R. v. Tessier, 2018 ONCJ 169

ONTARIO COURT OF JUSTICE CITATION: R. v. Tessier , 2018 ONCJ 169 DATE: 2018·03·12 COURT FILE No.: Sudbury BETWEEN: HER MAJESTY THE QUEEN — AND — Zacharie Tessier Before Justice A.L. Guay Heard on July 31, August 14, October 17, November 14, 2017 - Trial Reasons for Judgment released on March 12, 2018 L. Walker ................................................................................................ counsel for the Crown M.

Haraschuk ................................................................... for the defendant Zacharie Tessier Guay J.: Overview [ 1 ] The accused was charged on July 9, 2016 with both impaired driving and driving with a blood alcohol level exceeding 80 mg of alcohol in 100 mL of blood pursuant to sections 253(1)(a )and 253(1)(

b) of the Criminal Code . At about 3:18 a.m., he approached the intersection of Notre Dame Avenue and LaSalle Boulevard in the City of Sudbury intending to make a left-handed turn onto Notre Dame Avenue. Two Sudbury police officers, themselves in the process of making a parallel turn, immediately noticed his unusual driving. According to the officers, the accused came up fast in the outside turning lane next to them and stopped abruptly. As the lights changed, the accused opted to drive his vehicle into the curb lane of the three lanes giving onto Notre Dame Avenue once his turn had been completed.

The accused was observed to be swerving his vehicle from the curb of the outside lane to the line separating it from the middle of the three lanes. He then swung his vehicle into the middle of the three lanes in question prior to the curb lane coming to an end. At this point, the accused drove his vehicle close to the police cruiser advancing in the third lane next to him. [ 2 ] Surveilled by the officers as he continued to drive on Notre Dame Avenue at an unusually slow speed of 35 to 45 km/h, the accused reached the intersection of Paul Street and Notre Dame Avenue.

Turning right onto Paul Street, where he lived, he further reduced his speed to between five and 10 km/h. This the officers found to be “a marked departure from the norm”. [ 3 ] Approaching the accused’s vehicle after he had parked it at an angle in the driveway of his residence, the investigating officer, Cst. Truskowski, almost immediately smelled alcohol emanating from his breath. He was observed to have the usual indicia of impairment, including red, glossy eyes and instability on his feet. Cst.

Truskowski asked the accused if he had had anything to drink that evening and the accused told him that he had had a few beers. [ 4 ] It was at this point that Cst.Truskowski formed a reasonable suspicion that the accused had been operating his vehicle while under the influence of alcohol. Cst. Bennett, Cst.Truskowski’s partner, asked the accused to provide a sample of his breath into the available alcohol screening device. After some difficulty caused by a medical condition known as Vacterl, the accused provided a breath sample which generated a “Fail” on the screening device.

This led Constable Truskowski to form the opinion that he had reasonable and probable grounds to arrest the accused for the offenses of impaired driving and driving with a blood alcohol level over 80 mg of alcohol in 100 mL of blood. [ 5 ] While the accused’s arrest occurred at 3:30 a.m., he did not arrive at police headquarters until approximately 4:07 a.m. This delay was caused by the police policy of not leaving the scene of an alcohol-related arrest until the driver’s vehicle has been towed to a

compound for public safety and vehicle security reasons. While it has been argued that this policy is not strictly in conformity with theOntario Highway Traffic Act, I do not find that police compliance with this policy led to a breach of the accused’s s.10(

b) Charter rights.Nor do I find that by not immediately putting the accused in touch with a lawyer, the investigating officers breached that Charter right. Issues [6] There are, I believe, three issues in this matter. The first is whether there is sufficient evidence to convict the accused ofeither or both of the two charges brought against him. The second is whether the accused was deprived of his language rights guaranteedto him by sections 7, 10(

a) and 10(

b) of the Charter. The third is whether the accused’s s. 9 Charter rights were violated. The Accused’s Evidence and the Section10 (

b) Charter Rights [7] I find that there is sufficient evidence to convict the accused of the offences with which he was charged. I cite the toxicologyreport and the intoxilyzer records filed as Exhibits 8, 9, 10 by the Crown in this respect. The investigating officers treated the accusedreasonably and in conformity with required procedure in such matters.

