R. v. Bernard Joseph Hach, 2014 NBPC 31

R. v. Bernard Joseph Haché 2014 NBPC 31 PROVINCE OF NEW BRUNSWICK File No.: 04457611 PROVINCIAL COURT HER MAJESTY THE QUEEN v. BERNARD JOSEPH HACHÉ Decision following trial delivered by the Honourable Judge Ronald LeBlanc of the Provincial Court, at Bathurst, New Brunswick, on March 19, 2014. Mr. Haché is charged under s. 253(1) (

a) and 253(1)(

b) of the Criminal Code . Counsel: George Chiasson, Q.C., for the Crown Jean-Guy Henry, for the defendant INTRODUCTION THE FACTS 1 . This is my

summary of the facts established at trial. 2 . At about 3:00 p.m. on December 15, 2012, Edgar Bertin and his spouse, Viola Hachey, were stopped at the light at the entrance to Place Bathurst Mall on St. Peter Avenue in the city of Bathurst, New Brunswick. Mr. Bertin was driving their Honda CRV. The defendant, Bernard Haché, was stopped behind him in his truck, a Toyota Tacoma. His truck displayed New Brunswick licence plate CPF 880. Mr. Bertin’s vehicle was hit by Mr. Haché’s truck, despite the fact that they had both previously been stopped at the light. The front driver’s side of Mr.

Haché’s vehicle hit the rear passenger side of Mr. Bertin’s vehicle. Mr. Bertin concluded that Mr. Haché meant to drive through the entrance to the mall parking lot but did not have enough room to do so. Mr. Haché motioned to the passengers in Mr. Bertin’s vehicle to proceed into the parking lot, which they did. 3 . Ms. Hachey recognized Mr. Haché. He apologized. Ms. Hachey noticed that he seemed sleepy and was speaking slowly. She got the impression he was under the influence of medication or some drug. Mr. Bertin noticed that Mr. Haché was having difficulty speaking but seemed to be walking properly.

He concluded “that he had had one too many drinks.” They made note of the damage to

the two vehicles and exchanged information. The bumper on Mr. Haché’s vehicle had been damaged. Later, at their residence, Mr. Bertin placed a call to the Bathurst police force to report the accident and stated that Mr. Haché might be intoxicated. This call was taken by Constable Pierre-Luc Poirier. 4 . Between 3:50 and 4:02 p.m. on the same day, Mr. Haché was served by the clerks at Northcoast Electronics on St. Peter Avenue in Bathurst. The store is not far from Place Bathurst Mall, but it is further north. He was driving the same truck as the one involved in the collision with Mr. Bertin’s vehicle.

He went to that location for a service related to his cell phone. Denis Dumaresq, a salesperson at Northcoast Electronics, did not serve him but did watch him throughout the time he was in the store. He also gave the Bathurst police force a DVD showing Mr. Haché’s comings and goings while he was inside the store in question. That DVD was marked and numbered C-1 at trial. 5 . Mr. Dumaresq noticed that Mr. Haché’s breath smelled strongly of alcohol. He was three feet from Mr. Haché at the time and had noticed it while speaking with him about his phone. He also noticed that Mr.

Haché was having difficulty standing up straight. He saw Mr. Haché stumble as he was walking and noticed that he had difficulty keeping his balance in the store. Mr. Haché went outside for a few minutes while a clerk was dealing with his phone and Mr. Dumaresq observed him while he was outside as well, next to the building. He noticed that Mr. Haché was still losing his balance. When Mr. Haché went back in, Mr. Dumaresq noticed that he had soiled the front of his pants; he concluded that Mr. Haché had urinated. As he was leaving the premises, Mr.

Haché had difficulty opening the door to the store, almost fell as he was getting into his truck, had to make two attempts to get in and nearly hit a vehicle parked in the store’s private lot. 6 . Mr. Dumaresq concluded that Mr. Haché was driving under the influence of alcohol. After discussing the matter with his co-workers, he lodged a complaint with the Bathurst police station. The police force received this call at 4:07 p.m. 7 . After leaving Northcoast Electronics, Mr. Haché drove to his residence on Youghall Drive in Bathurst.

This street is located between the private entrance to Place Bathurst Mall and Northcoast Electronics. Mr. Haché had been living separately from his wife for some time. He was living with his parents. His wife, Janice Haché, was living in the family home. On the date in question, Nicole White was visiting her friend Janice Haché. She saw Mr. Haché arrive, driving his truck. Ms. White thought it was about 3:30 p.m., but I am satisfied that this was after Mr. Haché left Northcoast Electronics at 4:02 p.m. Ms. White concluded that Mr. Haché was under the influence of alcohol.

