R. v. Baba Sar 2013 NBPC 23, 2013 NBPC 23

R. v. Baba Sar 2013 NBPC 23 PROVINCE OF NEW BRUNSWICK File No.: 05777912 PROVINCIAL COURT HER MAJESTY THE QUEEN v. BABA SAR Trial decision delivered by the Honourable Ronald LeBlanc, Judge of the Provincial Court, at Tracadie-Sheila, New Brunswick, on November 1, 2013. Mr. Sar is charged under subsections 253(1) (

b) and 249(1) (

a) of the Criminal Code . Counsel: Sébastien Michaud, for the Crown Luc Roy, for the defendant [TRANSLATION] INTRODUCTION 1 . Mr. Sar is charged with dangerous operation of a motor vehicle and operation of a motor vehicle with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood. The incident leading to the charges took place after Mr. Sar participated in a wine tasting during the FestiVin wine festival in Caraquet. A roadblock was set up not far from the site of the festivities on Du Portage Street. The Crown contends that the manner in which Mr.

Sar was driving as he approached and as he left the roadblock constituted dangerous driving. The Royal Canadian Mounted Police officers at the roadblock recognized Mr. Sar immediately because he was a member of their police force. They decided to stop him. Unable to locate him on area roads, the members involved decided to wait for him at the private driveway to his residence. The accused disputes the reasonable grounds to detain, or the validity of this stop at his residence. He further claims that the police officer was an intruder on his private property, contrary to

section 8 of the Charter . After failing a screening test, Mr. Sar provided two breath samples, which revealed that his blood alcohol concentration was over the legal limit. The defence contends that this was also an arbitrary detention and posits that the results should be excluded from the evidence. THE FACTS 2 . I consider the following facts to have been proven to the required standard for fact determination. 3 . On Saturday, June 2, 2012, there was a wine tasting at the Carrefour de la Mer recreation and tourism complex in the town of Caraquet on New Brunswick’s Acadian Peninsula.

The event was part of FestiVin, an evening during which members of the public were invited to try different varieties of wine in an entertaining atmosphere. Several RCMP members took

part in the evening, and Mr.

Sar was one of them. At the time of the alleged offence, he was posted to the Tracadie-Sheila RCMP detachment. 4 . Constable Bruno Gauthier-Gagné had known the defendant since he arrived in Tracadie-Sheila. He saw the defendant drinking alcoholic beverages during the evening in question. He himself does not like the taste of alcohol and had not had any, except a few samplings of port. As he was leaving the Carrefour at about 1:20 a.m. on June 3rd, he offered to drive Mr. Sar home to Tracadie- Sheila since he also lived in that area. He made the offer because, in his opinion, Mr.

Sar was drunk; he reasoned that Mr. Sar’s ability to operate a motor vehicle was impaired by his alcohol consumption. Mr. Sar said no; he told him that everything had been arranged and that everything was all right. Mr. Sar was still at the FestiVin event when Constable Gauthier-Gagné left at 1:20 a.m. 5 . Constable Sébastien Masse knew the defendant well. He spent a good part of the evening drinking with the defendant. They had known each other since their training in Regina, Saskatchewan. They were both posted to Tracadie-Sheila and ran into each other often, despite being with different units.

They were friends and went out together on weekends. Their social interaction meant that he was in the defendant’s presence when he was sober as well as when he was intoxicated. They twice went to Moncton together for the weekend, and Mr. Sar drank until he reached an advanced state of intoxication on both occasions. During the evening at FestiVin, they drank the wine offered and then discussed it amongst themselves. According to Constable Masse, the defendant was in the same state as he was at the end of the evening, that is, intoxicated. In his opinion, Mr.

Sar had had too much alcohol to drive and his ability to drive was impaired by his alcohol consumption. 6 . Barbara Gaudet was also at the FestiVin event. She had met Mr. Sar at about 9:30 or 9:45 p.m. She knew him previously, but he was not a close friend. She confirmed that Mr. Sar was with his friends from the police force. She could not drive because she had had too much to drink, so she accepted when Mr. Sar offered to drive her home at the end of the evening. According to her, Mr. Sar seemed all right to drive.

She had spent time with him during the evening, both smoking outside the building and during the period when he was drinking wine, followed by water, at the FestiVin event. According to her testimony, they left at about 12:45 or 1:00 a.m. In her opinion, his speech was fine, he was not intoxicated and she did not feel that she was in danger while he was driving his car. She could not estimate the speed of the vehicle as it approached the roadblock because she was sending a text message to a friend at the time.

She remembers that a police officer at the roadblock, who did not look very happy, told the defendant to slow down and to be careful as he drove off. 7 . Ms. Gaudet did not notice that his driving was out of the ordinary while she was in Mr. Sar’s car, and she never felt that she was in danger either as they approached the roadblock or during the time she was a passenger in his vehicle. At no time did she feel that his speed was excessive. 8 .

Constable Jean-François Dulac, who has been a peace officer since June 5, 2006, was the team supervising officer for the area on the evening of Saturday, June 2 nd , and Sunday, June 3 rd , 2012. At about 12:30 or 1:00 a.m. on June 3 rd , he set up a roadblock on Du Portage Street in Caraquet. It was located between 700 and 800 metres from the intersection of St-Pierre Boulevard West and Du Portage Street. Du Portage Street runs north to south, heading towards Tracadie-Sheila. It is a paved road and in good condition.

There was a bicycle crossing running east to west and crossing Du Portage Street at the location of the roadblock. The crossing is clearly shown in photo 11 of Exhibit C-1. Solid yellow lines run down the middle of the road at this location. There is also space on the road, created by a separation of the yellow lines, to allow northbound traffic to turn left slightly further along, beyond the bicycle crossing. This division is very evident in photo 7 of Exhibit C-1. Going southbound down Du Portage Street, there is a small hill, which is shown in photo 8.

Looking at photo 8, Constable Dulac testified that the distance between the top of the hill shown in photo 8 and the location of the bicycle crossing is approximately 100 to 125 feet. 9 . Constable Dulac knew that FestiVin was taking place at Carrefour de la Mer that evening. 10 . At the roadblock, peace officers inspected drivers’ documents, checked for alcohol in vehicles and scrutinized drivers’ level of sobriety.

During the evening, before setting up the roadblock, Constable Dulac had driven around the Carrefour parking lot in his patrol car several times to discourage drivers leaving the FestiVin from driving drunk. 11 . Three police cars were involved in the roadblock - those of Constables Jean-François Dulac, Martin Saulnier and Raphael Mallet. They were all in uniform. They had parked their police cars on the shoulder in order to avoid blocking traffic lanes. Emergency lights identifying the vehicles as police cars were turned on and operating. The roadblock stopped all vehicles approaching in both directions.

The officers stood in the middle of the road and used their flashlights to signal drivers approaching the roadblock to slow down. 12 . The road in question, Du Portage Street, is the main road leading from Caraquet to Tracadie-Sheila. The speed limit in the

area of the roadblock was 50 kilometres per hour. Further south, the legal limit increases to 70 and even further to 90 kilometres per hour. Heading north, towards Caraquet, the limit was 50 kilometres per hour from the roadblock to the main intersection. 13 . Constable Saulnier had left the scene before Mr. Sar reached the roadblock. He had stopped a vehicle with a drunk driver at the wheel. He had taken him to the police station. A tow truck had been called to tow the individual’s vehicle. The tow truck was parked by the side of the road, facing north, in front of the other police car parked there.

The truck also had its emergency lights on. 14 . At about 1:40 a.m., Constable Dulac was checking a vehicle that was headed southbound towards Tracadie-Sheila. The vehicle was being driven by Marc-Antoine Losier but belonged to his passenger Gabriel Thériault (hereinafter “Thériault’s vehicle”). While Constable Dulac was in the middle of the road, at the driver’s door, Constable Mallet shouted at him to [TRANSLATION] “Get away from there; be careful,” or words to that effect. He heard the sound of an engine and looked north. He noticed that a BMW (hereinafter “the BMW”) was fast approaching.

