R. v. Marc-Andr, 2015 NBPC 8

R. v. Marc-André Boudreau, 2015 NBPC 08 PROVINCE OF NEW BRUNSWICK File No.: 04509811 PROVINCIAL COURT HER MAJESTY THE QUEEN v. MARC-ANDRÉ BOUDREAU Decision delivered by the Honourable Ronald LeBlanc, judge of the Provincial Court, at Bathurst, New Brunswick, on October 21, 2015. Charged under s. 253(1) (

b) of the Criminal Code for having had the care or control of a motor vehicle while the concentration of alcohol in his blood exceeded 80 milligrams in 100 milliliters of blood. Counsel: Jean-Guy Savoie, for the Crown Luc Roy, for the defendant [TRANSLATION] THE FACTS 1 . In my opinion, the following facts were proved according to the standard required for the purposes of this case. 2 . Ms. Emmanuelle Parent was well acquainted with the accused, Marc-André Boudreau, as he was the owner of the day-care centre to which she entrusted the care of her children. He was also a friend of her former husband.

During the evening of July 26, 2013, she was at Brasserie O St-Pierre, in Bathurst, New Brunswick, with her female friends. Mr. Boudreau arrived at that tavern later in the evening. After chatting for a while, they decided to leave together. They got into Mr. Boudreau’s truck and went to a wooded area near the Bathurst airport to talk. Mr. Boudreau drove the truck. The trip took about 10 minutes. They were alone. 3 . She estimates that the peace officers arrived at the scene approximately half an hour later. During that time, before the policemen arrived, Mr. Boudreau had smoked cigarettes, but Ms.

Parent did not see whether or not he had consumed alcohol. Ms. Parent admits that she was intoxicated. The truck had not moved during that time. Ms. Parent expected that since Mr. Boudreau had driven her there, he would drive her back from there, but there was no conversation about that. They were chatting and listening to music on the truck’s radio. She thinks that the engine of the truck was not running. 4 . At one point during that time, they went out of the truck and stayed on the driver’s side. Both doors on the driver’s side of the truck were open. When the peace officers arrived on the scene, Ms.

Parent was sitting on the back seat of the truck, on the driver’s side, while Mr. Boudreau was sitting behind the wheel. 5 . On July 27, 2013, at 2:40 a.m., Constable Julien Doth, along with Constable Bruno Savoie, members of the Royal Canadian Mounted Police, were patrolling in their marked car going West on Amos Street in Ste-Anne. Ste-Anne is a small community located near Bathurst, behind the airport. Constable Doth, who was driving, saw from afar the tail lights of a vehicle. The tail lights were on. They were approximately 0.7 to 0.8 km away from that vehicle at that time.

Given the distance, Constable Doth could not ascertain whether that vehicle was moving or not, but he assumed that the engine was running as the lights were operating automatically. While

he was approaching the vehicle, the brake lights went on briefly. Then they went off. They were approximately 400 metres away from the vehicle when the brake lights went on. They were directly behind the vehicle when the brake lights went off. He assumed that the engine was turned off when the lights went off. It was the vehicle of the defendant, Mr. Boudreau. His vehicle was parked at the end of Amos Street, where it meets Alyre Drive. In short, the vehicle was parked on a dirt road near the entrance of a trail that follows the airport fence. 6.

Several reasons prompted Constable Doth to check on the car that was parked there. First, the vehicle was parked near a trail that leads to an airport at 2:40 a.m., which he found suspicious. Therefore, it was a matter of airport safety. Also, he wondered if someone in the vehicle needed assistance or if the vehicle had broken down. Therefore, it was also a matter of coming to someone’s assistance. He also intended to inspect the vehicle driver’s documents, thereby exercising his right to inspect documents under the Motor Vehicle Act .

Finally, based on his experience as a policeman, he intended to check if the driver of the truck was drunk, considering the time and because it was Friday night. He felt that, given the circumstances, it would not be unusual to see a drunk driver. Therefore, in the end, he was exercising a statutory authority (see s. 310.002(2) of the New Brunswick Motor Vehicle Act ) and a common law power in order to verify the sobriety of the driver of a vehicle. 7. Constable Doth, while parking his vehicle behind Mr. Boudreau’s vehicle, turned on his revolving lights.

He had started checking the license plate of the vehicle when Mr. Boudreau got out from the driver’s side of the truck. He got down from the driver’s seat and went toward the police vehicle. Constable Doth got out of the police vehicle and asked him if he needed help, if everything was okay. Mr. Boudreau answered that he was with a girlfriend, that they had arrived there earlier that evening, that they were chatting, that they had gone for a walk in the woods, that they had drunk while walking in the woods and that he did not intend to drive the vehicle, but rather to call a taxi.

All this was said spontaneously, without Constable Doth asking any questions. 8. Constable Doth noticed that Mr. Boudreau’s white sweater was not wet, despite the heavy rain that had fallen earlier that night. Also, Mr. Boudreau’s black shoes were not dirty. From these observations, Constable Doth concluded that Mr. Boudreau had not spent any period of time outside. 9. Constable Doth noticed the smell of alcohol on Mr. Boudreau’s breath. He also noticed that his eyes were red. He asked him for his proof of insurance, registration certificate, and driver’s license. As he approached Mr.

Boudreau’s vehicle, he noticed for the first time Ms. Parent, who was sitting in the back seat. 10. When he received the documents, Constable Doth explained to Mr. Boudreau that he had the care or control of a motor vehicle while he was possibly intoxicated, which is a criminal offence. He told him to wait while he checked his driver’s license. He went to his police vehicle and checked the status of Mr. Boudreau’s driver’s license with his dispatcher. Also, for his own safety, he checked with the Canadian Police Information Centre (commonly known as the CPIC).

He wanted to know if there were arrest warrants, terms of release or any other information about Mr. Boudreau in the computerized system (such is his practice: he wants to know whether or not the detained individual is a danger for him). These interrogations were made within two minutes. In the meantime, he noticed that Mr. Boudreau had lit a cigarette. 11. Once he was done with his checks, Constable Doth exited his vehicle and returned to Mr. Boudreau’s vehicle. Mr. Boudreau was still outside. He told him to extinguish his cigarette, which he did.

He told him that he was going to ask him to provide a breath sample in an approved screening device and asked him to follow him to his police car. Mr. Boudreau went with him to the patrol car and was made to sit in the back seat. At 2:46 a.m., Constable Doth read to him, from his usual card, the breath sample demand so that a sample could be analyzed with an approved screening device. He suspected the presence of alcohol in his body because of his reddish eyes and the smell of alcohol emanating from his breath. Mr. Boudreau understood the demand. 12.

