R. v. Jacky Savoie 2012NBPC10 Court File Number 05544210, 2012 NBPC 10

R. v. Jacky Savoie 2012NBPC10 Court File Number 05544210 IN THE PROVINCIAL COURT OF NEW BRUNSWICK JUDICIAL DISTRICT OF CAMPBELLTON B E T W E E N: HER MAJESTY THE QUEEN - and - JACKY SAVOIE JUDGEMENT BEFORE: Judge Steven M. Hutchinson DATE OF TRIAL: April 26 th , 2012 and May 9 th , 2012 PLACE OF TRIAL: Campbellton, New Brunswick DATE OF DECISION: May 24 th , 2012

APPEARANCES: For the Crown: René Dumaresq For the Defence: Leslie F. Matchim DECISION INTRODUCTION [ 1 ] The defendant, Jacky Savoie, is charged with having operated a motor vehicle while his blood alcohol level exceeded the legal limit, an offense under Section 253(1) (

b) of the Criminal Code of Canada . [ 2 ] On January 18 th , 2012, the defence filed a Notice of Application alleging that the language rights of Mr. Savoie as guaranteed under Section 31(1) of the Official Languages Act as well as Section 20(2) of the Canadian Charter of Rights and Freedoms had been breached. In their Notice, the defence alleges that the arresting officer made no offer of choice of language and as a result of the alleged breach, seeks exclusion of the certificate of the qualified technician. [ 3 ] The defence also sought leave of the Court so as to require the attendance at trial of Cpl.

Pierre Laviolette, the qualified technician, for purposes of cross-examination. [ 4 ] As a result of the above, the matter proceeded by way of mixed or blended voir dire and trial. As a result, I propose to summarize that evidence relevant to the two issues raised by the defence. EVIDENCE OF THE CROWN [ 5 ] Cst.

Eric Dupuis, a member of the Royal Canadian Mounted Police, was the principal witness for the Crown. [ 6 ] On June 2 nd , 2011, at approximately 2:30 a.m., he was on what he termed as “preventive patrol” in the City of Campbellton. [ 7 ] At 2:30 a.m., he noted a vehicle passing in front of his police vehicle on Patterson Street, here in the city. In order to verify the driving documents of the driver as well as the sobriety, the vehicle was stopped at a short distance from the original point of observation. [ 8 ] Cst.

Dupuis testified that he approached the subject vehicle, and at this point in time, the driver would have lowered the window. The officer testified that he would have addressed the driver, of the vehicle, in the following terms, “French or English?” He further testified that there is no indication in his notes as to this particular aspect due to the fact that this was not a situation where a demand was being made. [ 9 ] The driver would have answered in the French language indicating that he wished to proceed in French. He then would have asked Cst. Dupuis “Is there a problem? Why did you stop me?” Cst.

Dupuis testified that he would have informed the driver that he was being stopped to check his driving documents and his sobriety. The driver who is identified as the defendant, Jacky Savoie, would have then informed Cst. Dupuis that he was the designated driver. [ 10 ] Cst. Dupuis testified that during the brief conversation had with Mr. Savoie he was able to smell alcohol emanating from his breath. Mr. Savoie would then have handed to Cst. Dupuis his driver’s license as well as registration and the insurance documents for that vehicle.

[ 11 ] During their conversation, Mr. Savoie would have indicated to Cst Dupuis that he had not consumed any alcohol on that particular evening, notwithstanding the observation made by Cst. Dupuis, and furthermore, he indicated his willingness to undergo any tests to prove this fact. [ 12 ] As a result of the conversation, Cst. Dupuis requested that Mr. Savoie accompany him to his police vehicle where he was placed in the rear seat. He was then asked whether or not he had consumed any alcohol in the last 15 minutes to which he responded “no”.As a result, at 2:37 a.m., Cst.

Dupuis would have made a demand for a breath sample into an approved screening device. All of the conversation and demands would have proceeded in the French language. He was asked as to whether or not he understood the demand, to which he would have replied in the affirmative. As a result, Cst. Dupuis obtained a sample of the defendant’s breath, which resulted in an “F” reading, which meant that he failed the test, and according to Cst. Dupuis, a fail result indicates that the amount of alcohol in the defendant’s blood exceeded the legal limit. [ 13 ] Cst.

