HER MAJESTY THE QUEEN v. SERGE ALAIN LOSIER, 2010 NBPC 24

2010 NBPC 24 Court File No: 08680905 CANADA PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT BETWEEN: HER MAJESTY THE QUEEN -AND- SERGE ALAIN LOSIER BEFORE: Judge Pierre W. Arseneault of the Provincial Court. AT: Fredericton, New Brunswick. DATE OF DECISION: May 4, 2010. APPEARANCES: Patrick Murchison, for the Attorney General of New Brunswick,

Marco R. Cloutier, for the accused Serge Alain Losier. [TRANSLATION] ARSENEAULT, A.C.J.P.C.N.B. Introduction [ 1 ] Serge Alain Losier was charged with operating a motor vehicle while his blood alcohol level exceeded the legal limit, an offense set out in s. 253(1) (

b) of the Criminal Code . Alternatively, he was charged with operating a vehicle while impaired by alcohol or a drug contrary to s. 253(1) ( a ). Mr. Losier’s language rights are the main issue raised in this case. The Facts [ 2 ] On September 3, 2008 at around 2:30 a.m., the accused’s vehicle was stopped at random by a member of the Fredericton Police Force under a spot check program. As soon as the accused came to a stop, Constable Brandon Jordan walked over to the vehicle and noticed that Mr.

Losier’s eyes were red and glassy. [ 3 ] The accused was subsequently identified by his driver’s licence and Officer Jordan asked him in English where he had been. Mr. Losier replied that he had been at a nightclub and was trying to get home. He was asked if he had been drinking, to which he replied yes, at the bar, about half an hour before he was stopped. [ 4 ] Constable Jordan suspected the presence of alcohol and ordered the accused to the patrol car to undergo a test on an approved screening device. It was about 2:50 a.m. Mr.

Losier complied with the demand and a minute later the officer recorded an “F”, that is, a fail. [ 5 ] Based on this result, Officer Jordan stated that he then had reasonable grounds to believe that Mr. Losier was driving with an excessive blood alcohol level and ordered the accused to accompany him to the police station for a breathalyzer test. In fact, he made the demand by reading from his card at about 2:59 a.m. He then read Mr. Losier the usual warning and informed him of his right to retain and instruct counsel under s. 10(

b) of the Charter . [ 6 ] The entire conversation between Mr. Losier and Constable Jordan took place in English up to that point. Only when the officer asked Mr. Losier if he wanted to speak to a lawyer, to which Mr. Losier replied in rudimentary English “Contact one but French” (to quote from the officer at the trial), that Constable Jordan asked him if he preferred to communicate in French. [ 7 ] Mr. Losier replied “that English was fine but he would prefer a Francophone officer”. The officer informed him that he would have access to a Francophone officer and lawyer once they arrived at the police station.

They headed for the station at about 3:02 a.m. and arrived at about 3:05 a.m. [ 8 ] At the station, Mr. Losier met Constable Blanchette, a bilingual officer who reread the warning and his right to retain and instruct counsel to Mr. Losier, this time in French. The time was about 3:15 a.m. Mr. Losier spoke to a French-speaking lawyer in private. He then provided two breath samples to a qualified technician who also communicated with the accused in French. In fact, according to the evidence, it was the qualified technician who explained the contents of the certificate to Mr.

Losier in French once it was prepared, after the breath samples were taken. [ 9 ] Constable Jordan admitted on cross-examination that he was aware of the provisions of the Official Languages Act of New

Brunswick, and that he learned about them during his police training and later as a member of the Fredericton Police Force. He graduated on August 31, 2007 and joined the Fredericton Police Force on September 17 of the same year. [ 10 ] Constable Jordan also admitted that he was aware that Mr. Losier spoke English with a strong French accent before he read him the various demands and certainly before he asked Mr. Losier if he preferred to be spoken to in French.

Analysis [ 11 ] Subsections 20(2) and 24(2) of the Charter and s. 31(1) of the Official Languages Act, reproduced below, are at the heart of this matter. 20(2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French. 24(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. 31(1) Members of the public have the right, when communicating with a peace officer, to receive service in the official language of their choice and must be informed of that right. [ 12 ] At the time of trial, the New Brunswick Provincial Court was divided as to the constitutional nature of s. 31(1) of the Official Languages Act .

A judge of the Court of Queen’s Bench has since decided the issue. In R. v. Gaudet , 2010 NBQB 27 (CanLII) , [2010] N.B.J. No. 25 , Lavigne, J. ruled that “the absence of an active offer on the part of the peace officer amounted not only to a violation of s. 31(1) of the Official Languages Act but also to a violation of s. 20(2) of the Charter” , and that this opened the way to remedial action under s. 24 of the Charter . (see para.10) [ 13 ] I find it useful to repeat some of the remarks made by Lavigne, J. in coming to this conclusion.

