2017 NBPC 5, 2017 NBPC 5

2017NBPC05 PROVINCE OF NEW BRUNSWICK File: 04697411 PROVINCIAL COURT HER MAJESTY THE QUEEN v. ANTHONY ZOËL GAUTREAU Decision delivered by the Honourable Ronald LeBlanc, judge of the Provincial Court, at Bathurst, New Brunswick, on September 15, 2017. Mr. Gautreau is charged under s. 253(1) (

a) of the Criminal Code . Counsel: Jean-Marc Gauvin, for the defendant Yves Duguay, for the Crown [TRANSLATION] 1 . It is alleged that Mr. Gautreau’s constitutional language rights were infringed by the investigating police officer, Constable Martin Doucet of Bathurst City Police. It is further claimed that Constable Doucet did not advise the detainee of the reasons for his detention as required under s. 10(

a) of the Charter . Defence counsel is seeking either a stay of proceedings or the exclusion of the evidence obtained as a result of the breach in question. Finally, he contends that the evidence gathered is insufficient to convict the accused of the charge filed against him.

2 . The infringement allegations emerged out of the following events. 3 . At 8:58 p.m. and again at 9:28 p.m. on December 16, 2015, Constable Doucet received information about a drunk driver from the dispatcher. Following these communications, Constable Doucet was on the lookout for a dark coloured SUV that was apparently parked between the McDonald’s restaurant and the Canadian Tire store in Bathurst. He found the vehicle at the stated location. The defence does not dispute the grounds for stopping the vehicle in question.

The accused was seated in the driver’s seat but was asleep, his body stretched over the centre console, when Constable Doucet approached the vehicle from the driver’s side. 4 . Constable Doucet knocked hard on the driver’s window but got no response from the defendant. He opened the door and, in French, said, “Police. It’s the police.” in a clear, firm tone. The defendant did not react. The officer turned off the vehicle’s ignition to shut down the engine and then pushed the defendant’s shoulder and repeated “police” in an attempt to wake him. He detected the smell of alcohol coming from inside the vehicle. 5 .

The constable repositioned him on the seat and took him out of the vehicle. He asked him, in French, where his keys were. He did not understand the answer, but thought he had responded in French. He smelled alcohol on his breath and noticed that his speech was very slurred. 6 . Constable Doucet arrested the defendant, because he believed Mr. Gautreau was inebriated. He told him, in French, that he was “ under arrest for care and control of a vehicle… or for having driven, not driven, but being in possession of a vehicle, of a vehicle while impaired”. 7 . He placed him in the back seat of the police car.

Exhibit V-D-1, a video recording of the inside of the police vehicle admitted at trial following the voir dire, picked up the conversations between Constable Doucet and Mr. Gautreau. 8 . After taking his name, the constable asked him if he had had any alcoholic beverages and, when the detainee denied that he had been drinking, informed him that his friends had told them otherwise. He had him spell his name, got his date of birth and told him that he was going to read him his rights. It was only at this point that he addressed the choice of language for the first time.

He asked him, “Do you want this in French?” The detainee replied that he did. The constable read him, in French, the right to retain and instruct counsel, the caution and the demand to provide a breath sample by means of an approved screening device. 9 . All subsequent communications between the police and Mr. Gautreau took place in French. All documents drawn up in his regard were written in French. Mr. Gautreau did not testify at the voir dire. 10 . These facts are sufficient to determine the issue of the alleged breach of s. 20(2) of the Charter . 11 . Section 31(1) of the Official Languages Act (S.N.B., c.

O-0.5) provides as follows: 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 . In my view, Constable Doucet did not inform Mr. Gautreau that he had the right to receive service in the official language of his choice. Instead, he asked him if he wanted to receive service in French. Asking the question the way Constable Doucet did does not meet the requirements of s. 31(1) of the Act. In fact, the detainee was never actively offered a choice as required by the provision in question.