Dupuis further testified that on the morning in question, he was using the Alcotest 7410 G.L.C. and that in his opinion, the apparatus was in proper working order. [ 14 ] Upon obtaining the fail result on the approved screening device, Cst. Dupuis then informed the accused that his blood-alcohol level was over the legal limit and that he was placing him under arrest for impaired driving. According to Cst. Dupuis, he then made a demand for an Alcotest. This was made immediately following the fail result on the approved screening device. Mr.

Savoie would have indicated that he was prepared to provide samples of his breath in order for analysis into the Alcotest, and Cst. Dupuis then followed up by reading the defendant his right to counsel and the standard police caution. With respect to these, he understood both and would then have indicated that he did not wish to consult counsel. Except for the issue of language rights, the defence takes no issue with this aspect of the investigation. [ 15 ] Cst. Dupuis testified that at 2:53 a.m., he would have arrived with Mr.

Savoie at the Campbellton detachment of the RCMP, and 4 minutes later at 2:57 a.m., Cst. Dupuis would have transferred custody of Mr. Savoie to Cpl. Pierre Laviolette, a qualified technician. Cpl. Laviolette would then have proceeded to obtain two breath samples, the first being at 3:15 a.m. and the second at 3:37 a.m. [ 16 ] Pursuant to the testing, Cpl. Laviolette would have prepared a Certificate of Analysis, and at 4:01 a.m., a copy was served on the defendant, Jacky Savoie, as well as the Notice of Intention to produce. Cst.

Dupuis testified that he explained in layman’s terms what the Notice of Intention signified. [ 17 ] In cross-examination, Cst. Dupuis was questioned closely with respect to the offer of language rights. He reiterated that immediately upon approaching the vehicle and noting that the driver had lowered the window, he asked him, “French or English?” Cst. Dupuis further stated that the testimony basically arose out of what he termed to be his “general practice”. He said he always poses this question immediately upon approaching any detained person. [ 18 ] Further in cross-examination, Cst.

Dupuis stated that if he knows the language preferences of the party and if he has dealt with this party in the past, he will speak the language that he knows that person is more comfortable with. CROSS-EXAMINATION OF THE QUALIFIED TECHNICIAN [ 19 ] Cpl. Pierre Laviolette, a member of the Royal Canadian Mounted Police, presently stationed in Campbellton, New Brunswick, who is a qualified technician, was cross-examined (with the consent of the Crown) in the within matter. [ 20 ] It was established during the testimony of Cpl.

Laviolette that Jacky Savoie provided breath samples into a BAC Data Master. [ 21 ] As a result of the tests carried out by Cpl. Laviolette, two BAC Data Master – C “evidence tickets” were accepted into evidence. These two documents represent the two breath samples provided by Jacky Savoie. [ 22 ] These documents are generated by the Data Master itself after every breath sample. They show the date, the subject’s name, the name of the qualified technician, the location of the test, and the number of the analysis. Exhibit D-1 is related to the first breath test.

This particular evidence ticket contains five separate entries, which are standard with respect to every breath sample analyzed by the instrument. First is a “blank test” performed at 3:13 a.m. the result is shown as “0”. The second line indicates an “internal standard” indicating “O.K.” at 3:13 a.m. The second” internal standard” indicates a reading of 101 at 3:13 a.m. Then, a blank test, again showing a “0” result obtained at 3:14 a.m. and the subject sample at showing a reading of 110 at 3:15 a.m., after which there is recorded an “ambient fail”.

It is this “ambient fail” that the defence maintains indicates that the Data Master was not functioning properly. It is the position of the defence that this malfunction should create a doubt about the proper functioning of the Datamaster and as such would constitute evidence to the contrary pursuant to Section 258(1) (

c) of the Criminal Code . [ 23 ] Exhibit D-2, which is the second evidence ticket, was generated between 3:35 a.m. and 3:37 a.m., contains all of the same entries as on Exhibit D-1. However, there is no notation of an “ambient fail” on Exhibit D-2. This test forms the basis of the second reading and analysis of the breath sample of the defendant. [ 24 ] During the testimony of Cst. Laviolette, he was adamant that only two tickets were generated by the BAC Data Master. The defence however was able to establish through the use of a video that actually three documents were generated by the instrument.

