R. v. Boudreau (M.-A.), (2015) 442 N.B.R.(2d) 153 (PC)

• Judge: R. LeBlanc, P.C.J.
• Court: Provincial Court of New Brunswick (Canada)
• Case Date: October 21, 2015
• Jurisdiction: New Brunswick
• Citations: (2015), 442 N.B.R.(2d) 153 (PC);2015 NBPC 8

R. v. Boudreau (M.-A.) (2015), 442 N.B.R.(2d) 153 (PC);

    442 R.N.-B.(2e) 153; 1155 A.P.R. 153

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Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.B.R.(2d) TBEd. DE.010

Renvoi temp.: [2015] N.B.R.(2d) TBEd. DE.010

Her Majesty the Queen v. Marc-André Boudreau

(04509811; 2015 NBPC 8; 2015 NBCP 8)

Indexed As: R. v. Boudreau (M.-A.)

Répertorié: R. v. Boudreau (M.-A.)

New Brunswick Provincial Court

R. LeBlanc, P.C.J.

October 21, 2015.

Summary:

Résumé:

The accused was charged with having care or control of a motor vehicle while having an excessive blood-alcohol content contrary to s. 253(1)(b) of the Criminal Code.

The New Brunswick Provincial Court convicted the accused.

Civil Rights - Topic 4603

Right to counsel - General - Denial of - Remedies for - [See second Civil Rights - Topic 4610 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See all Civil Rights - Topic 4610 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - The New Brunswick Provincial Court reviewed the principles involved in providing the right to counsel for someone suspected of impaired driving, and in particular the duty of police to facilitate the accused's request to exercise their rights - See paragraphs 62 to 77.

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - The police found the accused's vehicle parked on a dirt road at 2:40 a.m. - A roadside breath screening test was given - When the accused registered a fail, he was taken to the police station 15 minutes away for a breathalyzer - He was unable to reach his counsel of choice - The police, despite several attempts, were unable to reach duty counsel until 5:42 a.m. - The accused spoke to duty counsel until 5:58 a.m., then took a breathalyzer - The accused alleged that his right to counsel (Charter, s. 10(b)) was breached - The New Brunswick Court of Appeal held that there was a breach of s. 10(b) - The court opined that when the officer retrieved the accused's cell phone from the accused's vehicle at the scene he should have asked him if he wanted to call his lawyer immediately - However, the court declined to grant a remedy under s. 24(2) - See paragraphs 62 to 77.

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) -The police found the accused's vehicle parked on a dirt road at 2:40 a.m. - The accused was taken to the police station some 15 minutes away for a breathalyzer - He was unable to reach his counsel of choice - The police, despite several attempts, were unable to reach duty counsel until 5:42 a.m. - The accused spoke to duty counsel from 5:42 until 5:58 a.m., then took a breathalyzer - The accused alleged that his right to counsel (Charter, s. 10(b)) was breached because of the delay of approximately 2 hours and 13 minutes in hearing from duty counsel - The New Brunswick Provincial Court held that there was no breach of s. 10(b) because of the delay - Eventually, the accused was able to exercise his right to consult a duty counsel - Because of the delay, the police had to refrain from carrying out their investigation during that time, which they did - Once the accused had spoken to the lawyer, the investigation continued - See paragraphs 78 to 92.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See second Civil Rights - Topic 4610 ].

Criminal Law - Topic 1368

Motor vehicles - Impaired driving - Care or control or operating - What constitutes - The New Brunswick Provincial Court noted that in R. v. Boudreault (SCC 2012), the court set out the constituent elements of "care or control" within the meaning of s. 253(1) of the Criminal Code: (1) an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive was impaired, or whose blood alcohol level exceeded the legal limit; and (3) in circumstances that created a realistic risk of danger to persons or property - The Provincial Court stated the prior to Boudreault, the case law had established that "it was only where the prosecution did not rely on the presumption of care or control created by s. 258(1)(a) that the Crown had to establish circumstances creating a realistic risk of danger for other persons or property. If the defendant rebutted the presumption by establishing that he did not intend to put the vehicle in motion, the Crown could nonetheless prosecute him by establishing the three essential elements of the offence that are set out in Boudreault" - The Provincial Court opined that Boudreault had not brought any change to the law concerning the presumption created by s. 258(1)(a) of the Code, as Boudreault dealt only with s. 253(1) - See paragraphs 47 to 54.

Criminal Law - Topic 1368

Motor vehicles - Impaired driving - Care or control or operating - What constitutes - The accused left a bar and parked his vehicle about 10 minutes away on a dirt road - Once stopped he got out and talked with his girlfriend - The radio was on - As a police vehicle approached the accused got into the driver's seat, turned on the lights and pressed the brake pedal - The keys were in reach on the passenger seat - The accused said that he and his girlfriend had taken a walk in the woods, had drunk while walking, and intended to take a taxi - The New Brunswick Provincial Court held that the presumption of care and control in s. 258(1)(a) of the Criminal Code applied - The accused's comment that he intended to call a taxi was not sufficient to establish on a preponderance of evidence that the accused did not have the intention of setting the vehicle in motion - Further, the court (per LeBlanc, P.C.J.) stated that "If the Crown, as the defense claims, nevertheless had the onus of establishing circumstances creating a realistic risk of danger for other persons or property, which I do not have to decide here, I would reach the conclusion that these circumstances have been established in this case" - See paragraphs 55 to 61.