The constable simply assumed, because he had spoken to him in French and been understood, that the individual would simply want to continue speaking to him in French. I do not believe it was open to him to so conclude. He was required to actively offer a choice and to allow the individual, after being given the choice, to select his choice of language. 13 . Section 31(1) of the Official Languages Act was therefore breached. According to the Court of Appeal of New Brunswick, a breach of s. 31(1) of the Act is also a breach of s. 20(2) of the Canadian Charter of Rights and Freedoms : see para. 10 of R. v. Losier

(2011) NBCA 102.

14. Section 20(2) of the Charter provides as follows: 20(2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, anyoffice of an institution of the legislature or government of New Brunswick in English or French. 15. In New Brunswick, s. 20(2) of the Charter requires peace officers to actively offer any member of the public the choice tocommunicate and to receive services in either official language. 16. What is the appropriate remedy in this case, given the breach of s. 20(2) of the Charter? Sections 24(1) and 24(2) come intoplay here. 17.

Sections 24(1) and (2) provide as follows: 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court ofcompetent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. 24(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed ordenied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regardto all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. 18.

Defence counsel is first asking the Court to exclude all evidence obtained following the breach. He is relying on thedecisions of the trial judge and appeal judge in Losier, supra, who excluded from evidence the qualified technician’s certificate in thematter before them. 19. I am therefore going to deal first with the first of the remedies sought, namely the exclusion of the evidence. 20.

Section 24(2) of the Charter empowers a court to exclude evidence where it concludes that the evidence was obtained in amanner that infringed or denied any rights guaranteed by the Charter, if it is established that, having regard to the circumstances, theadmission of it in the proceedings would bring the administration of justice into disrepute. 21. Section 24(1) empowers the court, under such circumstances, to award an appropriate remedy. The remedy sought is a stayof proceedings. 22. The leading case on the exclusion of evidence is R. v. Grant (2009), 2009 SCC 32 , 245 CCC (3d) 1.

In Grant, theSupreme Court of Canada took a revised approach to s. 24(2) of the Charter. It established the analytical framework. Three issues mustbe considered in determining whether the admission of evidence obtained in a manner that infringed the Charter would bring theadministration of justice into disrepute.

The court must assess and balance the effect of admitting the evidence on society’s confidence inthe justice system, having regard to: 1) the seriousness of the Charter-infringing state conduct; 2) the impact of the breach on the Charter-protected interests of the accused; 3) society’s interest in the adjudication of the case on its merits. 23. After considering each of these issues, the court must balance the inquiries to determine if, having regard to all thecircumstances, the admission of the evidence in the proceedings would bring the administration of justice into disrepute. 24.

The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the

integrity of, and public confidence in, the justice system. Section 24(2) does not focus on immediate reaction to the individual case.Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by the admissionof the evidence in question. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and thevalues underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice intodisrepute. 25. Moreover, s. 24(2)’s focus is prospective.

The fact of the Charter breach means damage has already been done to theadministration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach doesnot do further damage to the repute of the justice system. Its focus is also societal. It is not aimed at punishing the police or providingcompensation to the accused, but rather at systemic concerns. The focus is on the broad impact of the admission of the evidence on thelong-term repute of the justice system. 26.

Grant tells us the following with respect to the seriousness of the Charter-infringing state conduct, at para. 72: 72 “The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidencewould bring the administration of justice into disrepute by sending a message to the public that the courts, as institutionsresponsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociatethemselves from the fruits of that unlawful conduct.

The more severe or deliberate the state conduct that led to the Charterviolation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to thatconduct, in order to preserve public confidence in and ensure state adherence to the rule of law.” 27. Under this heading, the courts consider the seriousness of the Charter-infringing state conduct that led to the violation.Public confidence in the rule of law and its processes must be preserved.

The seriousness of the violation is viewed in terms of thegravity of the Charter-infringing conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by theCharter. State conduct giving rise to Charter violations varies in seriousness. At one end of the spectrum are minor or inadvertentviolations, which minimally undermine public confidence in the rule of law, whereas at the other end of the spectrum are wilful orreckless disregard of Charter-protected rights. 28.