He was having difficulty speaking and walking. He was unable to form words. Ms. White had difficulty understanding him when he spoke. Mr. Haché could not find the keys to his truck despite having just arrived. 8 . Mrs. Haché and Ms. White decided to take him to his parents’ place. They decided that Mrs. Haché would drive his truck and Ms. White would drive Mrs. Haché’s vehicle. They worked out this plan because they did not want Mr. Haché to drive his truck, but the plan changed when Mr. Haché could no longer find his keys. Mrs. Haché decided to take him in her vehicle. She would leave the truck at the house.

They noticed the damage to the truck when they went into the garage. Mrs. Haché asked her husband what had happened. He replied that he had hit an old lady. This strange and baffling answer caused the two women some consternation. He was asked if she was hurt. He did not answer the question but confirmed that he had not called the police. He refused to answer their subsequent questions. 9 . As they were leaving the house, Mrs. Haché looked for the scene of an accident. When she did not find one, she eventually decided she should consult a member of the Bathurst police force.

They headed for the police station to speak with an officer. 10 . They got to the back of the police station at 4:25 p.m. Sergeant Ian MacLean was there. Sergeant MacLean was looking for the defendant. He had been informed of the call the dispatcher had received from Denis Dumaresq. He knew Bernard Haché well. They were friends. When Mr. Haché arrived at the police station sitting in the back seat of the car driven by his wife, he approached him and opened his door. 11 . Sergeant MacLean immediately noticed that Mr. Haché’s breath smelled strongly of alcohol. He noticed that the front of Mr.

Haché’s pants was soiled and that his eyes were glassy and heavy. Mr. Haché was having trouble keeping his eyes open. Sergeant MacLean came to the conclusion that the defendant was extremely intoxicated as a result of alcohol consumption. 12 . Sergeant MacLean immediately called Constable Pierre-Luc Poirier to come take up the case. He arrived a minute later and took charge of Mr. Haché. It was difficult for the officers to get Mr. Haché out of the car; he was having difficulty standing. He was staggering. It took two police officers to get him to the back door of the police station.

They each held him by one arm to prevent him from falling. When they got to the back door, Constable Poirier let him go to open the door and Mr. Haché fell to the ground. According to Constable Poirier, Mr. Haché was highly intoxicated. He placed Mr. Haché under arrest for drunk driving.

13. Evidence of the procedures involved in obtaining samples of Mr. Haché’s breath is not crucial in this case because thequalified technician’s certificate introduced in evidence at trial was not signed by the qualified technician. As I see it, a qualifiedtechnician’s certificate drawn up in accordance with s. 258(1)(

g) of the Criminal Code must be signed by the technician if theprosecution wants the judge to apply the presumptions created by the provision in question. The document is evidence of the factsalleged in the document without “proof of the signature or official character of the person appearing to have signed” the document,which necessarily implies that the document must be signed. The document in question was therefore not admitted into evidence. In theabsence of evidence that the concentration of alcohol in the defendant’s blood exceeded 80 milligrams of alcohol in 100 millilitres ofblood, the defendant is acquitted of the charge under s. 253(1)(

b) of the Criminal Code. THE OFFENCE OF IMPAIRED DRIVING 14. In order to be convicted of the offence charged under s. 253(1)(

a) of the Criminal Code, the judge must find beyond areasonable doubt that the defendant operated a motor vehicle while his ability to operate the vehicle was impaired by alcohol or a drug. This offence does not require the prosecution to prove a degree of impairment that demonstrates a marked departure from normalbehaviour (R. v. Stellato (SCC), [1994] 2 S.C.R. 478 (S.C.C.)), but it does require that the judge be satisfied on theevidence that the ability to operate a motor vehicle was impaired, although the degree of impairment may range from slight to great.

Thejudge should not assume that the mere impairment of a person’s functional ability points to the conclusion that the ability to operate amotor vehicle is also automatically impaired (R. v. Andrews (1996) 1996 ABCA 23 , 104 C.C.C. (3d) 392). The evidence mustestablish that the ability to operate a motor vehicle was impaired. 15. In this case, I am satisfied beyond a reasonable doubt that the defendant’s ability to operate a motor vehicle was impaired byhis alcohol consumption when he left Eastcoast Electronics at 4:02 p.m. and when he arrived at his residence shortly thereafter. 16.

