HER MAJESTY THE QUEEN, v. BRADY ALEXANDER ROBINSON., 2014 NBPC 37

CANADA 2014NBPC37 PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT BETWEEN: HER MAJESTY THE QUEEN, -and- BRADY ALEXANDER ROBINSON. DECISION BEFORE : Judge Marco R. Cloutier AT : Saint John, New Brunswick DATE OF DECISION : March 27, 2014 APPEARANCES : Kelly Winchester, on behalf of Her Majesty the Queen W. Rodney MacDonald, on behalf of the Accused

Reasons for Judgment M.R. CLOUTIER PROV. CRT J.: [ 1 ] The questions to be answered in this case are whether: 1) the Crown has proven beyond a reasonable doubt that the Accused was the driver of a white SUV proceeding erratically through the streets of Quispamsis, New Brunswick on June 8, 2013; and 2) the officers’ observations of the Accused assaulting his mother should be excluded under s. 24(2) of the Charter as a result of a breach of his language rights as guaranteed by s. 20(2) of the Charter . For reasons that follow, the short answer to both questions is no.

I Introduction [ 2 ] The Accused, Brady Alexander Robinson (“the Accused”), is charged with driving a motor vehicle with a blood alcohol level exceeding 80 milligrams of alcohol in 100 milliliters of blood contrary to s. 253(1) (

b) of the Criminal Code . He is also charged with operating a motor vehicle while his ability to do so was impaired by alcohol or drug contrary to s. 253(1)(

a) of the Criminal Code. Finally, he is charged with assaulting his mother, Cheryl Robinson, contrary to s. 266 (

b) of the Criminal Code. [ 3 ] Counsel agreed that the case would proceed in a voir dire format and any evidence found to be admissible would be applied mutatis mutandis . [ 4 ] The Crown presented the following witnesses: Grant Lynch, Cody Lockhart, Cpl. White, Cst. McEachern and Cst. Roberts. At the Defence’s request, the Crown also produced as a witness Cpl. Canelo, a qualified technician. Otherwise, the Defence called no evidence on the voir dire or the trial proper. II Issues [ 5 ] With respect to the charges under ss. 253(1)(

a) and (b), the Defence asserts that the Crown, relying on eyewitness and circumstantial evidence, has failed to prove beyond a reasonable doubt that the Accused was the operator of a white SUV observed proceeding erratically through the streets of Quispamsis, New Brunswick, on June 8, 2013. [ 6 ] As per a Notice of Application filed with the Court (“the application”), the Defence argues two other points: 1) The Accused’s rights to be dealt with in either official language was breached in violation of s. 20(2) of the Canadian Charter of Rights and Freedoms (the “ Charter”) and s. 33(1) of the Official Languages Act , S.N.B. 2002. c.

O-0.5 ; and, 2) The breath demand made to the Accused under s. 254(3) of the Criminal Code was unlawful and in violation of s. 8 of the Charter . [ 7 ] As a result, the Defence seeks an order pursuant to s. 24(2) of the Charter for exclusion from the evidence of all evidence taken forward in time from the breach of the Accused’s language rights along with the exclusion of the result of the Breathalyzer test taken pursuant to s. 254(3) . [ 8 ] On closing arguments, the Defence also says that the times included in the Certificate of the Qualified Technician (“the Certificate”) as to when the breath samples were taken do not correspond with the Qualified Technician’s evidence at trial.

Therefore, it argues that the Certificate is inadmissible. III Evidence [ 9 ] On June 8, 2013, at about 02h30, a white SUV (the “SUV”) is observed proceeding in an erratic matter through the streets of

Quispamsis, New Brunswick. [ 10 ] Between 22h30 and 00h30-00h45, eye witness Cody Lockhart (“Lockhart”) consumes six to eight beers while at the Barnwood Pub in Quispamsis. He is 19 years old at the time. His friend, Taylor Lynch (“Lynch”), drives him to Tim Hortons where they both enjoy coffee. Lynch does not consume alcohol that evening. [ 11 ] Lockhart and Lynch leave Tim Hortons shortly before 02h30. Lynch is driving. While proceeding westbound on Millennium Drive, they approach the intersection at Campbell Drive.

