2011 QCCA 886, 2011 QCCA 886

Unofficial English Translation R. c. Boisvert 2011 QCCA 886 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004355-093 500-10-004387-096 (500-01-016920-040) DATE: May 16, 2011 CORAM: THE HONOURABLE PIERRE J. DALPHOND, J.A. MARIE-FRANCE BICH, J.A. NICOLE DUVAL HESLER, J.A. No.: 500-10-004355-093 HER MAJESTY THE QUEEN APPELLANT – Prosecutrix v. DAVID BOISVERT RESPONDENT – Accused ______________________________________________________________________ No.: 500-10-004387-096 DAVID BOISVERT APPELLANT - Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] THE COURT; - On the Crown's appeal from a judgment rendered on March 6, 2009, by the Court of Quebec, Criminal and Penal Division, District of Montreal (the Honourable Judge Juanita Westmoreland-Traoré), which acquitted the respondent on the count of impaired driving causing death, and on the respondent's appeal from this same judgment, which convicted him on the count of driving with a blood alcohol level over the legal limit; [ 2 ] For the reasons of Dalphond J.A., with which Bich and Duval Hesler JJ.A. agree: [ 3 ] ALLOWS the Crown's appeal, SETS ASIDE the acquittal on the count of impaired driving causing death and ORDERS a new trial to be held on this count; [ 4 ] DISMISSES David Boisvert's appeal on the count of driving with a blood alcohol level over the legal limit.

PIERRE J. DALPHOND, J.A. MARIE-FRANCE BICH, J.A.

NICOLE DUVAL HESLER, J.A. Mtre Julie Pelletier Criminal and penal prosecutorFor Her Majesty the Queen Mtre Alexandra Marcil Alexandra Marcil AttorneyFor David Boisvert Date of hearing: April 27, 2011 REASONS OF DALPHOND, J.A. [5] The respondent was accused of impaired driving causing death (sections 253(1)(

a) and 255

(3) Cr

C) and of driving with ablood alcohol level above the legal limit (sections 253(1)(

b) and 255(1) Cr C). At the end of the trial, which proceeded very slowly, hewas acquitted on the first count and convicted on the second. The Crown appeals from the acquittal and the respondent from hisconviction. According to the parties, the trial judge committed numerous error of law invalidating her judgment. [6] For the following reasons, I find that this is the case with respect to the first count and that a new trial is required.

BACKGROUND [7] On November 11, 2004, around 4:55 a.m., while driving his modified vehicle[1] on highway 13 toward Lachine, therespondent, aged 19, with his friend in the passenger seat, passed a vehicle driving in the centre lane of this three-lane highway.

Afterinexplicably merging back into the centre lane, while taking a gentle "s" curve, his vehicle abruptly turned left, then right, and then hitthe cement divider separating the two sections of the highway, going over the divider before hitting a steel structure and flipping overseveral times. [8] The respondent and his passenger were not wearing their seat belts.

The passenger was partially ejected and then crushed bythe fallen vehicle; she died on the scene or while in transport to the hospital. [9] The respondent was arrested and brought to a police station where, after contacting an attorney, he submitted without objectionto two tests administered with the help of an approved machine. These tests revealed levels of 130 and 121 mg. [10] The respondent is accused of impaired driving causing death and driving with a blood alcohol level above the legal limit.

Histrial began November 21 and 22, 2007, and gave rise to a motion for a stay of proceedings, which was dismissed on March 19, 2008, andthen to a motion to exclude the results of the breathalyser test, which was dismissed on November 11, 2008. The verdict was handeddown on March 6, 2009, hence the appeals. Appeal FROM the conviction for impaired driving causing death [11] Even where the verdict is unreasonable, the Crown cannot appeal based on questions of fact (R. v. Biniaris, [2000] 1 SCR 381,2000 SCC 15). It must show an error of law, which must be determinative of the verdict.

This takes care of the grounds respecting theweight of the expert reports and the assessment of the evidence. [12] It remains that, contrary to what had been agreed by the parties during a voir-dire and then noted by the trial judge, the trialjudge did take into account the testimony of the accused in her analysis leading to the verdict, particularly in paragraphs 53, 73, 84, 103,118, 120, and 126.

Since the accused was credible, she accepted that he was in shock after the accident and that this explained some ofhis behaviour or the observations made by the police officers and witnesses, and that the cause of the accident could very well have beenthat he fell asleep at the wheel for a moment, as he testified. It was clearly an error of law to consider the testimony of the accused, whichwas not adduced. [13] The trial judge erred in law again when she took into account an expert report filed in another case, R. v.