The testimony given by Denis Dumaresq and Nicole White clearly reveals that Mr. Haché was intoxicated at both locations. I believe their testimony to be highly reliable, allowing me to find unequivocally that the defendant was in an advanced state ofintoxication when he drove his truck between the time he left the store at 4:02 p.m. and the time he reached his residence. He was stillhighly intoxicated upon arrival at the police station at 4:25 p.m. 17. This finding is supported by the overwhelming evidence given by the peace officers, namely Sergeant MacLean andConstable Poirier.

Barely 23 minutes after leaving Eastcoast Electronics, the defendant was plainly intoxicated to the point that he couldnot walk without assistance or stand up on his own. I am satisfied that this state of intoxication persisted and continued during the tripbetween the store and his residence. 18. The prosecution has therefore proved all the essential elements of the offence of impaired driving, and the defendant’s guilt,beyond a reasonable doubt. 19. Defence counsel is seeking a stay of proceedings on this count based on the arbitrary detention of his client after the breathsamples were taken.

I now have to settle the issue of a possible remedy for a breach of s. 9 of the Charter in the context of detentionfollowing the commission of the offence. DETENTION FOLLOWING THE COMMISSION OF THE OFFENCE 20. The following is a

summary of the facts from the voir dire on the topic of s. 9 of the Charter. 21. Mr. Haché was placed under arrest by Constable Poirier when he arrived at the police station at 4:25 p.m. I consider thisarrest to be valid and lawful. It was based on reasonable and probable grounds to believe that an offence had been committed under s.253(1)(

a) of the Criminal Code. Defence counsel does not dispute the lawfulness of the arrest. Mr. Haché waived his right to counsel atthe station. He provided two breath samples into the approved instrument. The samples were taken at 5:15 and 5:32 p.m. He failedthese tests. After the qualified technician informed him of the results, Constable Poirier felt that Mr. Haché’s state of intoxication wastoo advanced to serve him with the documents that would normally be served following the offence committed, namely a qualifiedtechnician’s certificate, a notice of greater punishment by reason of previous convictions, a promise to appear and a notice that his

driver’s license had been suspended. He did not believe that Mr. Haché was in any condition to understand these documents. 22 . He decided to place him in a cell at the police station. Counsel at the voir dire agreed that Mr. Haché was incarcerated from about 6:00 p.m. on December 15 until 9:00 a.m. on December 16, a period of approximately 15 hours. The period that elapsed between his arrest outside the building and the time he was placed in the cell was approximately one hour and 30 minutes. 23 . Constable Poirier’s shift ended at 7:00 p.m. on December 15.

He could not recall at the voir dire whether or not he had left instructions regarding Mr. Haché’s release. He reported to the police station at 6:30 a.m. the following morning to start his shift at 7:00 a.m. It was customary for peace officers to report to the station half an hour before the start of their shift. It was Constable Poirier who released Mr. Haché on the morning of December 16, after serving him with the documents and after determining that he was fit to be released. 24 . Constable Poirier’s testimony leads me to conclude that there were basically three reasons for his decision to incarcerate Mr.

Haché on the evening of December 15 th instead of releasing him: i . First, he could not serve Mr. Haché with the documents he wanted to give him following the breathalyser results because Mr. Haché was too intoxicated to understand them. ii . Second, Mr. Haché had nowhere to stay. The evidence revealed that when. Janice Haché arrived at the police station with her husband at 4:25 p.m., she told Sergeant MacLean: “Don’t bring him back to my place! ” Sergeant MacLean passed this on to Constable Poirier. ( Sergeant MacLean did not know that Mr.

Haché was living with his parents.) Constable Poirier therefore thought that Mr. Haché had nowhere to sleep. iii . Third, Constable Poirier had public safety concerns. In his view, the accused was in such an advanced state of intoxication that he might have driven again had he been released. He therefore might have committed another impaired driving offence. 25 . Constable Poirier was so resolute in this matter that he would have refused to release Mr. Haché even if someone had gone to pick him up at the station. Constable Poirier could not recall if Mr.

Haché had asked him at any point to be released if someone came to pick him up. He said he would not have allowed it regardless. 26 . Sergeant MacLean was the officer in charge at the police station on December 15 when Mrs. Haché went there with her husband. He held that responsibility until 7:00 p.m. After he had left following his shift, Sergeant Ernie Boudreau took over. He was the officer in charge until the following morning. Sergeant Boudreau did not testify at the voir dire. 27 . Ronald Caron, a parole officer since 1998, knew Bernard Haché well. They held the same position. Mr.