They observe the SUV leaving the Superstore parking lot and making a left hand turn onto Campbell Drive. The increasing speed of the SUV and the fact it proceeds on the wrong side of the road catches their attention. Lynch makes a right hand turn onto Campbell Drive and follows the SUV. [ 12 ] As the SUV proceeds by the Canadian Tire store, it hits the curb. Lockhart calls police on his mobile phone to report a suspected impaired driver. The young men follow the SUV on Hampton Road where its reaches speeds estimated at some 100-110 km/h.

The SUV turns left onto Lake Road where it momentarily proceeds into a ditch over someone’s lawn. The operator of the SUV then parks in a driveway at 8 Firefly Crescent. Lynch parks about 100 feet away. Up to this point, neither Lynch nor Lockhart could see who the driver of the SUV was. [ 13 ] On direct examination, Lynch testifies that he parked his vehicle about 25 feet from the driveway where the SUV parks. There was some lighting in this general area. At that point, police showed up.

He observed a young male stepping out from the driver’s door, wearing jeans and a light colored hoody, who, he assumes , goes into his house. He might have seen a second male step out of the SUV too but he is unsure. He cannot identify the driver in court. [ 14 ] On cross-examination, Lynch is easily and generally confused. He cannot tell if the individual who stepped out from the driver’s door of the SUV wore a hat. He says a second individual, also dressed with jeans and a light colored hoody, stepped out of the SUV, or perhaps from the house, and came yelling at Lockhart and at him.

Later, he is unsure if it was the driver or the passenger who came yelling at them and from what distance. When asked for clarifications, Lynch simply states: “At night with lighting, I couldn’t really tell what they were wearing” and “I will just say don’t really have an answer”. Lynch also admits “wasn’t really paying attention the whole time”. He also agrees that their vision was obstructed by a tree. [ 15 ] Cody Lockhart, Lynch’s passenger, testifies that he too observed the SUV pull into the driveway. He knows the Accused from attending an Anglophone high school with him.

He has never heard the Accused speaking the French language. He did not recognize the Accused on June 8, 2013; he was parked about 100 feet away. He nonetheless identifies him in open court as he found out his identity from officers after the events. Lockhart says he saw a male exiting from the driver’s door of the SUV. He described him as “tall skinny bushy hair wearing jeans and a hoody”. Lockhart is 100% sure this is the same individual he saw Cpl. White later escort out of the house in handcuffs.

However, he is not a 100% sure if a second individual stepped out of the SUV or if one was present in or near the area. He says he made those observations at about 02h30 after consuming six to eight beers from 22h30 to 00h30-00h45. However, he explains that he “wasn’t consuming quickly”. [ 16 ] On cross-examination, Lockhart admits that he was “on his cell phone with dispatch” and “was asked a hundred questions” when making his observations.

Therefore, he is now unsure if a second male exited the passenger’s side of the SUV or if someone else was yelling at them: “It does sound familiar but there was a lot going on”. He admits that in a prior statement, he “thought there was another person yelling”. He is now confused. [ 17 ] On June 8, 2013, at about 02h20, Cpl. White, a peace officer, is dispatched to 8 Firefly Crescent in Quispamsis, New Brunswick. When he arrives on scene, he notes that the SUV parked in the driveway fits the description of the vehicle reportedly proceeding erratically.

He goes around the house and speaks with the Accused who is standing on the back deck. Cpl. White informs him that he is investigating an erratic driver complaint. Cpl. White notes the Accused’s red droopy eyes. He also detects an odor of alcohol from his breath. He is standing about 3-4 feet from the Accused and also notes that the he is swaying slightly. The Accused walks through the house, closes the glass door, smiles and waves at Cpl. White. The officer forms the opinion that the Accused is intoxicated. [ 18 ] Cpl. White walks to the front of the house where the Accused answers the door.