Constable Doth is a certified technician for an approved screening device. He had followed a course for the approved screening device he had in his possession on that night―the Alcotest 7410 GLC. He had obtained a certificate showing that he was qualified to operate this device. He had to wait five minutes before proceeding to obtain the breath sample because of the cigarette Mr. Boudreau had smoked. He wanted to make sure that the result was reliable. So, at 2:52 a.m., he proceeded to obtain the sample. The result was an “F”, which means “failed”. This result indicated that the blood alcohol level in Mr.

Boudreau’s body exceeded 100 milligrams of alcohol per 100 millilitres of blood. 13. Constable Doth showed him the result obtained and told him that “F” meant that he had failed the test and that his blood alcohol level exceeded the permissible limit. Then, he placed him under arrest for having had the care or control of a motor vehicle while the concentration of alcohol in his blood exceeded the legal limit of 80 milligrams of alcohol per 100 millilitres of blood.

14. He read him his right to counsel and the caution. All this was done in due form and in compliance with the requirements of the Canadian Charter of Rights and Freedoms . Mr. Boudreau understood his rights and responded that he wanted to speak to a lawyer. After that, the demand regarding the approved breathalyzer was read to him, again in due form. Mr. Boudreau understood what was required of him. 15. After reading the demand, Constable Doth asked Constable Savoie to check whether Mr. Boudreau’s vehicle was running. Constable Savoie had previously seen the keys of the truck on the front passenger seat.

The keys were within the driver’s reach. Pursuant to Constable Doth’s instructions, he took the keys and started the engine. To make sure that the truck could move, he backed the truck up and moved it forward a few feet. Constable Doth watched all this. Constable Savoie did not check the inside of the vehicle for the presence of alcoholic beverages. Mr. Boudreau asked Constable Doth to take Mr. Boudreau’s keys, wallet and cell phone from the vehicle, which Constable Doth did. 16. Constable Doth and Mr. Boudreau left the scene to go to the Bathurst police station.

Constable Savoie stayed on the scene to wait for the arrival of the tow truck and to take care of Ms. Parent. During the drive to the police station, Mr. Boudreau explained to Constable Doth that he had gone to Brasserie O St-Pierre, where he had met his spouse’s cousin; they had gone to park there simply to chat. 17. The place where Mr. Boudreau was stopped by the police was about 15 minutes from the police station. They arrived there at 3:18 a.m. Even before leaving the scene, Constable Doth had called the station to make sure that a qualified technician would be present.

When he arrived, the qualified technician, Constable Jean-Guy Turcotte, was waiting. Mr. Boudreau was led directly to the interview room so that he could exercise his right to counsel. 18. In the interview room, Constable Doth asked him which lawyer he wanted to speak to. He replied that his lawyer was Érik Roy. At 3:24 a.m., Constable Doth phoned the lawyer, Érik Roy, at his home. Mr. Érik Roy told Constable Doth that he should rather call his partner, Mr. Luc Roy. He gave him his phone number. Constable Doth therefore explained to Mr.

Boudreau that his lawyer, Érik Roy, did not want to represent him in this regard and that his partner, Mr. Luc Roy, would be able to represent him. Mr. Boudreau asked him to call Mr. Luc Roy. Constable Doth called Mr. Luc Roy’s phone number, the same number Mr. Érik Roy had given him. He reached Mr. Luc Roy’s voice mailbox. He wanted to leave him a message, but the voice mailbox was full and could not receive further messages. Thus, he was unable to leave a message. 19. After that, Constable Doth explained the situation to Mr. Boudreau.

He told him that he could talk either to another lawyer or to a legal aid lawyer. He opted for speaking to a legal aid lawyer. 20. At 3:29 a.m., Constable Doth made a call to legal aid. As is required by the system, he made the call to the 1-800 number and spoke to the receptionist. He informed her of Mr. Boudreau’s situation and his language of choice. After that, he had to wait for the call from the duty counsel. The receptionist had told him that the lawyer would call as soon as possible. 21.

Usually, according to Constable Doth, the waiting period is short: it can vary from only two minutes (which is more usual) to 30 minutes. 22. At 4:00 a.m., Constable Doth indicated to Corporal Dorais that legal aid had not called yet. Between 4:00 a.m. and 5:30 a.m., Corporal Dorais made four calls to legal aid; the first three calls were made at 4:00 a.m., 4:30 a.m. and 4:55 a.m. 23. At 5:01 a.m., the legal aid receptionist called Constable Doth and advised him that they had been forced to call another lawyer and that he could expect to receive the call in the next 10 minutes. 24.

At 5:30 a.m., Corporal Dorais called legal aid again. That was his fourth call. 25. At 5:42, the duty counsel, Marco Godbout, called Constable Doth, who gave the telephone to Mr. Boudreau. Mr. Boudreau spoke privately with the duty counsel until 5:58 a.m. At the end of the call, Mr. Boudreau indicated to Constable Doth that he was satisfied with his right to speak to counsel. He was introduced to the qualified technician who was to obtain breath samples.

26. Constable Jean-Guy Turcotte is a qualified technician with respect to the operation of an approved breathalyzer. He has been recognized as such pursuant to the requirements of the Criminal Code since March 8, 2006. He was asked to proceed with obtaining the breath samples from Mr. Boudreau. He had arrived at the office around 3:12 a.m. At 3:18 a.m., he took charge of Mr. Boudreau. Constable Turcotte, too, noticed Mr. Boudreau’s reddish eyes and the smell of alcohol on his breath. He was advised by Constable Doth that the time when Mr.

Boudreau had the care or control of the vehicle was around 2:40 or 2:45 a.m. 27. Constable Turcotte was operating an approved breathalyzer, the BAC Datamaster C. He took two suitable samples of Mr. Boudreau’s breath. The analyses of the breath samples showed the following results: at 6:05 a.m., the result was 110 milligrams of alcohol per 100 millilitres of blood, and at 6:24 a.m., it was 100 milligrams of alcohol per 100 millilitres of blood. 28. Ms.

Josette Hackett, a forensic alcohol specialist, was recognized by the Court as an expert witness in the absorption, distribution and elimination of alcohol in the human body, the calculation and extrapolation of the blood alcohol level; and the impairment of human performance and ability to operate a motor vehicle caused by alcohol. By consent, her written report was tendered as evidence and marked as Exhibit C-4. 29.

Through an extrapolation of the blood alcohol level of the second sample obtained (100 milligrams of alcohol per 100 millilitres of blood at 6:24 a.m., assuming that no alcohol had been consumed between 2:10 a.m. and 6:24 a.m.), Ms. Hackett calculated that Mr. Boudreau’s blood alcohol level at 2:40 a.m. would have been between 137 and 174 milligrams of alcohol per 100 millilitres of blood. This calculation is not affected by the gender, height or weight of the individual. This result was based on an alcohol elimination rate of 10 to 20 percent per hour by the individual.