Haché had been his immediate supervisor since 2006. Mr. Caron had known him since 1998, when he was the supervisor at the Dalhousie prison. Around suppertime on December 15, he received a call from Sergeant Ernie Boudreau of the Bathurst police force. Sergeant Boudreau told him that Mr. Haché was incarcerated and intoxicated. He suggested that Mr. Haché needed help and advised him to refer Mr. Haché to the government’s employee assistance program. Mr. Caron was surprised by the call and asked if something could be done to help Mr. Haché. The sergeant said no.

I infer from this part of the conversation that Sergeant Boudreau meant that Mr. Haché had to remain incarcerated, that he could not be released. Mr. Caron knew Sergeant Boudreau well. 28 . Mr. Caron discussed the situation with his wife. He asked her permission to bring Mr. Haché home if he could be released. His wife agreed to this suggestion. He decided to go to the police station to see if he could look after Mr. Haché.

At the main entrance to the station, after asking the receptionist if he could speak with Bernard Haché, she told him that Sergeant Boudreau was on his way and wanted to speak with him outside the main door. He went there and Sergeant Boudreau arrived in a police car. They spoke outside the building, through the car window. Mr. Caron said he had come to see Mr. Haché. The sergeant replied that it was not a good idea and that Mr. Haché was under investigation. Mr. Caron suggested that he take Bernard Haché to his place, that he would look after him. The sergeant refused, telling him that Mr.

Haché was going to spend the night there. Mr. Caron left. 29 . Exhibit C-2 at the voir dire, a report regarding the accused’s detention, reveals that Constable Poirier placed the defendant in a cell at 6:00 p.m. on December 15, 2012. He slept between 6:06 p.m. and 7:27 p.m. At 7:27 p.m., he was awake but calm. At 7:38 p.m., he was standing and shaking the door to his cell. He went back to bed and slept until 9:07 p.m., when he asked to be released because he wanted to leave. He went back to bed and this time slept until 4:28 a.m., when Constable Ross spoke to him. Constable

Kurtis Ross spoke to him because he had asked to discuss his release with an officer. Mr. Haché asked him at what time he would bereleased. He was told that the supervisor for the day would be arriving at 6:30 a.m. and that he would speak to him about what time Mr.Haché would be released. 30. Constable Ross testified that he could have released Mr. Haché himself. He decided to deny the request for three reasons:first, Mr.

Haché was very intoxicated when he arrived at the station; second, he still seemed to be slightly intoxicated when he spokewith him; and, finally, because he was complaining of a headache and faintness. After being denied his release, Mr. Haché mostly sleptuntil 6:32 a.m. At that time, he woke up and asked again to leave. Madeleine Melanson, Mr. Haché’s supervisor during hisincarceration, confirmed that Mr. Haché asked for permission to leave a few times during the night. 31. Bernard Haché did not testify at the voir dire. THE POSITION OF THE PARTIES 32. Defence counsel posits that the 15 hours Mr.

Haché was detained in the cell at the police station constitute arbitrarydetention under s. 9 of the Charter. As a remedy, he is seeking either a stay of proceedings or another remedy for the breach. He arguesthat even the decision to place Mr. Haché in the cell was arbitrary and that his prolonged detention was even more arbitrary. 33. The Crown contends that there was no arbitrary detention because the peace officers’ decision to detain Mr. Haché wasbased on reasonable grounds. He posits that if the detention was arbitrary, a stay of proceedings is entirely too drastic as a remedy. Heargues that Mr.

Haché could bring civil proceedings against the City of Bathurst and its police force if he wished and that no remedyshould be ordered in this case. ANALYSIS 34. Mr. Haché bears the burden of persuading the Court on a civil standard that a Charter right has been infringed: R. v. Collins (SCC), [1987] 1 S.C.R. 265.

Section 9 of the Charter protects against arbitrary detention and imprisonment. For a detention to be non-arbitrary, it mustbe authorized by a law which is itself non-arbitrary: R. v. Grant (2009) 2009 SCC 32 , 2 S.C.R. 353 (S.C.C.). 36. Sections 497 and 498 of the Criminal Code are the laws on which the Crown bases its position that the detention was notarbitrary. 37. The legislative provisions are attached.