The video, introduced by the defence, shows Cpl. Laviolette destroying one of the BAC Data Master tickets. According to Cpl. Laviolette, the only explanation would be that the document that had been produced was blank, and he felt that it was of no value, and thus he destroyed it. A much better practice, of course, would have been to retain this document for production, if such becomes necessary. [ 25 ] Cpl. Laviolette was questioned closely by the defence with respect to the significance of the notation “ambient fail” on Exhibit D-1. Cpl.

Laviolette explained that the Data Master basically calibrates itself and by virtue of the ambient testing assures that the apparatus is purged and in proper functioning order and that any subsequent sample obtained and subsequently analyzed is valid. With respect to the obtaining of the reading “ambient fail”, on this particular occasion, Cpl. Laviolette, testified that when the “ambient fail” result occurs after the obtaining of a valid sample, this does not affect the validity of the result.

If the “ambient fail” result were to have occurred before the analysis was completed, this failure would have the effect of invalidating the results, due to the sequence of events. [ 26 ] Cpl. Laviolette was also of the opinion that the fact he obtained a reading on the first analysis, this in and of itself, is indicative that the instrument was functioning properly. If this were not the case the instrument would not produce a reading, If such were to be the case, he would then have had to proceed to the obtaining of a third test, which did not happen in this particular instance.

According to his evidence the fact that a third test was not carried out reinforces his opinion that the test results he obtained from the defendant were valid. [ 27 ] In this matter, Cpl.

Laviolette was cross-examined extensively with respect to Exhibit D-3 being the BAC Data Master Basic Operator Guide . [ 28 ] At page 7, under the heading Data Master Status Code, we find the following: “ AMBIENT Fail: ethanol or other substance detected in the ambient air during the purge.” [ 29 ] Also, one portion of the BAC Data Master and Data Master CDM Supervisor Guide was admitted into evidence [Exhibit D-4], containing the following notation or definition: AMBIENT FAIL the Data Master has the ability to measure the ambient air being drawn into the instrument during the purge cycle.

If the air is contaminated with alcohol or other detectable substance, an ambient fail error is generated. Common causes of this include a contaminated mouthpiece left in the breath tube during the purge cycle, the breath tube inlet in near proximity to a subject heavily contaminated with alcohol or the recent use of certain cleaning compounds in the room housing the instrument. The test may be restarted after removing the mouthpiece, moving the subject away from the instrument and ventilating the room if necessary. [ 30 ] During cross-examination of Cpl.

Laviolette, defence counsel presented various hypotheses drawing from the “ambient fail” definition reproduced above [Exhibit D-4]. This line of questioning was an attempt to substantiate the basic premise that the obtaining of “ambient fail” was tantamount to evidence that the instrument was malfunctioning, thus invalidating the test result. These various hypothesis or scenarios were all categorically rejected by Cpl.

Laviolette, again returning to his basic premise that the fact that the ambient fail message was received after the obtaining of a valid sample is evidence that the machine was functioning properly. The sequencing of events is very important. Also, it was established that a failure on the first test could not affect the validity of a second test. The information contained in Exhibit D-2, the Data Master ticket, is evidence according to Cpl. Laviolette of the validity and accuracy of the second test result. EVIDENCE OF THE DEFENCE

[ 31 ] In the trial proper, the defence called three witnesses, all of whom were occupants of the motor vehicle driven by Jacky Savoie in the early morning hours of June 2 nd , 2011. [ 32 ] Daniel Junior Lepage testified that he met up with Jacky Savoie and a third party, Mathieu Levesque, at a local drinking establishment at approximately midnight of June 1-2, 2011. [ 33 ] According to Lepage, he would have left the club with Savoie and Levesque at approximately 2:25 a.m. Five to six minutes later, they were stopped by Cst. Dupuis. The evidence given by Mr.

Lepage is identical to the evidence that was given by Cst. Dupuis regarding how the officer approached the vehicle, how Mr. Savoie opened the window and asked if there was a problem and why was he being stopped. He agrees that the defendant, Jacky Savoie, answered in the negative the question as to whether or not he had consumed alcohol during the evening which was false. [ 34 ] This witness is adamant that Cst. Dupuis never asked the defendant, Mr. Savoie, in which official language that he wished to be served. In cross-examination, it was established that Mr.