The Accused becomes aggressive and clenches his fists. The Accused’s mother, Cheryl Robinson, comes down and directs him to go upstairs. Cpl. White repeats that he is investigating an erratic driver complaint in relation to the SUV parked in her driveway. At some point, the Accused returns at the entry and becomes increasingly aggressive. He is cursing and swearing. Suddenly, the Accused aggressively charges towards the officers and, while doing so, he pushes his mother with both hands.

[ 19 ] At 02h35, the Accused is arrested for assault. Cpl. White escorts him out of the house, with hands cuffed, and asks Lockhart if this is the individual who drove the SUV. Lockhart answers: “ Yes ” . [ 20 ] After speaking with Lockhart and Lynch, Cpl. White arrests the Accused for impaired driving. He also reads him a Breathalyzer demand at 02h41 to which the Accused answers: “Yes”. Cpl. White also reads the police caution and the right to counsel to which the Accused answers: “Yes”. [ 21 ] At 03h00, the Accused speaks with duty counsel in a private room at the police station. At that point, Cpl.

White asks the Accused if he wishes to proceed in the English or French language to which the Accused answers: “English”. The Accused then provides two samples of his breath in an approved instrument operated by a qualified technician. [ 22 ] Cst. McEachern is the second officer attending the Accused’s residence on June 8, 2013. While at the front door, he notes that the Accused is animated and yelling at the officers. He observes the Accused unsteady on his feet, notes his glassy eyes and detects an odor of alcohol on his breath. He too forms the opinion that the Accused is clearly intoxicated.

With his flashlight, he observes a can of Alpine beer in the SUV. The doors are locked and the hood is still warm. He also notes that the SUV is “parked forward in the driveway”. [ 23 ] On cross-examination, Cst. McEachern admits that upon arresting the Accused for assault, he never offered him service in both official languages . [ 24 ] Cst. Roberts is also dispatched at the Accused’s residence on June 8, 2013. He too forms the opinion that the Accused is intoxicated given his slurred speech and the smell of alcohol detected on his breath.

He describes the Accused as being very agitated and yelling at the officers. He also observes the Accused pushing his mother in the entry towards him and the other officers. He later speaks with Lockhart and Lynch parked in a vehicle about 100 feet from the SUV. [ 25 ] On cross-examination, Cst. Roberts admits that, when he spoke with Lockhart near the Accused’s residence, he detected an odor of alcohol on his breath. In fact, he agrees “it might not have been a strong smell but it was obviously discernible”. It was then shortly after 02h30. [ 26 ] Cpl.

Canelo, the qualified technician, also testifies as to the circumstances under which he took two samples of the Accused breath into an Intox EC/IR II approved instrument. IV Law and Analysis A. The charges under ss. 253(1) (

a) and (

b) of the Criminal Code Has the Crown proven that the Accused was the driver of the white SUV proceeding erratically through the streets of Quispamsis on June 8, 2013? [ 27 ] The onus is, of course, on the Crown to prove beyond a reasonable doubt all of the constituent elements of the offence including the identification. The Crown's case against the Accused is largely based on eyewitness identification coupled with what is argued to be supporting circumstantial evidence.

The Need to Approach Eyewitness Evidence with Caution [ 28 ] The dangers inherent to eyewitness identification are well recognized in the Canadian criminal justice system. It is not merely a function of determining the credibility of witnesses as honest witnesses can be mistaken about identification: R. v. Reid, 91 W.C.B. (2d) 625 , 2010 CLB 30470 , 2010 ABQB 720 .

[29] It is also common knowledge that identification evidence, because of the frailty of human perception, is fraught with danger.Expert evidence is not necessary to establish the generally held view that human perception and the ability to identify persons may havecertain inherent weaknesses. I am also mindful that there have been convictions based on clearly mistaken identity. [30] The Alberta Court of Appeal in R. v. Atfield 1983 ABCA 44 , [1983] A.J.