He explained that the BMW’s speed was clearly above the legal limit in that area, a speed “nearly double” the legal limit of 50 kilometres per hour. He feared for his life as well as for his safety and the safety of both passengers in Thériault’s vehicle. He felt as though the BMW was going to crash into Thériault’s vehicle, so he shouted at them to watch out and to brace themselves, an expression commonly used to mean “Hold on!” He was so concerned for their safety that he immediately shouted at them to leave. Wanting to get out of danger, he moved away. The BMW was coming from the top of a hill.

It was travelling so fast that the front of the vehicle was shaking or moving somewhat. After shouting at Thériault’s vehicle, he turned back towards the BMW. He saw that the BMW was coming to a stop. 15 . Baba Sar was driving the BMW. Constable Mallet had also heard the sound of the engine, which, according to him, was highly audible and clear. The sound had caught his attention. He explained that the sound he heard coming from the BMW was the sound of acceleration and not of deceleration. According to Constable Mallet, the BMW was travelling at a speed of at least 120 kilometres per hour.

As it decelerated, he saw the front of the vehicle drop towards the ground as a result of the quick reduction in speed caused by applying the brakes. The vehicle stopped suddenly, and struggled to stop. Constable Mallet was very frightened. At the time, he thought that the BMW was either going to hit the vehicle in front of it in its lane or pass that vehicle on the left, where he was standing on the road. He too reacted by moving away. 16 . The defendant’s BMW managed to stop 20 to 25 feet from Thériault’s vehicle. There was no collision. Constables Dulac and Mallet approached the BMW, Mallet at a run.

They both had a hand on their firearms but did not unholster their pistols. 17 . Constable Mallet approached on the driver’s side, telling him to turn off the engine. When he bent down towards the driver’s window, he recognized Mr. Sar. Both he and his passenger were laughing. Mr. Sar said [TRANSLATION] “I just wanted to scare you a little” or “play a little joke,” or words to that effect. Constable Mallet, who was beside himself, replied [TRANSLATION] “Get out of here, you shouldn’t do things like that,” “don’t ever do that to me again” and “get the hell out of here,” or words to that effect. 18 .

Constable Dulac did not take

part in this conversation, nor did he deal with Mr. Sar or his vehicle. He approached another vehicle that was arriving at the roadblock. He left Constable Mallet to deal with Mr. Sar. 19 . Constable Mallet, for his part, decided to let his co-worker go and to deal with the matter later, instead of saying something that he might regret later. He headed south as another vehicle was approaching from that direction. Mr. Sar moved forward and passed the roadblock. 20 . Constable Mallet heard the same engine sound as before, i.e., the sound of the BMW leaving the roadblock.

He saw it pass what he estimated to be two or three southbound vehicles. He estimated that Mr. Sar had the [TRANSLATION] “pedal to the metal” when he moved back into his lane. He stated that he had heard the engine of Mr. Sar’s vehicle roar for five or six seconds as he passed the other cars. He explained that, in his opinion, Mr. Sar was travelling at between 130 and 140 kilometres per hour, [TRANSLATION] “guaranteed,” while passing. At that point, he decided that Mr. Sar had to be stopped. He ran to his car, turned on his siren and emergency lights, made a U-turn and followed Mr. Sar’s vehicle.

He wanted to stop Mr. Sar because, in his words, [TRANSLATION] “something wasn’t right”: he was travelling at an incredible speed when he reached the roadblock, had been reprimanded, left [TRANSLATION] “at top speed” with a passenger on board and had passed other vehicles inappropriately. 21 . After being told to leave the roadblock, Mr. Losier and Mr. Thériault proceeded southbound on Du Portage Street. They were going to Shippagan. Mr. Losier was travelling at between 70 and 80 kilometres per hour when Mr. Sar’s vehicle passed him. The speed limit in the area was 70 kilometres per hour.

He estimated the defendant’s speed at 100 kilometres per hour at the time he was passed. There was no oncoming traffic. The police car passed him nearly a minute later. Its siren and emergency lights were on. He

had already lost sight of the BMW when the police car passed him. He thought he was 300 metres from the roadblock when the BMW passed him, because he could still see the roadblock in his rear-view mirror. Mr. Sar’s vehicle was not zigzagging on the road. He added that Mr. Sar [TRANSLATION] “must have had it to the floor” as he passed his car and that he was without a doubt going between 100 and 150 kilometres per hour. After being passed, he estimated that Mr. Sar might have increased his speed to 200 kilometres per hour, but he could not accurately estimate the speed because Mr.

Sar was moving away from him. 22 . Mr. Thériault, the passenger in the same vehicle, neither saw nor heard Mr. Sar arrive at the roadblock. He did, however, notice his presence at the roadblock. After being told to leave, they continued on their way. Very shortly thereafter, he saw the BMW in his rear-view mirror. He recognized it by its headlights. The BMW was following them very closely. He explained that the vehicle was tailgating them, but not for very long. Once an oncoming vehicle passed them, the BMW overtook them. He estimated their speed at between 70 and 80 kilometres per hour when they were overtaken.

He could not put an exact figure on the speed of the BMW, but he thought that it was speeding. 23 . Constable Mallet considered Mr. Sar’s BMW, which he was pursuing, to be a danger to other vehicles and to the passenger in the car. Despite his efforts, he was unable to catch up with the vehicle. He caught up with Thériault’s vehicle, but not Mr. Sar’s. He contacted other RCMP members in the area in an effort to locate it. That contact was made via radio telecommunications from the patrol cars. They were recorded by the Fredericton communications centre.

The recording of the communications in question was marked as Exhibit C-2 at trial. 24 . Since Mr. Sar contends that there were no reasonable grounds for detaining him or for stopping him at his residence, and since all of the grounds for the eventual stop by Constable Martin Allaire feature in the content of the peace officers’ communications, I am going to go over part of the conversations that are, in my opinion, relevant. The Exhibit does not indicate the time of the conversations. The radio communications between the officers were heard by all of the officers in the area.

THE RADIO COMMUNICATIONS BETWEEN THE PEACE OFFICERS - EXHIBIT C-2 25 . First, Constable Mallet asked Constable Trudel if there was a member from Tracadie on Route 11. Constable Kevin Pung replied that he could get there fairly quickly and asked what was going on. Constable Mallet replied: [TRANSLATION] “I have a white BMW, we know it well; we might have to stop it.” His police car’s siren could be heard clearly during this communication. Constable Trudel asked him what was going on. Constable Mallet asked Constable Pung to call him on his cell phone. 26 .

Constable Mallet explained that he did not want members of the public to find out, by listening to these communications using their antennas or scanners, that this was an RCMP member. The telecommunications centre would not record a cell phone conversation, and that is why he asked the members to contact him on his cell phone for further details. 27 . Constable Mallet explained: [TRANSLATION] “There’s a car that we know well, white BMW, when we had a roadblock up; anyway, I’ll explain it to you later, but it took off like a shot.

Anyway, we have to stop that car.” Constable Pung replies: [TRANSLATION] “Keep me informed…I’m going by the Industrial Park.” Constable Mallet replied: [TRANSLATION] “I’ll go by Route 11; he has to go that way to get home.” Constable Trudel added that she would go down 11 to Sheila, in that area. She asked if he would be going down that far.

Constable Mallet replied: [TRANSLATION] “Yes, you know him well, Trudel; I guarantee that you know him well, white BMW.” She replied that she was going to give him a 21, since [TRANSLATION] “it isn’t coming to me at all.” Constable Mallet replied: [TRANSLATION] “I can’t know more than you do...Call me.” 28 . Constable Dulac warned Constable Mallet to be careful because of the moose on the road. Constable Mallet replied that he understood, adding that he did not think he was even close to catching up with him. Constable Dulac replied that members from Tracadie would have more luck. 29 .

Constable Steven Breau asked: [TRANSLATION] “Is it white or silver?” Mallet replied: [TRANSLATION] “Yeah, that’s right, it’s silver; anyway, we’re talking about the same car.” He continued, saying that he is in Pokemouche and that he is not even close to catching up with the car. He was asked: [TRANSLATION] “Do you have it in sight?” He replied: [TRANSLATION] “No, the car opened up at Portage, uh, Village Blanchard, and it’s been gone ever since.” 30 .

