HIS MAJESTY THE KING, – v. –, 2023 NBKB 19

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON His Majesty the King v. Calixte Yvon Gaudet 2023 NBKB 019 MCA/5/2021 BETWEEN: HIS MAJESTY THE KING, – and – CALIXTE YVON GAUDET DECISION BEFORE: Justice Robert M. Dysart AT: Moncton, New Brunswick DATE OF HEARING: September 22, 2022 DATE OF DECISION: February 14, 2023 APPEARANCES: Guillaume Rigucci, for the Crown Calixte Yvon Gaudet, per se

DYSART, J. INTRODUCTION [ 1 ] This is a

summary conviction appeal brought by the Crown following the dismissal by a Judge of the Provincial Court of a single charge of operating a motor vehicle with a blood alcohol concentration that was equal to or exceeded 80 milligrams of alcohol in 100 milliliters of blood, contrary to

section 320.14(1) (

b) of the Criminal Code , i.e. an “over 80” charge. [ 2 ] Prior to trial, the accused filed an Application under the Charter of Rights and Freedoms , arguing that his

Section 8 and 9 Charter rights were violated. The basis of that allegation, initially at least, was that the approved screening device used by the arresting officer was believed to be out-of-date in terms of its calibration certificate. [ 3 ] The parties agreed to proceed by way of a blended voir dire and trial, with the Crown calling the arresting officer, Cpl. Marc- André Langis, as a witness. By way of a later Agreed Statement of Fact, the parties confirmed that, in fact, the approved screening device was indeed properly calibrated at the time of the accused's arrest on September 6, 2019.

That Agreed Statement of Fact indicates that the approved screening device accurately recorded readings of alcohol in milligrams. It did not, however, indicate how the approved screening device was programmed or set in terms of how it reported those readings. [ 4 ] During the evidence of Cpl. Langis, he gave testimony regarding how the approved screening device worked. After testifying that he observed the vehicle operated by the accused swerving from the shoulder to the centerline along the Berry Mills Road in Moncton, he explained that he decided to pull the vehicle over in order to conduct a sobriety test.

He testified that, as he was speaking with the driver, he detected a faint smell of alcohol. He therefore made a demand for a breath sample. [ 5 ] Cpl. Langis testified that he is certified to operate the approved screening device used in this case, an Alco-Sensor FST, but not to calibrate the device. That was done by another member of the RCMP. [ 6 ] Cpl. Langis then testified as follows: A. Basically, it will provide three types of readings: a reading where it scores a number, a reading where it scores a warning, and a reading where it scores a fail. Anything that's under point zero five will provide a number.

Anything from point zero five to point zero one will provide a fail. Anything from point zero one and over – sorry, a warning, and then point zero one and over will provide a fail . Q. Okay. So, point – point five ‘till one, you said – is – is a what? A. It’s a fail – a warning, sorry.’ Q. Okay. A. Yeah. Q. And then above one ? A. Is a fail . Q. Okay. And so, what you just explained to us, did you explain that to Mr. Gaudet –

A. Yes. Q. - on the night in question? A. Yes, I did. Q. So, take us through what – what you would have told him. A. I showed the device to Mr. Gaudet. I explained to him that this will tell me if there’s any alcohol in his system. I told him there were three readings that could be produced. Essentially, I told him what I just told you. I said, if – if it comes as a number, it’s because you’re below point zero five. If it’s a warning that will mean you’re somewhere (sic) in-between point zero five and – and point zero one.

And I said if you come up with a fail, that means you’re over point zero one . (Transcript from August 23, 2021, pages 21 to 23; emphasis added) [ 7 ] Cpl. Langis then went on to testify that he obtained a breath sample from Mr. Goguen which registered as a “fail.” At that time, he testified that he formulated reasonable and probable grounds to believe the accused was operating his vehicle while his blood alcohol level exceeded the legal limit.

He acknowledged that, had the sample not produced a “fail” result, he would not have had grounds to arrest the accused. [ 8 ] He therefore placed the accused under arrest on suspicion of impaired driving. Mr. Goguen later provided two breath samples to another officer who determined that his blood alcohol concentrations were in excess of the legal limit – 170 mg of alcohol per 100 mL of blood on the first test, and 160 mg of alcohol per 100 mL of blood on the first test, i.e. approximately double the limit. That officer completed a Certificate of Qualified Technician with those results.