No. 870 made the following observation at par. 3: The authorities have long recognized that the danger of mistaken visual identification lies in the fact that the identification comesfrom witnesses who are honest and convinced, absolutely sure of their identification and getting surer with time, but nonethelessmistaken. Because they are honest and convinced, they are convincing, and have been responsible for many cases of miscarriagesof justice through mistaken identity.

The accuracy of this type of evidence cannot be determined by the usual tests of credibilityof witnesses, but must be tested by a close scrutiny of other evidence.

In cases, where the criminal act is not contested and theidentity of the accused as the perpetrator the only issue, identification is determinative of guilt or innocence; its accuracybecomes the focal issue at trial and must itself be put on trial, so to speak (...) [Emphasis added] [31] At paragraph 6, it adds: It goes without saying that correctness of identification must be decided by examining the whole of the evidence left on the scalesat the end of the case and not by selectively picking and accepting those items of evidence which support correctness whiledisregarding contradictory evidence not specifically rejected for cause, which might leave correctness in doubt.

The accused isentitled to the benefit of the most favorable

interpretation of discrepancies in evidence which cannot otherwise be resolved (...) [Emphasis added] [32] There is case law which clearly sets out the frailties of eyewitness testimony and the need to test its reliability. It is set out in greatdetail by Madam Justice Jackson of the Saskatchewan Court of Appeal in R. v. Bigsky, [2006] S.J. No. 801 and by Judge Whelan of theProvincial Court of Saskatchewan in R. v. Friesen, [2005] S.J. No. 417. [33] In R. v. Friesen, supra, the Court stated as follows at paras. 8 and 9: 8 In R. v.

Burke, (SCC), [1996] 105 CCC (3d) 205 (S.C.C.), Lamer C.J.C. made the following comments at pp.224-5, regarding the potential pitfalls of identification evidence: The cases are replete with warnings about the casual acceptance of identification evidence even when such identification is madeby direct visual confrontation of the accused. By reason of the many instances in which identification has proven erroneous, thetrier of fact must be cognizant of the inherent frailties of identification evidence arising from the psychological fact of theunreliability of human observation and recollection. Regina v.

Sutton , (ON CA), [1970] 3 CCC 152. 9 In R. v. Spatola , (ON CA), [1970] 4 CCC 241 (Ont. C.A.) at p. 249, Laskin J.A. (as he then was) made thefollowing observation about identification evidence: Errors of recognition have a long documented history. Identification experiments have underlined the frailty of memory and thefallibility of powers of observation. Studies have shown the progressive assurance that builds upon an original identification thatmay be erroneous...

The very question of admissibility of identification evidence in some of its aspects has caused sufficientapprehension in some jurisdictions to give pause to uncritical reliance on such evidence, when admitted, as the basis of conviction(…) [34] Equally important, the existence of confirmatory circumstantial evidence can go a long way to minimizing the dangers inherent ineyewitness identification: R. v. Quercia (ON CA), [1990] O.J. No. 2063 (Ont. C.A).

Directions from the Courts of New Brunswick [35] There is also considerable jurisprudence from the courts of New Brunswick, including R. v. Lundrigan, 2003 NBCA 76, which warns us that eyewitness identification must be scrutinized carefully and approached with great caution. [36] In R. v.

Al Saidi, 2006 NBPC 20 , Judge Fergsuon, as he was then, made the following observations: [107] The subject of eye witness testimony has also been dealt with in McWilliam’s Canadian Criminal Evidence 4th ed., Hill Tanovich, Strezos and Hutchison, Canada Law Book, Aurora ON at Ch. 29:20.10, p. 29-3 where the authors note: “Fundamental factors affecting the weight of eye witness testimony are: 1) Opportunity to observe, that is, the duration of the observation, light conditions, the distance from the witness to the object orperson observed, the eyesight of the witness, colour perception; 2) Lapse of time since the observation; 3) Previous acquaintance with the accused; 4) Presence or absence of distinctive features or appearance of the accused” . [37] To use the words of Mr.