For instance, at paragraph 24, she explained that linguistic rights do not exist in a vacuum and that they derive their true meaning from their pratical application to a concrete set of circumstances . Her comments read as follows: It is not enough for a linguistic guarantee to be offered on paper; it must be applied or put into practice in order to have meaning. In its

Preamble, the Official Languages Act introduces a law that “respects the rights conferred by the Canadian Charter of Rights and Freedoms and allows the Legislature and the Government to fulfill their obligations under the Charter .” The Province of New Brunswick passed legislation to satisfy its constitutional obligations under s. 20(2) and to thus ensure the respect and practical application of linguistic guarantees. As Chief Justice Drapeau stated in McGraw , at para. 22: “the adoption of s. 31 of the Official Languages Act which, having regard to the Act’s

Preamble, arguably adds invaluable clarifying insights into the intended effect of s. 20(2) of the Charter .” [ 14 ] According to the judge, the fact that “ the Official Languages Act confirms and reinforces a social, political and legal commitment to true bilingualism and imposes substantive obligations on the province to ensure compliance with these linguistic rights …” (see para. 26) must be taken into account.

She also recognized the importance of the unique linguistic character of New Brunswick and wrote as follows, at paragraph 27: The Canadian Charter of Rights and Freedoms and the Official Languages Act of New Brunswick are vivid examples of the importance of linguistic rights in New Brunswick. The fact that only the province of New Brunswick is recognized in the Charter as a bilingual province must be kept in mind. It is also the only province to have voluntarily implemented linguistic obligations since they were entrenched in the Constitution in 1982. [ 15 ] Finally, she added as follows, at paragraph 41:

Unlike s. 31(1) of the Official Languages Act, s. 20(2) does not specifically require a peace officer to inform members of the public of their right to be served in the official language of their choice. However, in my view, this right arises by implication from s. 20(2) of the Charter . Based on the generous and liberal approach to the

interpretation of language rights taken by the Supreme Court of Canada in Beaulac , and based on a purposive approach to the provisions in question, I find that s. 20(2) of the Charter imposes a duty by implication to make an “active offer”. In order to give full effect to the right to choose under s. 20(2) of the Charter , there must be a corresponding duty on the part of peace officers to inform the public of that right. To construe s. 20(2) otherwise would have the obvious result of obstructing the remedial purpose of this linguistic right and this would be incompatible with a broad and dynamic purposive

interpretation. Section 20(2) of the Charter necessarily includes an active offer of service. The freedom to choose given by s. 20(2) is meaningless in the absence of a duty to inform the citizen of this choice. Section 20(2) of the Charter necessarily includes an active offer of service and accordingly, a peace officer in New Brunswick must inform every member of the public with whom he communicates of their right to be served in the official language of their choice. [ 16 ] In light of Lavigne, J.’s remarks, I find that Constable Jordan violated Mr.

Losier’s Charter language rights in this case when he failed to inform him of these rights before he asked to speak to a French-speaking lawyer. It should be kept in mind that the process leading up to Mr. Losier’s arrest had begun approximately 30 minutes earlier. The accused had already undergone testing with an approved screening device, and had spoken with a police officer who informed him of some of his Charter rights.

I am unable to find in this scenario that the accused was informed of his right to be served in the official language of his choice at the right moment or within a reasonable time as guaranteed under s. 31(1) of the Official Languages Act and s. 20(2) of the Charter . [ 17 ] That being said, whether remedial action under s. 24(2) is justified, and whether the qualified technician’s certificate should be excluded from the evidence remains to be determined. In R. v. Grant , 2009 SCC 32 (CanLII) , [2009] S.C.J.

No. 32 , the Supreme Court of Canada explained the avenues of inquiry that must be assessed to determine whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute, within the meaning of s. 24(2).

According to this new analytical framework, the court’s role is to look at all of the circumstances in light of the following factors: [ 18 ] (1) the seriousness of the Charter -infringing state conduct (admission may send the message that the justice system condones serious state misconduct), (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits.

The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. (para. 71) [ 19 ] 1) The seriousness of the Charter-infringing state conduct When considering this question, the court must assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message that the courts will condone state deviations from the rule of law.

As the Supreme Court stated, the purpose is not to punish the police or to deter Charter breaches. Rather, “the main concern is to preserve public confidence in the rule of law and its processes.” (para. 73) [ 20 ] When called upon to determine the seriousness of a breach, a judge must obviously consider all of the circumstances surrounding the conduct of the police officer that resulted in the violation. In this regard, the following factors are relevant in this instance: 1) The officer noticed that Mr. Losier spoke with a strong French accent and, according to the evidence, even if it appeared that Mr.