Lepage would have consumed five or six beer on the evening in question. [ 35 ] Mathieu Levesque also testified. He was a passenger in the vehicle driven by Jacky Savoie on the morning in question. His evidence is essentially the same as the evidence given by Mr. Lepage, and that is when Cst. Dupuis approached the vehicle, there was never an inquiry made by the officer, as to which official language Mr. Savoie wished to use. [ 36 ] The final witness called by the defence was the defendant himself, Jacky Savoie. Mr.

Savoie is a resident of Pointe-à-la-Croix in the Province of Quebec, and he acknowledges being stopped by Cst. Dupuis on June 2 nd , 2011. His testimony is to the effect that on June 2 nd , at approximately 2:30 a.m., he would have left Tap’s Bar in Campbellton with both of his friends, Daniel Junior Lepage and Mathieu Levesque. [ 37 ] Upon leaving the club, it was agreed that Mr. Lepage had consumed too much alcohol to be able to drive his vehicle. Mr. Savoie felt that he was capable of driving the vehicle. For this reason, all three individuals got into the Lepage vehicle which was driven by Savoie. [ 38 ] Mr.

Savoie testified that very soon after leaving the club, he noticed the lights of a police vehicle following his vehicle. He stopped the vehicle and rolled down his window and asked why he was being stopped, and he confirms that Cst. Dupuis informed him that he wanted to verify his driver’s documentation as well as to verify for the presence of drugs or alcohol consumption by the driver. He acknowledges that he told Cst. Dupuis a lie when he stated that he had not consumed alcohol. [ 39 ] Like the witnesses Lepage and Levesque who preceded him, Mr. Savoie disagrees with the testimony of Cst.

Dupuis with respect to the fact that he would have asked him whether or not he wished to be dealt with in the French or English language, this despite the fact that he has a good recall of the events of that morning. [ 40 ] In cross-examination, it was established that he had never had any dealings with Cst. Dupuis in the past. [ 41 ] The defendant, Jacky Savoie, also acknowledged that his mother tongue is French, and the usual language that he speaks is French.

He stated that, “I don’t speak much English.” [ 42 ] He also testified that he was not aware of his constitutional right to be dealt with in either of the official languages when he was stopped by police on June 2 nd , 2011. He does acknowledge that even if he would have been asked, he would have chosen to be dealt with in the French language.

He also acknowledges that he initiated the conversation with the police officer, using the French language. [ 43 ] He testified in cross-examination that he only became aware of his charter protected right to be served in the official language of his choice “when I met a lawyer”.

POSITION OF THE DEFENCE Breach of the charter’s linguistic Rights [ 44 ] With respect to the language issue in this matter, the defence maintains that their witnesses, Lepage, Levesque and Savoie are credible and that each one of them was adamant that Cst. Dupuis did not explain to the defendant that he had the right to be dealt with in either the French or the English language. The defence also maintains that even if the Court accepts the evidence of Cst. Dupuis that he addressed the defendant and posed the following question, “French or English?” this is not sufficient.

The police officer must be more explicit and explain to the detained party, the exact nature of the right that the detained person is being asked to address. [ 45 ] The defence maintains that if the Court is to find that there was a Charter breach then under the Section 24(2) analysis mandated by the Charter the Court should exclude the Certificate of Analysis Evidence to the Contrary [ 46 ] The defence posits that there is evidence of a mechanical failure in the BAC Data Master, inasmuch as Exhibit D-1, that being the ticket produced by the Data Master, shows an “ambient fail” occurring within the instrument.

It is argued, that when one takes into consideration that as a final notation on Exhibit D-1 the instrument showed an “ambient fail” this, along with the excerpts from the 2 manuals that are in evidence, then the cumulative effect of these should be sufficient to create a doubt in the mind of the Court that the BAC Data Master malfunctioned when the first test was performed on the defendant, Jacky Savoie. POSITION OF THE CROWN [ 47 ] The Crown contends that, with respect to the position taken by the defendant that his Linguistic Charter Rights were breached, the evidence of Cst.

Dupuis is credible and conclusive and is to the effect that he would have advised Mr. Savoie of his linguistic rights. In the alternative, if the Court finds that there has been a breach, then the breach is of such a minor nature that it would not merit a remedy. [ 48 ] With respect to evidence to the contrary, the Crown points out that the evidence of Cpl. Laviolette is unequivocal and clear, and that being that on test No. 1, he received a valid sample of the breath of the defendant and that the analysis carried out by the Data Master produced a valid result, and there is no malfunction of the machine.