Grant instructs as follows on the second line of inquiry, namely the impact of the breach on the Charter-protected interests ofthe accused, at para. 76: 76 “This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of theaccused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the rightinfringed. The impact of a Charter breach may range 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 thatCharter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing theadministration of justice into disrepute.” 29. The third line of inquiry, society’s interest in the adjudication of the case on its merits, is explained at para. 79 of Grant: 79 “Society generally expects that a criminal allegation will be adjudicated on its merits.

Accordingly, the third line ofinquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be betterserved by admission of the evidence, or by its exclusion. This inquiry reflects society’s “collective interest in ensuring that thosewho transgress the law are brought to trial and dealt with according to the law”: R. v. Askov, (SCC), [1990] 2S.C.R. 1199, at pp. 1219-20.

Thus the Court suggested in Collins that a judge on a s. 24(2) application should consider not onlythe negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admitthe evidence.” 30. Section 24(2) has to do with consideration of the long-term repute of the justice system. The judge must assess all of thecircumstances of the case to determine whether, on balance, the admission of evidence obtained in violation of the Charter would bringthe administration of justice into disrepute.

The required balancing is qualitative in nature and therefore not capable of mathematicalprecision. It is important not to allow the third factor, despite its importance, to trump all other considerations: R. v. Paterson (2017)SCC 15.

31. In my view, this matter can be distinguished from the situation before the trial judge in Losier (supra), which was cited bydefence counsel. In Losier, the trial judge found that the facts revealed a very serious breach. These facts contributed significantly to theseriousness of the Charter-infringing state conduct. He noted (1) that although Mr. Losier understood English, it should have beenobvious to the constable that Mr. Losier’s use of English was rather basic; (2) that the officer never informed Mr.

Losier of his right to beserved in the official language of his choice until the latter told him he would prefer a lawyer with whom he could speak French; (3) thatsome 30 minutes had already elapsed since the initial detention and the breach, and that Mr. Losier had even provided a sample of hisbreath in an approved screening device; and lastly (4) that this was the third trial involving the Fredericton Police where the failure tocomply with s. 31(1) was raised. I consider the seriousness of the Charter-infringing state conduct in Losier to vastly exceed theseriousness of the conduct in this case. 32.

Drapeau C.J.N.B. had the following to say about the exclusion of evidence for the violation of language rights, at para. 11 ofLosier: 11 “Finally, while there is no question that language rights under the Charter are “infrangible” (see R. v. McGraw, 2007NBCA 11 , 2007 NBCA 11, 312 N.B.R. (2d) 142 and Bujold v.

R., 2011 NBCA 24 2011 NBCA 24, 369 N.B.R.(2d) 262) and that s. 24 must be interpreted in a way that upholds “Charter rights by providing effective remedies for theirbreach” (see R. v. 974649 Ontario Inc., 2001 SCC 81 , 2001 SCC 81, [2001] 3 S.C.R. 575 at para. 19), it bearsunderscoring that exclusion of evidence essential to the prosecution is not necessarily the appropriate remedy for every violationof language rights, regardless of the circumstances. The analysis required under s. 24(2) must be carried out.” 33. In my view, this matter compares more favourably to R. c. Landry 2012 NBBR 185.

In Landry, the police officer in questionnever advised the detainee of his right to choose a language. He proceeded entirely in French without mentioning a choice of language.The trial judge decided to exclude the breath sample test results and the defendant was therefore acquitted of a charge of driving whilehis blood alcohol level exceeded the legal limit. Léger J. reversed that decision on appeal and found the accused guilty as charged. Hehad the following to say, at para. 37: [TRANSLATION] 37 “On balance, the various factors in this case weigh in favour of admitting the evidence.

After balancing the factors set outin Grant, I do not believe the circumstances surrounding the infringement are sufficient to warrant the exclusion of the evidencecollected. In short, under the particular circumstances of this case, when individual rights are balanced against the societalinterest in adjudication on the merits, as well as the protection of the general public, all of these factors, in my opinion, weigh infavour of admitting the evidence collected. Finally, I do not believe that admitting the evidence would bring the administration ofjustice into disrepute.” 34.