Losier understood English, it should have been obvious to the police officer that his English was rudimentary at best; 2) The police officer admitted that he was aware of his duty under s. 31(1) of the Official Languages Act . Yet oddly enough, even in these circumstances, he never informed Mr. Losier of his right to be served in the official language of his choice until Mr. Losier told him that he would prefer a French-speaking lawyer; 3) By that time, it had been approximately 30 minutes since Mr.

Losier was initially detained and he had already provided a sample of his breath using an approved screening device; 4) Finally, I also take into account the remarks made by the Crown Prosecutor in his submissions where he told the Court that this was the third trial involving the Fredericton Police Force in which non-compliance with s. 31(1) was at issue. [ 21 ] In this regard, though I am not prepared to draw the inference that Officer Jordan deliberately acted in bad faith, I cannot help but find that he showed a rather troubling lack of concern for Mr. Losier’s linguistic rights on the night in question. Mr.

Losier’s difficulty expressing himself in English should have at least reminded the officer of his known duty to offer services in French to the accused before the latter was obliged to make the request. Accordingly, I find the officer’s conduct to be a blatant violation of Mr. Losier’s language rights under the Official Languages Act and the Charter . [ 22 ] 2) The impact of the breach on the Charter-protected interests of the accused

As the Supreme Court stated in para. 76 of Grant , “ This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter -protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed.” [ 23 ] I have already cited the remarks of Lavigne, J. with respect to the importance of language rights in New Brunswick at paragraph 14 above. Those remarks were also highlighted by Chief Justice Drapeau in R. v. McGraw , [2007] N.B.J. No. 39 , where he stated unequivocally as follows: 35 I would wrap up the proceedings by echoing the

summary conviction appeal judge’s emphasis on the importance of linguistic rights in New Brunswick, the only Province with two official languages. Language rights, whether sourced in the Charter , the Official Languages Act or POPA , set us apart in the Canadian federation; as time goes by, more and more of our citizens proudly view those rights as what defines them as New Brunswickers.

Hopefully, the outcome of these proceedings will bring home to peace officers engaged in the enforcement of provincial legislation that language rights are infrangible. [ 24 ] New Brunswick has put a mechanism in place that is unique in Canada and whose purpose is to ensure that all citizens of this province are able to communicate with governmental institutions in the official language of their choice.

Clearly, the right to communicate in the language of one’s choice is particularly important during communications with a peace officer in a situation where the freedom and security of the person are at stake. [ 25 ] 3) Society’s interest in the adjudication of the case on its merits The notion that society is entitled to expect that a criminal allegation will be adjudicated on its merits is well-recognized.

It is therefore important to determine whether “ the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.” Accordingly, “the fact that the evidence obtained in breach of the Charter may facilitate the discovery of the truth and the adjudication of a case on its merits must therefore be weighed against factors pointing to exclusion, in order to balance the interests of truth with the integrity of the justice system. ( Grant , paras. 79 and 82 ) [ 26 ] It is clear the certificate of the qualified technician is central to the prosecution of this case and that its exclusion would lead to an acquittal without the matter ever being heard on its merits.

It is also true that driving while impaired or with an excessive blood alcohol level is a serious offence. Furthermore, I am aware that the results of Mr. Losier’s breathalyzer test were obtained after he was put in contact with an officer with whom he could communicate in the language of his choice. However, the fact remains that the reasonable grounds relied upon by the officer to require the accused to submit to a breathalyzer test were formulated before the accused was offered French language services, and this constituted a flagrant violation of his language rights.

Conclusion [ 27 ] After examining all of these issues and balancing the various factors referred to above, I find that the certificate of the qualified technician must be excluded. Notwithstanding society’s interest in the adjudication of a criminal allegation on its merits, it is my view that the admission of this evidence on the particular facts of this case would bring the administration of justice into disrepute. The violation of Mr.

Losier’s language rights by a police officer who was totally aware of his duty is serious, and any evidence obtained as a result must be excluded in order to preserve public confidence in the justice system and its processes. [ 28 ] In closing, I might add that, in my view, this matter can be distinguished on the facts from Gaudet in which Lavigne, J. ruled that a stay of proceedings was unjustified and that all the various factors tipped the balance in favour of the admission of the evidence.

Contrary to the present case, the accused in Gaudet had admitted all the essential elements of the offence before the trial judge. According to the

Summary Conviction Appeal Court judge, the trial judge was not in a position to weigh all the factors required for remedial action under s. 24(2), such as whether the peace officer’s omission was inadvertent or, on the contrary, abusive, serious and deliberate. [ 29 ] As I have already stated, my decision to exclude the certificate of the qualified technician requires me at law to acquit Mr. Losier of the offence under s. 253(1)(

b) of the Code . As for the charge under s. 253(1)( a ), the Crown acknowledged that the evidence does not prove the accused’s guilt beyond a reasonable doubt and accordingly, he must be acquitted of that offence as well. _____________________________ Pierre W. Arseneault, A.C.J.P.C.N.B