HIS MAJESTY THE KING, – v. –, 2023 NBKB 129

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON His Majesty the King v. Pierre-Alexandre Parenteau 2023 NBKB 129 MCA/12/2022 BETWEEN: HIS MAJESTY THE KING, – and – PIERRE-ALEXANDRE PARENTEAU DECISION BEFORE: Justice Robert M. Dysart AT: Moncton, New Brunswick DATE OF HEARING: May 29, 2023 DATE OF DECISION: July 10, 2023 APPEARANCES: Pierrette Allain & Sara Scaletta, for the Appelant Robert McKee, for the Respondent

DYSART, J. INTRODUCTION [ 1 ] This is a

summary conviction appeal brought by the Crown. [ 2 ] The Respondent, Pierre-Alexandre Parenteau, was charged with a single count of driving with a blood alcohol concentration that was equal to or exceeded 80mg of alcohol per 100mL of blood, contrary to s. 320.14(1) (

b) of the Criminal Code of Canada . [ 3 ] At trial, the judge of the Provincial Court ruled on his own motion that the Certificate of Qualified Technician, which showed two results of 100mg of alcohol per 100mL of blood, was inadmissible. He ruled that the Crown’s witness, Cpl. Marc-André Langis, had failed to testify that he obtained a roadside breath sample from the accused using an approved screening device, in accordance with s. 230.27(1) of the Criminal Code . Because that evidence was absent, he ruled, the officer could not rely upon the “fail” result which ensued.

The judge ruled that the officer therefore did not have reasonable and probable grounds for demanding a breath sample pursuant to s. 230.28.

After conducting an analysis under s. 24(2) of the Charter of Rights and Freedoms , he dismissed the charge and entered an acquittal. [ 4 ] The Crown appeals that ruling and the dismissal of the charge, arguing: (1) that the trial judge committed an overriding and palpable error of fact when he concluded that there was no evidence that the officer used an approved screening device at the roadside; (2) that the trial judge committed an error of mixed fact and law when he concluded that there was an insufficient link between the officer’s qualifications to use an approved screening device and the screening device he used, so as to conclude that the device was, in fact, an approved screening device; and (3) that the trial judge committed an error of law in rendering his ruling on the admissibility of the Certificate of Qualified Technician on his own motion before the Crown had closed its case.

FACTS [ 5 ] Prior to the trial, the accused filed an Application for a declaration that his Charter rights had been breached. He alleged that Cpl.

Langis did not have reasonable and probable grounds for demanding a breath sample (both at the roadside and in accordance with s. 230.28 of the Criminal Code ), in violation of s. 8 ; that he was arbitrarily detained, in violation of s. 9 ; and that his language rights were not respected because some of his interactions with police occurred in English, notwithstanding that he identified French as the language in which he wanted to be served, in violation of ss. 19 and 20 of the Charter .

He asked for a stay of proceedings under s. 24(1) or that the evidence (the Certificate of Qualified Technician) be excluded under s. 24(2) of the Charter . [ 6 ] The trial proceeded by way of a blended voir dire and trial, such that the evidence heard on the voir dire would also constitute evidence at trial (see page 3 of Transcript). Presumably, the voir dire was to address the respondent’s Charter application – it was not expressly stated on the record. [ 7 ] Counsel for the Crown indicated to the trial judge that she would be calling two witnesses – Cpl. Langis and Cst.

Brown (who was identified as the Qualified Technician who conducted the breathalyzer tests). [ 8 ] Cpl. Langis was the first to testify. He explained that he was on patrol on the night of March 3, 2020 in Riverview, New Brunswick when, at around 10:48PM, he observed a vehicle driven by the accused fail to stop at a stop sign at the intersection of Golf Club Road and Coverdale Road. Cpl. Langis made the traffic stop on Coverdale Road. He testified that the vehicle made a sudden and abrupt swerve to the shoulder, coming to a stop. Cpl. Langis testified that while speaking with the driver, Mr.