Lafleur, (QC CQ), [2005] RJQ 2726 (CQ), to find, in paragraph 139 of her judgment, that according to the respondent's measured bloodalcohol level, he should have been euphoric rather then sedated (which would have explained the moment of sleep). This expertassessment, in addition to not being adduced, cannot be used to demonstrate the accused's personal state at the time of the offence (R. v.Boucher, [2005] 3 SCR 499, 2005 SCC 72). This reference, however, reinforces the impression that the judge believed that one of the

possible causes of the accident was a moment of sleep not related to alcohol consumption. [14] Here, the evidence indicated a blood alcohol level over 120 mg and unexplained contact with the divider; moreover, thechemistry expert's report, ruled to be admissible by the trial judge (I am not ruling on the respondent’s challenge to this finding),established that the risk of accident increases exponentially with a level exceeding 50 mg, particularly in young drivers such as therespondent.

The judge, however, found that this document had little value because it did not take into consideration the personalcharacteristics of the accused in any way. In fact, regarding the cause of the accident, she wrote in paragraph 137 that [translation] "theloss of control after the successful passing manoeuvre could have reasonably been caused by the modifications to the vehicle", eventhough there is no evidence of this and the reconstruction expert was questioned about this possibility and clearly rejected it.[2] [15] What are we to make of the trial judge's analysis?

Her conclusion that the accident was not caused by the accused but by themodifications to the vehicle can only be justified by her consideration of the respondent's testimony, considered to be credible, that hemay have momentarily fallen asleep, together with her finding, based on an expert report that was not adduced, that it was possible thathe was at the euphoric and not the sedated stage of intoxication. [16] Overall, I am unable to find that this consideration of the evidence, erroneous in law, did not impact the trial judge’s analysisand conclusion regarding the acquittal.

A new trial is required with respect to this first count. [17] I would add that, in law, a demonstration of any impairment whatsoever is enough to prove the offence of impaired driving (R.v. Stellato, (ON CA), [1993] OJ No. 18 (CA) aff'd R. v. Stellato (SCC), [1994] 2 SCR 478) and thatonce impaired driving has been proven, the Crown's burden is nothing more than [translation] "establishing that the state of the accusedcontributed even minimally to the death" (R. v. Laprise, (QC CA), JE 97-65 (CA) at para 15). The Crown does nothave to show that the impaired driving was the sole cause of death.

Laprise stated: [translation] 16 Yet, as stated by the trial judge, mere evidence that the driver's driving ability was impaired is not usually enough to establish acausal link ... 17 Consequently, the Crown must prove, for example, unusual driving by the accused, or, through expert testimony, that his state ofintoxication may have contributed, more than minimally, to the victim's death. The absence of any explanation by the accused may alsosuggest that his state of intoxication contributed, beyond a reasonable doubt, to the victim's death.

Appeal from the conviction for driving with a blood alcohol level over the limit [18] None of the grounds raised by the respondent/appellant concerning the validity of his conviction for driving with a bloodalcohol level over the legal limit have merit. [19] First, it is obvious that the police officers had reasonable objective and subjective grounds to suspect that the appellant wasdriving while impaired (R. v. Shepherd, 2009 SCC 35 , [2009] 2 SCR 527).

From a subjective point of view, the police officerswho arrested the respondent sincerely believed him to be impaired and to be the driver of the vehicle involved in the accident; in otherwords, they believed that he had committed an offence under

section 253 Cr C. This belief was largely supported by objective facts:three police officers noticed an odour of alcohol, which was noticeably stronger once the respondent was seated in the police cruiser; hehad bloodshot eyes and difficulty speaking; he stated that he was heading to Saint-Jérôme when he was in fact driving south towardLachine; no other vehicle was involved; and there was no other explanation for the cause of the accident, as traffic was very light and theroad surface was dry and well lit.

All of these circumstances gave the police officers reasonable and probable grounds to arrest theappellant and subject him to a breathalyzer test. [20] The respondent also alleges that he was not informed of his rights a second time once the death of the passenger was confirmed,while he was waiting to take the second measurement of his blood alcohol level. In her judgment of November 11, 2008, the trial judgeseemed to accept the testimony of one of the police officers that the appellant had been informed of his rights once again: [translation] Officer De Serre (sic) indicated that he told him of those rights.