The evidence demonstrates their compliance with such procedures.I find that the police officers who arrested and charged the accused had reasonable cause to stop him and ask him to provide requiredsamples of his breath both at the roadside and later at police headquarters. Their intention to put the accused in contact with counsel wasevident in the process. The attitude of the arresting officers towards the accused is seen in their accommodation of his Vacterl conditionat the time of his arrest.

Vacterl is a condition which, among other symptoms, made breathing and the taking a breath samples difficult. [8] The desire of the Greater Sudbury Police Service officers to provide the accused with counsel of his choice in fact led todelays which were prejudicial to their case against him. Consistent with the accused’s rights and police practice, a number of attemptswere made by officers to put the accused in contact with counsel of his choice and, failing this, to help him secure advice from legal aidduty counsel.

When the accused informed them that he had accidentally hung up on the lawyer he had been speaking with, the policetook steps to reconnect the accused with that lawyer. When they were unable to do so, they assisted him in speaking to a second legal aidlawyer. Without the forensic evidence establishing the accused’s impairment, at the time of his arrest, their case against the accused maywell have failed. [9] The accused’s argument that his

section 10 (

b) Charter rights were prejudiced when the investigating officers did not offerhim a chance to speak to counsel while they were waiting for other officers to arrive and take charge of his vehicle does not establish thatthere was a breach of his

section 10(

b) Charter rights in the circumstances surrounding this case. If there was any fault on the part of thepolice in this respect it was certainly cured by their attempts to give the accused their full cooperation in assuring he had access tocounsel of his choice at the first reasonable opportunity. It must be recalled that in R v Elias; R v Orbanski 2005 SCC 37 ,[2005] 2 S.C.R. 3; 196 C.C.C.(3d) 481, the Court established that in such circumstances, an accused does not have to be advised abouthis right to counsel or to have the right to exercise that right during the roadside screening process.

The Accused’s Language Rights [10] Inherent in a consideration of the legality of the process against the accused is the issue of his language rights when in policecustody. Because the accused did not testify, there was not much evidence with respect to this issue. One is able, however, to discern theeffective breach of the accused’s language rights which runs like a thread through this matter. The accused, a young OntarioFrancophone, seems from the evidence to have a working ability to speak English.

This is clearly my sense of most OntarioFrancophones, except perhaps for those living in communities in northern Ontario north of Sudbury who are mostly French-speaking. Areview of the City of Greater Sudbury’s website clearly establishes the bilingual character of the Sudbury area. That website indicatesthat there are between 27% and perhaps 30% of the area’s Francophones who use French as their principal language at home. In addition,for criminal law purposes and provincial government services, the District of Sudbury is designated for French language use andservices.

This reality has a direct bearing on the issues in this matter. (see

(1) French Language Services Act R.S.O.1990,

Chapter F.32as amen.;

(2) Criminal Code of Canada, R.S.O., c. C-34,S.1 (2018) sections 530-532;

(3) Courts of Justice Act R.S.O. 1990 c. C.43 ...sections 125&126) [11] The accused in the present case is not unlike his compatriots with respect to his language skills. This said, he clearly wasunable to converse with the investigating officers in the French language at the time of his arrest since they did not speak French. Theevidence indicated he was still able and willing to banter with them in English while one of their colleagues was attempting to put himinto contact with a lawyer of his choice. Pleasantness, however, is not the issue here.

The issue throughout is one of providing to theaccused his right to the use of his mother tongue when at jeopardy from the operation of and his involvement in proceedings with thecriminal justice system. The police are surely an integral part of this process and system. [12] When the accused was initially asked which lawyer he wanted to speak to, he asked for three, different French-speakinglawyers in succession. When it was not possible to reach these lawyers and he was offered legal aid duty counsel, he again asked for aFrench-speaking lawyer.