Parenteau, he smelled a

strong odour of alcohol coming from the vehicle. Mr. Parenteau was the sole occupant. He asked Mr. Parenteau whether he had consumed alcohol, which the accused denied. [ 9 ] On the basis of his observations, Cpl. Langis testified that he believed Mr. Parenteau had consumed alcohol.

He testified: A ce moment-là, j’ai avisé monsieur Parenteau que j’allais chercher un appareil de détection approuvé dans mon véhicule afin d’obtenir un échantillon d’haleine pour voir si y’avait de l’alcool dans son système. […] Selon mon expérience, une odeur forte, comme celle-là qui provenait du véhicule, j’avais raison de croire que monsieur Parenteau avait consommé – consommé de l’alcool. [ 10 ] He then went on to testify as follows: Q. OK. Et puis, à quelle heure est-ce que vous auriez parvenu à votre opinion ou votre croyance? R.

Immédiatement, mais j’ai lu la demande à monsieur Parenteau à vingt-deux heures cinquante, si je – j’me réfère à mes notes, pour un échantillon d’haleine dans un appareil de détection approuvé. Q. O.K. R. J’ai revenu voir monsieur Parenteau avec l’ appareil. […] [emphasis added] [ 11 ] Cpl. Langis then went on to testify that he obtained two breath samples from Mr. Parenteau – one of which resulted in an insufficient sample, while the other – given at 10:54PM – resulted in a “fail.” [ 12 ] Cpl.

Langis testified that he read the demand for a breath sample from an approved screening device from a card he had with him. [ 13 ] Counsel for the Crown then moved on to address Cpl. Langis’ qualifications to operate an approved screening device: Q. Alors, est-ce que vous pouvez expliquer à la Cour vos qualifications quand ça vient à cet appareil d’analyse approuvé? R. J’ai suit (ph) une formation où c’que j’ai reçu un certificat en novembre 2018 qui dit que je suis certifié pour utiliser le – l’appareil de détection approuvé Alco-Sensor FST.

C’est un cours que – que j’ai suit (ph) avec la Gendarmerie royale du Canada. Q. O.K. Est-ce que c’est le seul test que vous avez passé? R. Le – le seul que j’ai –

Q. Pardon. Le seul programme que vous avez passé pour – R. Pour le – le – le – le – l’appareil en tel, oui. [ 14 ] At that point, counsel for the Crown sought to introduce into evidence Cpl. Langis’ certificate, confirming his qualifications. Counsel for the Respondent then rose and had the following exchange with the Court: Me Boutet: Pas de problème qu’y sait comment utiliser un appareil de détection approuvé, Votre Honneur, ou qu’y est qualifié. La Cour: Oui. Donc, vous admettez qu’il était qualifié pour l’utilisation de l’ appareil? Me Boutet: Pas de problème. La Cour: D’accord. [emphasis added] [ 15 ] Cpl.

Langis then testified that he placed Mr. Parenteau under arrest due to the “fail” result, and he took the accused to the Codiac Detachment of the RCMP, where Mr. Parenteau gave two breath samples to a Qualified Technician, i.e. a breathalyzer. [ 16 ] The Certificate of Qualified Technician was marked for identification, but it was not admitted into evidence through Cpl. Langis. [ 17 ] Cross-examination of Cpl. Langis focused on two issues – who in fact served counsel for the accused with the Certificate of Qualified Technician, and the alleged breach of Mr.

Parenteau’s Charter right to be served in the language of his choice. [ 18 ] At the conclusion of Cpl. Langis’ testimony, the Court took a short break. Upon returning to the courtroom, counsel for the accused raised a technical defence related to service of the Certificate of Qualified Technician. Having heard the issue as framed by counsel for the accused, the judge of the provincial Court raised his own issue: LA COUR : – votre argument. Je vais – je vais soulever quelque chose pour les deux avocats – Me BOUTET : O.K.

LA COUR : – qui m’inquiète dans le dossier et qui va justement à – à l’admissibilité du certificat. Puis j’ai pas pris de décision encore, bien sûr. Mais, je pensais que vous alliez me – me soulever ce point ici que – ça – ça que vous a – avancer vos arguments tout de suite. Mais je dois dire tout suite que pendant le témoignage, je n’ai aucune preuve devant moi concernant l’instrument. Je n’ai aucune preuve si un instrument approuvé a été utilisé. Je ne sais même pas quel instrument a été utilisé.

