Court File and Parties

Ontario Court of Justice

Date: 2018-03-12

Court File No.: Sudbury

Between:

Her Majesty the Queen

— and —

Zacharie Tessier

Before: Justice A.L. Guay

Heard on: July 31, August 14, October 17, November 14, 2017 — Trial

Reasons for Judgment released on: March 12, 2018

Counsel:

• L. Walker, counsel for the Crown
• M. Haraschuk, for the defendant Zacharie Tessier

Guay J.:

Overview

[1] The accused was charged on July 9, 2016 with both impaired driving and driving with a blood alcohol level exceeding 80 mg of alcohol in 100 mL of blood pursuant to sections 253(1)(a) and 253(1)(b) of the Criminal Code. At about 3:18 a.m., he approached the intersection of Notre Dame Avenue and LaSalle Boulevard in the City of Sudbury intending to make a left-handed turn onto Notre Dame Avenue. Two Sudbury police officers, themselves in the process of making a parallel turn, immediately noticed his unusual driving. According to the officers, the accused came up fast in the outside turning lane next to them and stopped abruptly. As the lights changed, the accused opted to drive his vehicle into the curb lane of the three lanes giving onto Notre Dame Avenue once his turn had been completed. The accused was observed to be swerving his vehicle from the curb of the outside lane to the line separating it from the middle of the three lanes. He then swung his vehicle into the middle of the three lanes in question prior to the curb lane coming to an end. At this point, the accused drove his vehicle close to the police cruiser advancing in the third lane next to him.

[2] Surveilled by the officers as he continued to drive on Notre Dame Avenue at an unusually slow speed of 35 to 45 km/h, the accused reached the intersection of Paul Street and Notre Dame Avenue. Turning right onto Paul Street, where he lived, he further reduced his speed to between five and 10 km/h. This the officers found to be "a marked departure from the norm".

[3] Approaching the accused's vehicle after he had parked it at an angle in the driveway of his residence, the investigating officer, Cst. Truskowski, almost immediately smelled alcohol emanating from his breath. He was observed to have the usual indicia of impairment, including red, glossy eyes and instability on his feet. Cst. Truskowski asked the accused if he had had anything to drink that evening and the accused told him that he had had a few beers.

[4] It was at this point that Cst. Truskowski formed a reasonable suspicion that the accused had been operating his vehicle while under the influence of alcohol. Cst. Bennett, Cst. Truskowski's partner, asked the accused to provide a sample of his breath into the available alcohol screening device. After some difficulty caused by a medical condition known as Vacterl, the accused provided a breath sample which generated a "Fail" on the screening device. This led Constable Truskowski to form the opinion that he had reasonable and probable grounds to arrest the accused for the offenses of impaired driving and driving with a blood alcohol level over 80 mg of alcohol in 100 mL of blood.

[5] While the accused's arrest occurred at 3:30 a.m., he did not arrive at police headquarters until approximately 4:07 a.m. This delay was caused by the police policy of not leaving the scene of an alcohol-related arrest until the driver's vehicle has been towed to a compound for public safety and vehicle security reasons. While it has been argued that this policy is not strictly in conformity with the Ontario Highway Traffic Act, I do not find that police compliance with this policy led to a breach of the accused's s.10(b) Charter rights. Nor do I find that by not immediately putting the accused in touch with a lawyer, the investigating officers breached that Charter right.

Issues

[6] There are, I believe, three issues in this matter. The first is whether there is sufficient evidence to convict the accused of either or both of the two charges brought against him. The second is whether the accused was deprived of his language rights guaranteed to him by sections 7, 10(a) and 10(b) of the Charter. The third is whether the accused's s. 9 Charter rights were violated.

The Accused's Evidence and the Section 10(b) Charter Rights

[7] I find that there is sufficient evidence to convict the accused of the offences with which he was charged. I cite the toxicology report and the intoxilyzer records filed as Exhibits 8, 9, 10 by the Crown in this respect. The investigating officers treated the accused reasonably and in conformity with required procedure in such matters. The evidence demonstrates their compliance with such procedures. I find that the police officers who arrested and charged the accused had reasonable cause to stop him and ask him to provide required samples of his breath both at the roadside and later at police headquarters. Their intention to put the accused in contact with counsel was evident in the process. The attitude of the arresting officers towards the accused is seen in their accommodation of his Vacterl condition at the time of his arrest. Vacterl is a condition which, among other symptoms, made breathing and the taking a breath samples difficult.