ARGUMENT BEFORE THE TRIAL JUDGE [ 9 ] During the hearing of the evidence, neither the judge nor counsel for the Crown apparently noted that the witness testified as he did. When counsel for the accused raised during argument that Cpl. Langis had testified that anything over a “point zero one” would result in a fail, the judge reacted with scepticism: Mr. Boutet: To my second point. And it comes to what the officer did when he explained to the court symptomology (sic). Essentially, without the approved screening device result, the fail, the officer had no grounds.

He didn't have grounds to make the demand to provide samples in the approved instrument. The demand is that he has reasonable and probable grounds to believe that he committed an offence under

section 320.14(1) (b), which means that he would have in his system over 80 milligrams of alcohol per 100 milliliters of blood. When asked - and it was brought up many times by my colleague and so on - where are we here. Court: Do you have a transcript of the proceedings? Mr. Boutet: It's typed but not a transcript. It's my personal notes, your honor. Court: Okay. Mr. Boutet: I've been in trouble before. So – Court: All right. Thank you.

Mr. Boutet: Okay. When the - My colleague asked: and what can you tell us about how the approved screening device operates, the officer said: basically, it will provide three types of reading, a reading where it scores a number, a reading where it scores a warning, and a reading where it scores a fail. Anything that's under point zero five will provide a number. And here's what's important because his testimony never changes - anything from point zero five to point zero one – Court: He said – Mr. Boutet: That’s what he said. Court: Point zero one or point – Mr. Boutet: Point zero one. Didn’t say point one.

He said point zero one – will fail. Anything point zero one and over will provide – and he says – a warning and then point zero one and over will provide a fail. Court: Point zero – give me a second now. Mr. Boutet: Yes. I – I listened to it many times, Your Honour. So, I want this Court to go listen at (sic) the evidence that was tendered. Court: In my notes – I may – I may have misunderstood and misinterpreted, but my note says: the warning was from point zero five to point one and everything above point one is a fail. So, you're saying that he said point zero one? Mr.

Boutet: Yes, and I’ll go – Court: Does the Crown have – take note of this? Is it – do you know? Mr. Rigucci: I don't have particular notes, your honor, but from memory, I – I listened at (sic) at that answer from him and he – he would’ve – he stated point one, not point zero one. [ 10 ] And then later: Court: Well, obviously, it would be problematic. I think it's the – if the officer actually said failed means above point zero one – Mr. Boutet: Yes. Court: – then that would be problematic I think for the prosecution. I – I get what Mr.

Rigucci says here, but it’s – personally, I believe that I would be surprised that the evidence said that because I would’ve picked up on that, I think. Mr. Rigucci probably would have picked up on that, I think. Neither one of us did. So – but you’re saying you actually listened to the tape and it says point zero one. Mr. Boutet: And I typed it and – maybe if it happens once – Court: You’re saying you listened to the tape and you heard point zero one – Mr. Boutet: Three times – point zero one.

Court: Three times. Right. Okay. [11] Counsel for the accused argued that, if the approved screening device was set to register a fail for any reading in excess of “pointzero one,” i.e. .01, then that would mean that anybody who registers any amount of alcohol would trigger a fail. That, he argued, wouldnot be sufficient grounds to arrest the accused or to make a demand for a breath sample, meaning the arrest and the demand were madewithout reasonable and probable grounds and hence would be in violation of the accused’s Charter rights.

THE DECISION [12] In his decision, the trial judge summarized the evidence as follows: It is now beyond question that the sole purpose of obtaining a result from an approved screening device is to assist in establishingreasonable and probable grounds to make a demand for an approved instrument. It does nothing to prove guilt. It is merely aninvestigative tool to assist police in determining whether or not an operator of a conveyance has an alcohol concentration in his bloodwhich exceeds the permissible limit.

The permissible limit in this country is 80 milligrams of alcohol in 100 milliliters of blood or morecommonly referred to as .08. Cpl. Langis on two occasions stated that the approved screening device he used provided a fail result whena person provides a breath sample with the result of .01 or over, meaning 10 milligrams of alcohol in 100 milliliters of blood. He wasobviously mistaken. That mistake is all the more glaring when one considers that he also stated that the other two readings arebetween .01 and .05, and a warning went between .05 and.01.

Numbers on approved screening devices escalate upwards, notdownwards. The issue is this, can a police officer rely on the fail result on an approved screening device where that officer’s testimonyunequivocally states that such a result is obtained by a breath sample having a reading in excess of .01? I do not believe I can takejudicial notice of the possible readings of an approved screening device. Nor can I substitute the 10 milligrams by 100 milligrams inorder to correct the evident mistake.