Criminal Law - Topic 1386.2

Motor vehicles - Impaired driving - Roadside screening test - Time and place for - The New Brunswick Provincial Court discussed the immediacy requirement respecting a demand for a breath samples by a police officer - See paragraphs 38 and 39.

Criminal Law - Topic 1386.2

Motor vehicles - Impaired driving - Roadside screening test - Time and place for - The police found the accused's vehicle parked on a dirt road - An officer suspected that the accused had consumed alcohol, but because of concerns for his own safety, took two minutes to do background checks before making a roadside breath screening demand - The accused alleged that the two-minute delay breached the constitutional duty of immediacy as required by s. 254(2) of the Criminal Code - The New Brunswick Provincial Court disagreed - The purpose of the immediacy requirement was to prevent a detention that was longer than reasonably necessary to allow the police officer to exercise his duties in s. 254(2) while the detainee was deprived of his right to retain and instruct counsel - Here, the officer was justified in doing the background checks - The demand was made immediately as was required by the Code - See paragraphs 38 to 46.

Cases Noticed:

R. v. Woods (J.C.), [2005] 2 S.C.R. 205; 336 N.R. 1; 195 Man.R.(2d) 131; 351 W.A.C. 131; 2005 SCC 42, refd to. [para. 38].

R. v. Ellis (A.) (2013), 407 N.B.R.(2d) 204; 1056 A.P.R. 204; 2013 NBPC 13, refd to. [para. 39].

R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1, refd to. [para. 46].

R. v. Appleby, [1972] S.C.R. 303, refd to. [para. 47].

R. v. Price (1978), 21 N.B.R.(2d) 532; 37 A.P.R. 532; 40 C.C.C.(2d) 378; 2 C.R.(3d) 277, refd to. [para. 48].

R. v. Thompson (1940), 75 C.C.C. 141, (N.S.S.C.A.D.), refd. to [para. 49].

R. v. Toews, [1985] 2 S.C.R. 119; 61 N.R. 349, refd to. [para. 49].

R. v. Boudreault (D.) (2012), 436 N.R. 343; 2012 SCC 56, refd to. [para. 50].

R. v. Mallery (A.E.) (2008), 327 N.B.R.(2d) 130; 840 A.P.R. 130; 2008 NBCA 18, refd to. [para. 52].

R. v. Burbella (W.P.) (2002), 166 Man.R.(2d) 198; 278 W.A.C. 198; 2002 MBCA 106, refd to. [para. 53].

R. v. Jonah (C.R.) (2015), 437 N.B.R.(2d) 21; 1140 A.P.R. 21; 2015 NBPC 2, refd to. [para. 54].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 63].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192, refd to. [para. 64].

R. v. Clarkson, [1986] 1 S.C.R. 383; 66 N.R. 114; 69 N.B.R.(2d) 40; 177 A.P.R. 40, refd to. [para. 65].

R. v. Sargent (K.) (2005), 292 N.B.R.(2d) 219; 761 A.P.R. 219 (Prov. Ct.), refd to. [para. 66].

R. v. Brown (A.) (2009), 345 N.B.R.(2d) 1; 889 A.P.R. 1; 2009 NBCA 27, refd to. [para. 67].

R. v. Luong (G.V.) (2000), 271 A.R. 368; 234 W.A.C. 368 (C.A.), refd to. [para. 67].

R. v. Devries (K.) (2009), 252 O.A.C. 34; 2009 ONCA 477, refd to. [para. 72].

R. v. Taylor (J.K.), [2014] 2 S.C.R. 495; 460 N.R. 101; 572 A.R. 81; 609 W.A.C. 81; 2014 SCC 50, refd to. [para. 74].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321, refd to. [para. 82].

R. v. Leclair and Ross, [1989] 1 S.C.R. 3; 91 N.R. 81; 31 O.A.C. 321, refd to. [para. 84].

R. v. Ross - see R. v. Leclair and Ross.

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 94].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 10(b) [para. 62]; sect. 24(2) [para. 94].

Criminal Code, R.S.C. 1985, c. C-46, sect. 253(1) [para. 50]; sect. 254(2) [para. 38]; sect. 258(1)(a) [para. 51].

Counsel:

Avocats:

Jean-Guy Savoie, for the Crown;

Luc Roy, for the defendant.

This matter was heard in Bathurst, N.B., before R. LeBlanc, P.C.J., of the New Brunswick Provincial Court, who delivered the following decision on October 21, 2015.