Ce qui me rend un gros problème dans l’admissibilité du – parce que si la – si – avait pas les motifs raisonnables et probables, pour faire une demande, ça va à l’admissibilité du document et donc je n’ai aucun – j’ai rien entendu de preuve sur ce point-là du corporal Langis. Je sais qu’y’a été une personne qui – qui qualifie pour utiliser un instrument.

Je sais qu’y a fait une demande pour ce type d’instrument mais je n’ai aucune preuve si un instrument qualifié a été utilisé. […] LA COUR : Donc, avant même de considérer la signification du document, je pense que je dois soulever ce point et permettre aux – aux parties de – d’argumenter ce point-là parce que c’est – on se rend pas au certificat.

[19] In response, counsel for the Crown argued that, in fact, the Court had heard testimony that the device used by Cpl. Langis was anAlco-Sensor FST. The judge of the Provincial Court disputed that assertion and they listened to the evidence in the courtroom, runningfrom line 15 of page 10 of the transcript, to line 8 of page 14. That portion of the evidence did not include the earlier testimony whereCpl.

Langis testified that he advised the accused that he was going to his vehicle to get an approved screening device. [20] After listening to that evidence again, the following exchange occurred between the Court and counsel for the Crown: LA COUR : O.K. Vous pouvez l’arrêter. Donc, il est qualifié pour l’utiliser mais j’ai pas de preuve que c’est cet instrument-làqu’il a utilisé.

Me SCALETTA : La seule chose que je peux vous dire, Monsieur le juge, c’est que – c’est le seul instrument qu’il était qualifié àutiliser et quand il parle d’un appareil – LA COUR : Donc, vous voulez – vous voulez que je suppose que, puisqu’il est qualifié pour cet instrument, ça doit être celuiqu’il a utilisé. C’est ça que vous me dîtes? Me SCALETTA : Bein, ce que je vous dis, c’est que y’a utilisé un – un appareil d’analyse approuvé et par la suite quand je suisvenu à les qualifications, j’ai demandé comment c’qu’y était qualifié pour l’instrument qu’il a utilisé.

LA COUR : Vous avez pas – c’est pas ça que vous avez demandé. Attention, vous voulez pas m’induire en erreur. Me SCALETTA : J’ai – j’ai – j’ai demandé à la Cour – veuillez expliquer à la Cour vos qualifications en ce qui a trait l’appareild’analyse approuvé. LA COUR : Vous avez pas dit que c’est celui qu’il a utilisé. C’est – c’est – c’est – c’est bien beau de dire que quelqu’un estqualifié pour utiliser quelque chose mais on doit avoir de la preuve que c’est – j’comprends votre argument-là mais c’est – Me SCALETTA : O.K. LA COUR : Donc, vous, vous croyez j’ai (inaudible) en preuve pour faire le lien?

C’est ça que vous me dites? Me SCALETTA : C’est le seul lien possible. C’est juste ce que j’vous soumets. C’est le seul lien possible dans cette situation – LA COUR : O.K. Me SCALETTA : – où c’que on parle d’un appareil d’analyse approuvé. On passe ensuite à la qualification pour l’utilisation decet – un appareil, comme vous dites. J’peux pas dire cet appareil. Un appareil d’analyse approuvé.

C’est le seul lien qu’on puisse faireaujourd’hui dans ce contexte ici. [21] After considering the arguments of counsel, the Court determined that there was no direct evidence relating to the use of anapproved roadside screening device, as required by law (see R. v. Arsenault, 2005 NBCA 110 ). As a result, the “fail” resultrelied upon by the officer could not be considered, and the officer therefore did not have reasonable and probable grounds to arrest theaccused and make the further demand for a breathalyzer sample.