[8] The desire of the Greater Sudbury Police Service officers to provide the accused with counsel of his choice in fact led to delays which were prejudicial to their case against him. Consistent with the accused's rights and police practice, a number of attempts were made by officers to put the accused in contact with counsel of his choice and, failing this, to help him secure advice from legal aid duty counsel. When the accused informed them that he had accidentally hung up on the lawyer he had been speaking with, the police took steps to reconnect the accused with that lawyer. When they were unable to do so, they assisted him in speaking to a second legal aid lawyer. Without the forensic evidence establishing the accused's impairment, at the time of his arrest, their case against the accused may well have failed.

[9] The accused's argument that his section 10(b) Charter rights were prejudiced when the investigating officers did not offer him a chance to speak to counsel while they were waiting for other officers to arrive and take charge of his vehicle does not establish that there was a breach of his section 10(b) Charter rights in the circumstances surrounding this case. If there was any fault on the part of the police in this respect it was certainly cured by their attempts to give the accused their full cooperation in assuring he had access to counsel of his choice at the first reasonable opportunity. It must be recalled that in R. v. Elias; R. v. Orbanski, 2005 SCC 37, the Court established that in such circumstances, an accused does not have to be advised about his right to counsel or to have the right to exercise that right during the roadside screening process.

The Accused's Language Rights

[10] Inherent in a consideration of the legality of the process against the accused is the issue of his language rights when in police custody. Because the accused did not testify, there was not much evidence with respect to this issue. One is able, however, to discern the effective breach of the accused's language rights which runs like a thread through this matter. The accused, a young Ontario Francophone, seems from the evidence to have a working ability to speak English. This is clearly my sense of most Ontario Francophones, except perhaps for those living in communities in northern Ontario north of Sudbury who are mostly French-speaking. A review of the City of Greater Sudbury's website clearly establishes the bilingual character of the Sudbury area. That website indicates that there are between 27% and perhaps 30% of the area's Francophones who use French as their principal language at home. In addition, for criminal law purposes and provincial government services, the District of Sudbury is designated for French language use and services. This reality has a direct bearing on the issues in this matter. (see (1) French Language Services Act, R.S.O. 1990, Chapter F.32; (2) Criminal Code of Canada, R.S.C. 1985, c. C-34, sections 530-532; (3) Courts of Justice Act, R.S.O. 1990, c. C.43, sections 125 & 126)

[11] The accused in the present case is not unlike his compatriots with respect to his language skills. This said, he clearly was unable to converse with the investigating officers in the French language at the time of his arrest since they did not speak French. The evidence indicated he was still able and willing to banter with them in English while one of their colleagues was attempting to put him into contact with a lawyer of his choice. Pleasantness, however, is not the issue here. The issue throughout is one of providing to the accused his right to the use of his mother tongue when at jeopardy from the operation of and his involvement in proceedings with the criminal justice system. The police are surely an integral part of this process and system.

[12] When the accused was initially asked which lawyer he wanted to speak to, he asked for three different French-speaking lawyers in succession. When it was not possible to reach these lawyers and he was offered legal aid duty counsel, he again asked for a French-speaking lawyer. One of these lawyers had what appeared to be an Italian surname, while the other counsel appeared to have an Anglophone background. As noted, however, at the close of the proceedings on the first day of trial, one cannot deduce from a person's cultural background whether he or she has a capability in a language other than their own. The two legal aid lawyers in question did speak to the police in English. It was also clear from the investigating officer that they received a brief summary of the case against the accused in English. We cannot conclude, however, that the Legal Aid lawyers who spoke to the accused either could or could not converse with him in the French language.

[13] The Crown filed in evidence the Alcohol Influence Report of the intoxilyzer technician, Cst. Jacques Roberge. (see Exhibit 7) In his Report, Cst. Roberge noted (see page 2):

Male was spoken to in English but kept responding in French. It appeared as though he understood English. He responded to every question in French even though it was asked in English. Delay while accused checking list of lawyers for French speaking lawyers. Duty counsel is later chosen by the accused (sic) advising that the accused speaks French. He stated: it is "more easy" (sic) speaking in French.

[14] A review of Cst. Roberge's evidence indicates that he was asked by Sgt. Lefebvre, the desk Sgt. in the booking-in room, to speak to the accused in French. It is clear, however from Cst. Roberge's own notes in the Alcohol Influence Report, that he did not do so, at least not on a continuing basis. For whatever reason, this officer noted that he continued to speak to the accused in English, notwithstanding that the accused insisted on replying to him in the French language.