One of these lawyers had what appeared to be an Italian surname, while the other counsel appeared to have anAnglophone background. As noted, however, at the close of the proceedings on the first day of trial, one cannot deduce from a person’scultural background whether he or she has a capability in a language other than their own. The two legal aid lawyers in question didspeak to the police in English. It was also clear from the investigating officer that they received a brief

summary of the case against theaccused in English. We cannot conclude, however, that the Legal Aid lawyers who spoke to the accused either could or could notconverse with him in the French language. [13] The Crown filed in evidence the Alcohol Influence Report of the intoxilyzer technician, Cst. Jacques Roberge. (see Exhibit7) In his Report, Cst. Roberge noted (see page 2 ): Male was spoken to in English but kept responding in French. It appeared as though he understood English. He responded to everyquestion in French even though it was asked in English.

Delay while accused checking list of lawyers for French speaking lawyers. Dutycounsel is later chosen by the accused (sic) advising that the accused speaks French. He stated: it is “more easy” (sic) speaking inFrench.

[14] A review of Cst. Roberge’s evidence indicates that he was asked by Sgt. Lefebvre, the desk Sgt. in the booking-in room, tospeak to the accused in French. It is clear, however from Cst.Roberge’s own notes in the Alcohol Influence Report, that he did not do so,at least not on a continuing basis.

For whatever reason, this officer noted that he continued to speak to the accused in English,notwithstanding that the accused insisted on replying to him in the French language. [15] When prior to his release the accused asked for his release documents to be interpreted to him in French, there was a delay ingetting a French-speaking police officer to attend on him for that purpose. Staff Sgt. Tiplady indicated in her evidence that she had begunreviewing the accused’s brief and starting the release process somewhere around 10:20 a.m.

She further testified that when she started toreview the release documents with the accused and pointed out to him the consequences of non-compliance, he requested a French-speaking officer to interpret the documents for him. That officer did not come immediately arriving not less than one-half hour or solater, with the result that the accused was released only around 11:45 that morning. [16] The many requests by the accused to proceed in the French language, even late in the process, clearly showed his dependencyon the French language.

His request for a French-speaking officer to interpret the release documents to him confirms that when heperceived his freedom to be in jeopardy, even potentially down the road, the accused preferred to speak in the French language. I do not,then, accept that his reply “OK,d’abor” (sic)” to Cst.

Roberge’s questions about whether he understood the two cautions read to him inthe intoxilyzer room signifies that he fully understood what was being said to him . [17] I acknowledge the Greater Sudbury Police Service’s attempts to engage a work force reflective of the linguistic and culturalcomposition of the Sudbury community. It strikes me, however, that notwithstanding this positive orientation on the part of the GreaterSudbury Police Service, the effective working language of the Service appears to be English.

While one may understand why this wouldcome about, communication by everyone with each other being a foremost management consideration, this should not be the primaryconsideration when dealing with members of the Sudbury Francophone community. This approach is clearly evidenced in the AlcoholInfluence Report. Here, we have a Francophone police officer, acting in his capacity as an intoxilyzer technician, dealing with aFrancophone accused.

He, the officer, insists on speaking to the accused in English, while the Francophone accused before himcontinues to reply in French. [18] Notable in the Alcohol Influence Report is the fact that Cst. Roberge wrote down the accused’s French answers in two placesdealing with the giving of primary and secondary cautions. It is reasonable to infer that the officer, able to write in French, was takingpains to note that the accused had, in fact, understood the cautions by directly quoting him.

The accused’s failure to indicate anunderstanding of what was being said would signal a deficiency in the legal requirement that he understand the cautions. The intention ofthe officer seems to have been directed to establishing compliance on his part with a legal requirement and not the linguistic rights of theaccused at that juncture. [19] Again, the fact that Cst. Roberge understood what the accused seemed to be agreeing to is problematic.

While the officer didadmittedly read or explain the cautions to him a third time, in English, one is left with the sense that his limited attempt to communicatewith the accused in French may have been foiled not by language but rather by the accused’s inability to understand the legal meaning ofwhat he was hearing. This seems to be why the officer read the cautions to him a third time but in English, the officer undoubtedlybelieving that the accused had not understood what had been said to him in French!