The fact upon which I must proceed is that the approved screening device used by a qualifiedoperator was calibrated to read a failed result when the breath sample was 10 milligrams of alcohol in 100 milligrams of blood,or more. The Supreme Court of Canada, in R. v. Bernshaw (1994), 1 S.C.R. 254 held that if an operator of a conveyance registers a failon an approved screening device, that result alone, or in combination with other observations of impairment made by the officer, mayprovide the demanding officer with reasonable and probable grounds to believe an offence was committed.

These grounds also permitthe officer to arrest the individual. Bernshaw also held that that the requirement for the existence of reasonable and probable grounds isnot only a statutory, but a constitutional requirement as a pre- condition to a lawful search and seizure under

Section 8 of the Charter. The court stipulated that the reasonable and probable grounds must be justifiable not only on a subjective basis but also on an objectivebasis such that a reasonable person standing in the exact position of the officer, possessing the same information as that known to thepolice officer, must be able to conclude that there existed, at the time, reasonable and probable grounds for making the approvedinstrument demand. In this case, undoubtedly Cpl. Langis has a sincere and honest belief that the fail result meant that he couldarrest Mr.

Gaudet and proceed with the demand for the approved instrument. That is what he did and I am convinced that hisbelief was sincere. On an objective basis, however that belief cannot be upheld. The officer clearly stated that the fail resultmeant a reading in excess of .01. [emphasis added] [13] Citing Justice Durno of the Ontario Superior Court of Justice in R. v.

Matromartino, (ON SC), 2004 OJ No.1435, the trial judge went on as follows: An officer using an ASD or an approved screening device need only have a reasonable belief that the device is properly calibrated and inworking order before relying on a fail result to confirm his or her suspicions that a driver may be impaired or over the legal limit. Thereis no requirement the officer know the calibration setting of the device, when it was last calibrated, or whether the device was in factworking properly. I believe this summarizes the current state of the law in Canada. There is, however, a precision to be made.

In thiscase the officer testified that he knew the calibration of the device he used. Although there is no requirement that an officer muststate he knew the calibration of the device used, if he knew that calibration and states what it is, then the court really has noreason to disregard it. Based on Cpl. Langis’ testimony, everyone who would have provided a breath sample into the approvedscreening device he used would have blown a fail if the reading obtained was in excess of .01.

On an objective review of hissubjective belief, those results are unreliable and cannot sustain the subjective belief he otherwise held. For this reason the demand forthe approved instrument was unlawful as it was made without sufficient reasonable and probable grounds. [emphasis added] [14] As a result, the trial judge held that the demand for a breath sample was unlawful and he determined, after engaging in a s. 24(2)analysis – the so-called Grant analysis – that the Certificate of Qualified Technician showing a blood alcohol level beyond the legal limitshould be excluded.

He held: In this case, the demand made to Mr. Gaudet was entirely without legal foundation. The officer proceeded on faulty settings in anapproved screening device. That screening device would have captured practically everyone who had consumed some amount of alcoholprior to driving. The fail setting was set very low. Society's confidence in the justice system would collapse knowing that an approvedscreening device’s settings were mistakenly set to capture most drivers who drove after consuming some alcohol. The Charter infringing

state conduct was consequently very serious. The impact of the breach on the Charter protected interests of the accused was also veryhigh. Mr. Gaudet may have been arrested for unjustified cause. Indeed, anyone who had been tested by use of the device in questioncould have been arrested without proper justification, detained and processed by the police for an offence that the police may havebelieved occurred, but on review did not. Adjudicating the case on its merits does not trump the seriousness of the violation and itsimpact on the accused.

Balancing all factors, the proper remedy is the exclusion of the Certificate of Qualified Technician from evidencein this matter. [15] Without the Certificate of Qualified Technician, Mr. Gaudet was acquitted. THE APPEAL [16] The Crown now brings this appeal, arguing that the trial judge erred in law when he concluded that the accused’s Charter rightshad been infringed, and further that the judge erred in excluding the evidence under s. 24(2). [17] The Crown also alleges that the trial judge made a reversible error in respect of the accused’s application under the Charter.

Iwill address that ground of appeal first, and in a somewhat

summary fashion. The basis of that ground of appeal is that the accused,when he initially filed an Application for an order that there had been a Charter breach due to an expired calibration of the approvedscreening device (or, rather, having calibrated the device using expired gas), also filed an affidavit in support. Due to the manner inwhich the evidence proceeded at the blended voir dire and trial, the Crown led its evidence – Cpl.