In her opinion, the ability of any individual to operate a motor vehicle is impaired when his blood alcohol level reaches 100 milligrams of alcohol per 100 millilitres of blood, regardless of his tolerance to the effects of alcohol or his experience in driving a motor vehicle. In her opinion, a blood alcohol level that is in the range of 137 to 174 milligrams of alcohol per 100 millilitres of blood definitely impairs a person’s ability to operate a motor vehicle. MY FINDINGS ON THE FACTS 30. It is possible to turn the tail lights of a motor vehicle on and off without running the engine of the vehicle.

Of course, lights that are on and do not draw their power from the engine must take it from the battery. 31. Before he read the demand regarding the approved screening device, Constable Doth had not seen Mr. Boudreau’s vehicle moving. Furthermore, he did not know who had driven Mr. Boudreau’s vehicle to the site of the stop nor how long they had been there (except that [TRANSLATION] “they had arrived there earlier that evening”). He did not believe Mr. Boudreau when the latter told him that they had gone to take a walk in the woods. However, Mr.

Boudreau said that he did not intend to drive the vehicle, but rather to call a taxi. 32. Ms. Hackett’s calculation assumes that there was no alcohol consumption between 2:10 a.m. and 2:40 a.m. Mr. Boudreau had told Constable Doth that they had consumed alcoholic beverages during their walk in the woods at that location. In my opinion, this spontaneous statement by Mr. Boudreau is not evidence that he had consumed alcoholic beverages between 2:10 a.m. and 2:40 a.m. I am of the view that it was merely a spontaneous statement by Mr. Boudreau when he was found in a vehicle in a state of intoxication. Ms.

Parent testified that she had not seen him take either alcohol or drugs at the scene. Mr. Boudreau did not testify. No evidence indicates the presence of bottles or other alcoholic beverage containers left at the scene or in the truck. With regard to the reliability of this statement, Mr. Boudreau had not been honest with Constable Doth when he had told him that he had gone for a walk in the woods with Ms. Parent. This claim had immediately been rejected by Constable Doth, who had noticed that despite the fact that it had rained pretty hard all day and all evening, Mr.

Boudreau’s shoes and white sweater were not wet. Also, Ms. Parent, who testified that she had been in Mr. Boudreau’s presence the whole time before the arrival of the police officers, did not testify that they had gone for a walk in the woods at that location. Finally, we must remember that they arrived there from a tavern, a place where one cannot buy alcoholic beverages to take out. Therefore, my finding is that Mr. Boudreau did not consume alcoholic beverages between 2:10 a.m. and 2:40 a.m. 33. For the same reasons, Constable Doth did not need to wait in order to proceed with his analysis of the breath sample.

He did not have any reason to believe that Mr. Boudreau had traces of alcohol in his mouth that could have skewed the result of the analysis. He waited for five minutes because of the cigarette, which was justified, but in my opinion, he had no obligation to wait any longer to eliminate the possibility of alcohol in the mouth. ISSUES 34. Mr. Roy claims that the demand regarding the screening device was not read “forthwith”, as is required under s. 254(2) (

b) of the Criminal Code , because of the delay caused by Constable Doth when he made his checks with the dispatcher and his computer. He

says that this delay is not justified. 35. Mr. Roy claims that the prosecution failed to prove that Mr. Boudreau had the care or control of a motor vehicle. Moreover,if the prosecution relies on a presumption of care or control under s. 258(1)(

a) of the Criminal Code, the prosecution did not prove therequired element of danger. In any case, Mr. Boudreau had a “plan”– namely that he was going to take a taxi to go home. 36. Mr. Roy claims as well that in this case there were two breaches of s. 10(

b) of the Charter: the right to retain and instructcounsel without delay. The first breach occurred when Mr. Boudreau did not have the opportunity to speak to a lawyer at the roadsidealthough he had a cell phone in his possession. The second breach occurred because of the unreasonable delay waiting for the phone callfrom legal aid while he was detained at the police station. In any case, he says, the police officer should have asked the detainee again ifhe wanted to make another call to lawyer Luc Roy. 37. I will address these points successively. THE IMMEDIACY REQUIREMENT 38. Paragraph 44 of R. v.

Woods, 2005 SCC 42, [2005] 2 S.C.R. 205, reads as follows: 44. The “forthwith” requirement in s. 254(2) appears to me, however, to connote a prompt demand by the peace officer, andan immediate response by the person to whom that demand is addressed. 39. I provided an overview of the case law concerning the immediacy requirement in R. v. Arnold Ellis, 2013 NBPC 13, paras.22 to 27, which I reproduce below: 22. There is established in the Criminal Code a two-step process allowing police officers to make demands for breathsamples.

The first step, the demand for a breath sample for analysis by means of an approved screening device, provides thepolice with an investigative method to determine if the individual from whom the breath sample was obtained has a blood alcoholconcentration in excess of the limits imposed by Parliament. If a fail result is obtained from the approved device, the police mayproceed to the second step, which is the demand for breath samples for analysis by means of an approved instrument. 23. The requirements for the first of the two processes are not exacting, but they insist on immediacy.

Section 254(2) ofthe Criminal Code authorizes a peace officer, on reasonable grounds to suspect the presence of alcohol in the body of the personwho has within the past three hours operated or had the care or control of a motor vehicle, to make a demand requiring thatperson to supply “forthwith” a sample of breath for analysis. 24. The “forthwith” requirement in the legislation is directed towards the person to whom the demand is made, not thedemand itself. Section 254(2) does not specifically state that the demand must be made forthwith. It is the breath sample whichmust be supplied forthwith. However, judicial

interpretation of the

section has added the “forthwith” requirement to the makingof the demand: see R. v. Pierman; R. v. Dewald (1994), (ON CA), 19 O.R. (3d) 704 (ONCA). This judiciallyimposed requirement for immediacy in the making of the demand was imposed to minimally impair violations of sections 8, 9and 10(

b) of the Charter. Any delay in the making of the demand would require the police to advise the detainee of his right tocounsel and the corresponding need to hold off from eliciting evidence until the consultation with counsel has occurred. 25. What constitutes “forthwith” for the purposes of section 254(2) of the Criminal Code has been the subject of muchjudicial

interpretation. The Ontario Court of Appeal has recently revisited the topic in R. v. Quansah, 2012 ONCA 123 , [2012] O.J. No 779; 92 C.R. (6th) 1; 286 C.C.C. (3d) 307. 26. At paragraph 26, Justice LaForme stated as follows: 26 “Woods (referring to R v. Woods, 2005 SCC 42 , [2005] 2 S.C.R. 205 (SCC))…reasserts that the constitutional validityof s. 254(2) depends on its implicit and explicit requirements of immediacy. This immediacy requirement is implicit for the policedemand for a breath sample and explicit for the mandatory response: the driver must provide a breath sample “forthwith”.