I concur with Léger J.’s findings and am applying them in the matter before me. Much like in Landry, [TRANSLATION]“the peace officer did not act deliberately or in bad faith in dealing with the respondent as he did. Rather, the respondent describes thepeace officer’s actions in relation to his language rights as careless” (at para. 27). In my view, Constable Doucet was well aware of hisresponsibility to advise the people with whom he communicated of their right to use the language of their choice but, in this case, wascareless in dealing with the detainee.

He did not treat him with disregard or disdain and was not disparaging. This is not misconduct onthe part of the peace officer. The officer simply assumed that Mr. Gautreau would want to continue speaking to him in the language inwhich he had initially spoken to Mr. Gautreau and in which Mr. Gautreau had replied. This sort of obvious breach of the provisions ofthe Official Languages Act is a serious violation of a fundamental right, but it does not on every occasion require that a complete defencebe granted to an accused as soon as the infringement of a language right has been established. 35.

This is not a situation in which the detainee, when confronted by the police, cannot understand what is required of him. Theaccused understood French and communicated with Constable Doucet in French. He agreed to proceed in French. There is no evidence inthis case that Mr. Gautreau suffered any harm or tolerated a loss or detriment due to his choice of language. 36. Moreover, the prosecution is not seeking to present evidence obtained directly through or due to the breach.

Defence counselis seeking the exclusion of all evidence obtained by the investigator, but most of the evidence has nothing to do with the breach inquestion. There is, as it were, very little connection between the breach and the evidence obtained in support of the charge under s.253(1)(

a) of the Criminal Code. That evidence consists primarily of the peace officers’ observations regarding Mr. Gautreau’s physicalstate and of the testimony of a woman who witnessed Mr. Gautreau’s conduct before the peace officers became involved. 37. All Charter violations are, in some sense, serious. Some are more serious than others. The Court must preserve publicconfidence in the rule of law and its processes, but when the violation is minor or inadvertent, one which minimally undermines publicconfidence in the rule of law, an order excluding evidence could also bring the administration of justice into disrepute.

38. I do not believe that admitting the evidence obtained following the breach in question would suggest that individual rightscarry little weight and are of no avail, or diminish their importance, as the defendant contends. The active offer of service in both officiallanguages is an important obligation in our society, a society which has opted for institutional bilingualism. In this province, it is a“question of dignity, pride and mutual respect of individuals in society”: R. v. Gautreau (1989) (NB KB), 101 N.B.R.(2d) 1 (per Richard C.J.N.B.).

Constable Doucet was aware of this obligation and it was his usual practice to make the offer. He usedFrench to try to wake up the individual asleep at the wheel and simply continued to use the same language during their discussions. Thisis a serious breach; however, having regard to all of the factors, the overall repute of the justice system, viewed in the long term, wouldbe adversely affected by the exclusion of the evidence in question.

In my view, a reasonable person, informed of all relevantcircumstances and the values underlying the Charter, would not conclude that the admission of the evidence would bring theadministration of justice into disrepute. 39. As for the stay application, it is important to remember that the denunciation of police misconduct is not the primaryfunction of a stay of proceedings: R. v. McCrea (2004), 2004 BCCA 229 , 185 C.C.C. (3d) 222 (B.C.C.A.). 40. The decision in R. c. Gorenko 2005 QCCA 1002 , [2005] J.Q. No 15795; 2005 QCCA 1002 (Qué. C.A.) contains anexcellent

summary of the principles and applicable law where the power of a judge to order a stay of proceedings for oppressive andvexatious conduct on the part of the Crown is concerned. I will quote seven proposals excerpted from the decision: [TRANSLATION] 1) “There is no more distinction between the common law doctrine of abuse of process and the requirements of the CanadianCharter of Rights and Freedoms, since both individual rights to trial fairness and the general reputation of the criminal justicesystem are fundamental concerns underlying both the common law doctrine of abuse of process and the Charter.

Thus, when thecourts must determine if an abuse of process has occurred, the common law analysis and the Charter analysis merge; 2) A stay of proceedings is most often sought to remedy the unfairness to a person caused by reprehensible conduct on thepart of the state. However, there is a small “residual category” of cases where a stay of that type can be justified.