Persistence in the use of the French language would,inferentially, have been of more use in the situation, French being the accused’s mother tongue and the language he insisted speaking. [20] The failure, then, of the police to communicate with the accused in his official language at key steps in their proceedingsagainst him, including his arrest, testing and release, establishes that the accused’s s.7,s.10 (

a) and, to a lesser degree on the languageissue, his s.10(

b) Charter rights were violated. Here, it is important to recall that in R. v. Pino (2016 ONCA 389 , [2016], 337C.C.C. (3d) 402), drawing on earlier jurisprudence from the Supreme Court of Canada, the Ontario Court of Appeal re-affirmed that thatthere need not be a causal connection between a Charter breach and evidence sought to be impugned in order to satisfy the “obtained in amanner” requirement of subsection 24(2) of the Charter. Speaking for the Court, Laskin, J.

A. stated that the connection could (“wouldbe enough”) be a temporal one, as long as the “discovery of the evidence occurred in the course of a specific transaction”. What wasimportant, he noted, was that the connection between the alleged breach and the impugned evidence was linked by time and context. Inthe present case, the accused’s request at the very end of the process in which he had become involved with the police indicated apersistent and continuing desire to speak and converse in the French language and have what was happening to him said and explainedin that language.

Clearly, the right to counsel enshrined in s.10 (

b) of the Charter is dependent and intimately connected with the need toknow what is actually happening and the ramifications of what is happening at each step of the process. Overholding [21] The last issue to be addressed in this matter is the issue of over-holding which, if established, constitutes a violation of theaccused’s rights under both s.498 of the Criminal Code and, more importantly, s. 9 of the Charter. As noted earlier, I do not find thedelay which occurred at the roadside on the occasion of the accused’s arrest and testing to have been in violation of the accused’s s.10(

b) Charter rights. The time lines followed by the investigating officers were reasonable. That said, one would have reasonablyexpected the accused to have been released from police custody within, say, not more than one-half hour after the conclusion of his lastbreath test which took place at 6:30 a.m. He was, in fact, only released some 5 hours later. [22] In this respect, I carefully reviewed the evidence of Staff Sgt. Tiplady, the officer in charge of operations at policeheadquarters on the occasion of the accused’s arrest on July 9, 2016. Staff Sgt.

Tiplady indicated that she commenced her shift thatmorning at 6:00 am. She related how during the course of the morning she faced a number of pressing issues. These included conductingtwo platoon sign-ins and briefings on a different floor in another part of the building from the floor where her office was located. StaffSgt. Tiplady explained that as the morning unfolded, she had had to deal with flooding caused by one of the prisoners in the cellblock. As well, she also had to deal with an overwrought mother whose daughter had gone missing.

Added to this, she explained, were the e-mails and other paperwork she had had to attend to prior to dealing with the accused’s matter. [23] There is evidence that while Staff Sgt.Tiplady was first made aware of the accused’s presence in the cell block at thebeginning of her shift. She indicated that at some point during the morning, she had been made aware that the accused had a high blood-

alcohol reading when earlier tested. This is not surprising since it is the Staff Sgt. who is in charge of releasing those held overnight incustody. The first opportunity, however, she got to deal with his matter, she testified, was at about 10:20 a.m. It does not appear that ittook Staff Sgt. Tiplady long to review the accused’s file. She was apparently not given much information about the accused’scomportment during his time in detention.

His behaviour, was in fact accommodating and devoid of unacceptable behaviour or behaviourcausing alarm to the officers attending on him. [24] While one can appreciate that the morning of October 9, 2016 was a very stressful morning for Staff Sgt.Tiplady, it is evidentthat she prioritized her other concerns that morning to the release of the accused, notwithstanding the injunction contained in

section 498of the Criminal Code and his rights under

section 9 of the Charter. While Staff Sgt. Tiplady could not, as the administrative officer incharge at police headquarters, ignore her obligations to get her officers on their way for the day and while it is arguable that she had togive priority to the flooding in the cellblock as a work and public safety issue, she clearly did not prioritize the accused’s release.