Theterm “forthwith” in s. 254(2), therefore, means “immediately” or “without delay” and indicates a prompt demand by the peace

officer and an immediate response by the person to whom that demand is addressed: see Woods , at paras. 13-14 and 44 . However, in unusual circumstances “forthwith” may be given a more flexible

interpretation than its ordinary meaning strictly suggests: see Woods , at para. 43 . 27. Justice LaForme concludes that the immediacy requirement in section 254(5) of the Criminal Code necessitates judges to consider five things: 45 …First, the analysis of the forthwith or immediacy requirement must always be done contextually.

Courts must bear in mind Parliament’s intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights. 46 Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion. 47 Third, “forthwith” connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible

interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee’s response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2). 48 Fourth, the immediacy requirement must take into account all the circumstances.

These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty.

Any delay not so justified exceeds the immediacy requirement. 49 Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee’s s. 10(

b) rights before requiring the sample. If so, the “forthwith” criterion is not met. 40. In this case, Constable Doth formed his suspicion of the presence of alcohol in the body of the accused following a conversation with him beside his vehicle, after asking him for his proof of insurance, driver’s license and vehicle registration. Instead of proceeding immediately with the reading of the demand, he asked him to stay there and went to his patrol car, where he made checks with his dispatcher and his computer. The reason why he did not proceed immediately with the demand was to ensure his own safety.

He checked with the Canadian Police Information Centre (CPIC) for the existence of arrest warrants or release conditions. He wanted to know if the person he was dealing with could be a danger to him. He did not know that person. It took two minutes to do this. 41. The question to be asked is whether or not the two-minute delay that elapsed because of these inquiries to ensure the safety of the peace officer constituted a breach of the constitutional duty of immediacy in the issuance of the demand pursuant to s. 254(2) of the Criminal Code . 42.

The analysis of the immediacy requirement must always be done while taking the context into account. In this case, there was a two-minute delay during which Constable Doth, believing that Mr. Boudreau had alcohol in his body, nevertheless made routine checks for warrants, restrictions affecting his driver’s license and other information that he needed concerning the individual to determine whether or not he was a source of danger. 43.

In my opinion, the purpose of the immediacy requirement is to prevent a detention that is longer than reasonably necessary to allow the police officer to exercise his duties as set out in s. 254(2) of the Criminal Code while the detainee is deprived of his right to retain and instruct counsel. 44. I believe Constable Doth was justified in making inquiries on the existence of reports on the danger level of this individual. After all, it was 2:40 a.m., they were in an isolated area at the end of a road, and he did not know this person, who was possibly intoxicated.

I consider it perfectly reasonable for him to do these checks in order to ensure his own safety, especially when it was done in such a short time. 45. Therefore, I find that the demand was made immediately as is required by the Criminal Code .

46. Mr. Roy also pointed out that if the police officer had read the demand to him as soon as he suspected the presence of alcoholin his body, there would not have been an additional five-minute wait because of the cigarette smoked by the detainee. It is because thepeace officer did not immediately proceed with the demand that there was an additional five-minute wait, he says. I agree. ConstableDoth would not have allowed Mr. Boudreau to smoke after reading the demand to him. However, Constable Doth could not predict thatMr. Boudreau was going to smoke a cigarette while he was making his checks.

He had told him to stay where he was, but he had notwarned him not to smoke, drink, or consume anything at all. He had no reason to do so. In my opinion, he was perfectly justified inwaiting five minutes to ensure the reliability of the test result: R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254. CARE OR CONTROL 47. Section 258(1)(

a) of the Criminal Code provides that where it is proved that the accused occupied the seat or positionordinarily occupied by a person who operates a motor vehicle, he shall be deemed to have had the care or control of the vehicle “unlessthe accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle . . . in motion”. Thusthis is a reverse onus: R. v.

Appleby, (SCC), [1972] S.C.R. 303 (S.C.C.), at para. 18: 18 I have accordingly concluded that s. 224A(1)(a) [now s. 258(1)(a)] imposed a burden of proof on the respondent by apreponderance of evidence or by a balance of probabilities and that it is not enough for an accused merely to raise a reasonabledoubt. 48. In R. v.

Price (1978), (NB CA), 40 C.C.C. (2d) 378 (N.B.S.C.A.D.), Limerick J.A., had this to say for theCourt, at pp. 383-384: o The word “care” is defined in The Oxford English Dictionary as “having in charge or protection”. “Control” on the otherhand is defined as “the fact of controlling or of checking and directing action” also as “the function to power of directing andregulating; domination, command, sway.” . . . The mischief sought to be prohibited by the

section as expressed by the wording isthat an intoxicated person who is in the immediate presence of a motor vehicle with the means of controlling it or setting it inmotion is or may be a danger to the public. Even if he has no immediate intention of setting it in motion he can at any instantdetermine to do so, because his judgment may be so impaired that he cannot foresee the possible consequences of his actions. 49.

The Court of Appeal of New Brunswick also determined that a person who is sitting in his vehicle and has access to the keysof the vehicle, even if the keys are not in the ignition, has the care or control of the vehicle: R. v. Thomson (1940), (NBCA), 75 C.C.C. 141, at pp. 143-144 (as approved by the Supreme Court of Canada in R. v. Toews, ). 50. The Supreme Court of Canada recently addressed the constituent elements of the offence of care or control under s. 253(1) ofthe Criminal Code: see R. v. Boudreault, 2012 SCC 56, at para. 33. Fish, J. stated as follows: 33.

In this light, I think it helpful to set out once again the essential elements of “care or control” under s. 253(1) of theCriminal Code in this way: (1) an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk of danger to persons or property. 51.

However, it is to be noted that Boudreault was dealing with a situation of de facto care or control―that is, the care or controlof a vehicle in situations where the prosecution does not rely on the presumption created by s. 258(1)(

a) of the Criminal Code. Boudreault does not address the presumption created by that provision. I believe that the case law before the release of Boudreault hadestablished that it was only where the prosecution did not rely on the presumption created by s. 258(1)(

a) that the Crown had to establishcircumstances creating a realistic risk of danger for other persons or property. If the defendant rebutted the presumption by establishingthat he did not intend to put the vehicle in motion, the Crown could nonetheless prosecute him by establishing the three essentialelements of the offence that are set out in Boudreault. 52. All this seemed well established. At para. 31 of R. v. Mallery, 2008 NBCA 18, Robertson, J. stated as follows:

31 . . . In the years following Toews, Whyte and Penno, no less than four provincial courts of appeal have adopted the positionthat an inquiry as to “risk of danger” is an essential element of the analytical framework for deciding care or control cases, savein one instance. In cases where the accused is unable to rebut the statutory presumption with respect to the intention to drive, theaccused is deemed to have had care or control and, therefore, there is no need to undertake a danger inquiry. Danger ispresumed. . . . 53. See also para. 22 of R. v. Burbella, 2002 MBCA 106 , [2002] M.J.