Justice Belzil in Reid, supra, I am fully alive to the reality that eyewitness identification can be impactedby darkness and the presence of artificial lighting as well as whether eyewitnesses have consumed intoxicants. Events like these unfoldover a brief period of time and this too impacts eyewitness identification.

As will be seen, all these factors are to be considered in thiscase. [38] With these concerns in mind, I will now consider the eyewitness identification evidence in the context of all of the evidencepresented at trial. [39] In the instant case, the Crown relies on the evidence of two eye witnesses who both testified, at least on direct examination, thatthe young male observed stepping out from the driver’s door of the SUV was the one Cst. White subsequently escorted out of the housewith his hands cuffed.

In my opinion, this is no different than showing a witness only one photography of a suspect while, in reality,there are potentially two. The reliability is adversely affected. Extra caution should be taken where, like here, the witnesses had limitedopportunity to make observations and the subsequent confirmative opportunity occurred while the Accused was under arrest with hishands cuffed: see R. v. Hume, 2011 ONCJ 535. [40] To be clear, I do not wish to criticize Cpl. White with respect to the procedure used to ascertain that the Accused was theindividual observed stepping out from the driver’s door of the SUV.

He is clearly above reproach on this issue. The reason is simple;there is no evidence that, at the time, neither Lynch nor Lockhart informed Cpl. White that a second male, also dressed in jeans with alight colored hoody, had stepped out from the SUV. [41] It is also uncontroverted that Lynch, to say the least, was stumbling during his evidence. I find that he was easily and generallyconfused. He admitted that a tree was obstructing his view of the events which he observed at 8 Firefly Crescent. He was not a previousacquaintance of the Accused nor could he identify him in open court.

At first, he testified that he observed a second individual steppingout of the SUV. Both males were wearing jeans, a light colored hoody and had no distinctive features. Later, on cross-examination,Lynch could not describe how the young males were dressed as he claimed he was not paying attention the whole time. He also becameunsure which of the two individuals came yelling at Lockhart and at him and from what distance. [42] I now turn to the evidence of Mr. Lockhart.

He said he was 100% sure that the young male being escorted out of the house, withhis hands cuffed, was the one he previously observed stepping out from the driver’s door of the SUV. However, he admitted that he was“on his cell phone with dispatch” and “was asked a hundred questions” when making those brief observations. Therefore, he was unsureif a second male stepped out from the SUV or if someone else was yelling at them. “It does sound familiar but there was a lot going on”,he added. Interestingly enough, in a prior statement, he “thought there was another person yelling”.

He too was confused. [43] In my opinion, the most significant fact to consider upon assessing the reliability of Mr. Lockhart’s evidence is that, while he

made those observations at about 02h30, he had consumed six to eight beers from 22h30 to 00h30-00h45. I take no comfort in hisexplanation that he “wasn’t consuming quickly”. Recall that Cst. Roberts testified that when he spoke with Lockhart near the Accused’sresidence shortly after 02h30, he detected an odor of alcohol on his breath.

In fact, he agreed “it might not have been a strong smell but itwas obviously discernible”. [44] Essentially, the Crown relies on eyewitness evidence in circumstances where a tree was obstructing the views of the witnesses,artificial lighting was present given the earlier hours of the day and one witness had consumed six to eight beers within the precedingfour hours. In fact, contemporaneous to making his observations, an officer noted a discernable odor of alcohol on Lockhart’s breath.This witness was also carrying on a telephone conversation with dispatch while making these observations.

To complicate things, there isan acknowledgment by both witnesses that another male did or might have stepped out from the SUV and he was also dressed in jeanswith a light colored hoody. Neither of the two young males had distinctive features. It is also noteworthy that, on June 8, 2013, thewitnesses could not identify nor recognize the individual in question as Brady Alexander Robinson. [45] While I find both Mr. Lynch and Mr.