In fact,she seems to have prioritized all of the other issues and tasks facing her that morning, including the completion of forms and e-mails, tothe accused’s release! [25] As noted earlier, the accused was seen bantering with the arresting officers while in the booking-in area. He also seems tohave been courteous with Cst. Ro​berge during the intoxilyzer testing. Cst. Roberge did not find much to criticize about his deportmentwhen he conducted those tests. Other than the accused swaying slightly on his heels when he stood, Cst. Roberge did not observeunusual or unacceptable behaviour on his

part in the intoxilyzer room. Given the hour of the morning at which all of this was takingplace and the accused’s vacterl (scoliosis), we should not be too surprised about this flaw in his comportment. The accused seems tohave acted appropriately with Staff Sgt. Tiplady and the French-speaking officer who attended to translate and explain the releasedocuments to him.

Section 498 of the Code [26] In cases similar to the present one, s. 498 of the Criminal Code allows a police officer to detain a suspect in custody if that officer has reasonable grounds to believe “it is necessary in the public interest that the person be detained in custody having regard to avariety of circumstances set out in ss. 498(1.1)(a)”. None of these circumstances apply in the present case. [27] It is generally known that when seriously impaired drivers are arrested, they are kept in custody until they “sober up”sufficiently to ensure the safety of the public and their own safety upon release. In Price, 2010 ONSC 1898 , [2010]O.J.No.1587 ON.S.C., the

summary conviction appeal court addressed the issue raised at the trial level as to whether an accused couldbe detained in custody solely because he was found to have a high blood-alcohol reading at the time of arrest. Speaking for the court,Durno J. stated he was inclined to agree with the trial judge that absent other indicia of impairment, detaining an accused in custodysimply because he or she had a high blood-alcohol level was improper. [28] Most importantly, the

summary conviction appeal court took a dim view of the possibility of staying an impaired prosecutionon what the trial judge in the case had earlier described as “a rather minor infringement” of the accused’s Charter rights. Calling for aconsideration of all the circumstances governing the situation in deciding whether or not to detain someone in custody, the court statedthat the officer-in-charge must give consideration to all of the circumstances in making a decision to detain.

The court went on to listthese as follows: “A non-exhaustive list of those considerations would include the accused’s blood alcohol level, whether the accused was charged withimpaired operation, his or her level of comprehension, that the accused is prohibited by statute from driving a motor vehicle (theadministrative license suspension), that the accused’s vehicle would have been impounded, whether there was a reasonable personavailable to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would bebound, whether the accused had a criminal record and if so, its contents, whether the accused has outstanding charges, his or her attitudeand that by drinking and driving the accused has recently exhibited poor judgment.

It is only after an objective analysis of these factorsand any other deemed relevant, that the officer-in-charge can make an informed decision on release. Being guided only by the bloodalcohol level results is too narrow a focus. I agree with the trial judge that if after a consideration of all the factors, the officer determinesthat the blood alcohol level should be given primary weight in the context of all the considerations, a breach may not be established. (para.93 ) [29] Speaking for the Ontario Court of Appeal in R. v. Price, [2010] O.J.

No. 3252, Watt J.A. seems to have agreed with Durno J.that more was needed to detain an impaired person in custody than high blood alcohol readings. Affirming the decision of the courtsbelow and their response to a non-serious violation of the accused’s Charter rights, Watt J. A. observed in Price that the accused had notestablished “arbitrary detention” and that failing this, he could not have succeeded in his request for a stay. The Court reaffirmed theprinciples canvassed by the

summary conviction appeal court on the matter of judicial stays, confirming that stays were a remedy tobe granted “only in the clearest of cases” and specifically when the prejudice to the accused was manifest and no other remedy wascapable of removing that prejudicial effect on the accused. (see para. 69) [30] In the present case, the evidence fails to establish that Staff Sgt. Tiplady turned her mind to the other circumstancessurrounding the accused’s behaviour when first learning of his presence in police cells and his high readings not long after she arrive onshift earlier that morning.