Section 497 applies in this instance because the defendant was arrested without warrant for an offence for which he could beprosecuted by indictment or for which he was punishable on

summary conviction, one ranked among the offences described in s. 496(b)of the Criminal Code. The offences under s. 253 of the Criminal Code are hybrid offences: see s. 255(1) of the Criminal Code. Section498 applies because Constable Poirier decided not to release Mr. Haché and the officer in charge was supposed to review this decision. In my opinion, this review should have been done by Sergeant Boudreau, who was the officer in charge as of 7:00 p.m. on December 15. Sergeant MacLean, the officer in charge until 7:00 p.m. on December 15, was in a conflict of interest and could not make this decision. 39.

The default position in s. 497 of the Criminal Code is that the detainee be released. A peace officer may either release adetainee with the intention of later issuing the detainee a summons, or issue the detainee an appearance notice and then release him orher. But the legislative intent is clear: release the individual. A peace officer may refuse to release someone only if the peace officerbelieves, on reasonable grounds, that it is necessary in the public interest to detain the person. This public interest includes the

exceptions set out in s. 497(1.1) (

a) and (

b) of the Criminal Code . The listed exceptions are: 40. First, the need to: i . establish the identity of the person, ii . secure or preserve evidence of or relating to the offence, iii . prevent the continuation or repetition of the offence or the commission of another offence, or iv . ensure the safety and security of any victim of or witness to the offence. 41. Second, the need to ensure that if released from custody the individual will attend court. 42.

If the peace officer who made the arrest decides not to release the individual, the officer in charge must, as soon as practicable, release the individual unless the same exceptions apply: s. 498 of the Criminal Code . The officer in charge may release the person without conditions with the intention of compelling the person’s appearance by way of summons or by promise to appear or with conditions, depending on the accused’s situation. However, once again, the default position is release. 43.

It is quite clear from these legislative provisions that the Canadian legislator requires police forces to release detainees unless their detention is necessary. These legislative provisions reflect the same principles found in the procedure set out in s. 515(1) of the Criminal Code - judicial interim release. The judge must release the detainee under an undertaking without conditions unless the Crown shows cause, in respect of the offence committed, why the accused should be detained or released with conditions. 44.

Where the peace officer or officer in charge does not meet the requirements of this law, the judge may find that the individual was detained arbitrarily and in violation of s. 9 of the Charter . There is, unfortunately, no lack of examples. The Canadian case law is rife with examples. 45. In this case, Mr. Haché was detained for 15 hours on an impaired driving charge. On the face of it, this period exceeds what might have been considered reasonable. He was not detained in order to compel him to appear in court within the period prescribed in s. 503(1) of the Criminal Code .

Finally, it was never the police force’s intention to compel him to appear before a justice of the peace in accordance with that section. In addition, the peace officers were well acquainted with the detainee. Identifying him was not a consideration. Mr. Haché was not hostile, belligerent, argumentative or antagonistic towards the peace officers. He repeatedly asked to be released and even discussed it with a peace officer. 46. The peace officer who made the arrest, Constable Poirier, gives three reasons for not releasing his detainee, reasons that I will now review individually. 47.

First, the peace officer could not serve certain documents on Mr. Haché because his state of intoxication was too advanced for him to understand them. I do not believe detention in custody can be authorized simply because it may make the police officer’s job easier. It is not in the public interest to detain an individual in order to facilitate a police duty such as serving documents. Documents can be served later if the individual is unable to understand them. 48. Second, the peace officer reasons that Mr. Haché had nowhere to stay.

This belief was most likely based on the message he received from Sergeant MacLean that Mrs. Haché, his wife, did not want him at her place. And yet Mr. Haché had a place to live. He had been living with his parents for a few weeks. Constable Poirier could have obtained this information from Mr. Haché simply by asking him. 49. In any event, Mr. Caron, a parole officer, came to the station and offered to take Mr. Haché to his home and look after him. He was undoubtedly a responsible person. Sergeant Boudreau knew Ronald Caron well. He therefore must have known that Mr. Caron would take good care of his boss.

Sergeant Boudreau, the officer in charge at the time, rejected the offer because the investigation was not complete. I note that an incomplete investigation is not a valid reason for detaining Mr. Haché. An attempt to secure or preserve evidence of the offence may be a valid reason for detention, but the only evidence to be secured in this case would have been statements from individuals who could offer information about the offence that had already been committed. It was not necessary to detain Mr. Haché in order to close the police investigation. The statements could have waited.

The police had no reason to believe that the investigation into Mr. Haché would be impeded or disrupted by his release.