This residualcategory does not relate to conduct affecting the fairness of the trial or impairing other procedural rights, but instead addresses: “... the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner asto connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus underminesthe integrity of the judicial process: Canada (Minister of Citizenship and Immigration) v.

Tobiass, (SCC), [1997] 3S.C.R. 391”; 3) The stay of proceedings or the permanent stay of all proceedings is a drastic remedy for an abuse of process.

Therefore, itmust be limited to the most serious or obvious cases; 4) Regardless of whether the abuse causes prejudice to the fairness of the trial or to the integrity of the justice system, a stay ofproceedings will only be appropriate when two criteria are met: (1) the prejudice caused by the abuse in question will bemanifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonablycapable of removing that prejudice; 5) The first criterion is critically important. It reflects the prospective nature of the stay of proceedings as a remedy.

It doesnot redress a wrong that has already been done, it aims to prevent the perpetuation of a wrong that, if left alone, will continue totrouble the parties and the community as a whole in the future. In a case falling into the residual category, a stay of proceedingsis in general only appropriate when the abuse is likely to continue or to reoccur.

It is only in exceptional, very rare cases that thepast misconduct is so egregious that the mere fact of going forward in the light of it will be offensive; 6) In that context, any likelihood of abuse which will continue to manifest itself if the proceedings continue then must beconsidered in relation to possible remedies less drastic than a stay.

Once it is determined that the abuse will continue to plaguethe judicial process, and that no remedy other than a stay can rectify the problem, a judge may exercise her or his discretion togrant a stay; 7) If some uncertainty remains about the possibility that the prejudice will be removed, given the prospective nature of thefirst criterion, the court can then apply a third criterion, that of the balancing of the interests that would be served by the

granting of a stay of proceedings against the interest that society has in having a final decision on the merits. In certain cases, acompelling societal interest in having a full hearing could lead to the conclusion that allegations of abuse of process do not justifya stay of the judicial process. Based on the particular facts of the cases before it, the Supreme Court held that revokingcitizenship for war crimes and allegations of sexual assaults against vulnerable girls and women were cases in which carryingforward with the trial did not give rise to a continuing appearance of unfairness.” 41.

Given my findings as to the seriousness of the breach in question, I do not believe I can find in this case, which falls into theabove-mentioned residual category, that the prejudice caused by the abuse in question will be manifested, perpetuated or aggravatedthrough the conduct of the trial, or by its outcome. As the Supreme Court of Canada says in R. v. Tobiass (SCC),[1997] 3 S.C.R. 391, at para. 91: “The first criterion (namely that the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated throughthe conduct of the trial, or by its outcome) is critically important.

It reflects the fact that a stay of proceedings is a prospectiveremedy. A stay of proceedings does not redress a wrong that has already been done. It aims to prevent the perpetuation of awrong that, if left alone, will continue to trouble the parties and the community as a whole in the future. See O’Connor, at para.82. For this reason, the first criterion must be satisfied even in cases involving conduct that falls into the residual category. SeeO’Connor, at para. 75. The mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stayof proceedings.

For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that thestate misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society’s sense ofjustice. Ordinarily, the latter condition will not be met unless the former is as well -- society will not take umbrage at the carryingforward of a prosecution unless it is likely that some form of misconduct will continue. There may be exceptional cases in whichthe past misconduct is so egregious that the mere fact of going forward in the light of it will be offensive.

But such cases should berelatively very rare.” 42. What we have in the instant case is an oversight on the part of the peace officer. It was unique and exceptional. The officermade a mistake. This is not misconduct likely to continue in the future or a situation in which carrying forward the prosecution willoffend society’s sense of justice. The officer was negligent and careless, but not of bad faith. A stay of proceedings is a drastic form ofremedy that is reserved for the most serious or obvious cases. A stay of proceedings is not a form of punishment.