Constable Pung told him: [TRANSLATION] “Ralph, you may be better off stopping him in Tracadie, catching him from the other side.” Mallet replied that, yes, this is what he is going to do, but that he is going to keep going for a while, that he is not going fast,

just in case the car has slowed down, although he highly doubted it, adding: [TRANSLATION] “And, Kevin, I’m going to continue until we intercept him. We need to have a chat.” 31 . Constable Mallet asked Constable Pung if he has a Draeger with him. The Draeger is an approved screening device. Constable Pung replied that he had one. It should be noted that Constable Mallet had no reason to suspect the presence of alcohol in the defendant’s body. It should further be noted that Constable Martin Allaire did not recall this communication from Constable Mallet regarding a Draeger. 32 .

Constable Steven Breau added: [TRANSLATION] “Yeah, if I were you, Ralph, I would make sure, I would arrange to send a member directly to his place.” An officer replied: [TRANSLATION] “We’ll go, Steven; he isn’t too far.” 33 . On track 15 of C-2, a peace officer can be heard telling Constables Steven Breau and Mario Maillet that he was in Tracadie Beach and asking if there was someplace he could go where he would be closer to where Mr. Sar lives. Someone asked for his telephone number, thinking he knew who was involved.

Constable Mallet gave the cell phone number, adding: [TRANSLATION] “the initials are Bravo Sierra,” indicating that the initials of the person they were seeking were B.S. 34 . On track 16 of C-2, Constable Trudel indicates that she will go directly to the house. Constable Stewart Davidson indicates that they are going with her and are not far away. Constable Davidson was a passenger in the car driven by Constable Allaire. Constable Davidson indicates that they are at the Rivière-à-la-Truite exit. Constable Mallet states that there was a passenger in the vehicle with Mr.

Sar and that he did not know whether he was going directly home or taking her to her place. Constable Trudel asks if the woman’s initials were “Sierra, Mike” and Mallet replies that he does not think so. 35 . Constables Ouellette and Trudel later ask to speak with Constable Mallet over the telephone. Constable Mallet gives his cell phone number. 36 . On track 21, Constable Davidson indicates that they are going to need a “61” for the police station in Tracadie. Constable Mallet testified that a “61” is a qualified approved instrument operator. THE APPROVED SCREENING DEVICE DEMAND 37 .

Constable Martin Allaire had known the defendant since he was posted to the Tracadie-Sheila police station. They met at work. At about 1:40 a.m., he heard Constable Mallet on the radio asking Constable Trudel’s position. He heard his siren over the air waves and the announcement that he was in pursuit of a white BMW that they had to intercept. He heard one of the officers ask whether it wasn’t actually a grey car, as well as Constable Mallet’s confirmation that the car was grey. As soon as Constable Mallet confirmed that it was a grey BMW, he knew it was defendant Baba Sar’s vehicle.

Constable Isabelle Trudel was Mr. Sar’s supervisor within the RCMP when he arrived in Tracadie-Sheila, and he made the connection between Mr. Sar and Constable Trudel as a result. He knew why she knew him so well, having been his supervisor. 38 . Constable Allaire was listening to the radio conversation. He testified that his understanding of the communications was that there had been a roadblock, that there had been an incident at the roadblock involving Mr. Sar, that Mr. Sar had left the roadblock and that Constable Mallet was trying unsuccessfully to intercept him. 39 .

Constables Davidson and Allaire were not far from Mr. Sar’s residence. Although he did not know the exact details, Constable Allaire had understood from Constable Mallet’s tone of voice that it was a serious incident and that he was concerned about the situation. It was when one of the peace officers suggested to Constable Mallet that he should be intercepted at home that Constables Allaire and Davidson decided to go to Mr. Sar’s residence. They already knew where to find that residence on Boisjoli Street in Tracadie-Sheila. 40 . Constable Allaire was in civilian clothing, in an unmarked police car.

He had his firearm and badge with him. 41 . At the residence, he parked his car in Mr. Sar’s private driveway. On arriving, he noticed that there was no vehicle in the

driveway and that there were no lights on in the residence. He could not explain why he decided to park the police car in the private driveway instead of on the street. Constable Trudel arrived approximately 30 seconds later. They discussed the matter amongst themselves. Constables Trudel and Davidson did not feel comfortable dealing with Mr. Sar, so Constable Allaire decided that he would handle it. 42 . At about 2:00 a.m., Mr. Sar’s BMW arrived from Du Centenaire Street. Constable Allaire signalled him to stop. He parked in front of his house, by the side of Boisjoli Street.

He was accompanied by a female passenger. Constable Allaire approached the driver’s side, showed his badge and asked Mr. Sar if he knew him. Mr. Sar replied that, yes, he knew him. He called him by his first name. He had the window down. Constable Allaire told Mr. Sar that he was there because of what had happened at the roadblock in Caraquet. Mr. Sar started laughing. Constable Allaire, leaning towards him, noticed that his eyes were red and glassy. At the same time, he detected the smell of alcohol on Mr. Sar’s breath. He told Mr. Sar that he had detected the smell of alcohol and that Mr.

Sar should follow him to check his sobriety. They headed towards Constable Allaire’s unmarked car, which was still parked in the same location in the defendant’s private driveway. Constable Allaire noticed that Mr. Sar’s gait was slightly unsteady. He stumbled once. He was placed in the back seat of the vehicle. 43 . It should be noted that Constable Allaire testified under cross-examination that he could easily see, even in the courtroom, that Mr. Sar had red eyes. He did not know whether or not Mr. Sar wore contact lenses, which might have explained the glassy eyes. 44 .

Constable Allaire asked Constable Davidson to find him an approved screening device, since he did not have one in the vehicle, which he did. The defence has not raised the absence of an approved screening device for this short period as a line of defence. During this time, Constable Allaire, who was taking notes, noticed that the smell of alcohol coming from Mr. Sar was very strong. At 2:04 a.m., Constable Allaire read him the demand to provide a breath sample for analysis by means of an approved screening device. That device was the Alcotest 7410 GLC.

Constable Allaire is qualified to operate the device in question, having received training on June 26, 2006. He explained the possible results to Mr. Sar, despite assuming that he would have been familiar with the device’s operation. The device was calibrated for 100 milligrams of alcohol in 100 millilitres of blood. According to Constable Allaire, the device was in good operating condition. 45 . On the third attempt, at 2:07 a.m., the defendant failed. The result was an “F,” which, according to Constable Allaire, meant that he had reasonable and probable grounds to believe that Mr.

Sar had committed an offence under

section 253 of the Criminal Code owing to the alcohol in his body. He showed him the result. Mr. Sar, laughing, said: [TRANSLATION] “Perfect, let’s go to the station.” THE APPROVED INSTRUMENT DEMAND 46 . Constable Allaire proceeded to read the demand for breath samples for analysis by means of an approved instrument. The defence concedes that the reading of the demand at 2:08 a.m., as well as the caution and right to a lawyer were in good and due form, and he waived their reading. Mr. Sar decided that he wanted to speak with a lawyer.

They left the scene at 2:11 a.m. and reached the Tracadie-Sheila police station at 2:12 a.m. 47 . Between 2:13 and 3:25 a.m., Mr. Sar spoke privately with his lawyer. At 3:29 a.m., he was introduced to Constable Hans Ouellette, the qualified technician. Mr. Sar had not had anything to drink between 2:00 and 3:29 a.m. 48 . At 3:41 a.m., on the fifth attempt, the qualified technician got the first sample from Mr. Sar that he considered suitable. The second proper sample was obtained at 4:01 a.m. Constable Allaire was present when both samples were taken. 49 .

At 4:11 a.m., the qualified technician submitted his Certificate of Qualified Technician to Constable Allaire. At 4:20 a.m., Constable Allaire read it to him, as well as the notice of intention to produce it in evidence at trial. After reading it, he signed the bottom part of the document, i.e., the notice of intention, adding the date, time and Mr. Sar’s address. 50 . After signing the document, Constable Allaire made photocopies, which he compared with the original to ensure their accuracy, and gave one certified true copy to the defendant at 4:24 a.m.