50. Third, Constable Poirier says he was concerned about public safety due to the accused’s advanced state of intoxication. Inhis view, the degree of intoxication was such that Mr. Haché might have driven again had he been released. He wanted to prevent Mr.Haché from committing another impaired driving offence. 51. This is the reason most frequently cited by police forces to justify detention for impaired driving offences. On this point Iconcur with the opinion of Hutchinson J. at para. 67 of R. v. Arsenault, [2010] N.B.J.

No. 111, that “the decision of the police officermust be accorded a certain amount of deference, although the deference is not absolute.” The peace officer has the advantage of betterunderstanding the dangers and risks posed by a drunk driver. He is more familiar with the circumstances of the case and would have abetter appreciation of the potential perils of releasing the accused too soon. He would have gained some experience dealing withinebriated people as well as the circumstances and situations that might make someone who has been released decide to drive againwhile the person is still drunk. 52.

It is important to remember, however, that the peace officer’s decision to detain the individual for this reason must be basedon reasonable grounds – see s. 497(1.1). The police officer cannot speculate to justify his decision. He has to look at all of the facts andreasonably assess whether the danger or risk is real. 53. In this case, Constable Poirier knew that Mr. Haché had been brought to the police station by his wife. This is therefore not asituation where the officer had personally arrested the individual in the act of operating a motor vehicle. He also knew that Mr.

Hachéhad been involved in an accident earlier in the evening, that two complaints had been filed against Mr. Haché at the police station andthat other officers had tried unsuccessfully to find Mr. Haché. He believed Mr. Haché to be highly intoxicated as a result of his alcoholconsumption. 54. I completely agree with Hutchinson J.’s remarks at para. 69 of Arsenault, supra, where he says the following: [69] “All of these cases, they must be determined on their own facts. The Court must carefully scrutinize the length of thedetention and the underlying reasons.

In the McIntosh decision cited above the British Columbia Court of Appeal the Courtobserved that a police officer can rely upon his own experiences and those of other police officers in determining as to whether ornot there is a risk of the offence being repeated. The officer need not be certain that the offence will be repeated, a reasonablerisk of such an occurrence will suffice. These are common sense propositions and should guide the Court in the instant matter.” 55. In my opinion, neither Constable Poirier nor Sergeant Boudreau had reasonable grounds to believe that the offence would berepeated in this case.

The detainee’s truck was at his wife’s house and he did not live there. His wife had brought him to the policestation. Furthermore, had he been released into the care of Ronald Caron, as he ought to have been, Mr. Caron would have looked afterhim and there would have been no danger of a repeat offence. Finally, Mr. Haché had not said anything to the officers to lead them tobelieve that he would drive if released. 56. I find based on the totality of the circumstances that the real reason for Mr. Haché’s detention was his extreme intoxication.

That is certainly a very important factor to consider in the context of the risk of the offence being repeated, but on its own is notsufficient to conclude that an individual in this state must necessarily be denied release in the public interest. I therefore find that s. 9 ofthe Charter was breached in this case. THE JUST AND APPROPRIATE REMEDY 57. The accused seeks a stay of proceedings pursuant to s. 24(1) of the Charter. If denied, he seeks another appropriate remedy. 58.

A stay of proceedings is reserved for only those cases of abuse where a very high threshold is met – the “clearest of cases”threshold: R. v. Regan 2002 SCC 12 , [2002] 1 S.C.R. 297 (S.C.C.) Such an order falls within the narrow residual category ofabuse that does not affect the fairness of the trial. These are the applicable principles based on the

summary provided in paras. 89 to 91of Canada (Minister of Citizenship and Immigration) v. Tobiass (SCC), [1997] 3 S.C.R. 391 (S.C.C.): 89 “Most often a stay of proceedings is sought to remedy some unfairness to the individual that has resulted from statemisconduct. However, there is a “residual category” of cases in which a stay may be warranted. L’Heureux-Dubé J. described itthis way, in R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411, at para. 73:

This residual category does not relate to conduct affecting the fairness of the trial or impairing other proceduralrights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeablecircumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of sucha degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process. The residual category, it bears noting, is a small one.

In the vast majority of cases, the concern will be about the fairness of thetrial. 90 If it appears that the state has conducted a prosecution in a way that renders the proceedings unfair or is otherwisedamaging to the integrity of the judicial system, two criteria must be satisfied before a stay will be appropriate.