ANALYSIS Were the linguistic rights of Jacky Savoie breached by Cst. Dupuis? Relevant statutory dispositions [ 49 ]

Section 31 of the Official Languages Act reads as follows: 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. [ 50 ] Canadian Charter of Rights and Freedoms , Section 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. [ 51 ] Canadian Charter of Rights and Freedoms, Section 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.

[52] I would begin this analysis by observing that on the threshold question, that being as to whether or not Cst. Dupuis made a validoffer of language rights to Jacky Savoie on the morning in question the evidence is contradictory. [53] Because of the contradictory evidence, in the within matter, I have chosen to, assume without deciding, that a breach of theCharter Rights of Mr. Savoie has occurred.

Basically, I have chosen this route because of the fact that the outcome of the section 24(2)analysis is so clear cut in my opinion. [54] The New Brunswick Court of Appeal in the landmark decision of R v Losier, (2011) 2011 NBCA 102 , 380 N.B.R. (2d)115; discussed at length the above-cited legislative dispositions. For the purposes of this case, the instruction given by the Court isdeterminative. If a Court finds that there has been a breach of the constitutionally protected linguistic rights of a defendant, then theCourt must undertake a Section 24(2) Charter analysis.

I have concluded that, in the context of the present matter, even if a breach wereto have occurred, the breach is of such a minor nature that admission of that evidence would not bring the administration of justice intodisrepute. [55] I begin my analysis at the very obvious start- point, that being the decision of the Supreme Court of Canada in R. v. Grant, 2009SCC 32 , [2009] 2 S.C.R. 353.

In the Grant decision, the Supreme Court of Canada made significant corrections to theanalytical course that had been set previously in Collins/Stillman with respect to S24(2) based analysis. [56] In preliminary comments made with respect to the perspectives inherent in Section 24(2) of the Charter, the majority stated thatthe purpose of Section 24(2) is to maintain the good repute of the administration of justice. Its purpose is not to punish policemisconduct or to compensate the accused for the violation of his rights; its purpose is broader it must reflect the societal interestsinherent therein.

Section 24(2) does not focus on reaction to the immediate case; it focuses on long term, futuristic and systemicconcerns. The critical question to be addressed is whether the overall repute of the administration of justice, viewed in the long term,will suffer from admission of the evidence.

The standard is objective, therefore the question the Court must view the matter from abroad perspective and consider whether a reasonable person informed of all relevant circumstances and the values that underlie theCharter would conclude that the admission of the evidence would bring the administration of justice into disrepute. [57] In the revised approach mandated in Grant, trial courts are now required to assess and balance the effect of admitting theevidence on society’s confidence in the justice system having regard to: (1) the seriousness of the state conduct, (2) the impact of the breach on the accused Charter-protected interests, and (3) society's interests in the adjudication of the case on its merits. [58] In following the proposed three-stage analysis, the first stage is:

(1) Seriousness of the Charter-Infringing State Conduct [59] This inquiry necessitates an evaluation of the seriousness of the state conduct that led to the breach. The main concern is topreserve public confidence in the role of law and its processes.

In order to determine the effect of admission of the evidence, the Courtmust consider the seriousness of the violation as viewed in terms of the gravity of the offending conduct by state authorities. [60] This particular analysis recognizes that some violations may be characterized as inadvertent or minor violations of the Charterwhich in turn may minimally undermine confidence of the public in the rule of law. [61] At paragraph 75, the Supreme Court observes that willful or flagrant disregard of the Charter by those very persons who arecharged with upholding the right may require that the court dissociate itself from such conduct.

In cases where the evidence points todeliberate police misconduct, this would tend to support exclusion of the evidence.

(2) Impact on the Charter-Protected Interests of the Accused [62] This particular heading calls for an evaluation of the extent to which the breach actually undermined the interests protected bythe right infringed.

[63] The analysis may demonstrate activity which ranges from fleeting and technical to profoundly intrusive. The more serious theimpact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charterrights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justiceinto disrepute. [64] In order to properly analyze the seriousness of the infringement from the perspective of the impact, the Court must look at theinterests engaged by the infringed right and examine the degree to which the violation impacted on those interests.