No. 355: 22 In my opinion, the Supreme Court in its decisions has been consistent that danger is an essential element of care orcontrol. Only in the case where the presumption applies and care or control is conclusively deemed will the absence of dangernot afford a defence. In many instances the circumstances themselves will establish the danger.

However, even where theaccused establishes that he did not have the intention to set the vehicle in motion, evidence of acts involving some use of thevehicle which could accidentally cause it to become dangerous, whether by setting the vehicle in motion accidentally or causingsome other form of danger, will establish care or control. 54. The question to be asked is whether these case law statements were reversed by Boudreault or still represent the law. In myopinion, Boudreault has not brought any change to the law concerning the presumption created by s. 258(1)(

c) of the Criminal Code: seeJustice Cloutier’s comments at paras. 32 to 37 of R. v. Jonah, 2015 NBPC 2 , 2015 NBPC 02, and the cases cited therein. 55. Now, in the present case, the evidence establishes that Mr. Boudreau drove his motor vehicle about 10 minutes after havingconsumed alcoholic beverages―from Brasserie O St-Pierre to the place where he was stopped by Constable Doth. Once there, he gotout of his vehicle and chatted with Ms. Parent. The radio of the truck was on. They were listening to music. As the police vehicle wasapproaching, Mr.

Boudreau entered his truck again and sat in the driver’s seat behind the wheel; in other words, he occupied the“position ordinarily occupied by a person who operates a motor vehicle”. Immediately prior to the arrival of the police car, he turned onthe head lights of the vehicle (which caused the tail lights of the vehicle to go on), pushed on the brake pedal (which allowed the peaceofficers to see the brake lights on the back of the vehicle), took his foot off the brake pedal and turned off the head lights of the vehicle.

The truck keys were lying on the front seat of the truck, on the passenger side, within the driver’s reach. He indicated to Constable Doththat he was with a girlfriend, that they had arrived there earlier that evening, that they were chatting, that they had gone for a walk in thewoods, that they had drunk while walking in the woods and that he did not intend to drive the vehicle, but rather to call a taxi. 56. On the basis of that evidence, does the presumption in s. 258(1)(

a) apply? I am satisfied that it does, without any doubt. Really, it is quite obvious. He was occupying the driver’s seat. He got out of the truck through the door on the driver’s side. He haddriven the vehicle there. In order to listen to music, he had to put the key in the ignition and turn the key to draw on the power of eitherthe battery or the engine. He turned the lights on. He pushed on the brake pedal. He had the control of the truck, although the keyswere found on the front passenger seat. 57. Thus, once the presumption in s. 258(1)(

a) applies, the accused is deemed to have had the care or control of the vehicle“unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle . . . in motion”. 58. In this case, the one and only piece of evidence intended to address this issue is the comment of the accused to ConstableDoth that his intention was to call a taxi. In my opinion, this evidence is not sufficient to satisfy me, on a preponderance of evidence,that the accused did not have the intention of setting the vehicle in motion.

This is simply a comment made by an individual who gotcaught in his vehicle by police officers while under the influence of alcohol and who was seeking a way out. He had driven the vehiclethere, he had used the vehicle accessories, he had put the keys in the ignition to listen to music, he had turned on the head lights of thevehicle, he had pressed the brake pedal and he was impaired by alcohol. The accused did not testify to demonstrate an “alternate plan” toensure his safe transportation home. 59. In my opinion, this is determinative of the issue. Mr. Boudreau was sitting in the driver’s seat.

He did not rebut thepresumption of care or control by establishing that he was not sitting in that seat or position for the purpose of setting the vehicle inmotion. Therefore, he had the care or control of a motor vehicle. 60. If the Crown, as the defense claims, nevertheless had the onus of establishing circumstances creating a realistic risk ofdanger for other persons or property, which I do not have to decide here, I would reach the conclusion that these circumstances havebeen established in this case. I will quote Justice Fish in Boudreault, para. 13:

13 Impaired judgment is no stranger to impaired driving, where both are induced by the consumption of alcohol or drugs. Absent evidence to the contrary, a present ability to drive while impaired, or with an excessive blood alcohol ratio, creates aninherent risk of danger. In practice, to avoid conviction, the accused will therefore face a tactical necessity of adducing evidencetending to prove that the inherent risk is not a realistic risk in the particular circumstances of the case. 61.

Now, in this case, there is no evidence that tends to prove that the inherent risk of danger was not realistic in the particularcircumstances of the case. On the contrary, in my opinion, given the circumstances of the case, there was a high and realistic risk thatMr. Boudreau was going to drive his motor vehicle. THE RIGHT TO COUNSEL 62. Every person detained or arrested by a peace officer has the right to retain and instruct counsel without delay.

Section 10(b)of the Charter imposes both informational and implementational duties on state authorities. 63. A

summary of the duties stemming from s. 10(

b) is given by the Supreme Court of Canada in R. v. Bartle, (SCC), [1994] 3 S.C.R. 173, at para. 17: 17 This Court has said on numerous previous occasions that s. 10(

b) of the Charter imposes the following duties on stateauthorities who arrest or detain a person: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability oflegal aid and duty counsel; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise theright (except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except incases of urgency or danger). 64. The purpose of s. 10(

b) was explained in R. v. Manninen, (SCC), [1987] 1 S.C.R. 1233, as follows: …The purpose of the right to counsel is to allow the detainee not only to be informed of his rights and obligations under the lawbut, equally if not more important, to obtain advice as to how to exercise those rights. . . . For the right to counsel to be effective,the detainee must have access to this advice before he is questioned or otherwise required to provide evidence. 65. The right to counsel is intended to promote the principle of fairness in the decision-making process.

This principle involvesin particular “the concern for fair treatment of an accused person”: see Clarkson v. The Queen, (SCC), [1986] 1 S.C.R.383.

Section 10(

b) is intended to protect the privilege against self-incrimination, a fundamental precept of our criminal justice system. Like every other provision of the Charter, s. 10(

b) must be purposively interpreted: R. v. Mann, 2004 SCC 52 , [2004] 3 S.C.R.59. 66. What constitutes “reasonable opportunity” depends on all the surrounding circumstances in each case. Police cannot use theprovisions of s. 258(1)(c) (the two-hour time limit to obtain the first breath sample) in order to truncate what is otherwise a legitimateattempt to consult with counsel: R. v. Sargent, 2005 NBPC 27 , [2005] N.B.J. No. 362; 292 N.B.R. (2d) 219, at para. 67; R. v.Prosper, (SCC), [1994] 3 S.C.R. 236. 67. In R. v. Brown, 2009 NBCA 27 , [2009] N.B.J.

