’s view, a verdict based on unreasonable reasons is not unreasonable if there is evidence upon which another trier of fact could have reached the same conclusion by a different and proper route.  With respect, I do not share that view.  No one should stand convicted on the strength of manifestly bad reasons — reasons that are illogical on their face, or contrary to the evidence — on the ground that another judge (who never did and never will try the case) could but might not necessarily have reached the same conclusion for other 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.  I think it preferable by far, where there is evidence capable of supporting a conviction, to order a new trial so that a fresh and proper determination can be made by a real and not hypothetical “other judge”.

98                               I hasten to add that appellate courts, in determining whether a trial judge’s verdict is unreasonable, cannot substitute their own view of the facts for that of the judge or  intervene on the ground that the judge’s reasons ought to have been more fully or more clearly expressed.  That is beyond the purview of an appellate court: R. v. W. (R.), [1992] 2 S.C.R. 122; Burke; Biniaris; 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.  But where reasons do exist, 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, as in this case, with evidence that is neither contradicted by other evidence  nor rejected by the judge.

IV

99                               The trial judge’s findings of fact can be fairly summarized this way:

(1)         Neither of the officers who were with the appellant at the time of the incident are credible witnesses because they both denied having anything more than a suspicion that Mr. Plourde was intoxicated when he was first pulled over;

(2)         The appellant’s decision to classify the incident as [translation] “assistance to the public” and “unclassified activity”, though he knew that Mr. Plourde was driving while intoxicated, indicates that he was trying to hide that fact;

(3)         The appellant’s contention that he believed Mr. Plourde was depressed and in need of help is not true.  Had the appellant really believed that Mr. Plourde was depressed, he would have taken him to the hospital and not to the police station.  Moreover, the police report did not indicate that Mr. Plourde was depressed; rather, the woman who accused Mr. Plourde of harassment in the incident ten days prior referred to Mr. Plourde as being  [translation] “mentally disturbed” (not “depressed”) and the report on that incident used the same words.  Finally, Mr. Plourde himself testified that he did not recall the issue being raised with the appellant; and

(4)         The testimony of Raymond Dagenais and Marc Rocheleau carried much weight. Dagenais testified that the appellant told him that Mr. Plourde was under arrest but that Dagenais should not photograph him yet because  [translation] “he had a decision to make”.  Rocheleau testified that the appellant told him that [translation] “[w]e’ve exercised our discretion to give a chance.”

100                           On this basis, the trial judge concluded that the appellant attempted to conceal that Mr. Plourde had driven a motor vehicle while intoxicated and thus to preclude the laying of charges against him.  The judge found as well that the appellant had improperly exercised his discretion in failing to subject Mr. Plourde to a breathalyzer test and in declining to recommend that he be prosecuted (whether to prosecute was not for the appellant to decide).  In the judge’s view, the appellant had acted out of favouritism for a fellow police officer and not because he believed that Mr. Plourde was depressed and in need of help.

101                           In my respectful view, 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 (para. 37).  This is particularly true with regard to the only real issue in the case — whether the appellant had acted corruptly or dishonestly, with the requisite intent to obstruct justice.

102                           I defer to the trial judge’s adverse conclusion as to the credibility of officers Boucher and Bélisle. In any event, their testimony is hardly decisive.  Whether or not they immediately had reasonable grounds to suspect that Mr. Plourde was drunk does not bear on the critical issues:  Did the appellant exercise his discretion in good faith or with intent to obstruct justice?  Did the appellant refrain from arresting Mr. Plourde and administering the alcohol test because he believed Mr. Plourde was depressed and in need of help or because he wanted to shield a fellow police officer from criminal proceedings?

103                           I now turn to the trial judge’s other findings which are more relevant to this issue.

104                           With respect to the police reports, the trial judge stated:

[translation] The Court has taken into consideration the writing of the incident report and the memorandum prepared by the accused and stapled to the report, which was left in Rocheleau’s pigeonhole.  The only purpose of these documents was to divert attention from the events that had occurred during the night.

105                           With respect, the appellant’s explicit disclosure in these documents that Mr. Plourde was in an advanced state of intoxication could only have attracted attention to —  not diverted attention from — that very fact.  The judge’s inference in this regard is plainly contradicted by the very evidence from which it was drawn.

106                           Similarly, the trial judge’s characterization of the “depression excuse” as a subsequently concocted justification is inconsistent with the undisputed evidence.  Even the Crown conceded that the appellant did in fact offer to take Mr. Plourde to the hospital but to no avail: Mr. Plourde refused to go.