There is, in fact, no indication that she gave the situation any thought until she turned her attention to theaccused’s release at 10:20 a.m. Conclusion [31] The perspective afforded to me by the delay in arriving at this decision gave me cause to think about the vulnerability ofpersons dealing with police power. While not critical of the actions of various officers involved in this matter, it seems that after theaccused was arrested, he became a hapless victim of the system into which he fell by virtue of drinking and driving.

While I consider thatnot each of the various Charter breaches incurred by him may individually merit a stay, the

section 7, 9, 10(

a) and 10(

b) Charterbreaches viewed together give me reason to revisit my own thinking about fairness and the duty of the court to uphold Charter valuesand principles. While acknowledging that the Greater Sudbury Police Service, like other police services in the Province, operates at a

harrowing pace and under a lot of stress, it must still do so under the principles contained in the Charter and the Criminal Code. Failingthis, the courts must ensure that the rights of individuals brought into contact with the police are respected at all times. This isparticularly important for those who are members of a minority group or culture. The Section 24(2) Charter Remedy [32] The applicant seeks by way of a remedy to the breaches of his Charter rights either an exclusion of the evidence or a stay ofthe proceedings.

Were I to exclude the evidence against him, I would have to decide whether doing so would bring the administration ofjustice into disrepute. To determine this, I would apply a Grant analysis (see R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353;(2009)245 C.C.C. (3rd)1 ) to determine whether the seriousness of the Charter breaches and the impact of those breaches on theCharter-protected rights of the accused outweighed the public interest in adjudicating the matter on its merits.

The conclusion I havereached is that the seriousness of the Charter breaches and their impact on the Charter rights of the accused outweigh the right of thepublic to try this matter on its merits in this instance. Admitting the breathalyser evidence under the circumstances would, I find, bringthe administration of justice into disrepute to members of the public aware of the Charter rights at issue in this matter.

Given what I havenoted about the seriousness of the Charter breaches acting together and their impact on the Charter protected rights of the accused, I donot believe that a ss. 24(2) Charter remedy would adequately address the situation. The Section 24(1) Charter Remedy [33] It is unfortunate that many of us are not versed in our history, even modern Canadian history. To those who know thishistory, it will be obvious that throughout the course of our history we have had numerous political-constitutional crises which havethreatened to destroy us as a country.

As with the most recent crisis culminating in a very, very slight majority for the “No” side in the1995 Referendum, the matter of linguistic survival has been very much a linguistic issue on the part of French-speaking Canadians,particularly those residing in the Province of Québec. Blindly, the English-speaking majority has from time to time ignored the linguisticrights of the French-speaking minority. [34] Why we Canadians have continued to ignore our history and continued to expose ourselves to political upheaval anddestruction can largely be explained by an ignorance of our history.

Unconsciously and, unfortunately, sometimes consciously, we haveproceeded to commit the same linguistic mistakes of past generations which have given rise to our various political-constitutional crises.These crises do not emerge suddenly but are based upon countless decisions which eventually have the effect of alienating the country’sminority Francophone population. This is why a breach of linguistic rights guaranteed by the Charter is so very serious. This is whyrespect for linguistic rights guaranteed under the Constitution must be respected and enforced by all branches of government.

In thismatter, and to be precise, it was the Executive Branch of Government or a part of it (the police) which was responsible for breachingthose rights in the case of the accused. That is why a stay of proceedings is the more appropriate remedy, rather than the remedy ofexclusion of the evidence. [36] In my respectful view, the only judicial remedy which will adequately address the Charter breaches is a stay of proceedings. Inthis matter, it is the convergence of the Charter breaches in one, continuing train of events which makes the effect on the accused highlydetrimental.

Of the various breaches infringing on the accused’s Charter rights, I believe that the s.7 and s10 (

a) Charter breaches arethe most serious. I am therefore ordering that there be a stay of proceedings in this matter. Released: Dated at Sudbury this 12th day of March 2018 Justice A.L. Guay, Ontario Court of Justice