Langis’ testimony – before the issueof calibration could be resolved. [18] At the next appearance, the parties read into evidence the Agreed Statement of Fact, confirming that, in fact, the device was stillcalibrated at the time of the alleged offence. The Defence withdrew its Application. [19] Then, at a third appearance, the Defence advised the trial judge that the accused would not be presenting any evidence on thevoir dire or on the trial proper. At no time had the affidavit filed in support of the Application been formally entered as an exhibit.

TheCrown advised that it wished to cross-examine the accused on his affidavit. The trial judge refused, stating that the affidavit had notformally been tendered by the accused and the Crown could not compel the accused to testify. [20] The Crown argues that, once an affidavit is filed by an accused in support of an Application, it becomes evidence on the voir direand the Crown should be granted leave to cross-examine the witness. [21] Frankly, this Court does not understand how this issue relates to the appeal.

The Decision of the trial judge was based on theevidence of the arresting officer regarding how the screening device was calibrated to read a “fail.” The Application filed by the accusedrelated to an alleged out-of-date calibration certificate – an Application which the accused withdrew. The first ground of appeal istherefore dismissed. It is not logically connected to the judge’s decision and is not determinative of this appeal in any event. It is aseparate and, in the Court’s view, moot consideration. DID THE PROVINCIAL COURT JUDGE ERR IN CONCLUDING THAT MR.

GAUDET’S S.8 CHARTER RIGHTS WEREVIOLATED? [22] Turning now to the crux of the appeal, the Crown argues that the jurisprudence in Canada, as summarized by the trial judge, issuch that the peace officer need not understand how the approved screening device works or how it is calibrated – if the device yields a‘fail,” that is sufficient to create reasonable and probable grounds. As a result, the Crown argues that notwithstanding Cpl. Langis’testimony regarding the calibration (“point zero one”), the fail was sufficient on its own to create reasonable and probable grounds.

TheCrown relies on jurisprudence including R. v. Womack, 2020 ONSC 72; and R. v. Bernshaw, (SCC), [1995] 1 S.C.R.254. [23] The Crown is correct that, as a general rule, a police officer need not know how an approved screening device is calibrated andneed only have a reasonable belief that the device is in working order in order for the officer to rely on a fail. [24] However, in this case, the officer’s testimony was that he actually knew the calibration settings, and he gave those settings in histestimony. He testified that anything over a .01 would yield a fail.

[25] While it would certainly appear from his other testimony that Cpl. Langis’ description of the ranges was given in error – sincethey are nonsensical – the trial judge was nonetheless faced with a situation where that was the only evidence before him. Once theofficer gave that evidence, it is hard to imagine the trial judge simply substituting what he believed the officer meant for what heactually testified to under oath. That, in my view, would be well outside the discretion of the trial judge. [26] Because Cpl.

Langis gave the parameters for the various readings – which he did not need to do – the trial judge was stuck withthat evidence. [27] I agree with the trial judge (and with the Crown) that Cpl. Langis likely misspoke and intended to say that any reading of .10 orhigher would yield a “fail.” But that is not what he said. [28] I am therefore unable to find reversible error in the trial judge’s conclusion that Mr. Gaudet’s s. 8 Charter rights were violated. His conclusion was not unreasonable based on the evidence.

DID THE PROVINCIAL COURT JUDGE ERR IN EXCLUDING THE EVIDENCE UNDER S. 24(2)? [29] As noted, the trial judge concluded that the proper remedy for the Charter breach in this case was the exclusion of theCertificate of Qualified Technologist, which effectively gutted the Crown’s case and ensured an acquittal. [30] With respect to the application of a s. 24(2) analysis, the first issue is to determine whether the evidence in question was“obtained in a manner” that infringed the Charter. Here, that is fairly obvious, given that Cpl.

Langis acknowledged that had there notbeen a “fail” on the approved roadside screening device, he would not have had grounds to make a demand for a breath sample. [31] The second stage of the so-called Grant analysis was recently considered by the Supreme Court of Canada in R. v.

Beaver, 2022SCC 54 , where Justice Jamal wrote as follows for the majority: [116] Whether the administration of justice would be brought into disrepute by admitting Beaver’s confession involves examining theimpact its admission would have on public confidence in the administration of justice over the long term, based on a balancing of thethree lines of inquiry described by this Court in R. v.