[15] When prior to his release the accused asked for his release documents to be interpreted to him in French, there was a delay in getting a French-speaking police officer to attend on him for that purpose. Staff Sgt. Tiplady indicated in her evidence that she had begun reviewing the accused's brief and starting the release process somewhere around 10:20 a.m. She further testified that when she started to review the release documents with the accused and pointed out to him the consequences of non-compliance, he requested a French-speaking officer to interpret the documents for him. That officer did not come immediately arriving not less than one-half hour or so later, with the result that the accused was released only around 11:45 that morning.

[16] The many requests by the accused to proceed in the French language, even late in the process, clearly showed his dependency on the French language. His request for a French-speaking officer to interpret the release documents to him confirms that when he perceived his freedom to be in jeopardy, even potentially down the road, the accused preferred to speak in the French language. I do not, then, accept that his reply "OK, d'abor" (sic) to Cst. Roberge's questions about whether he understood the two cautions read to him in the intoxilyzer room signifies that he fully understood what was being said to him.

[17] I acknowledge the Greater Sudbury Police Service's attempts to engage a work force reflective of the linguistic and cultural composition of the Sudbury community. It strikes me, however, that notwithstanding this positive orientation on the part of the Greater Sudbury Police Service, the effective working language of the Service appears to be English. While one may understand why this would come about, communication by everyone with each other being a foremost management consideration, this should not be the primary consideration when dealing with members of the Sudbury Francophone community. This approach is clearly evidenced in the Alcohol Influence Report. Here, we have a Francophone police officer, acting in his capacity as an intoxilyzer technician, dealing with a Francophone accused. He, the officer, insists on speaking to the accused in English, while the Francophone accused before him continues to reply in French.

[18] Notable in the Alcohol Influence Report is the fact that Cst. Roberge wrote down the accused's French answers in two places dealing with the giving of primary and secondary cautions. It is reasonable to infer that the officer, able to write in French, was taking pains to note that the accused had, in fact, understood the cautions by directly quoting him. The accused's failure to indicate an understanding of what was being said would signal a deficiency in the legal requirement that he understand the cautions. The intention of the officer seems to have been directed to establishing compliance on his part with a legal requirement and not the linguistic rights of the accused at that juncture.

[19] Again, the fact that Cst. Roberge understood what the accused seemed to be agreeing to is problematic. While the officer did admittedly read or explain the cautions to him a third time, in English, one is left with the sense that his limited attempt to communicate with the accused in French may have been foiled not by language but rather by the accused's inability to understand the legal meaning of what he was hearing. This seems to be why the officer read the cautions to him a third time but in English, the officer undoubtedly believing that the accused had not understood what had been said to him in French! Persistence in the use of the French language would, inferentially, have been of more use in the situation, French being the accused's mother tongue and the language he insisted speaking.

[20] The failure, then, of the police to communicate with the accused in his official language at key steps in their proceedings against him, including his arrest, testing and release, establishes that the accused's s.7, s.10(a) and, to a lesser degree on the language issue, his s.10(b) Charter rights were violated. Here, it is important to recall that in R. v. Pino, 2016 ONCA 389, drawing on earlier jurisprudence from the Supreme Court of Canada, the Ontario Court of Appeal re-affirmed that there need not be a causal connection between a Charter breach and evidence sought to be impugned in order to satisfy the "obtained in a manner" requirement of subsection 24(2) of the Charter. Speaking for the Court, Laskin, J.A. stated that the connection could ("would be enough") be a temporal one, as long as the "discovery of the evidence occurred in the course of a specific transaction". What was important, he noted, was that the connection between the alleged breach and the impugned evidence was linked by time and context. In the present case, the accused's request at the very end of the process in which he had become involved with the police indicated a persistent and continuing desire to speak and converse in the French language and have what was happening to him said and explained in that language. Clearly, the right to counsel enshrined in s.10(b) of the Charter is dependent and intimately connected with the need to know what is actually happening and the ramifications of what is happening at each step of the process.

Overholding

[21] The last issue to be addressed in this matter is the issue of over-holding which, if established, constitutes a violation of the accused's rights under both s.498 of the Criminal Code and, more importantly, s. 9 of the Charter. As noted earlier, I do not find the delay which occurred at the roadside on the occasion of the accused's arrest and testing to have been in violation of the accused's s. 10(b) Charter rights. The time lines followed by the investigating officers were reasonable. That said, one would have reasonably expected the accused to have been released from police custody within, say, not more than one-half hour after the conclusion of his last breath test which took place at 6:30 a.m. He was, in fact, only released some 5 hours later.