Donc, dans les circonstances de cette cause, j’ai entendu de la preuve du corporal Langis qui m’indique qu’y avait fait une demande de la– de – avec un appareil – pour un appareil de détection approuvé – excusez. Par contre, aucunement dans son témoignage où ce que j’aientendu si l’instrument a été utilisé. La – la Couronne me demande de faire un lien que puisque le gendarme a témoigné qu’il étaitqualifié pour utiliser un certain instrument, que celle-là devrait être l’instrument qu’il a utilisé. Malheureusement, ce n’est pas l’état dudroit. Je ne peux pas faire de supposition.

Je ne peux pas faire ce que je pense qu’est probable, ne peut pas être – droit être prouvable puis

si c’est probable qu’il a utilisé cet instrument-là, je sais pas mais ça pas été prouvé hors de (inaudible) de tout doute raisonnable. Donc,je peux venir à aucune autre conclusion que la Couronne a fait défaut de démontrer qu’un appareil de détection approuvé a été utilisé parle gendarme Langis. La conséquence, le résultat d’échec ne peut pas être utilisé par le gendarme pour établir qu’il avait les motifsraisonnables et probables pour faire une demande de prélèvement d’échantillons. [22] The Court therefore ruled that the accused’s s. 8 Charter rights were breached.

The judge of the Provincial Court then undertookan analysis under s. 24(2) of the Charter, the so-called Grant analysis, and concluded that the evidence which was obtained in a mannerthat was contrary to the Charter, i.e. the Certificate of Qualified Technician, was inadmissible. No appeal of the Grant analysis is beforethe Court. [23] The charge was therefore dismissed and the accused was acquitted.

Ground of Appeal #1 - that the trial judge committed an overriding and palpable error of fact when he concluded that there was noevidence that the officer used an approved screening device at the roadside Ground of Appeal #2 - that the trial judge committed an error of mixed fact and law when he concluded that there was an insufficientlink between the officer’s qualifications to use an approved screening device and the screening device he used, so as to conclude thatthe device was, in fact, an approved screening device. [24] These two grounds of appeal are closely linked, and while they purport to frame the questions differently, the question for bothreally is: did the trial judge commit an error of fact when he concluded that the Crown had failed to prove that the device used by Cpl.Langis was an approved screening device, as required. [25] In my view, the second grounds of appeal are no more than an effort by the Crown to water down the standard of review.

It is,in reality, an error of fact that is being alleged. [26] With respect to appeals from the Provincial Court on a

summary conviction, the standard of review was articulated by JusticeRichard (as he then was) in R. v. Fowler, 2006 NBCA 90, writing: While the scope of a

summary conviction appeal to the Court of Queen’s Bench is broad enough to allow appeals on questions of fact,the function of the

Summary Conviction Appeal Court is nevertheless not to retry a case or to second guess the findings of facts made bythe trial judge. Absent an error of law or a miscarriage of justice, the role of the

summary conviction appeal judge is to determinewhether the findings of the trial judge are unreasonable or cannot be supported by the evidence[.] [27] On a finding of fact, i.e. whether evidence proved a fact or not, the trial judge is owed deference. This is not a retrial, and it isnot this Court’s function to substitute its own assessment of the evidence for that of the trial judge. His decision cannot be disturbedunless the finding of fact amounts to an overriding and palpable error. Our Court of Appeal very recently discussed that standard ofreview in Nagle v.

R., 2023 NBCA 35, writing: [32] For an error to be “palpable,” it must be one that is “obvious, plain to see or clear”; an “overriding” error is one that is“sufficiently significant to vitiate the challenged finding of fact” (see J.N.C. v. R., 2013 NBCA 59, [2013] N.B.J. No. 315 (QL), at par.15, citing Waxman v. Waxman, (ON CA), [2004] O.J. No. 1765 (C.A.); Doiron v. R., 2020 NBCA 31, [2020]N.B.J. No. 93 (QL), at para. 62). If a palpable error is identified, the Court must then determine whether this error is overriding.

Ifdetermined not to be overriding, the error will be ascribed little weight in the appellate analysis. Conversely, if determined to beoverriding, it will taint the lower court’s decision to a degree such that appellate intervention will be required. A palpable error will beoverriding if it goes to the root of the challenged finding of fact such that the trial judge’s conclusion “cannot safely stand on the face ofthat error” (see J.N.C. v. R., at para. 15, R. v. Doiron, at para. 62). [28] During argument, counsel for the Crown acknowledged that Cpl.