That document was received in evidence and marked as Exhibit C-4. FINDINGS OF FACT AND OF LAW

51 . Those are the facts I will be using as basis for deciding this matter. I draw the following inferences based on those facts. 52 . I give little weight to Constable Gauthier-Gagné’s opinion regarding the defendant’s level of intoxication. In reality, it was nothing more than an inference he drew without establishing a basis to support his opinion. He could not recall noticing any sign or symptom of intoxication in Mr. Sar to support that conclusion. He simply maintained that Mr. Sar was not his usual self. 53 . It is my opinion that Constable Mallet was mistaken when he testified that Mr.

Sar’s vehicle passed two or three vehicles as it left the roadblock. According to the testimony of witnesses Losier and Thériault, their vehicle was the only one Mr. Sar’s vehicle passed. However, I do not view this mistake as diminishing or weakening the probative force of his testimony. His attention would have been focused primarily on the speed of Sar’s vehicle, rather than on the number of vehicles it was passing. 54 . I give little weight to Marc-Antoine Losier’s testimony regarding the speed of Mr. Sar’s vehicle. He testified that the car was being driven at a speed between 100 and 200 kilometres per hour.

The range is so great that I have to find that he could not reliably estimate a speed. 55 . I do not consider Barbara Gaudet’s testimony on certain significant points to be very reliable. First, she had had so much alcohol that she felt unable to drive her car. Moreover, she says that she cannot estimate the speed of the defendant’s vehicle as it approached the roadblock, a vehicle in which she was a passenger, because she was sending a text message on her telephone and is not good at estimating speeds. In my opinion, Mr. Sar’s car was going so fast that she could not have failed to notice it.

She recalls hearing the constable at the roadblock tell him to slow down and be more careful, but does not remember Mr. Sar saying that it was just a joke and that he just wanted to give them a bit of a scare. I am satisfied that Mr. Sar made those statements, and I find it slightly unusual that she did not remember them. I also find that on two occasions her testimony contradicted a statement she had previously made to the RCMP. On the first point, according to her statement, she reported that Mr.

Sar was doing [TRANSLATION] “slightly more than the speed limit, but not to the extreme” as he approached the roadblock, whereas at trial she said that she could not estimate his speed at all because she was sending a text message at the time. On the second point, she had indicated in her statement that Mr. Sar accelerated quickly over some distance, but not for long, as he left the roadblock, whereas at trial she maintained that she had no recollection of saying as much to the police officer and that, in her opinion, they did not leave the roadblock quickly.

She was also unsure of whether the speed limit at the roadblock was 50 or 70 kilometres per hour, although she had indicated 50 in her statement. Finally, Ms. Gaudet was wrong about the time at which they approached the roadblock. It was not 12:45 or 1:00 a.m. Rather, it was 1:40 a.m. I cannot accept Ms. Gaudet’s testimony about Mr. Sar’s driving as he approached and left the roadblock, owing to her memory lapse, the contradictions between her testimony and her subsequent statement, and her alcohol consumption, moderate though it may have been.

On these particular points, I accept instead the testimony of the two police officers who were on the scene. 56 . As for Constable Sébastien Masse, I am of the view that his testimony regarding Mr. Sar’s excessive alcohol consumption can be given some weight. I base this finding on the following facts: he was with Baba Sar throughout the evening; he personally saw Mr. Sar drinking alcoholic beverages; he had seen him drunk in the past; he knew him when he was intoxicated; and he had noticed a change in Mr. Sar’s behaviour and in the way he spoke as the evening progressed.

He was therefore able to form an opinion about Mr. Sar’s inebriation through visual observations and personal knowledge. I am not convinced, however, that his conclusions that Baba Sar was intoxicated, that he had had too much alcohol to operate a motor vehicle and that his ability to operate a motor vehicle was impaired by his alcohol consumption can be accepted without reservation. He himself was intoxicated as a result of his alcohol consumption, and I wonder about his ability to arrive at such conclusions. It should also be noted that Mr.

Sar did not display any erratic, disorderly or abnormal behaviour, notwithstanding the speed at which he drove at the roadblock. He was not driving erratically. It should also be recalled that Ms. Gaudet never felt that she was in danger while she was a passenger in the vehicle operated by Mr. Sar. 57 . I am satisfied that Mr. Sar had had a fairly significant amount of alcohol in the course of his evening at FestiVin.

However, I cannot find that he drove while his ability to do so was impaired by that alcohol consumption, either at the time he approached the roadblock at 1:40 a.m. or at the time he was stopped on Boisjoli Street in Tracadie-Sheila at 2:00 a.m. 58 . I am satisfied that Baba Sar was travelling at between 100 and 120 kilometres per hour as he approached the roadblock. The speed limit in that area was 50 kilometres per hour. The roadblock was well lit and visible from quite a distance, far enough to allow traffic from Caraquet to approach it at a normal speed.

It is my view that Baba Sar was driving at that speed deliberately in order to scare and disturb his co-workers. His intention was to play a joke on them by speeding towards them and suddenly applying the brakes in order to upset them and make them afraid for their safety. He accomplished his goal. Constables Mallet and Dulac were both very frightened by this manner of driving. They moved out of the way to avoid being hit. Constable Dulac would not have told the passengers in Thériault’s vehicle to brace themselves if he had not been concerned about a collision. Both police officers headed towards Mr.

Sar’s car with a hand on their firearms because of the incident that had just transpired. 59 . I am satisfied that Baba Sar left the roadblock abruptly. He quickly caught up with Thériault’s vehicle and followed it very

closely for a short period. Once the oncoming vehicle had passed them, he overtook Thériault’s vehicle, which was travelling at between 70 and 80 kilometres per hour in a 70 zone. Mr. Sar was driving at a speed in excess of 100 kilometres per hour when he passed the other vehicle and his speed increased thereafter. I accept Constable Mallet’s testimony that he was travelling at approximately 130 to 140 kilometres per hour. 60 . There is no contradiction between the testimony of Gabriel Thériault and that of Marc-Antoine Losier to refute their testimony or call those facts into question. 61 .

There is no evidence of Mr. Sar speeding from the time Constable Mallet lost sight of him until he reached his residence, despite the fact that Constable Mallet was pursuing him. 62 . The distance between the roadblock and the top of the hill on Du Portage Street, shown in photo 8 of Exhibit C-1, is more than 100 to 125 feet, the distance estimated by Constable Dulac. I am satisfied that Constable Dulac was mistaken in his estimation of the distance between the two points.

In my opinion, the distance between the top of the hill in question and the bicycle crossing where the roadblock was located is much greater than the one indicated by Constable Dulac. The distance is shown by reference to photo 7 of Exhibit C-1. This photo shows the road in question in a northerly direction, as well as the top of the hill in question. We can easily estimate the distances involved between the hill and the bicycle crossing from this photo. It unequivocally speaks to a distance much greater than the one indicated by Constable Dulac.

In support of my deduction, I note that the authorities installed a bicycle crossing at this location, which would be illogical if the distance between the top of a hill and the bicycle crossing were only 125 feet (38 metres) in a 50-kilometre-per-hour zone. I also note that Constable Dulac testified that the vehicles operated by Constable Bruno Gauthier-Gagné, Marc-Antoine Losier and others arrived at the roadblock as usual, all coming from the north.

I am, therefore, satisfied that the distance from the top of the hill to the roadblock is such that it enabled drivers to stop easily, without difficulty, at the roadblock the RCMP had set up on the morning of June 3, 2013. 63 . I am also satisfied that the emergency lights on the police vehicles and tow truck that were at the scene of the roadblock when Baba Sar was headed towards that stop were clearly visible, and distinctly and expressly indicated the roadblock in question. 64 . At 2:00 a.m., Constable Allaire was parked in the defendant’s private driveway. He was waiting for Mr.

Sar to arrive, but had no way of knowing whether or not the defendant would go there, since the officers did not manage to locate him and he had a passenger with him. When he saw Mr. Sar’s vehicle arrive, he signalled him to stop. He was on Boisjoli Street at the time. Mr. Sar stopped his car on Boisjoli Street. 65 . I am satisfied that at the time of the stop on Boisjoli Street in Tracadie-Sheila, Constable Allaire was investigating what had happened at the roadblock in Caraquet.