It is not a kind ofretribution against the state and it is not a general deterrent: R. v. Tobiass (SCC), [1997] 3 S.C.R. 391, at para. 96. Themere fact that the state treated Mr. Gautreau shabbily is not enough, in itself, to warrant a stay of proceedings. 43. The application for the remedies sought under ss. 24(1) and 24(2) of the Charter is therefore denied. 44. Defence counsel contends that insufficient evidence was gathered at trial to convict the accused of having had the care orcontrol of a motor vehicle while impaired. 45. I will review the facts relevant to this aspect of the case.

I consider these facts to have been proven according to the requiredstandard. 46. Between 8:00 and 9:00 p.m. on December 16, 2015, Sarah Simmons’s sister-in-law called her asking if Anthony Gautreaucould spend the night at her place since he had been drinking. She said yes. She already knew Anthony Gautreau, who was a friend ofher sister-in-law. This was the defendant in this case. 47. Ms. Simmons testified that the call was received on December 15, 2015, rather than December 16.

However, I am satisfiedthat the call, and the incident, took place on December 16, mainly because of the recording of the call she made to the police about Mr.Gautreau; the police force received the call on December 16. I do not regard this mistake as negatively affecting the credibility orreliability of her testimony, which I accept unequivocally. 48. Renée Fournier and Sébastien Michaud brought Mr. Gautreau to her apartment. He was so inebriated that they had to carryhim into the house. They took him directly into the bathroom, where he vomited.

He remained there for 20 minutes and then, armed witha bucket, they took him into the bedroom. Her sister-in-law related that he refused to sleep in the bed and was lying on the floor. 49. Ms. Fournier and Mr. Michaud left, intending to return about 10 minutes later. During their absence, the accused came out ofthe bedroom and put on his shoes. Ms. Simmons, believing Mr. Gautreau to be inebriated, asked him to go back to bed. In her opinion, he

was too impaired to answer. 50. Ms. Simmons noticed that the accused nearly fell as he was going down the stairs. She saw him get into his vehicle and resthis head on the steering wheel. He left, alone in his vehicle, driving along her street, Verrily Street, in Bathurst. She called the policebetween 8:00 and 9:00 p.m. because he was driving drunk. She told the police that a man named Anthony had left in his car, that he wasintoxicated and that he was driving a dark coloured SUV. She identified the accused, Anthony Gautreau, in the courtroom. Mr. Gautreauhad spent about one hour in her apartment. 51.

At 8:58 p.m. on December 16, 2015, Constable Martin Doucet received this call from Sarah Simmons. She informed him thatAnthony had left her residence, that he was inebriated, that he had vomited at her residence and that he left driving his brown SUVheading, she thought, for Tracadie. At 9:28 p.m., he received a second call, this time from an anonymous source, indicating that thebrown SUV was parked between McDonald’s and Canadian Tire. The source referred to the vehicle the police had been looking for 30minutes prior and added the name “Anthony”. 52.

At 9:30 p.m., Constable Doucet located the brown vehicle parked at McDonald’s near Canadian Tire. The SUV was a ToyotaVenza. The vehicle was running, the lights were on and Anthony Gautreau was sitting behind the wheel. He was sound asleep, lying onthe centre console. Mr. Gautreau did not wake up when the constable knocked quite hard on his window. He did not react when theofficer very clearly shouted “police”. He did not wake up when the officer turned off the ignition to shut down the engine.

He woke uponly when the police officer pushed him on the shoulder and repeated “police”, but gave the impression that he wanted to go back tosleep. 53. The constable noticed the smell of alcohol on Mr. Gautreau’s breath. He helped him to get up off the console. He did notunderstand the answer to his question about the location of Mr. Gautreau’s car keys, because his speech was really slurred. Hehandcuffed Mr. Gautreau immediately, being of the opinion that he had reasonable and probable grounds to believe that Mr. Gautreauhad the care or control of a motor vehicle while impaired by alcohol. He arrested Mr.