Langis did not testify expressly that the device he used was anapproved screening device. Rather, she argued that the evidence, taken as a whole, was such that the trial judge ought to have concludedthat “the device” about which the witness testified was an approved screening device because: • he read the demand from his card, which specifically referred to an approved device; • he testified that he went to his car to obtain “the” device; • he testified that he received training in the use of an Alco-Sensor FST, which is an approved device; and

• the Defence consented to the fact that the officer was qualified to operate “the device.” [ 29 ] The Crown acknowledged, though, that in order for the trial judge to conclude that the device was an approved screening device, he needed to draw an inference. That is, he had to infer that the approved device Cpl.

Langis was qualified to use and which he referred to being in his police vehicle was, indeed, the same device used to collect a breath sample from the accused at the roadside. [ 30 ] In fact, the Crown argues that it was the only reasonable conclusion available to the trial judge, i.e. it is a palpable and overriding error not to have drawn that inference. [ 31 ] Counsel for Mr. Parenteau argues that whether a trial judge draws an inference or refuses to draw an inference is a question of judicial discretion which is owed deference.

Counsel further argues that, in the case of whether an approved screening device was used, it would be a reversible error to infer or presume, in the absence of direct evidence, that the device used was an approved screening device. The Defence cites the Court of Appeal in Arsenault , supra, where Justice Deschênes, writing for the Court, set out the factual scenario as follows: [4] Constable Lafleur made a formal demand that Mr. Arsenault provide him with samples of his breath into an approved screening device. Mr. Arsenault complied with the demand and the test registered a fail.

As a result, Constable Lafleur made a demand that Mr. Arsenault accompany him to the police station in order to provide samples of his breath under s. 254(3) of the Code. [5] Constable Lafleur testified that he is qualified to operate an approved screening device, that he was satisfied that the device being used was operating effectively and accurately, and that the demand made to the respondent was that he provide him with a sample of his breath into an approved screening device. He described the device used to collect the sample as a “Draeger” screening device. [ 32 ] The trial judge and the

summary conviction appeal judge agreed that, in failing to provide more particulars than that a “Draeger” device was used, the Crown had failed to prove that an approved screening device had been used.

In upholding those lower court decisions, Justice Deschênes held: [16] In my view, as the Crown failed to establish that Constable Lafleur used an approved screening device, the trial judge, as well as the appeal court, rightly concluded that the fail result could not be taken into account in the determination of the question of reasonable and probable grounds to make the demand for the breathalyzer. […] [21] […] In my view, unless there is some evidence to establish it, a court is not entitled to assume that a screening device used by a peace officer in collecting a breath sample is an approved screening device.

That evidence is necessary to establish the statutory authority under which the breath sample is obtained. Peace officers are only entitled to require drivers to provide samples for testing on an approved screening device and the approved screening device is the only one that in fact can be used to collect the sample. The finding by the trial judge that the Crown had failed to establish that Mr. Arsenault’s breath sample had been collected by using an approved screening device simply means that the fail result was not obtained within the legislative scheme envisaged by the Code.

The “Draeger” machine used was not an “approved screening device” as defined by the Criminal Code and regulations. Unlike the results from an “approved screening device” the results obtained in this case cannot be presumed to be reliable. Only a “fail” reading on an “approved screening device”, as defined by the Code, can provide the necessary reasonable and probable grounds. Where the particular screening device used has been approved under the statutory scheme, an officer is usually entitled to rely on its accuracy.

The test results on the “Draeger” provided a result that has no meaning within the framework of the section. [ 33 ] Whether a trial judge is entitled to infer something the Crown must prove beyond a reasonable doubt was not addressed by the parties.

But that is immaterial, in my view, as the first question is whether refusing to draw an inference amounts to an overriding and palpable error. [ 34 ] Justice Watt in Watt’s Manual of Criminal Evidence , 2020 Edition, has the following insight at page 124: An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. It is a conclusion that may , not must be drawn in the circumstances. It does not change the allocation of the burden of proof, nor alter the standard of proof to be met by any party.