Grant, 2009 SCC 32, [2009] 2 S.C.R. 353: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the accused’s Charter-protected interests; and (3) society’s interest in theadjudication of the case on its merits (see Grant, at para. 71; see also R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at paras. 139-42; Tim,at para. 74; R. v. Lafrance, 2022 SCC 32, at para. 90). [117] Section 24(2) of the Charter is not an automatic exclusionary rule precluding the admission of all unconstitutionally obtainedevidence.

Such evidence will only be excluded when the accused establishes that, having regard to all the circumstances, the admissionof the evidence would bring the administration of justice into disrepute (see R. v. Collins, (SCC), [1987] 1 S.C.R. 265,at p. 280; Tim, at para. 75). Balancing the relevant considerations under s. 24(2) is a qualitative determination that is not capable ofmathematical precision (Grant, at paras. 86 and 140; R. v.

Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 36; Tim, at para. 98). [32] Justice Jamal also confirmed that the trial judge’s findings of fact are owed deference, but that his or her application of the law tothose facts is not.

The correctness standard will apply. [33] Turning now to the three considerations for the second branch of the s. 24(2) analysis, then: First - The Seriousness of the Charter-Infringing State Conduct [34] Justice Jamal stated: [120] The first line of inquiry under s. 24(2) considers whether the Charter-infringing state conduct is so serious that the court needs todissociate itself from it. This inquiry requires the court to situate the Charter-infringing conduct on a scale of culpability.

At one end ofthe scale is conduct that constitutes a wilful or reckless disregard of Charter rights, a systemic pattern of Charter-infringing conduct, or amajor departure from Charter standards. At the other end of the scale are less serious Charter breaches, including breaches that areinadvertent, technical, or minor or those that reflect an understandable mistake. The more severe the state’s Charter-infringing conduct,the greater the need for courts to disassociate themselves from it […]

[35] In the present case, the trial judge held that Cpl. Langis “undoubtedly” had a “sincere and honest belief that the fail result meantthat he could arrest Mr. Gaudet and proceed with the demand for the approved instrument.” He also held that Cpl. Langis was“obviously mistaken” in his testimony regarding the settings on the approved roadside screening device, suggesting that there was, in hismind, absolutely no improper police conduct in this case. It was a simple mistake.

In light of those findings, this case would fall at theextreme end of the spectrum and would be among the least serious of all Charter-infringing state conduct. [36] This is not police conduct from which the Court should be dissociating itself. In my view, then, the first line of inquiry favoursthe admission of the evidence.

Second - The Impact of the breach on the accused’s Charter-protected interests [37] Justice Jamal had the following to say regarding this second line of inquiry: [123] The second line of inquiry under s. 24(2) considers the impact of the Charter breach on the accused’s Charter-protected interests.This inquiry involves identifying the interests protected by the relevant Charter right and evaluating the extent to which the Charterbreach “actually undermined the interests protected by the right” (Grant, at para. 76). As with the first line of inquiry, the court mustsituate this impact on a spectrum.

The greater the impact on the accused’s Charter-protected interests, the greater the risk that admissionof the evidence would suggest that Charter rights are of little actual avail to citizens, thus breeding public cynicism and bringing theadministration of justice into disrepute […] [38] Here, the trial judge considered the breach of Mr. Gaudet’s s. 8 Charter rights to have been quite serious, primarily because hepresumed, for the purposes of the analysis, that the approved roadside screening device was set to register a “fail” at .01 or higher –which he acknowledged was an obvious mistake.

However, given that he made a finding of fact that the device was set in that manner, Iam in agreement that the use of a screening device which is set so as to register a “fail” for even the slightest detection of alcohol is afairly serious breach of one’s s. 8 Charter rights. [39] That said, the Supreme Court in R. v. Grant, 2009 SCC 32 held that: In the context of bodily evidence obtained in violation of s. 8, this inquiry requires the court to examine the degree to which thesearch and seizure intruded upon the privacy, bodily integrity and human dignity of the accused.

The seriousness of the intrusionon the accused may vary greatly. At one end of the spectrum, one finds the forcible taking of blood samples or dental impressions […].

At the other end of the spectrum lie relatively innocuous procedures such as fingerprinting or iris-recognition technology. [paragraph 109; emphasis added] [40] The Supreme Court went on to find that breath samples are relatively non-intrusive, and so fall at the less serious end of thespectrum. [111] While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity isdeliberately inflicted and the impact on the accused’s privacy, bodily integrity and dignity is high, bodily evidence will be excluded,notwithstanding its relevance and reliability.