107                           Moreover, the distinction between the words “depressed” and “mentally disturbed” is more semantic than significant.  And the absence of the word “depressed” in the police report is also of limited importance.  Rather than undermining the appellant’s assertion, this evidence aptly demonstrates the tenuous foundation of the Crown’s case. As Chamberland J.A. stated:

[translation] The fact that the word “depression” does not appear in the incident report is not, in my opinion, determinative, or at any rate it is not sufficient to support a finding that the appellant’s explanations are unreliable or do not, at the very least, raise a reasonable doubt.  I refuse to believe that the guilt or innocence of an accused can depend on whether or not a given word appears in a report.  The purpose of the document is to report on an incident and the ensuing police action; it is not not a medical report, even though the words used describe what some would naturally associate with a depressive state:

. . . Mr. Plourde had crying fits throughout the action, so we put him, for his protection, in the room for minors so that he would be better . . . .

([2005] R.J.Q. 2536, 2005 QCCA 966, at para. 59)

108                           Finally, the trial judge’s reliance on Marc Rocheleau’s testimony is inconclusive at best.  The judge stated:

[translation] Marc Rocheleau, the assistant director, is a very credible witness.  The Court believes his account of the comments the accused made to him, including the following:

“We’ve exercised our discretion to give a chance.”

109                           Assuming this evidence to be true, as indeed we must, the only inference to which it reasonably gives rise is as consistent with innocence as with guilt.  There is no dispute that the appellant had made a conscious decision to help rather than charge Mr. Plourde.  The question was whether he was motivated by a sense of camaraderie or by compassion, misguided or not.  Mr. Rocheleau’s evidence is of little assistance in that regard, either on its own or in the context of the evidence as a whole. 

110                           In short, the appellant’s conduct in this affair has been marked by transparency and not concealment throughout.  In his contemporaneous and signed report, he stated that Mr. Plourde was apprehended in an [translation] “advanced state of intoxication”.  He again disclosed this fact in his activity log, which was available for inspection by his superiors.  And when the appellant brought Mr. Plourde to the police station, he placed him in a cell under video surveillance rendering it virtually impossible for anyone to deny that Mr. Plourde was intoxicated.  Finally, lest any of this might otherwise have gone unnoticed, the appellant left a note for his superior officer suggesting that Mr. Plourde’s superiors be informed of the incident.

111                           None of this evidence is disputed.  None of it depends for its veracity on the credibility of any witness.  None of it supports the inference that the appellant sought to conceal Mr. Plourde’s offence.  None of it provides a reasonable foundation for the findings of fact upon which the trial judge caused his verdict to rest.  More particularly, none of it can reasonably be said to establish that the appellant failed to obtain breath samples from Mr. Plourde because he wished, for an improper motive, to hinder or foreclose the prosecution of Mr. Plourde.  And that, as mentioned earlier (at para. 101), is the critical issue in this case.

112                           With respect, I therefore feel bound to conclude that the trial judge’s decision is unreasonable within the meaning of s. 686(1) (a)(i) of the Criminal Code .  Accordingly, I would allow the appeal and order a new trial.

V

113                           The integrity of our legal system depends in large measure on the integrity of those charged with its administration and enforcement.  This assumes, so far as criminal justice is concerned, that police officers will act without fear or favour in the apprehension and prosecution of offenders.  It is therefore essential, and not just understandable, for concerns to arise whenever there are grounds to suspect a police “cover-up” to protect one of their own or to please someone to whom they might feel otherwise beholden.

114                           Neither bad judgment nor an inappropriate — or even suspect — exercise of discretion by police officers in the execution of their duties are in themselves conclusive evidence of an attempt to obstruct justice.  We must be no less zealous in avoiding injustice to police officers than in scrutinizing their dubious failures to investigate offences or to prosecute offenders.

115                           In this case, there was evidence upon which a trier of fact could reasonably find the appellant guilty as charged.  But the appellant was nonetheless entitled to a decision that was supported by the reasons upon which it was said to be founded.

116                           For the reasons given by Chamberland J.A. in the Court of Appeal, and for those set out above, I am satisfied that the verdict cannot stand.  In my respectful view, however, a new trial would be more appropriate than an acquittal since the record contains evidence that, properly weighed and considered, could reasonably have supported a conviction.

Appeal dismissed, McLachlin C.J. and Bastarache, Deschamps and Fish JJ. dissenting.

Solicitors for the appellant:  Hébert, Downs, Lepage, Soulière & Carette, Montréal.

Solicitors for the respondent:  Attorney General’s Prosecutors, Trois‑Rivières.

Solicitor for the intervener the Attorney General of Canada:  Attorney General of Canada, Ottawa.

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