He had no other reason to investigate Baba Sar: he had no reasonable and probable grounds to believe that he had committed a criminal offence at the roadblock or thereafter; he did not see him commit an offence under the Motor Vehicle Act or any other offence; he did not stop his vehicle in order to determine if he should submit to the test set out in

section 254 of the Criminal Code , as allowed by subsection 310.002(2) of the New Brunswick Motor Vehicle Act ; and he was not stopping his vehicle for the purposes of subsection 15(

d) of the same Act, which empowers peace officers to require the drivers of vehicles to stop and present their documents for inspection. 66 . I am satisfied that Constable Allaire had reasonable grounds to suspect the presence of alcohol in the defendant’s body owing to the smell of alcohol on his breath and to the fact that he had glassy eyes and a slightly unsteady gait, and that he stumbled. These grounds are sufficient to meet the requirements of subsection 254(2) of the Criminal Code . 67 .

In my opinion, the demand Constable Allaire made under subsection 254(3) of the Criminal Code to provide breath samples by means of an approved instrument, was well founded. Constable Allaire had reasonable and probable grounds to believe that an offence had been committed under

section 253 of the Criminal Code . I make this finding of fact owing to the personal observations of Constable Allaire and to the fact that the approved screening device yielded a result of “F.” This result, which means failure, indicated to Constable Allaire that the defendant’s blood alcohol concentration exceeded 100 milligrams of alcohol in 100 millilitres of blood. The result was obtained using an approved screening device, the Alcotest 7410 GLC, operated by a peace officer qualified to do so. Subjectively, Constable Allaire honestly believed that Mr.

Sar was driving a motor vehicle at a time when his blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of blood and, objectively, this belief was fully justified. 68 . The defendant was advised of his right to counsel as required under the Canadian Constitution. Mr. Sar exercised his rights in private.

69. The relevant Certificate of Analysis admissibility requirements, as described in

section 258 of the Criminal Code, were allmet. The breathalyzer results revealed a blood alcohol concentration above the legal limit. THE POSITION OF THE PARTIES 70. Defence counsel contends that the Crown did not present sufficient evidence for the judge to find that Mr. Sar had committedthe offence of dangerous driving. He submits that Ms. Gaudet’s testimony refutes any allegation of excessive speed at the roadblock andthat the testimony of the other individuals present was sometimes contradictory, dubious and equivocal. He is asking me not to speculateon the issue of speed.

He contends that the peace officers did not believe, at the scene, that Mr. Sar had committed the offence ofdangerous driving; if that had been the case, they would have arrested him straight away at the scene and would not have allowed him toleave. He is of the view that the court must entertain a reasonable doubt about this charge. 71. As for the charge of driving with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres ofblood, the defendant contends that stopping the defendant was unlawful because Constable Martin Allaire had no reasonable grounds todetain him.

He submits that Constable Allaire had no reason to go to the defendant’s residence to await his arrival, either owing to thefact that there was no evidentiary basis for him to conclude that the individual being sought by Constable Mallet was defendant BabaSar, or owing to the fact that he could not reasonably come to the conclusion that the defendant had committed some offence. 72.

He also argues that the peace officer could not park his vehicle on the defendant’s private property because he had nospecific purpose for being there and that he was an intruder owing to this lack of justification, resulting in a breach of sections 8 and 9 ofthe Charter. 73. Finally, he argues that the reasoning suggested in Searle v. R.

(2006) N.B.C.A. 118 applies. He reasons that this was awarrantless search for which no Charter violation is engaged. The prosecution is required to meet certain criteria for any warrantlesssearch and those criteria were not met in this case. Since the admissibility criteria for a warrantless search were not met, the demandunder subsection 254(3) of the Criminal Code was invalid. This being the case, the presumption in

section 258 does not apply, requiringthe prosecution to present analyst evidence to extrapolate the results obtained, which was not done. 74. The Crown contends that R. v. Roy

(2012) S.C.C. 26 deals with the requirements for the charge of dangerous driving. Histheory of this charge is as follows: that in the case at bar, the defendant’s speed as he approached the roadblock, sudden braking, quickacceleration and manner of driving as he left the roadblock constitute a marked departure from the standard of care a reasonable personwould observe under the same circumstances. He posits that this was deliberately dangerous driving and not driving resulting from amomentary lapse of attention. 75. As for the charge under paragraph 253(1)(

b) of the Criminal Code, the Crown maintains that this was a case of hot pursuitand that the communications between the peace officers were sufficient to identify the defendant as the person being sought. Hecontends that Constable Allaire knew who was being sought and had sufficient grounds to detain the individual in question. 76. The prosecutor is of the view that this was an investigative detention as explained in R. v. Mann (2004) 2004 SCC 52 , 21 C.R. (6th) 1, [2004] 3 S.C.R. 59, 185 C.C.C. (3d) 308 (S.C.C.).

Based on Mann, he contends that the defendant’s vehiclecould be stopped even if Constable Allaire had no reasonable and probable grounds to believe that he had committed a criminal offence. 77. According to the Crown, the fact that Constable Allaire parked in the defendant’s private driveway is immaterial since thedefendant was stopped on a public street. Constable Allaire also informed Mr. Sar of the grounds for his detention - that it was becauseof what had happened at the roadblock in Caraquet, which he says suffices. The Crown, therefore, contends that there was nounreasonable search in breach of

section 8 of the Charter or arbitrary detention in breach of

section 9. Even if there was an arbitrarydetention in this case, that detention was only momentary and the evidence should nevertheless be admitted in accordance with theprinciples set out in R. v. Grant 2009 SCC 32 , [2009] 2 S.C.R. 353, 66 C.R. (6th) 1, 245 C.C.C. (3d) 1. 78. Finally, the Crown argues that R. v. Searle does not apply in the case at bar: either there was a Charter breach or there wasnot. If so, redress is found in the Charter. If not, there is no reason to grant relief by other means.

I. THE DANGEROUS DRIVING CHARGE A THE CASE LAW 79. The Supreme Court of Canada recently considered and ruled on the essential elements of the offence of dangerous driving inR. v. Roy [2012] S.C.C. 26. As Cromwell J. points out at para. 2, while addressing the prohibited conduct element, which is the faultelement of the offence of dangerous driving: 2 “Defining and applying this fault element is important, but also challenging, given the inherently dangerous nature ofdriving…”. 80.

Roy reminds us that the judge is strictly prohibited from inferring simply from the fact of driving that was, objectivelyviewed, dangerous, that the accused’s level of care was a marked departure from that expected of a reasonable person in the samecircumstances (see para. 24). 81. Cromwell J. summarized the applicable principles as articulated in R. v.

Beatty, 2008 SCC 5 , 2008 S.C.C. 5, [2008]1 S.C.R. 49, at para. 28 of Roy: “…The actus reus of the offence is driving in a manner dangerous to the public, having regard to all the circumstances, includingthe nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at thetime was or might reasonably have been expected to be at that place (s. 249(1)(

a) of the Criminal Code). The mens rea is that thedegree of care exercised by the accused was a marked departure from the standard of care that a reasonable person wouldobserve in the accused’s circumstances (Beatty, at para. 43). The care exhibited by the accused is assessed against the standard ofcare expected of a reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by theaccused constitutes a marked departure from that norm.

While the distinction between a mere departure from the standard ofcare, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack ofcare must be serious enough to merit punishment (para. 48)…”. 82. Cromwell J. then carefully reviewed the fault requirement for dangerous driving. The following is set out at para. 30: 30. “…The distinction between a mere departure, which may support civil liability, and the marked departure required forcriminal fault is a matter of degree.

The trier of fact must identify how and in what way the departure from the standard goesmarkedly beyond mere carelessness.” 83. The actus reus of the offence is described in paragraph 249(1)(

a) of the Criminal Code, which provides as follows: 249

(1) Every one commits an offence who operates (

a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature,condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or mightreasonably be expected to be at that place 84. At paras. 34 and 35 of Roy, supra, Cromwell J. imparts the following on this aspect of the offence: 34 “In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, wasdangerous to the public in all of the circumstances.