The boundary that separates permissible inferences from impermissible speculation in connection with circumstantial evidence is often a very difficult one to determine.

[35] In the present, the Defence argues that it would have been pure speculation for the trial judge to have inferred that the screeningdevice used by Cpl. Langis was an approved device. I do not agree. In my view, there was sufficient evidence before the trial judgewhich would have permitted him to draw a reasonable inference based on logic and reason that the device used was an approved device. [36] But that is not the proper question. The proper question is, was the inference suggested by the Crown the only reasonableinference open to the trial judge. In my view, the answer is no.

The trial judge was open to draw the inference or not to draw it. Inrefusing to draw the inference, the trial judge was aware of the Court of Appeal’s caution that use of an approved screening device mustbe proven and cannot be assumed. As stated by Justice Watt, the line between inference and speculation is a thin one.

But in my view, itwas entirely within the trial judge’s discretion to refuse to draw the inference as he did. [37] I am therefore unable to conclude that the trial judge made an overriding and palpable error which requires intervention by thisCourt. [38] The first and second grounds of appeal are therefore dismissed. Ground #3 - the trial judge committed an error of law in rendering his ruling on the admissibility of the Certificate of QualifiedTechnician on his own motion before the Crown had closed its case. [39] This ground of appeal is fundamentally different from the first two.

It relates to trial fairness. [40] There is no dispute that the trial judge acted on his own motion. Neither party raised the failure to specify that an approvedscreening device was used. [41] Also, there is no dispute that the trial judge heard arguments on the issue and made his ruling in the middle of the Crown’s case. He was told at the outset that the Crown intended to call two witnesses but ruled after the first witness had completed his evidence.

Thiswas evident to counsel for the accused, who specifically noted that the Crown had planned to call another witness (see Transcript, page79). [42] Does this result in miscarriage of justice? [43] In R. v. Khan, 2001 SCC 86 , Justice LeBel wrote a concurring decision with the majority. On the subject of trialfairness and the notion of “miscarriage of justice,” he had this to say: 73 Whether a “miscarriage of justice” has occurred asks whether the trial was unfair, or alternatively whether an appearance ofunfairness was created. See e.g. Cameron, supra, at pp. 101-2; R. v.

Hertrich (1982), (ON CA), 67 C.C.C. (2d) 510(Ont. C.A.), at p. 543. This last element should be evaluated in relation to a reasonable and objective observer, by asking if theirregularity would be such as to taint the administration of justice in his or her eyes. The fact that some member of the public mayconsider the trial to have been unfair is not sufficient. We must look at whether a well-informed, reasonable person considering thewhole of the circumstances would have perceived the trial as being unfair or as appearing to be so. [44] In R. v.

Davey, 2012 SCC 75 , Justice Karakatsanis cited Justice LeBel’s words with approval, and also cited JusticeCromwell (as he then was) of the Noa Scotia Court of Appeal: [50] In his concurring opinion in R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, LeBel J. considered the scope of the miscarriages ofjustice contemplated by s. 686(1)(a)(iii).

He concluded, at para. 69, that when considering whether an irregularity that occurred during atrial rises to the level of a miscarriage of justice, “[t]he essential question in that regard is whether the irregularity was severe enough torender the trial unfair or to create the appearance of unfairness.” [51] In R. v. Wolkins, 2005 NSCA 2, 229 N.S.R. (2d) 222, at para. 89, Cromwell J.A. provided a helpful

summary of the two types ofunfairness contemplated within the meaning of miscarriage of justice under s. 686(1)(a)(iii): . . . the courts have generally grouped miscarriages of justice under two headings. The first is concerned with whether the trial was fairin fact. A conviction entered after an unfair trial is in general a miscarriage of justice . …The second is concerned with the integrity of

the administration of justice. A miscarriage of justice may be found where anything happens in the course of a trial, including theappearance of unfairness, which is so serious that it shakes public confidence in the administration of justice … [Citations omitted.] [45] So, was there an appearance of unfairness in this case? [46] Again, the trial judge raised an issue not raised by the accused. He did so midway through the Crown’s case, and in theknowledge that the Crown intended to call another witness. [47] In my view, the trial judge was overly eager to address what was, in his view, a determinative issue.