[22] In this respect, I carefully reviewed the evidence of Staff Sgt. Tiplady, the officer in charge of operations at police headquarters on the occasion of the accused's arrest on July 9, 2016. Staff Sgt. Tiplady indicated that she commenced her shift that morning at 6:00 am. She related how during the course of the morning she faced a number of pressing issues. These included conducting two platoon sign-ins and briefings on a different floor in another part of the building from the floor where her office was located. Staff Sgt. Tiplady explained that as the morning unfolded, she had had to deal with flooding caused by one of the prisoners in the cellblock. As well, she also had to deal with an overwrought mother whose daughter had gone missing. Added to this, she explained, were the e-mails and other paperwork she had had to attend to prior to dealing with the accused's matter.

[23] There is evidence that while Staff Sgt. Tiplady was first made aware of the accused's presence in the cell block at the beginning of her shift. She indicated that at some point during the morning, she had been made aware that the accused had a high blood-alcohol reading when earlier tested. This is not surprising since it is the Staff Sgt. who is in charge of releasing those held overnight in custody. The first opportunity, however, she got to deal with his matter, she testified, was at about 10:20 a.m. It does not appear that it took Staff Sgt. Tiplady long to review the accused's file. She was apparently not given much information about the accused's comportment during his time in detention. His behaviour, was in fact accommodating and devoid of unacceptable behaviour or behaviour causing alarm to the officers attending on him.

[24] While one can appreciate that the morning of October 9, 2016 was a very stressful morning for Staff Sgt. Tiplady, it is evident that she prioritized her other concerns that morning to the release of the accused, notwithstanding the injunction contained in section 498 of the Criminal Code and his rights under section 9 of the Charter. While Staff Sgt. Tiplady could not, as the administrative officer in charge at police headquarters, ignore her obligations to get her officers on their way for the day and while it is arguable that she had to give priority to the flooding in the cellblock as a work and public safety issue, she clearly did not prioritize the accused's release. In fact, she seems to have prioritized all of the other issues and tasks facing her that morning, including the completion of forms and e-mails, to the accused's release!

[25] As noted earlier, the accused was seen bantering with the arresting officers while in the booking-in area. He also seems to have been courteous with Cst. Roberge during the intoxilyzer testing. Cst. Roberge did not find much to criticize about his deportment when he conducted those tests. Other than the accused swaying slightly on his heels when he stood, Cst. Roberge did not observe unusual or unacceptable behaviour on his part in the intoxilyzer room. Given the hour of the morning at which all of this was taking place and the accused's Vacterl (scoliosis), we should not be too surprised about this flaw in his comportment. The accused seems to have acted appropriately with Staff Sgt. Tiplady and the French-speaking officer who attended to translate and explain the release documents to him.

Section 498 of the Code

[26] In cases similar to the present one, s. 498 of the Criminal Code allows a police officer to detain a suspect in custody if that officer has reasonable grounds to believe "it is necessary in the public interest that the person be detained in custody having regard to a variety of circumstances set out in ss. 498(1.1)(a)". None of these circumstances apply in the present case.

[27] It is generally known that when seriously impaired drivers are arrested, they are kept in custody until they "sober up" sufficiently to ensure the safety of the public and their own safety upon release. In R. v. Price, 2010 ONSC 1898, the summary conviction appeal court addressed the issue raised at the trial level as to whether an accused could be detained in custody solely because he was found to have a high blood-alcohol reading at the time of arrest. Speaking for the court, Durno J. stated he was inclined to agree with the trial judge that absent other indicia of impairment, detaining an accused in custody simply because he or she had a high blood-alcohol level was improper.

[28] Most importantly, the summary conviction appeal court took a dim view of the possibility of staying an impaired prosecution on what the trial judge in the case had earlier described as "a rather minor infringement" of the accused's Charter rights. Calling for a consideration of all the circumstances governing the situation in deciding whether or not to detain someone in custody, the court stated that the officer-in-charge must give consideration to all of the circumstances in making a decision to detain. The court went on to list these as follows:

A non-exhaustive list of those considerations would include the accused's blood alcohol level, whether the accused was charged with impaired operation, his or her level of comprehension, that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension), that the accused's vehicle would have been impounded, whether there was a reasonable person available to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would be bound, whether the accused had a criminal record and if so, its contents, whether the accused has outstanding charges, his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment. It is only after an objective analysis of these factors and any other deemed relevant, that the officer-in-charge can make an informed decision on release. Being guided only by the blood alcohol level results is too narrow a focus. I agree with the trial judge that if after a consideration of all the factors, the officer determines that the blood alcohol level should be given primary weight in the context of all the considerations, a breach may not be established. (para. 93)