The focus of this inquiry must be on the risks created by the accused’smanner of driving, not the consequences, such as an accident in which he or she was involved. As Charron J. put it, at para. 46 ofBeatty, “The court must not leap to its conclusion about the manner of driving based on the consequence. There must be ameaningful inquiry into the manner of driving” (emphasis added). A manner of driving can rightly be qualified as dangerouswhen it endangers the public. It is the risk of damage or injury created by the manner of driving that is relevant, not theconsequences of a subsequent accident.

In conducting this inquiry into the manner of driving, it must be borne in mind thatdriving is an inherently dangerous activity, but one that is both legal and of social value (Beatty, at paras. 31 and 34). Accidentscaused by these inherent risks materializing should generally not result in criminal convictions.

35 To summarize, the focus of the analysis in relation to the actus reus of the offence is the manner of operation of the motor vehicle. The trier of fact must not simply leap from the consequences of the driving to a conclusion about dangerousness. There must be a meaningful inquiry into the manner of driving.” 85 .

He tells us the following about the mens rea attributable to the offence at paras. 36 to 38: 36 “The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances ( Beatty , at para. 48 ). It is helpful to approach the issue by asking two questions. The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible.

If so, the second question is whether the accused’s failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances. 37 Simple carelessness, to which even the most prudent drivers may occasionally succumb, is generally not criminal.

As noted earlier, Charron J., for the majority in Beatty , put it this way: “If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy” (para. 34). The Chief Justice expressed a similar view: “Even good drivers are occasionally subject to momentary lapses of attention. These may, depending on the circumstances, give rise to civil liability, or to a conviction for careless driving.

But they generally will not rise to the level of a marked departure required for a conviction for dangerous driving” (para. 71). 38 The marked departure from the standard expected of a reasonable person in the same circumstances — a modified objective standard — is the minimum fault requirement. The modified objective standard means that, while the reasonable person is placed in the accused’s circumstances, evidence of the accused’s personal attributes (such as age, experience and education) is irrelevant unless it goes to the accused’s incapacity to appreciate or to avoid the risk (para. 40).

Of course, proof of subjective mens rea — that is, deliberately dangerous driving — would support a conviction for dangerous driving, but proof of that is not required (Charron J., at para. 47; see also McLachlin C.J., at paras. 74-75, and Fish J., at para. 86).” 86 . The judge must consider the totality of the evidence presented, including any relevant evidence as to the defendant’s current state of mind, in order to determine if fault has been proven beyond a reasonable doubt.

Cromwell J. has the following to say about evidence of a marked departure, at paras. 40 to 42: 40 “Generally, the existence of the required objective mens rea may be inferred from the fact that the accused drove in a manner that constituted a marked departure from the norm. However, even where the manner of driving is a marked departure from normal driving, the trier of fact must examine all of the circumstances to determine whether it is appropriate to draw the inference of fault from the manner of driving.

The evidence may raise a doubt about whether, in the particular case, it is appropriate to draw the inference of a marked departure from the standard of care from the manner of driving.

The underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity: Beatty , at para. 37 . 41 In other words, the question is whether the manner of driving which is a marked departure from the norm viewed in all of the circumstances, supports the inference that the driving was the result of a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited. 42 Driving which, objectively viewed, is simply dangerous, will not on its own support the inference that the accused departed markedly from the standard of care of a reasonable person in the circumstances (Charron J., at para. 49; see also McLachlin C.J., at para. 66, and Fish J., at para. 88).

In other words, proof of the actus reus of the offence, without more, does not support a reasonable inference that the required fault element was present. Only driving that constitutes a marked departure from the norm may reasonably support that inference.” B ANALYSIS OF THE ACTUS REUS OF THE OFFENCE OF DANGEROUS DRIVING 87 . The defendant in this case was a member of a police force. He was a peace officer and a member of the Royal Canadian Mounted Police. It was because he was a police officer that he decided to play a trick on his co-workers.

Had he not also been a police officer, he would not have driven his vehicle as he did on the morning of June 3. The defendant saw the roadblock and wanted to scare his co-workers. In my opinion, his intention was unambiguous in the sense that his conduct was intentional and decis ive. This was not a situation where he was driving in a negligent, indifferent or reckless manner. His manner of driving was, in my view, very deliberate. 88 . He drove towards the roadblock at a very high rate of speed intending to accomplish his goal.

He knew that it was a roadblock set up by the police, which was clearly visible to southbound motorists on the road in question. He was coming down a small

hill in a vehicle with a fairly powerful engine. He reached a speed between 100 and 120 kilometres per hour in a 50 km/h zone as heapproached the roadblock. 89. At the time he decided to play this trick, two of his co-workers were standing approximately in the middle of the road at thesite of the roadblock. They were busy checking the vehicles stopping there. Two patrol cars were parked on the shoulder, one on eitherside of the road. Their emergency lights were on.

Constable Mallet’s car was parked on the right side of the street, facing north,whereas Constable Dulac’s car was parked on the left side, facing south. A tow truck was parked in front of Mallet’s vehicle, also withits lights on. A car, the one belonging to Gabriel Thériault, was stopped in its lane, preventing any traffic from travelling southbound,the lane occupied by the defendant’s vehicle. Constable Mallet was at the driver’s door of Thériault’s vehicle, while Constable Dulacwas nearby in the other lane. 90.

This is a situation in which several people were at risk of serious injury: both police officers, especially since they were onthe road, but also both passengers in Thériault’s car, as well as Ms. Gaudet, the passenger in the defendant’s vehicle. 91. What significance should be given to the defendant’s alcohol consumption as it relates to the dangerous driving charge? TheCrown has asked me to consider as evidence of the offence the fact that the defendant had consumed alcohol before driving his car. Hecites R. v. Settle

(2010) BCCA 426, 2010 BCCA 426 , 261 C.C.C. (3d) 45. The decision in Settle proposes that a trier of factmay, in addressing the mens rea of the offence of dangerous driving rather than the actus reus of the offence, consider the fact that theaccused had consumed alcohol prior to driving. This enables the judge to find that the accused had demonstrated a “pattern” ofbehaviour that showed a certain disregard for the safety of others: see para. 55. 92.

In this case, I do not find that the accused exhibited a pattern of behaviour that would enable me to find that the defendantwas reckless or showed a general disregard for public safety. If dangerous driving occurred, it was only at the site of the roadblock andfor a specific purpose. 93. The decision in R. v. Stellato (SCC), [1994] 2 S.C.R. 478 instructs that an accused may be convicted ofimpaired driving if the evidence reveals a degree of impairment ranging from slight to great.

In this case, a finding that the prosecutionhas failed to prove that the defendant was driving while impaired necessarily implies that his ability to drive was not impaired, evenslightly. I cannot find that his reckless driving as a result of his alcohol consumption had an effect or impact on his manner of driving atthe time he approached the roadblock. Therefore, I cannot consider his alcohol consumption to be important evidence in this matter. 94. Based on the totality of the evidence in the case at bar, I am of the view that the Crown has made out the actus reus of theoffence. Mr.

Sar drove toward a roadblock at a high rate of speed - over twice the legal limit in that area. There were two peace officersin the middle of the road at the roadblock. The purpose of a roadblock is to check drivers and inspect their documents and vehicles. Members of the public know to slow down, take care and stay on the alert as they approach a roadblock like this one. People are at riskat roadblocks, especially the peace officers moving from one vehicle to the next. Drivers who stop at roadblocks for inspection are alsoin danger. They expect that the motorists who follow will take care in their approach.

This roadblock was well lit and posed nochallenge for the approaching driver. 95. Both officers were very frightened by the way Mr. Sar was driving. They quickly moved out of the way for their safety. They also feared for the safety of others: Constable Mallet shouted at Constable Dulac to be careful and Constable Dulac shouted at thepassengers in Thériault’s car to brace themselves and told them to leave immediately.

Both police officers reacted spontaneously andimmediately; they approached the vehicle with a hand on their firearms, with Constable Mallet shouting at the driver to turn off hisengine even before he had recognized him. 96. Counsel for the defence submits that the officers present must not have thought that Mr. Sar had committed the offence ofdangerous driving, since he was not placed under arrest at the scene. I do not share this opinion. The officers allowed Mr. Sar to leavebecause he was one of them, a peace officer.