No. 143, the New Brunswick Court of Appeal adopted the AlbertaCourt of Appeal’s directives in R. v. Luong (G.V.) (2000), 2000 ABCA 301 , 271 A.R. 368, regarding reasonable opportunity toconsult counsel. The seventh and eighth paragraphs of that

summary read as follows: 7. A trial judge must first determine whether or not, in all of the circumstances, the police provided the detainee with areasonable opportunity to exercise the right to counsel; the Crown has the burden of establishing that the detainee who invokedthe right to counsel was provided with a reasonable opportunity to exercise the right. 8. If the trial judge concludes that the first implementation duty was breached, an infringement is made out.

68. It goes without saying that the legal onus is on the defendant to establish, on a preponderance of evidence, that there was abreach of the Charter. 69. In this case, Constable Doth’s testimony is the only evidence we have concerning the issue that was raised about the cellphone. He testified that Mr. Boudreau asked him, before they left the location where he was stopped and after Mr. Boudreau decidedthat a tow truck had to be called to tow his vehicle, to go get his keys, wallet and cell phone from inside his truck. 70. There was no evidence to the effect that Mr.

Boudreau wanted to call anyone, or even that his phone was operational. Therewas no discussion about a lawyer or whether or not he knew a lawyer. However, we know that Mr. Boudreau had expressed his desireto make a call to a lawyer before he asked for his telephone. 71. The Supreme Court of Canada, in R. v. Manninen, (SCC), [1987] 1 S.C.R. 1233, at paras. 21 and 22, had thisto say about the use of a telephone: 21 In my view, s. 10(

b) imposes at least two duties on the police in addition to the duty to inform the detainee of his rights. First, the police must provide the detainee with a reasonable opportunity to exercise the right to retain and instruct counselwithout delay. The detainee is in the control of the police and he cannot exercise his right to counsel unless the police providehim with a reasonable opportunity to do so. This aspect of the right to counsel was recognized in Canadian law well before theadvent of the Charter. In Brownridge v.

The Queen, (SCC), [1972] S.C.R. 926, a case decided under the CanadianBill of Rights, Laskin J., as he then was, wrote at pp. 952-53: The right to retain and instruct counsel without delay can only have meaning to an arrested or detained person if it is taken asraising a correlative obligation upon the police authorities to facilitate contact with counsel. This means allowing him upon hisrequest to use the telephone for that purpose if one is available. The duty to facilitate contact with counsel has been consistently acknowledged under s. 10(

b) of the Charter by the lower courts:R. v. Nelson (1982), (MB KB), 3 C.C.C. (3d) 147 (Man. Q.B.); R. v. Anderson (1984), (ON CA),10 C.C.C. (3d) 417 (Ont. C.A.); R. v. Dombrowski (1985), (SK CA), 18 C.C.C. (3d) 164 (Sask. C.A.), and theOntario Court of Appeal in this case. In Dombrowski, the Court held that, where a telephone is available at an earlier occasion,there is no justification for delaying the opportunity to contact counsel until arrival at the police station. 22 In my view, this aspect of the right to counsel was clearly infringed in this case.

The respondent clearly asserted his rightto remain silent and his desire to consult his lawyer. There was a telephone immediately at hand in the office, which the officersused for their own purposes. It was not necessary for the respondent to make an express request to use the telephone. The dutyto facilitate contact with counsel included the duty to offer the respondent the use of the telephone. Of course, there may becircumstances in which it is particularly urgent that the police continue with an investigation before it is possible to facilitate adetainee’s communication with counsel.

There was no urgency in the circumstances surrounding the offences in this case. 72. In R. v. Devries, 2009 ONCA 477, the Ontario Court of Appeal had the opportunity to consider the right to make a call to alawyer with a cell phone in the context of a charge of drunk driving. The Court stated as follows, at paras. 32-33: 32 In cases involving a roadside detention and a breathalyzer demand, all detainees must be told that they have the right tospeak with a lawyer “without delay”. They must also be told that they can access immediate free legal advice using the toll-freenumber.

Should a detainee choose to speak with counsel “without delay”, the police must afford him or her the opportunity to doso. Depending on the circumstances, consultation with counsel “without delay” may require a telephone call at the roadside, atthe police station where the breathalyzer test will be administered, or perhaps in very unusual cases, somewhere else. It will alldepend on the facts of the particular case.

Questions of where and when consultation with counsel will occur are properlyconsidered as part of the implementational phase of the rights guaranteed by s. 10(b). 33 There are insurmountable practical problems associated with incorporating into the s. 10(

b) caution the requirement thatthe officer tell the detained person where the communication with counsel will occur should the detained person choose to speakwith counsel. Police officers, when advising a detained person of his or her right to counsel under s. 10(b), will often not know allof the facts that may be relevant to where and when access to counsel must be provided to comply with the implementational

component of s. 10(

b) should the detainee elect to consult with counsel. For example, the arresting officer may believe that theconsultation with counsel must occur at the police station because the arresting officer does not know that the detainee has a cellphone that works in the location where the arrest occurs. In that case, an indication to the detainee that any contact with counselmust be made at the station might well misinform the detainee as to the nature of his or her s. 10(

b) rights should the detaineeelect to contact counsel. It may be that the implementational requirements of s. 10(

b) would require that the detainee be allowedto make the call from the roadside. 73. Thus, Devries involved the duty to inform rather than the duty to implement, as is the case here. The Court had simplydecided that the duty to inform the detainee of his right to retain and instruct counsel without delay did not include the obligation toadvise him where he would make his call. The appeal court judge had decided that the duty to inform required the peace officers toadvise the detained person that his call would be made at the police station and not from the roadside. The Court of Appeal disagreed. 74.

The Supreme Court of Canada had an opportunity to comment on this, with regard to a hospital setting, in R. v. Taylor, 2014SCC 50 , [2014] 2 S.C.R. 495, at paras. 24-25: 24 The duty to inform a detained person of his or her right to counsel arises “immediately” upon arrest or detention (Suberu,at paras. 41-42), and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee’s request to speak tocounsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at thefirst reasonably available opportunity.

The burden is on the Crown to show that a given delay was reasonable in thecircumstances (R. v. Luong (2000), 2000 ABCA 301 , 271 A.R. 368, at para. 12 (C.A.)). Whether a delay in facilitatingaccess to counsel is reasonable is a factual inquiry. 25 This means that to give effect to the right to counsel, the police must inform detainees of their s. 10(

b) rights and facilitateaccess to those rights where requested, both without delay. This includes “allowing [the detainee] upon his request to use thetelephone for that purpose if one is available” (Manninen, at p. 1242). And all this because the detainee is in the control of thepolice and cannot exercise his right to counsel unless the police give him a reasonable opportunity to do so (see Brownridge v. TheQueen, (SCC), [1972] S.C.R. 926, at pp. 952-53). 75. In my opinion, the first reasonable opportunity for Mr. Boudreau to have access to counsel in the case at bar occurred whenConstable Doth gave Mr.