He had decided, it wouldseem, that the Crown had failed to prove an essential component of its case and he raised it, invited argument on the issue and ruled onthe issue before the Crown had closed its case. [48] While the transcript indicates that the Crown conceded that its remaining witness likely would not have had information aboutthe roadside device that was used, nobody knows how the trial might have unfolded if the trial judge had waited to the close of theCrown’s case. [49] The Defence argues that the trial judge enjoys a broad discretion to manage the trial. That is undoubtedly the case.

As statedrecently by the Supreme Court of Canada in R. v. Samaniego, 2022 SCC 9 , a decision penned by Justice Moldaver: [20] The trial management power allows trial judges to control the process of their court and ensure that trials proceed in an effectiveand orderly fashion. While this Court has not provided explicit guidance on the nature and scope of the power, it has implicitly endorsedthe concept (R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 58; Ontario v.

Criminal Lawyers’ Association of Ontario, 2013SCC 43, [2013] 3 S.C.R. 3, at para. 26). [21] The power has three interrelated purposes: ensuring that trials proceed fairly, effectively, and efficiently (R. v. John, 2017ONCA 622, 350 C.C.C. (3d) 397, at para. 47; R. v. Polanco, 2018 ONCA 444, at para. 22 ). [22] Judges may intervene to manage the conduct of trials in many ways, including restricting cross-examination that is undulyrepetitive, rambling, argumentative, misleading, or irrelevant (R. v.

Ivall, 2018 ONCA 1026, 370 C.C.C. (3d) 179, at paras. 167-68; R. v.Snow (2004), (ON CA), 73 O.R. (3d) 40 (C.A.), at para. 25). The trial management power is an essential andversatile tool; it must, however, be exercised carefully (R. v. Felderhof (2003), (ON CA), 68 O.R. (3d) 481 (C.A.),at para. 38). Parties should generally be allowed to present their cases as they see fit (Polanco, at para. 29). [50] I am of the view that the trial judge’s actions in this case, in ruling before the close of the Crown’s case, went beyond trialmanagement.

The trial judge ruled prematurely on the issue and, in doing so, he denied the Crown a fair trial. I am of the view that theCourt’s ruling on its own motion before the Crown had closed its case is manifestly unfair and would cause an informed member of thepublic to lose confidence in the administration of justice. [51] Also under the umbrella of trial fairness is the issue of the Defence’s consent to Cpl.

Langis’ qualification to operate“l’appareil.” It is clear from the transcript that the admission, which was intended to be helpful and to relieve the Crown from having tolead evidence on an issue that was not contested, resulted in some confusion for the Crown and, in my view, led the Crown to reasonablybelieve that the use of an approved device was conceded. La Cour: Oui. Donc, vous admettez qu’il était qualifié pour l’utilisation de l’appareil? Me Boutet: Pas de problème. La Cour: D’accord. DISPOSITION

[ 52 ] I am satisfied that the trial judge’s well-intentioned decision to rule on the use of an approved screening device was done prematurely, before the Crown had closed its case, and that the ruling’s prematurity resulted in a miscarriage of justice, which is an error of law. [ 53 ] The acquittal is set aside, and the matter is referred back to the Provincial Court for a new trial. Note: Mr. Parenteau’s trial proceeded in French, and the Crown filed its Notice of Appeal in French. Yet, for some reason, both Crown and Defence submitted written briefs in English and argued at the hearing in English.

Further, counsel for Mr. Parenteau indicated that the Court should issue its decision in English. In my view, these reasons should, at the very least, be released in both official languages. However, given that a new trial is ordered, and given this Court’s concerns over further delays, these reasons are being released in English only, with a French translation to follow. DATED at Moncton, New Brunswick this 10 th day of July, 2023. _____________________________________ Robert M. Dysart, Judge of the Court of King’s Bench of New Brunswick