Lockhart testified in good faith and were credible and sincere, for the reasons explainedearlier, and because of the criminal burden of proof and the frailties of eyewitness identification evidence, I am unable to find theirrespective testimony reliable as to the identification of the individual who stepped out from the driver’s door of the SUV. [46] Two questions arise when considering circumstantial evidence in this case: 1) does the evidence adduced by the Crown lead to noother conclusion but that the Accused was the individual who stepped out from the driver’s door of the SUV? and 2) does thecircumstantial evidence minimize the dangers inherent in eyewitness identification?

The short answer to both questions is no. [47] In considering the evidence as a whole, and because of the concerns explained earlier with respect to the eyewitness identificationin this case, I am left with a reasonable doubt as to whether the Accused was indeed the individual who stepped out from the driver’sdoor of the SUV. While I find as a fact there was indeed a second individual who stepped out from the SUV, I am uncertain if it was theAccused or this individual who stepped out from the driver’s door.

I find that, on the facts of this case, the evidence is not inconsistentwith an inference or a conclusion that it would be the second individual, and not the Accused, who stepped out from the driver’s door.Moreover, the circumstantial evidence in this case does not alleviate nor minimize my concerns with respect to the reliability ofeyewitness identification provided by Lockhart and Lynch. [48] While it is arguable that, on the whole of the evidence, the Accused was probably the individual who stepped out from thedriver’s door of the SUV, it is not the test in criminal matters.

The test is one where the Crown must prove each and every elements ofthe offence beyond a reasonable doubt, including the identity. The Accused does not have to prove or disprove anything with respect tothis charge. Since I do have a doubt as to the identity, and as per the directions of the court in Atfield, supra, I must give the benefit ofthat doubt to the Accused. I also find support for this position in R. v.

Inman, 2010 NBPC 12 by my colleague Duffie J. [49] I find that the Crown has failed to establish beyond a reasonable doubt that the Accused, Brady Alexander Robinson, was thedriver or the individual who stepped out from of the driver’s door of the SUV, which had proceeded in an erratic manner through thestreets of Quispamsis on June 8, 2013. As a result of this finding, I need not consider the remaining issues raised by the Defence withrespect to the charges under ss. 253(1)(

a) and (

b) of the Criminal Code. B. The charge under s. 266(

b) of the Criminal Code Essential elements of the offence [50] In order for a conviction to be entered under s. 266(

b) of the Criminal Code, the Crown must prove the following beyond areasonable doubt: 1. The identity of the accused; 2. The date and time of incident; 3. The jurisdiction (incl. region and province);

4. The accused applied force on the victim; 5. The accused intended to apply force and it was not by reflex or carelessly; 6. That the complainant did not consent (see also s. 265(3) and (4)). Other considerations [ 51 ] The court also considers: 1. The manner in which the assault occurred (whether by fist, open hand, or object); 2. Injuries, if any, that occurred; 3. Compare physical build between the accused and victim; 4. That the complainant did not assault, threaten or provoke the accused; 5.

Whether alcohol was involved. [ 52 ] In the instant case, the evidence reveals that shortly after 02h30, on June 8, 2013, at 8 Firefly Crescent, Quispamsis, New Brunswick, Cpl. White and Cst. Roberts observed the Accused, Brady Alexander Robinson, pushing his mother with both hands at the entry near the door. His mother had not provoked nor had she threatened the Accused. He did not assault his mother simply by reflex or in a careless manner. Rather, the Accused was witnessed intentionally applying force with both hands to push his mother so he could come at the officers.