They are that: (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conductof the trial, or by its outcome; and(2) no other remedy is reasonably capable of removing that prejudice. (O'Connor, supra, at para. 75.) 91 The first criterion is critically important. It reflects the fact that a stay of proceedings is a prospective remedy. A stay ofproceedings does not redress a wrong that has already been done. It aims to prevent the perpetuation of a wrong that, if leftalone, will continue to trouble the parties and the community as a whole in the future.

See O’Connor, at para. 82. For this reason,the first criterion must be satisfied even in cases involving conduct that falls into the residual category. See O’Connor, at para. 75.The mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings. For astay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likelyto continue in the future or that the carrying forward of the prosecution will offend society’s sense of justice.

Ordinarily, thelatter condition will not be met unless the former is as well - - society will not take umbrage at the carrying forward of aprosecution unless it is likely that some form of misconduct will continue. There may be exceptional cases in which the pastmisconduct is so egregious that the mere fact of going forward in the light of it will be offensive. But such cases should berelatively very rare.” 59. It is therefore a remedy of last resort to be used exceptionally in the most serious or clearest of cases.

In each case, the judgemust balance the interests in question and ask: does the advantage of staying the proceedings outweigh the interest in having the casedecided on the merits? The judge must always take into account society’s broader interest in obtaining a judgment on the merits: R. v.Zarinchang (2010) 2010 ONCA 286 , 73 C.R. (6th) 199 (C.A. Ont). 60. In my view, a stay of proceedings is not the just and appropriate remedy here. Impaired driving is a serious offence. Thefacts reflect the seriousness of this case. The defendant hit Mr. Bertin’s vehicle while it was stopped at a light.

Two members of thepublic had to make an emergency call to the police because of his actions. The defendant was extremely intoxicated to the point that hecould neither walk nor stand without assistance. 61. Another very important factor, in my view, is the fact that the breach in question is not related to the offence committed. Thebreach occurred while Mr. Haché was in custody at the police station after he failed the breathalyser tests. The peace officers did notsecure any additional evidence as a result of the breach.

The Court of Appeal for Ontario has used this disconnection between theoffence and the breach as the basis for denying a motion for a stay of proceedings in the past - see R. v. Iseler (ONCA), [2004] 190 C.C.C. (3d) 11, at para. 31. In that case, Armstrong J.A. decided that because the breach in question (the same one asin the case at bar) had nothing to do with the investigation or the gathering of evidence against the detainee, and because it did notimpact on trial fairness, it was not the clearest of cases warranting the grant of a stay of proceedings. The same outcome was achieved inNew Brunswick in R. v.

Jamie Frederick James

(2011) NBQB 315 (unreported), a decision by Ouellette J. of the Court of Queen’sBench dated November 7, 2011, and in R. v. Salisbury 2011 SKQB 153 , [2011] S.J. No. 259, where Gerein J. found that theremedy being sought, a stay of proceedings, was disproportionate to the breach in question. 62. I concur. A stay of proceedings would have the effect of acquitting the accused of this offence. And yet he operated a motorvehicle while impaired as the result of alcohol abuse, and this offence is in no way mitigated by what subsequently happened to him.

Astay of proceedings would be an excessive remedy disproportionate to the breach of his right not to be arbitrarily detained under thecircumstances of this case. 63. One remedy that may be considered more just and appropriate under the circumstances would be a reduction of the sentence

that would otherwise be imposed. However, this remedy is limited in its application by the Supreme Court of Canada judgment in R. v.Nasogaluak (2010) 2010 SCC 6 , 1 S.C.R. 206. In Nasogaluak, the Court decided that this form of relief was not available inthe case of a mandatory minimum sentence: see paras. 55 and 64. The courts therefore cannot, as a general rule, reduce a sentencebelow the mandatory minimum.

The Court did not foreclose the possibility of a reduced sentence being granted under s. 24(1) of theCharter in some exceptional cases, but such a situation would require some particularly egregious form of misconduct by state agents, ofwhich there was none in the instant case. 64. The Court therefore cannot reduce a sentence below the mandatory minimum. I can, however, take the fact there was aCharter breach into consideration when the time comes for sentencing.