The accused denied it. At the same time, the accused was not in any stateto remember everything that was said during that conversation. He indicated that it was very brief, they simply opened the door to tellhim. The Court considers that it was very brief, but the circumstances have not changed.

His ability to understand seems sufficient,especially compared to the situations in case law.[3] [Emphasis added] [21] The respondent has not shown that this finding of fact is marred by a palpable and overriding error or that it is unreasonable inthe present case. [22] Even if we were to accept the respondent's contention that he should have been entitled to consult an attorney a second time andthat he was not afforded this possibility prior to the taking of the second sample, there would be no cause to exclude the two results ofthe breathalyzer test in light of the teachings of the Supreme Court in R. v.

Grant, [2009] 2 SCR 353, 2009 SCC 32. In that case, atparagraph 71, the Supreme Court reformulates the test to determine whether the evidence obtained in violation of Charter rights shouldbe excluded: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condonesserious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send themessage that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits.

[23] In the present case, Boisvert spoke with an attorney before the first sample was taken. According to Officer Dessert, he himselftold the attorney during that first conversation that the victim was seriously injured and that death could occur. The accused also knewthe critical state of the victim and he did not deny having been informed of her death before the second sample was taken.

As for the lastcriterion, society's interest in the adjudication of the case on its merits, the Supreme Court states in Grant that the "exclusion of relevantand reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the publicperspective, thus bringing the administration of justice into disrepute” (para 81). In paragraph 83, it adds that "the importance of theevidence to the prosecution’s case is another factor that may be considered".

Breathalyzer test results are considered to be reliableevidence because of the presumption of identity and accuracy conferred by the Criminal Code, and the respondent does not dispute theirreliability.

The results of the breathalyzer test are therefore admissible evidence, even if the respondent's factual argument, which appearsto have been rejected by the trial judge, were accepted. [24] Finally, the respondent maintains that he was entitled to a stay of proceedings following his realization that the Crown had notgiven him a copy of the relevant pages of the notebooks of the three police officers involved in the case because they had been lost.

OnMarch 19, 2008, the trial judge dismissed this motion, stating the following: [translation] Considering that the Court has not found that there was unacceptable negligence in the loss of the personal notes, in light of the fact thatthe police report constitutes alternative evidence to the notes, because the two officers testified and were cross-examined in detail,considering that they testified from memory, except on the question of the times, the Court finds that there was no violation of theaccused's right to complete disclosure or his right to full answer and defence, as guaranteed by

section 7 of the Charter. For thesereasons, the Court dismisses the motion for a stay of proceedings. [25] We should recall that that a stay of proceedings will be granted as appropriate relief only in the clearest of cases (R. v. Regan,[2002] 1 SCR 297, 2002 SCC 12 at para 53; R. v. Carosella, (SCC), [1997] 1 SCR 80 at para 52; R. v. O'Connor, (SCC), [1995] 4 SCR 411 at para 82; R. v. Tshiamala, 2011 QCCA 439 at paras 130 et seq.). [26] In this case, the missing documents are notebooks that the police officers carry on their persons and use to note their personalobservations regarding numerous interventions.

Two of the notebooks were lost or inadvertently thrown out by their owners, undoubtedlyonce they were full. The third was lost during a foot chase. Furthermore, the evidence reveals that the two officers who proceeded withthe arrest drafted very detailed reports contemporaneously to the accident, copies of which were given to the respondent.

As for the third,his notebook was lost long after he had recorded his notes on the accident involving the respondent in a detailed written report. [27] These explanations justified the trial judge’s finding that the notebooks had not been destroyed or lost as a result ofunacceptable negligence. The duty to disclose was therefore not violated (R v. La, (SCC), [1997] 2 SCR 680). [28] It was up to the respondent to demonstrate that the loss of these notebooks caused actual harm to his right to a full answer anddefence as guaranteed under

section 7 of the Charter (R. v. La, supra). The respondent failed to meet this burden since the loss of thenotebooks appears to be without consequence once it is established that the two police officers that arrested him drafted their detailedreports contemporaneously to the accident and that the personal notes are, by definition, less complete than their report. In thecircumstances, as the judge rightly determined at trial, this does not constitute serious harm. Conclusion [29] For these reasons, I would allow the Crown’s appeal, order a new trial on the count of impaired driving causing death, anddismiss Mr. Boisvert's appeal on the second count. PIERRE J. DALPHOND, J.A.