The immediate reaction of Constable Mallet, who dealt with Sar’s vehicle, was to admonishhim by telling him never to do it again. He testified that he was beside himself. He was in shock, angry and had been scared. I thinkthat Constable Mallet would in all likelihood have arrested anyone else who had done such a thing, but he decided to wait because heknew Baba Sar well, had identified him as the driver and knew that Constable Isabelle Trudel was his supervisor. Instead of sayingsomething that he might subsequently regret, he decided to allow Mr. Sar to leave and to deal with the issue later. 97.

It was only when he saw the defendant leave the scene at a high rate of speed, passing Thériault’s car at a speed in excess of130 kilometres per hour, that Constable Mallet decided to stop him. In my opinion, the decision to pursue him was based on reasonablegrounds. Based on all of Constable Mallet’s observations, his decision to give chase to intercept the defendant’s car was justified and

well founded. He considered the manner in which the defendant was driving to pose a danger to the public, and in my opinion that subjective belief, based on an objective assessment, was justified and legitimate. 98 .

I am of the opinion that the defendant drove his vehicle in a manner dangerous to the public, having regard to his excessive speed as he approached the roadblock; the way in which he braked abruptly to cause fear; the presence at the scene of peace officers who were standing in the middle of the road; the presence of Thériault’s car, which was blocking his path; and his excessive speed, exceeding nearly double the legal limit, as he left the scene of the roadblock.

In my opinion, all of those factors, viewed as a whole, constituted a manner of driving that was objectively dangerous to the public under the circumstances. This hazardous driving created enormous risks. I am aware that there was no collision and that Mr. Sar managed to stop between 20 and 25 feet from Thériault’s vehicle. However, based on all of the facts, I think that the driving in question was dangerous. C ANALYSIS OF THE MENS REA OF THE OFFENCE OF DANGEROUS DRIVING 99 .

Did the dangerous manner of driving exhibited by the defendant constitute a marked departure from the standard of care that a reasonable person would have exercised in the same circumstances? In light of all the relevant evidence, would a reasonable person have foreseen the risk and taken steps to avoid it if possible and, if so, did the defendant’s failure to foresee the risk and take steps to avoid it, if possible, constitute a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances? These are the applicable criteria: Roy , supra , at para. 36. 100 .

The situation in this case, as I indicated above, was one where the Crown proved the driver’s actual state of mind. Hence, this is a case where the existence of subjective mens rea was proven. 101 . The existence of subjective mens rea is not required in order to prove the offence of dangerous driving. Usually, the minimum fault requirement for the offence of dangerous driving is proved by applying a modified objective test, which does not apply in the case at bar. 102 . Madam Justice Charron, at para. 47 of R. v. Beatty

(2008) S.C.C. 5, addresses the situation where, much like in the case at bar, the Crown proves the accused’s actual state of mind: 47 “In determining the question of mens rea , the court should consider the totality of the evidence, including evidence, if any, about the accused’s actual state of mind. As discussed at length above, the mens rea requirement for the offence of dangerous driving will be satisfied by applying a modified objective test.

This means that, unlike offences that can only be committed if the accused possesses a subjective form of mens rea , it is not necessary for the Crown to prove that the accused had a positive state of mind, such as intent, recklessness or wilful blindness. Of course, this does not mean that the actual state of mind of the accused is irrelevant.

For example, if proof is made that a driver purposely drove into the path of an oncoming vehicle in an intentionally dangerous manner for the purpose of scaring the passengers of that vehicle or impressing someone in his own vehicle with his bravado, the requirement of mens rea will easily be met. ” 103 . In my opinion, a reasonable person in the same circumstances as the accused would have been aware of the risk created by the manner of driver exhibited by the defendant here. A reasonable person also would not have driven in that manner - a reasonable person would not have engaged in such an activity . 104 .

The police force had set up a roadblock. All drivers know what they are required to do when they see a roadblock: they are required to stop and to allow peace officers to conduct any inspection authorized by law. By increasing his speed to reach between 100 and 120 kilometres per hour as he approached the roadblock, and by applying his brakes abruptly to stop 25 feet from the vehicle that was blocking his lane, the defendant displayed conduct that posed a high risk to the police officers at the roadblock, as well as to any other individual at the scene.

The defendant himself appreciated the magnitude of the risk, which is why he drove in that manner. He intentionally drove in a threatening manner in order to scare his co-workers. A reasonable person would have foreseen the risk and taken steps to avoid it . All he had to do was to drive carefully and cautiously as he approached the roadblock. The drivers of the other vehicles approaching the roadblock did so. 105.

In my opinion, the defendant’s dangerous driving was a marked departure, and not simply a mere departure, from the standard of care that a reasonable person would have exercised in the same circumstances.

106. The Crown has therefore proven the defendant’s guilt beyond a reasonable doubt for the offence of dangerous driving, and Iam going to find him guilty of that offence. II. THE CHARGE OF DRIVING WITH A BLOOD ALCOHOL CONCENTRATION ABOVE THE LEGAL LIMIT A THE REASONABLE GROUNDS FOR THE STOP 107. Constable Mallet was in hot pursuit of Mr. Sar, although Mr. Sar was unaware of this fact. The pursuit was initiated after hepassed Thériault’s vehicle. I am satisfied, however, based especially on Barbara Gaudet’s testimony, that he never became aware of thefact that Constable Mallet was pursuing him.

He arrived at his residence on Boisjoli Street in Tracadie-Sheila totally unaware of the factthat he was being chased. 108. Constable Allaire, who was waiting for him at his residence, read him the demand to submit to testing using an approvedscreening device. Because the defendant was detained, and because evidence was gathered further to that detention, the court mustdecide if the detention was arbitrary in breach of

section 9 of the Charter. The Crown must, therefore, justify stopping the defendant’svehicle. In R. v. Robichaud (2002) 2002 NBCA 46 , N.B.J.

No. 285, the Court of Appeal of New Brunswick indicates asfollows at paras. 10 and 11: “10…While the Motor Vehicle Act gives a peace officer the right to stop a vehicle to check the licence, registration and insuranceparticulars, the trial judge found as a fact that the police officer was not operating under that power at the time of the detention.I agree with that finding and will therefore concentrate on the articulable cause argument. 11 A detention will be justified and evidence leading to conviction will not be excluded if there is statutory authority orauthority at common law to make the stop.

At common law the police power to detain a person in the course of an investigationfor criminal activity can only be justified if the police officer has articulable cause for the detention… 109. The Crown contends that Constable Allaire used a police power to detain for investigative purposes, which justifies the stop,citing R. v. Mann (2004) 2004 SCC 52 , 21 C.R. (6th) 1. 110. I addressed the requirements that follow from Mann at paras. 20 and 21 of R. v. Corbin

(2008) NBPC 52, as follows: 20. “In Mann, supra, Iacobucci, J., speaking for the majority, proposes a two-pronged analysis to determine the validity of such adetention. The court must first examine whether the officer’s conduct falls within the general scope of a duty imposed on him bystatute or at common law. Then the court must determine if this conduct, albeit within the general scope of such a duty, involvedan unjustifiable use of powers associated with the duty. This is of course the analysis set out in R. v. Waterfield, [1963] 3 All E.R.659. 21.

At this stage, the court must analyse the reasonable necessity or justification of the conduct of the officer in question in theparticular circumstances of the case. On the subject, Iacobucci, J., makes the following comments at paras. 34 and 35 of Mann: 34 “The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. Theevolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to bepremised upon reasonable grounds.

The detention must be viewed as reasonably necessary on an objective view of the totality ofthe circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recentor on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer’sreasonable suspicion that the particular individual is implicated in the criminal activity under investigation.

The overallreasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably theextent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, andthe nature and extent of that interference, in order to meet the second prong of the Waterfield test. 35 Police powers and police duties are not necessarily correlative. While the police have a common law duty to investigatecrime, they are not empowered to undertake any and all action in the exercise of that duty.

Individual liberty interests arefundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as aresult, police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, norcan it become a de facto arrest.” 111. The Court of Appeal of Quebec, in endorsing Mann, supra, reminds us of certain principles that must be applied when

considering the reasonable grounds for detention. The guiding principles listed by Forget J. are found at paras. 55 to 59 of R. c.Bilodeau (QC CA), [2004] J.Q. No 10705: [TRANSLATION] “55. First: it is true that a police hunch that later turns out to be correct does not establish that police had reasonablegrounds before acting; on the other hand, police officers’ grounds do not cease to be reasonable just because the sequence ofevents do not confirm what they initially thought… 56.