(3) Society’s Interests in an Adjudication on the Merits [65] Under this heading, the Court initially observes that society generally expects that a criminal allegation will be adjudicated on itsmerits.

Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trialprocess would be better served by admission of the evidence, or by its exclusion. [66] In the within matter and with particular reference to the position of the defence that there has been an infringement of theLinguistic Charter Rights of Jacky Savoie as guaranteed by the Charter, regard must be had to all three considerations dealt with above. [67] Considering the first heading, the question of seriousness of the Charter infringing conduct, this Court finds that the importanceof linguistic rights to be indisputable.

In Losier the Chief Justice uses the term – infrangible, thus leaving no doubt about theirimportance in the constitutional constellation.

Having said that, I am of the opinion that the Charter breach in this case would situateitself at the lower end of the spectrum for the following reasons: (1) the defendant’s mother tongue was French, (2) his day-to-day language is French, (3) during Court proceedings, he used the services of an interpreter in order to be able to testify in English given that the language of thetrial was English. [68] I feel compelled to observe that the fact situation presented in this case can be easily distinguished from those facts motivatingthe decision in the Losier case.

In Losier, the trial judge noted and relied upon the following to justify the granting of the remedy ofexclusion: (1) the police officer noticed that Mr. Losier spoke with a strong French accent, and according to the evidence, even if it appeared thatMr. 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 duties under Section 31(1) of the Official Languages Act; however,notwithstanding this knowledge, the police officer chose not to inform Mr.

Losier with respect to his right to be served in the officiallanguage of his choice until Mr. Losier specifically informed him that he would prefer a French-speaking lawyer, (3) before the police officer explained to the accused the options that were constitutionally available, it had been approximately 30minutes since Mr.

Losier had been originally detained, (4) finally the trial judge took into account, perhaps in a more peripheral sense, that the Crown prosecutor in his submission would haveconceded that the police force in question was somewhat non-diligent in its compliance with its duties under Section 31(1) of the OfficialLanguages Act. [69] I would suggest that it was the cumulative effect of all of these factors which led the trial judge to conclude that a Charter breachhad occurred, that was sufficiently serious that the only appropriate remedy would be exclusion of the evidence under Section 24(2) ofthe Charter. (See R. v.

Losier, [2010] NBPC 24 . With respect, the facts in the present matter are far less serious that those found in Losier. [70] As a result of the above and taking into consideration the analyses that must be carried out under the first and second stage of theprotocol, that being the seriousness and resultant impact of the breach, I am of the opinion that exclusion would not be an appropriateremedy given the considerations under these two headings.

Without trivializing what has transpired in the present matter, I find that thebreach in the present matter would have been minor and the impact on the defendant to have been minimal. In this case, Mr. Savoie in

cross-examination quite candidly admitted that he would have answered Cst. Dupuis that he wished to be dealt with in the French language, had the question been posed. This case does not have evidence of high handed or a cavalier attitude of the police officer present in Losier . As a result, I feel that exclusion would not be a viable remedy in these particular aspects of the analysis. [ 71 ] Finally, in my opinion, society’s interests in adjudication on the merits would, in this particular matter, strongly militate against exclusion.

The reasonable person, having knowledge of the particular facts of this matter, would feel that the administration of justice would be brought into disrepute if the Court were to exclude the results of the analysis under Section 24(2) of the Charter .

One only has to recall the many comments of the Supreme Court with respect to the dangers of impaired driving. [ 72 ] In Losier Chief Justice Drapeau at para.11 observes that despite the importance of linguistic rights “it bears underscoring that exclusion of evidence essential to the prosecution is not necessarily the appropriate remedy for every violation of language rights, regardless of the circumstances.

The analysis required under s.24 (2) must be carried out”. [ 73 ] As a result, while I have assumed (and this is only an assumption) that there has been a Charter breach in this particular instance, the Court is of the opinion that there should not be a ruling under Section 24(2) of the Charter excluding the certificate of analysis. [ 74 ] In the result, I hereby admit the Certificate of Analysis that the Crown has tendered and mark it as an exhibit in this matter.