[29] Speaking for the Ontario Court of Appeal in R. v. Price, 2010 ONCA, Watt J.A. seems to have agreed with Durno J. that more was needed to detain an impaired person in custody than high blood alcohol readings. Affirming the decision of the courts below and their response to a non-serious violation of the accused's Charter rights, Watt J.A. observed in Price that the accused had not established "arbitrary detention" and that failing this, he could not have succeeded in his request for a stay. The Court reaffirmed the principles canvassed by the summary conviction appeal court on the matter of judicial stays, confirming that stays were a remedy to be granted "only in the clearest of cases" and specifically when the prejudice to the accused was manifest and no other remedy was capable of removing that prejudicial effect on the accused. (see para. 69)

[30] In the present case, the evidence fails to establish that Staff Sgt. Tiplady turned her mind to the other circumstances surrounding the accused's behaviour when first learning of his presence in police cells and his high readings not long after she arrive on shift earlier that morning. There is, in fact, no indication that she gave the situation any thought until she turned her attention to the accused's release at 10:20 a.m.

Conclusion

[31] The perspective afforded to me by the delay in arriving at this decision gave me cause to think about the vulnerability of persons dealing with police power. While not critical of the actions of various officers involved in this matter, it seems that after the accused was arrested, he became a hapless victim of the system into which he fell by virtue of drinking and driving. While I consider that not each of the various Charter breaches incurred by him may individually merit a stay, the section 7, 9, 10(a) and 10(b) Charter breaches viewed together give me reason to revisit my own thinking about fairness and the duty of the court to uphold Charter values and principles. While acknowledging that the Greater Sudbury Police Service, like other police services in the Province, operates at a harrowing pace and under a lot of stress, it must still do so under the principles contained in the Charter and the Criminal Code. Failing this, the courts must ensure that the rights of individuals brought into contact with the police are respected at all times. This is particularly important for those who are members of a minority group or culture.

The Section 24(2) Charter Remedy

[32] The applicant seeks by way of a remedy to the breaches of his Charter rights either an exclusion of the evidence or a stay of the proceedings. Were I to exclude the evidence against him, I would have to decide whether doing so would bring the administration of justice into disrepute. To determine this, I would apply a Grant analysis (see R. v. Grant, 2009 SCC 32) to determine whether the seriousness of the Charter breaches and the impact of those breaches on the Charter-protected rights of the accused outweighed the public interest in adjudicating the matter on its merits. The conclusion I have reached is that the seriousness of the Charter breaches and their impact on the Charter rights of the accused outweigh the right of the public to try this matter on its merits in this instance. Admitting the breathalyser evidence under the circumstances would, I find, bring the administration of justice into disrepute to members of the public aware of the Charter rights at issue in this matter. Given what I have noted about the seriousness of the Charter breaches acting together and their impact on the Charter protected rights of the accused, I do not believe that a ss. 24(2) Charter remedy would adequately address the situation.

The Section 24(1) Charter Remedy

[33] It is unfortunate that many of us are not versed in our history, even modern Canadian history. To those who know this history, it will be obvious that throughout the course of our history we have had numerous political-constitutional crises which have threatened to destroy us as a country. As with the most recent crisis culminating in a very, very slight majority for the "No" side in the 1995 Referendum, the matter of linguistic survival has been very much a linguistic issue on the part of French-speaking Canadians, particularly those residing in the Province of Québec. Blindly, the English-speaking majority has from time to time ignored the linguistic rights of the French-speaking minority.

[34] Why we Canadians have continued to ignore our history and continued to expose ourselves to political upheaval and destruction can largely be explained by an ignorance of our history. Unconsciously and, unfortunately, sometimes consciously, we have proceeded to commit the same linguistic mistakes of past generations which have given rise to our various political-constitutional crises. These crises do not emerge suddenly but are based upon countless decisions which eventually have the effect of alienating the country's minority Francophone population. This is why a breach of linguistic rights guaranteed by the Charter is so very serious. This is why respect for linguistic rights guaranteed under the Constitution must be respected and enforced by all branches of government. In this matter, and to be precise, it was the Executive Branch of Government or a part of it (the police) which was responsible for breaching those rights in the case of the accused. That is why a stay of proceedings is the more appropriate remedy, rather than the remedy of exclusion of the evidence.

[35] In my respectful view, the only judicial remedy which will adequately address the Charter breaches is a stay of proceedings. In this matter, it is the convergence of the Charter breaches in one, continuing train of events which makes the effect on the accused highly detrimental. Of the various breaches infringing on the accused's Charter rights, I believe that the s.7 and s.10(a) Charter breaches are the most serious. I am therefore ordering that there be a stay of proceedings in this matter.

Released: Dated at Sudbury this 12th day of March 2018

Justice A.L. Guay, Ontario Court of Justice