On the other hand, where the violation is less egregious and the intrusion is less severein terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused’s body may be admitted. Forexample, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive. [paragraph 111; emphasis added] [41] As a result, this line of inquiry would seem to be fairly neutral, neither strongly favouring admission nor strongly favouringexclusion of the evidence.

Third - Society’s Interest in an Adjudication of the Case on Its Merits [42] Justice Jamal wrote as follows regarding the third line of inquiry: [129] The third line of inquiry under s. 24(2) considers societal concerns and asks whether the truth-seeking function of the criminaltrial process would be better served by the admission or the exclusion of the evidence (Grant, at para. 79).

Relevant factors under thisinquiry include the reliability of the evidence, the importance of the evidence to the prosecution’s case, and the seriousness of theoffence at issue (Grant, at paras. 79-84; Harrison, at para. 33; Côté, at para. 47; Paterson, at paras. 51-52).

[…] [131] Excluding reliable evidence critical to the Crown’s case […] can also undermine the truth-seeking function of the justice system and render the trial unfair from the public’s perspective, thus bringing the administration of justice into disrepute […] [ 43 ] Here, the evidence in question is the Certificate of Qualified Technician, which showed blood-alcohol readings of 170 mg of alcohol per 100 mL of blood on the first test, and 160 mg of alcohol per 100 mL of blood on the first test, i.e. approximately double the limit.

Evidence of that nature is considered to be highly reliable. [ 44 ] As well, the Certificate of Qualified Technician in this case was crucial to the Crown’s case. Without it, the Crown’s case was effectively gutted. [ 45 ] Finally, with respect to the seriousness of the offence at issue, it cannot be disputed that there is a strong public interest in curbing drinking and driving. [ 46 ] In my view, there is a strong public interest in having the matter determined on its merits in this case, which favours the admission of the evidence.

Fourth – Final Balancing [ 47 ] Justice Jamal in Beaver , supra, directs: [133] The final step in the s. 24(2) analysis involves weighing each line of inquiry to determine whether admitting the evidence would bring the administration of justice into disrepute. […] [134] When undertaking this weighing exercise, “it is the cumulative weight of the first two lines of inquiry that trial judges must consider and balance against the third line of inquiry” ( Lafrance , at para. 90 (emphasis in original)). “[W]hen the two first lines, taken together, make a strong case for exclusion”, the third line of inquiry “will seldom tip the scale in favour of admissibility” ( Lafrance , at para. 90 ).

The third line of inquiry “becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence” (R. v. McGuffie, 2016 ONCA 365 , 131 O.R. (3d) 643 , at para. 63 , per Doherty J.A.; see also R. v. Chapman, 2020 SKCA 11 , 386 C.C.C. (3d) 24 , at paras. 125-26 and 130 ). It is possible that admitting evidence obtained by particularly serious Charter-infringing conduct will bring the administration of justice into disrepute, even if the conduct did not have a serious impact on the accused’s Charter-protected interests (Le, at para. 141).

But where the cumulative weight of the first two lines of inquiry is overwhelmed by a compelling public interest in admitting the evidence, the administration of justice will not be brought into disrepute by its admission. [ 48 ] Here, there is no strong case for the exclusion of the evidence under the first two lines of inquiry. And, as indicated above, I am of the view that there is a compelling public interest in admitting the Certificate of Qualified Technician.

I am of the view that it would, in fact, bring the administration of justice into disrepute were the evidence excluded due to what the trial judge described as a simple mistake regarding Cpl. Langis’ testimony. DISPOSITION [ 49 ] In my view, the trial judge made a reversible error of law in his application of the s. 24(2) analysis. [ 50 ] The Certificate of Qualified Technician should have been admitted at trial. [ 51 ] The Respondent, Mr.

Gaudet, did not suggest, either in argument or with any evidence at trial, that he had any potential defence to the “over 80” charge other than the breach of his s. 8 Charter rights. The Crown’s appeal against Mr. Gaudet’s acquittal of the “over 80” charge must therefore be allowed, with the acquittal being set aside and a conviction entered.

[ 52 ] The matter is remitted back to the Provincial Court for sentencing. DATED at Moncton, New Brunswick this 14 th day of February, 2023. _____________________________________ Robert M. Dysart, Judge of the Court of King’s Bench of New Brunswick