This occurred in circumstances where the Accused was visibly intoxicated. There were no reported injuries by the Accused’s mother nor is there any evidence, but merely a suggestion, that she consented to this assault. The officers had an obligation to be at the Accused’s residence to investigate the recent complaint of erratic driving involving the SUV. Clearly, the presence of the officers at 8 Firefly Crescent, Quispamsis, was legitimate. [ 53 ] Accordingly, I am satisfied that the Crown has proven all essential elements of the offence of assault under s. 266 (

b) of the Criminal Code . Violation of the Accused’s language rights under s. 31(1) of the Official Languages Act and s. 20(2) of the Charter [ 54 ] The relevant sections of the Official Languages Act are: Policing services 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. 31

(2) If a peace officer is unable to provide service in the language chosen under subsection (1), the peace officer shall take whatever measures are necessary, within a reasonable time, to ensure compliance with the choice made under subsection (1). 31

(3) A police force or agency, as the case may be, shall ensure the availability of the means necessary to respond to the choice made by a member of the public under subsection (1) and to support the obligation placed on a peace officer under subsection (2). (Emphasis added) [ 55 ] Section 20(2) of the Charter provides that a ny 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. [ 56 ] The Defence argues that Cpl.

White did not make an active offer of service in both official languages upon first “communicating” with the Accused while he was standing on his deck. Moreover, Cpl. White repeated or caused such violation to continue upon arresting the Accused for impaired driving. As well, Cst. McEachern violated the Accused’s language rights upon arresting him for assault in that

he never offered him service in both official languages at the time. Rather, it is only once at the police station that the Accused wasoffered this service to which he replied: “English”. By then, however, the officers had already “communicated” with the Accused,observed him assaulting his mother and placed him under arrest for assault and impaired driving. The Defence asserts that this amountsto a clear violation of s. 31(1) of the Official Languages Act and also a violation of s. 20(2) of the Charter. I agree. [57] Being satisfied that the Accused’s language rights were not respected by Cpl. White and by Cst.

McEachern, I must now directmy mind to the analysis required by s. 24(2) of the Charter in order to determine the appropriate remedy. In particular, I must decidewhether the evidence consisting of the officers’ observations of the Accused assaulting his mother (“the evidence”) should be excludedas a result of a violation of s. 20(2) of the Charter. The Grant analysis under s. 24(2) of the Charter [58] In R. v.

Losier, 2011 NBCA 102 at par. 9, the Court of Appeal of New Brunswick reiterated that any peace officer inNew Brunswick who interacts with someone is under a duty to comply with the obligations imposed on institutions of the Government ofNew Brunswick by s. 20(2) of the Charter. However, the Court of Appeal also added that: “[11] Finally, while there is no question that language rights under the Charter are “infrangible” (see R. v. McGraw, 2007NBCA 11 , 2007 NBCA 11 , 2007 NBCA 11, 312 N.B.R. (2d) 142 and Bujold v.

R., 2011 NBCA 24 2011 NBCA 24 , 2011 NBCA 24, 369 N.B.R. (2d) 262) and that s. 24 must be interpreted in a way that upholds “Charterrights by providing effective remedies for their breach” (see R. v. 974649 Ontario Inc., 2001 SCC 81 , 2001 SCC 81, 2001 SCC 81, [2001] 3 S.C.R. 575 at para. 19), it bears underscoring that exclusion of evidence essential to theprosecution is not necessarily the appropriate remedy for every violation of language rights, regardless of the circumstances.

Theanalysis required under s. 24(2) must be carried out.” (Emphasis added). [59] Equally important, a peace officer’s duty to inform a member of the public of his or her right to be served in the official languageof choice, a duty that arises not only from s. 31(1) of the Official Languages Act, but also from s. 20(2) of the Charter, cannot be metmerely by saying “Hello, Bonjour” or “Allo”: R. v. Theriault, 2012 NBQB 184 , at p. 13. [60] The Supreme Court of Canada in R. v.

Grant, 2009 SCC 32 explained the analytical process to be followed inconsidering whether to exclude evidence as a result of a Charter violation: “[71] A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter wouldbring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engagedby s. 24(2), viewed in a long-term, forward-looking and societal perspective.

When faced with an application for exclusionunder s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice systemhaving regard to: (1) the seriousness of the Charter- infringing state conduct (admission may send the message the justicesystem condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused(admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of thecase on its merits.

The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry todetermine whether, considering all the circumstances, admission of the evidence would bring the administration of justiceinto disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.” [61] Lavigne J. in R. v.