Boudreau his cell phone. Constable Doth knew that he had expressed the desire to speak to a lawyer, and healso knew that he had a cell phone in his possession. He also knew that he was about 15 minutes away from the police station, which Ibelieve was enough time for Mr. Boudreau to contact a lawyer if he knew one. There was no urgency to go to the police station. Bythen, Constable Doth knew that Mr. Boudreau was not a source of danger for him, having made his inquiries in this regard. ConstableBruno Savoie was there to give him a hand if needed, and he had called other police officers to come and help him. 76.

In my opinion, Constable Doth, when he gave Mr. Boudreau his cell phone, should have asked him if he wanted to make hiscall to a lawyer immediately. This would have satisfied the constitutional obligation to “facilitate the requested access to a lawyer at thefirst reasonably available opportunity”. 77. Therefore, in my opinion, there was a breach of s. 10(

b) of the Charter in the present case. 78. The second breach of s. 10(

b) of the Charter that is alleged by the defence consists in the delay that occurred when the legalaid lawyer did not return the call to the police station to advise Mr. Boudreau. Constable Doth’s call to legal aid was made at 3:29 a.m. The duty counsel called to speak with Mr. Boudreau at 5:42 a.m.―a delay of approximately 2 hours and 13 minutes. 79. Mr. Boudreau’s counsel concedes that the police force is not responsible for this delay in any way. In the end, the policeofficers did everything possible to ensure that Mr. Boudreau’s right to counsel would be respected.

The delay is totally imputable to theNew Brunswick Legal Aid Services Commission. Unfortunately, we do not know the reason why such a delay occurred. No witnessfrom the Commission was called to explain it. 80. In New Brunswick, the Legal Aid Act (the Act) establishes a legal aid system for the province. One of the guiding principles,set out in s. 2(

f) of the Act, provides that “legal aid services should be delivered in a timely fashion to allow for the early resolution oflegal issues”. Before the first day of October in each year, the Commission must submit to the Minister of Justice for consideration its

report for the 12 months ending on March 31 of the same year. The funding of the Commission is governed by s. 19 of the Act, whichestablishes a fund known as the “Legal Aid Fund”, into which all money appropriated by the Legislature for legal aid services shall bedeposited. The money appropriated for legal aid services shall be paid out of the Consolidated Fund. Also, any other money received bythe Commission by gift or grant, by borrowing or by contributions from legal aid certificate holders or others, is deposited in the LegalAid Fund.

However, s. 3(4) of the Act provides that “[t]he Commission is not an agent of the Crown”. 81. Mr. Roy claims that the Commission is an institution of the New Brunswick government and that any delay caused by theCommission must be imputed to the state. I do not agree. The delay must be imputed to the Commission, which is responsible forproviding a legal aid service comprised of duty counsels in New Brunswick. 82. The Supreme Court of Canada had the opportunity to consider the delay in consulting a lawyer that was caused by the flawsof a legal aid program in R. v. Prosper, (SCC), [1994] 3 S.C.R. 236.

In Prosper, the police officer provided a list oflegal aid lawyers’ home telephone numbers to Mr. Prosper. Then, he read him the breathalyzer demand. He asked him if he would liketo take the breathalyzer test or talk to a lawyer first. Mr. Prosper indicated that he would take the test, but that he would talk to a lawyerfirst. He was provided with a list of legal aid lawyers.

As it was outside regular business hours, the list contained home phone numbers.Although he made approximately 15 calls in total, some with the assistance of the peace officer, the appellant was unsuccessful inreaching any of the 12 listed lawyers. Legal aid lawyers had advised the Attorney General just a few days earlier that all but one of themwould no longer take calls outside of regular working hours (unless from existing clients).

Therefore, at the time in question, theHalifax/Dartmouth area had no established duty counsel system whereby those arrested and detained could receive immediate, althoughtemporary, free legal advice after regular business hours. 83. After approximately 37 minutes, Mr. Prosper having exhausted the list of names, the officer asked him if he wanted to callother lawyers. He provided him with a telephone book. Mr. Prosper answered that he could not afford legal fees. Shortly thereafter,Mr. Prosper agreed to take the breathalyzer test. The defence lawyer argued that the appellant’s s. 10(

b) rights had been infringed. Thetrial judge agreed, and he accordingly excluded the breathalyzer evidence. The Supreme Court reached the same conclusion. 84. The Court reiterated the principles that had been established in R. v. Ross, (SCC), [1989] 1 S.C.R. 3. Theseprinciples state that once a detainee asserts his or her right to counsel, the police cannot in any way compel him or her to make a decisionor participate in a process which could ultimately have an adverse effect on the conduct of an eventual trial until that person has had areasonable opportunity to exercise that right.

In these cases, the police must refrain from attempting to elicit incriminatory evidence fromthe detainee. 85. At para. 35 of Prosper, the Court said: 35 In my view, what constitutes a “reasonable opportunity” will depend on all the surrounding circumstances. Thesecircumstances will include the availability of duty counsel services in the jurisdiction where the detention takes place. . . . 86. I will quote para. 49, which summarizes the judgment: 49

Section 10(

b) of the Charter does not impose a substantive constitutional obligation on governments to ensure that dutycounsel is available, or likewise, provide detainees with a guaranteed right to free and immediate preliminary legal advice uponrequest. However, in jurisdictions where a duty counsel service does exist but is unavailable at the precise time of detention, s.10(

b) does impose an obligation on state authorities to hold off from eliciting evidence from a detainee, provided that the detaineeasserts his or her right to counsel and is reasonably diligent in exercising it. In other words, the police must provide the detaineewith what, in the circumstances, is a reasonable opportunity to contact duty counsel. While this holding-off requirement doesnot apply in cases of urgency, the evidentiary presumption under s. 258(1)(

d) of the Code, which provides that readings takenwithin two hours of an alleged offence are proof of the blood alcohol level at the time of the offence, is not a sufficiently “urgent”factor to override a detainee’s right to counsel under s. 10(b). 87. Now, in Mr. Boudreau’s case, I consider that there was a duty counsel service in New Brunswick which Mr. Boudreau wasunable to access for a period of 2 hours and 13 minutes. Mr. Boudreau had asserted his right to counsel. He opted to consult a legal aidlawyer.