Second: the reasonableness of the grounds must be determined by considering the circumstances of time, place and urgencywith which police officers were confronted and not through the sophisticated analysis that hindsight allows. 57. Third: reasonable grounds often stem from a set of circumstances; we must refrain from dissecting them and analyzing eachelement separately. Each element may be consistent with innocent behaviour, whereas the whole may point in a totally differentdirection. 58.

Fourth: it is not always possible to determine with absolute accuracy the point at which peace officers consider that theyhave reasonable grounds… 59. Fifth: we must not lose sight of the fact that police officers have a duty of prevention… The role of police officers is notconfined to arresting people who commit or attempt to commit crimes…” 112. In this case, Constable Allaire’s reasonable grounds for detaining the defendant result entirely from the radio communicationsthat took place after Constable Mallet began his pursuit.

In the absence of the information resulting from those communications, he hadno reasonable grounds to detain him. 113. Constable Isabelle Trudel and Constable Allaire went directly to Baba Sar’s residence armed only with that information. Constables Pung and Breau also knew who was involved, an inference drawn from the fact that they recommended that the stop be madeat his residence. 114. Constable Allaire testified that he went to Baba Sar’s residence because [TRANSLATION] “we were being asked to interceptBaba…we went there”.

He already knew the residence because another RCMP member had lived there in the past. 115. Based on the totality of the evidence derived from those radio communications, I am satisfied that Constable Martin Allaireknew that the individual being sought was the defendant Baba Sar. This finding is based on the following: i. Constable Mallet asked if there was a member from Tracadie on Route 11, explaining that the defendant had to take Route 11to get home – the defendant lived in Tracadie-Sheila and Constable Allaire knew exactly where he lived; ii.

Constable Mallet referred to a grey BMW – Constable Allaire knew the defendant’s BMW; he had seen it at the police stationand the members had talked about it; iii.

Constable Mallet indicated that the initials of the person being sought were B.S.; iv. the fact that Constable Mallet did not want to give the name of the individual in question over the air, preferring to identify himby his initials – Constable Allaire could infer from this that this was someone close to them and not a routine case; and v. the fact that all of the officers involved came to the same conclusion – that it was Baba Sar – it must have been obvious to thepeace officers. 116. I therefore come to the conclusion that Constable Allaire had reasonable grounds to believe that the individual being sought

was Baba Sar. Did he also have reasonable grounds to detain Mr. Sar? I am satisfied that he did, for the following reasons: i. The fact that Constable Mallet told him that he had to stop Mr. Sar; ii. The fact that Constable Allaire could hear the siren of Constable Mallet’s police car when he told him that they had to stop Mr.Sar; iii. The fact that Constable Mallet told him that Baba Sar took off “like a shot” – which means that he left at a very high rate ofspeed; iv. The fact that Constable Mallet specified that the incident took place at a roadblock; v.

The fact that Constable Mallet was obviously concerned by the situation, that, to him, this was a serious incident requiring thatMr. Sar be stopped, that it was important – this was his

interpretation of Constable Mallet’s actions, which I view as being perfectlyreasonable under the circumstances. 117. We must not lose sight of the context of the case. An on-duty police officer was in hot pursuit of another police officer. Constable Mallet contacted all of the members in the area to help him locate Baba Sar. Constable Allaire was instructed by anotherpolice officer to intercept the vehicle operated by Mr. Sar owing to an incident that had taken place at a roadblock in Caraquet. This isnot a typical case for a police force, but rather remarkable and uncommon. 118.

Constable Allaire was entitled to rely on Constable Mallet’s instructions. He did not have to question him about the incident inorder to get further details; he could rely on the grounds given by Constable Mallet: see R. c. Alloun [2008] J.Q. no 11474, at paras. 17to 22: [TRANSLATION] 17 “… the judge at first instance found as follows: The second element is the grounds for the stop. Were the other two police officers justified in stopping the vehicle when Cloutierdid not give them his grounds?

In Biron, (SCC), [1976] 2 S.C.R. 56 [1976] 2 S.C.R. 56, the Supreme Court tells usthat they were. 18 A police officer can use information provided by a colleague to justify an arrest without really undertaking an investigationto corroborate his colleague’s grounds. There is nothing arbitrary in the police officer’s decision as the appellant contends. 20 Constable Cloutier had sufficient grounds to stop the vehicle. Consequently, he can ask his colleagues to assist him.

In R. v.Debot, (SCC), [1989] 2 S.C.R. 1140, an investigator in charge of the case had instructed two police cars to stop avehicle in which the accused was a passenger. The Supreme Court reiterates at page 1166: The Court of Appeal further suggested [...] that Constable Birs could also have relied on the order from his superior officer,Sergeant Briscoe, to stop and search the appellant. In my opinion, Constable Birs must rely on Sergeant Briscoe's order.

Sincethe decision to stop and search the appellant was made by Sergeant Briscoe and not by Constable Birs, it is immaterial, in myview, what knowledge Constable Birs had when executing Sergeant Briscoe's request. Constable Birs was simply followingorders; he had no decision to make upon which to bring his own knowledge and belief to bear. It would have made no differencehad he known nothing about the case and had merely been on patrol in the area at the opportune time. 21 An officer who is acting at the request of another officer is entitled to infer that the other officer has reasonable grounds foracting.

As Constable Craighero points out: [...] But I did not know why the vehicle was being stopped. But I thought that if Constable Cloutier was asking me to stop avehicle, it must be more serious than a red light or a parking offence. 22 In my opinion, the trial judge rightly found that the vehicle was stopped lawfully.” 119. R. v. Mann, supra, reminds us that this is both a subjective and objective assessment, at para. 27: “27 …Articulable cause, while clearly a threshold somewhat lower than the reasonable and probable grounds required for lawfularrest [...], is likewise both an objective and subjective standard...”

120. In my view, Constable Allaire sincerely believed that he was acting in the performance of his lawful duties when he stoppedMr. Sar. Objectively, I am satisfied that his belief was well founded for the stated reasons. He did not know exactly what criminaloffence he was investigating, but he knew that one police officer was in pursuit of another, that he had been asked to stop him, that it wasserious and that the individual being pursued had left a roadblock at a very high rate of speed.

I am therefore of the opinion thatConstable Allaire’s conduct falls within the general framework of a common law duty and that this conduct, although it conforms to thegeneral framework of the duty in question, gave rise to a justifiable use of powers related to that duty. THE POLICE POWER TO ENTER THE DEFENDANT’S PRIVATE PROPERTY 121.

What consequences should follow from the fact that Constable Allaire parked his vehicle in the defendant’s private drivewaypending his arrival, and from the fact that he read the demands set out in subsections 254(2) and 254(3) of the Criminal Code inside thepolice vehicle while that vehicle was parked in the defendant’s private driveway? The defendant cites R. v. Caissie (1999) (NB CA), 214 NBR (2d) 360 and R. v. Jean-Marie LeBlanc

(2009) NBPC 2 to challenge the validity of the demand for thescreening test. In my opinion, those judgments do not apply in the case at bar. 122. In both of those cases, the peace officers entered the individual’s private property in order to investigate when the defendantwas already at home. 123. In Caissie, the officer saw the defendant’s vehicle approaching on the road and decided to stop him in order to check hisdocuments, but the defendant turned into his private driveway before the officer could indicate his intention of doing so; the officerfollowed him into the same driveway. 124.

In LeBlanc, the peace officer received a radio call regarding a complaint filed about a car that was zigzagging on Grand CareyRoad in Six Roads. The officer was given the address of the owner of the vehicle in question. The police officers went to that address tocheck whether the driver was feeling sick or was a person whose ability to drive was impaired by alcohol. They observed, in the privatedriveway at the address in question, a vehicle that matched the description of the one mentioned in the complaint. The vehicle wasmoving back and forth as if the driver were trying to free it from snow or ice.

The officers entered the private property. 125. Therefore, neither the situation in Caissie nor the situation in LeBlanc was one where the stop w

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