Gautreau for this offence. Mr. Gautreau wasoccasionally incoherent during transport to the police station. 54. Constable Daniel Lanteigne was also on the scene of the arrest. He noticed the smell of alcohol on Mr. Gautreau’s breathand also noted that it was difficult to understand him when he spoke. Mr. Gautreau had to be held to help him get out of the vehicle.Constable Lanteigne searched the inside of the vehicle and found the keys in the centre console, as well as an open bottle of gin beneaththe passenger seat. Constable Lanteigne described Mr. Gautreau’s level of intoxication as “severe”.

It was his view that Mr. Gautreauwas very impaired. He has been a police officer for 11 years. 55. These facts suffice to decide the matter. 56. In order to be convicted of the offence under s. 253(1)(

a) of the Criminal Code, the judge must find beyond a reasonabledoubt that the defendant operated or had the care or control of a motor vehicle while his ability to operate the vehicle was impaired byalcohol or a drug. This offence does not require the prosecution to prove that the defendant drove at a level of intoxication thatdemonstrates a marked departure from the conduct of a normal person (R. v.

Stellato (SCC), [1994] 2 S.C.R. 478(S.C.C.), but does, however, require that the evidence satisfy the judge that the defendant’s ability to operate a motor vehicle wasimpaired, which impairment may range from slight to great. The judge must not assume that the simple impairment of a person’sfunctional abilities automatically leads to the conclusion that the person’s ability to operate a motor vehicle is also impaired (R. v.Andrews (1996) 1996 ABCA 23 , 104 C.C.C. (3d) 392). The evidence must establish that the ability to operate a motor vehiclewas impaired. 57.

The issue as to whether a person’s ability to drive is impaired by alcohol is an issue of fact. Any witness may give an opinionregarding a person’s level of intoxication. The judge must consider the totality of the evidence as well as the cumulative effect of allevidence relating to the issue of the ability to drive in arriving at his conclusions. 58. In this case, three people, including two police officers, testified that Mr. Gautreau was impaired by alcohol. I am satisfied,on the totality of the evidence, that their opinions are legitimate and well founded.

Objectively, the evidence relating to the impairmentof the accused’s ability to drive confirms their opinion on this. I refer specifically to the following testimony to support this finding. 59. Sarah Simmons noted that Mr. Gautreau’s level of intoxication was such that two people had to carry him into her apartment,he vomited in the bathroom, slept on the floor instead of on the bed in the bedroom, nearly fell going down the stairs and rested his headon the steering wheel before leaving in his car. Her apprehension was such that she decided to call the police and report the matter.

60 . Constable Doucet detected the smell of alcohol coming from his mouth. He was sound asleep, lying on his vehicle’s centre console. It was difficult to wake him up, and once he was awake, he wanted to go back to sleep, even in the presence of a peace officer. Constable Doucet helped Mr. Gautreau to get up off the console. His speech was really slurred and he was incoherent during transport to the police station. The constable handcuffed him as soon as he got him out of the vehicle. 61 . Constable Daniel Lanteigne noticed the smell of alcohol on Mr. Gautreau’s breath.

He noted some difficulty understanding him when he spoke. He held him while getting him out of the vehicle. He found an open bottle of gin beneath the passenger seat. 62 . I am satisfied beyond a reasonable doubt, based on the totality of this evidence, that when Mr. Gautreau had the care or control of his motor vehicle, his ability to operate that motor vehicle was impaired by alcohol. 63 . On the issue of s. 10(

a) of the Charter , I am satisfied that Constable Doucet told Mr. Gautreau at 9:32 p.m. that he was under arrest for having had the care or control of a motor vehicle. He used a few English-language expressions to make himself understood, but I am satisfied that Mr. Gautreau understood the reason for the arrest. The arrest and the stated reasons for the arrest were, in my opinion, made and stated promptly. Mr. Gautreau was arrested and the reason for his arrest was explained to him directly upon removing him from his vehicle. In my view, all of this met the requirements of s. 10(

a) of the Charter . 64 . I am therefore going to find Anthony Zoël Gautreau guilty of the offence under s. 253(1) (

a) of the Criminal Code . Dated at Bathurst, New Brunswick, this 15th day of September 2017. Ronald LeBlanc Judge of the Provincial Court