Therefore, the police had to provide him with what, in the circumstances, was a reasonable opportunity to contact duty counsel. Until Mr. Boudreau had a reasonable opportunity to exercise that right, the police could not in any way compel him to make a decision orparticipate in a process which could ultimately have an adverse effect on the conduct of an eventual trial. Therefore, the peace officershad to “hold off” from attempting to elicit incriminatory evidence from him. This is exactly what Constable Doth did in Mr. Boudreau’scase.

88. Mr. Boudreau’s claim of a reasonable opportunity to consult counsel ruled out the possibility for the prosecution to benefitfrom the presumption available under s. 258(1)(c)(ii) of the Criminal Code, but this is one of the prices to be paid in the circumstances ofthis case: see Prosper, at para. 45, which states as follows: 45 . . . A detainee’s Charter-guaranteed right to counsel must take precedence over the statutory right afforded to the Crownwhich allows it to rely on an evidentiary presumption about what a breathalyser reading would have been at the time of care andcontrol of a vehicle.

Loss of the benefit of this presumption is simply one of the prices which has to be paid by governmentswhich refuse to ensure that a system of “Brydges duty counsel” is available to give detainees free, preliminary legal advice on anon-call, 24-hour basis. . . . 89. However, the Court explains that where the Crown is unable to rely on the presumption under s. 258(1)(c)(ii) of the Codedue to the unavailability of duty counsel, it can still pursue an “over 80” breathalyzer charge by adducing expert evidence: see para. 46. 90. Ultimately, this is exactly what happened here. 91.

In this case, there was no breach of s. 10(

b) of the Charter because of the delay caused by the failure of a duty counsel to callback. Eventually, Mr. Boudreau was able to exercise his right to consult a duty counsel. Because of that delay, the police had to refrainfrom carrying out their investigation during that time, which they did. Once Mr. Boudreau had spoken to the lawyer, the investigationcontinued. 92. Also, I am of the view that Constable Doth did not have to ask Mr. Boudreau again if he wanted to try to call Mr. Luc Royone more time. At 3:24 a.m., lawyer Luc Roy’s voice mailbox was full and could not receive further messages.

At 5:42 a.m., the time ofthe call from the duty counsel, I believe it is reasonable to assume that his message system would not have been any more effective. THE REMEDY 93. There was a breach of s. 10(

b) of the Charter when Constable Doth failed to tell Mr. Boudreau, when he took the cell phonefrom his vehicle, that he could immediately make a call to a lawyer. 94. The judge must order the exclusion of evidence that was obtained in a manner that infringed or denied any Charter-protectedrights if it is established that the admission of that evidence, having regard to all circumstances, would bring the administration of justiceinto disrepute: see s. 24(2).

To determine whether the admission of the evidence obtained by a Charter breach would bring theadministration of justice into disrepute, the Court must engage in three avenues of inquiry, each rooted in the interests engaged by s.24(2) of the Charter, viewed in a long-term, forward-looking and societal perspective.

The Court must assess and balance the effect ofadmitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing stateconduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society’s interest in the adjudication ofthe case on its merits: R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353. The Court must balance the assessments under each ofthese lines of inquiry and determine whether, considering all the circumstances, the admission of the evidence would bring theadministration of justice into disrepute. 95.

Here, I am of the view that the seriousness of the Charter-infringing state conduct was not very high and that the impact ofthe breach on the interests of the accused was not very serious. Admittedly, it was a breach of s. 10(

b) of the Charter (the right tocounsel), but this is not a case where this right was refused or denied to him; rather, it was delayed. In this case, the police fulfilled inevery respect their initial duty to inform under s. 10(b); moreover, their conduct was beyond reproach at all times. They did not act inbad faith. Mr. Boudreau did not ask for his phone in order to make a call to a lawyer; he merely wanted to retrieve his personal effects sothat they would not be left in the truck. We do not even know if his cell phone was operational. There was no evidence thatMr.

Boudreau even knew a lawyer whom he could call. 96. Moreover, Mr. Boudreau contacted a lawyer later at the police station. He spoke privately with his lawyer and informedConstable Doth that he was satisfied with his discussion with the lawyer. In the end, the police did not elicit any evidence from thedetainee prior to his speaking with his lawyer. Therefore, he did not suffer any prejudice while waiting for his call. 97. The only consequence of this breach was the possibility of 15-minute delay in communicating with his lawyer.

I note that itwas only a “possibility” given there is no evidence that he even intended to make a call on his cell phone, and no evidence that he wouldhave been able to reach someone.

98. Obviously, the evidence gathered by the peace officers was vital to the Crown’s case. Without the evidence that was gathered, the prosecution cannot succeed. 99. Considering all of the circumstances surrounding this case, I am of the opinion that, ultimately, admitting the evidence obtained would not bring the administration of justice into disrepute. The application of the three factors set out in Grant favours admission of the evidence: • the delay was temporary; • Mr.

Boudreau did not indicate that he wanted to speak to a lawyer at the scene; • he spoke to a duty counsel, which was his choice, before the peace officers asked him to provide evidence. Thus, he obtained his legal advice prior to his providing evidence; • he indicated that he was satisfied with his call to the lawyer; and • the evidence collected is vital to the Crown’s case.

SUMMARY 100. On July 27, 2013, at 2:40 a.m., in Ste-Anne, New Brunswick, Mr. Marc-André Boudreau had the care or control of a motor vehicle. I find that Constable Doth, a peace officer, had articulable cause for stopping this vehicle. 101. The smell of alcohol on Mr. Boudreau’s breath and his reddish eyes were sufficient to give the peace officer reasonable grounds to suspect the presence of alcohol in his body, which justified the demand regarding the approved screening device. 102. Mr. Boudreau failed the screening test.

The result of his breath sample, analyzed by the approved screening device, was “F”, indicating to Constable Doth that Mr. Boudreau had the care or control of a motor vehicle after he had consumed alcohol in such a quantity that the concentration in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. Therefore, the demand to provide samples of breath for analysis by means of an approved instrument was justified and in due form. 103. Mr.

Boudreau provided the qualified technician, Constable Jean-Guy Turcotte, with two breath samples in the BAC Datamaster C, an approved instrument, at 6:05 a.m. and 6:24 a.m. The result of the analysis of the sample obtained at 6:24 a.m. was 100 milligrams of alcohol in 100 millilitres of blood. Ms. Hackett calculated, through an extrapolation of the blood alcohol level of the second sample obtained, that Mr. Boudreau’s blood alcohol level at 2:40 a.m. would have been between 137 and 174 milligrams of alcohol per 100 millilitres of blood, which exceeds the legal limit. 104.

The Crown has proved all the essential elements of the offence beyond a reasonable doubt, and it proved the guilt of the accused beyond a reasonable doubt. I therefore find him guilty of the offence. Dated at Bathurst, New Brunswick, this 21st day of October 2015. Ronald LeBlanc Judge of the Provincial Court