The certificate indicates that two readings were obtained; the first test indicated a blood alcohol reading of 110 mgs of alcohol in 100 liters of blood. The second test yielded a reading of 100 . EVIDENCE TO THE CONTRARY Relevant Statutory Authorities [ 75 ] Criminal Code of Canada : 258.

(1) In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2), (

a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed to have had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be; (

b) the result of an analysis of a sample of the accused’s breath, blood, urine or other bodily substance — other than a sample taken under subsection 254(3), (3.3) or (3.4) — may be admitted in evidence even if the accused was not warned before they gave the sample that they need not give the sample or that the result of the analysis of the sample might be used in evidence; (

c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if ▪ (i) [Repealed before coming into force, 2008, c. 20, s. 3 ] ▪ (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken, ▪ (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and ▪ (iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician, evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed; (my underlining)

[76] At trial, the defence argued strenuously that the evidence contained in Exhibit D-1, that being the BAC Data Master evidenceticket which contains the “ambient fail” after the sample was taken at 3:15 a.m., is evidence that the apparatus was malfunctioning orwas being operated improperly. The defence relies upon the ”ambient fail” reading along with the definition given in Exhibit D-4, thatbeing the BAC Data Master Supervisor Guide, as being sufficient to raise a doubt in the mind of the Court and that there was amalfunction in the Data Master. [77] Further to this argument, the defence relies upon an

interpretation of Section 258(1)(

c) rendered in the case of R. v. Powichrowski (2009), 2009 ONCJ 490 , 70 C.R. (6th) 376. In the Powichrowski decision, the Court had to decide whether ornot Sections 258(1)(c), (d.01) and (d.1) were constitutionally invalid. At paragraph 31, the Court concludes as follows: The new subsection does not require separate attacks or doubts to be raised under each heading, considered separately. This isimportant because, on one reading - and this initially caused me considerable concern - the new 258(1)(

c) would seem to requirethat a defendant who succeeded in showing a material malfunction or error in the machine would still be required to prove orseparately raise a doubt that he was under 80 at the time of the offence. However, Crown counsel Mr. Doyle has convinced methat the proper

interpretation should be that if material malfunction or error is shown (or doubt raised) there would then be noreliable evidence of BAC in the case at all and necessarily a doubt would also have been raised as to the accused being over 80 atthe time of the offence. Such an

interpretation is not only the proper one but also a necessary one in order to preserve theconstitutionality of the section. [78] With respect to a very comprehensive judgment covering the history of evidence to the contrary proceedings especially inOntario, I am not at all sure that the Trial Judge, Duncan J. is correct in his

interpretation of Section 258(1) (c). This

interpretation isdeveloped within a constitutional challenge to the new definition of “evidence to the contrary”. The question has been and will continueto be whether or not a finding by a Trial Court that the instrument was malfunctioning satisfies the remaining criteria of that particularsection or whether each of the subsequent criteria forms the object of a separate and discrete inquiry.

Judge Duncan found the a findingof malfunction would, in effect, be determinative of those other criteria referenced in S.258 of the Criminal Code. [79] Be that as it may, this is not a point that I must decide because, despite the able argument raised by the defence, I am unable toconclude that there is any evidence showing a material malfunction or error in the instrument. [80] Recall that the defence relies upon the “ambient fail” reading. This proposition was rejected by the qualified technician, Cpl.Laviolette during his testimony. Cpl.

Laviolette was not at all in agreement with the proposition that the “ambient fail” shown after thetest results indicated any compromising of either the analysis or the results obtained. That is the only evidence I have on this particularpoint. The defence, in a very spirited argument, points out that in Exhibit D-4, the Supervisor’s Guide, there is a possibility that acontaminated mouthpiece had been left in the breath tube or that cleansing compounds may have entered into the apparatus. Withrespect, these are speculative for which I am unable to find any basis in the evidence.

As a result, the Court is satisfied that the test wasproperly carried out and that the first test result obtained is indeed a valid test result. In my opinion the position of the defence is with abasis in the evidence. The attempt to create an argument alleging evidence to the contrary is dismissed. As a result, the Crown will beable to avail itself of the presumptions contained in

Section 258 of the Criminal Code [81] As a result of the above, the Court finds Jacky Savoie guilty of driving while his blood alcohol level exceeded the legal limit. DATED at Campbellton, N.B. this 24th day of May 2012. Steven M. Hutchinson Judge of the Provincial Court