Gaudet, 2010 NBQB 27 , a case which also dealt with a violation of a detainee’s language rights, said at par. 61: [61] Section 24(2) of the Charter enjoins a judge who is determining whether the admission of the evidence would bring theadministration of justice into disrepute to inquire into all of the circumstances of the case. The notion of disrepute includes anelement of public opinion. Accordingly, the trial judge must ask if the admission of the evidence would bring theadministration of justice into disrepute in the eyes of a person who is reasonable, objective and well-informed as to all of the

circumstances of the case. Section 24(2) requires the trial judge to take into account all of the circumstances of the case. The trial judge must make a well-reasoned decision having regard to the applicable law and specific facts of the case. [ 62 ] At paragraph 65, she adds: [65] In the case at bar, there is nothing in the facts to allow for the conclusion that there was a Charter violation other than the failure to inform the accused that he had a choice to be served in English or French. Trial fairness and principles of natural justice were never raised.

There was no suggestion of unlawful interception or illegal detention. There is no evidence that the action was pursued in an unfair or vexatious manner. There is nothing to indicate that the accused was the victim of discriminatory police practices. The trial judge had no way of knowing whether the peace officer’s omission was inadvertent or, on the contrary, abusive, serious and done deliberately to infringe Mr. Gaudet’s linguistic rights.

Without such evidence, it was impossible for the trial judge to determine its significance to the Attorney General’s case or its reliability. [ 63 ] Similarly, in the case at bar, there is no evidence which would allow me to conclude there was a Charter violation other than the officers’ failure to inform the Accused that he had a choice to be served in English or French immediately upon “communicating” with him as he was standing on his deck and while placed under arrest for assault and impaired driving.

I also note that he was informed of his language rights once at the police station. [ 64 ] I pause to make a parenthetical comment.

It would be expected that, some two years following the Court of Appeal’s decision in Losier , supra , any peace officer in New Brunswick would adhere to strict compliance with the requirements of s. 20(2) of the Charter , namely by informing members of the public of their right to be served in the official language of choice upon first “communicating” with them, not solely upon arrest or upon being brought at the police station. [ 65 ] Turning back to the facts of this case, it is significant that unlawful detention, discriminatory, unfair or vexatious actions by the officers were neither alleged nor proven.

Indeed, Cpl. White’s and Cst. McEachern’s omissions were clearly inadvertent and their dealings with the Accused were at all times conducted with courtesy and respect and are not the sort of police conduct which a court must disassociate itself with. [ 66 ] It has not escaped my mind that society expects that criminal charges will be adjudicated on their merits. The evidence sought to be excluded here is real evidence consisting of credible and reliable observations made by the officers. It existed clearly and independently in spite of the Charter breach.

Further, the violation is in no way egregious or intrusive. In my view, this militates in favour of inclusion. [ 67 ] In considering all the circumstances of this case, and in balancing all the required factors, I come to the conclusion that a reasonable, objective person well-informed as to all the circumstances of this case would not conclude that the admission of the evidence would bring the administration of justice into disrepute.

In my opinion, the opposite would occur in that the exclusion of the evidence on these particular facts would bring the administration of justice into disrepute. [ 68 ] Therefore, with respect to the assault charge under s. 266 (b), I dismiss the application to exclude any and all evidence taken forward in time from the breach of the language rights, including the officers’ observations of the Accused assaulting his mother.

V Conclusion [ 69 ] I find that the Crown has not proven beyond a reasonable doubt that the Accused was the operator of the white SUV observed proceeding in an erratic matter through the streets of Quispamsis, New Brunswick, on June 8, 2013. Therefore, I acquit the Accused of the charges under ss. 253(1) (

a) and (

b) of the Criminal Code . However, I find the Accused guilty of assaulting his mother, Cheryl Robinson, contrary to s. 266 (

b) of the Criminal Code . Dated at Saint John, New Brunswick, this 27 th day of March 2014. ____________________________________

Marco R. Cloutier Judge of the New Brunswick Provincial Court