I can reduce the sentence accordingly, “so long as the incidentsgiving rise to the breach are relevant to the usual sentencing regime.”: see para. 55 of Nasogaluak, supra. 65. I am therefore going to find Mr. Haché guilty of the offence under s. 253(1)(

a) of the Criminal Code and invite the defenceto argue for a reduction of the sentence I would have otherwise imposed had there been no breach of s. 9 of the Charter. Dated at Bathurst, New Brunswick, this 19th day of March 2014. Ronald LeBlanc Judge of the Provincial Court

SCHEDULE LEGISLATIVE PROVISIONS CANADIAN CHARTER OF RIGHTS AND FREEDOMS 9. Everyone has the right not to be arbitrarily detained or imprisoned. 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court ofcompetent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. CRIMINAL CODE 255.

(1) Every one who commits an offence under

section 253 or 254 is guilty of an indictable offence or an offence punishable onsummary conviction and is liable, ▪ (

a) whether the offence is prosecuted by indictment or punishable on

summary conviction, to the following minimum punishment,namely, ▪ (

i) for a first offence, to a fine of not less than $1,000,

▪ (ii) for a second offence, to imprisonment for not less than 30 days, and ▪ (iii) for each subsequent offence, to imprisonment for not less than 120 days; ▪ (

b) where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years; and ▪ (

c) if the offence is punishable on

summary conviction, to imprisonment for a term of not more than 18 months. 496. Where, by virtue of subsection 495(2), a peace officer does not arrest a person, he may issue an appearance notice to the person if the offence is (

a) an indictable offence mentioned in

section 553; (

b) an offence for which the person may be prosecuted by indictment or for which he is punishable on

summary conviction; or (

c) an offence punishable on

summary conviction. 497.

(1) Subject to subsection (1.1), if a peace officer arrests a person without warrant for an offence described in paragraph 496(a), (

b) or (c), the peace officer shall, as soon as practicable, ▪ (

a) release the person from custody with the intention of compelling their appearance by way of summons; or ▪ (

b) issue an appearance notice to the person and then release them.

(1.1) A peace officer shall not release a person under subsection (1) if the peace officer believes, on reasonable grounds, ▪ (

a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to ▪ (

i) establish the identity of the person, ▪ (ii) secure or preserve evidence of or relating to the offence, or ▪ (iii) prevent the continuation or repetition of the offence or the commission of another offence, ▪ (iv) ensure the safety and security of any victim of or witness to the offence; or ▪ (

b) that if the person is released from custody, the person will fail to attend court in order to be dealt with according to law. (2) Subsection (1) does not apply in respect of a person who has been arrested without warrant by a peace officer for an offence described in subsection 503(3).

(3) A peace officer who has arrested a person without warrant for an offence described in subsection (1) and who does not release the person from custody as soon as practicable in the manner described in that subsection shall be deemed to be acting lawfully and in the execution of the peace officer’s duty for the purposes of ▪ (

a) any proceedings under this or any other Act of Parliament; and ▪ (

b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (1) . 498.

(1) Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody, or if a person who has been arrested without warrant and delivered to a peace officer under subsection 494(3) or placed in the custody of a peace officer under subsection 163.5(3) of the Customs Act is detained in custody under subsection 503(1) for an offence described in paragraph 496(a), (

b) or (c), or any other offence that is punishable by imprisonment for five years or less, and has not been taken before a justice or released from custody under any other provision of this Part, the officer in charge or another peace officer shall, as soon as practicable, ▪ (

a) release the person with the intention of compelling their appearance by way of summons; ▪ (

b) release the person on their giving a promise to appear; ▪ (

c) release the person on the person’s entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs, but without deposit of money or other valuable security; or ▪ (

d) if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within 200 kilometres of the place in which the person is in custody, release the person on the person’s entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs and, if the officer so directs, on depositing with the officer a sum of money or other valuable security not exceeding in amount or value $500, that the officer directs.

(1.1) The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officer believes, on reasonable grounds, ▪ (

a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to ▪ (

i) establish the identity of the person, ▪ (ii) secure or preserve evidence of or relating to the offence, ▪ (iii) prevent the continuation or repetition of the offence or the commission of another offence, or ▪ (iv) ensure the safety and security of any victim of or witness to the offence; or ▪ (

b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law. (2) Subsection (1) does not apply in respect of a person who has been arrested without warrant by a peace officer for an offence described in subsection 503(3).

(3) An officer in charge or another peace officer who has the custody of a person taken into or detained in custody for an offence described in subsection (1) and who does not release the person from custody as soon as practicable in the manner described in that subsection shall be deemed to be acting lawfully and in the execution of the officer’s duty for the purposes of ▪ (

a) any proceedings under this or any other Act of Parliament; or ▪ (

b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the officer in charge or other peace officer did not comply with the requirements of subsection (1).