Impaired charge held over failure to use French

Charges against a driver have been stayed even though he was almost three times over the limit because police officers failed to process him properly in the French language.

“While acknowledging that the Greater Sudbury Police ... operates at a harrowing pace and under a lot of stress, it must also operate under the Charter (Canadian Charter of Rights and Freedoms),” Ontario Court Justice Andre Guay ruled Monday, concerning Charter challenges filed in the trial of Zacharie Tessier.

“This is particularly important for members of a minority culture. The seriousness of the Charter breaches on the Charter rights of the accused outweigh the rights of the public in this instance ... In my respectful view, the only natural remedy in this situation is a stay of proceedings.”

Tessier, 26, was charged July 9, 2016, with impaired driving and having more than the legal allowable level of alcohol in his blood.

The trial heard Greater Sudbury Police officers on patrol about 3:20 a.m. that day noticed a driver turn and swerve often as he headed south. The driver was also going 35 to 40 km/h, slower than the posted speed limit.

After turning again, the driver went another five to 10 km/h slower before pulling into a driveway.

Officers then talked to the driver — Tessier — who had an odour of alcohol on his breath, red, glossy eyes and was unsteady on his feet.

Tessier said he had consumed a few beers. He then failed a roadside breath test.

At police headquarters, Tessier, who was asked questions in English, answered in French and asked for a French-speaking lawyer. A number of attempts were made to put him in touch with three francophone lawyers of his choice. He ended up speaking to a Legal Aid lawyer.

During the Intoxilyzer testing, which produced readings of 237 and 215, the first being almost three times the legal limit (80) while driving, a French-speaking officer was involved.

However, the officer spoke in English, but Tessier still responded in French.

“Here, we have a francophone officer working in his capacity as a breath technician,” said Guay. “He insists on speaking in English when the accused continues to reply in French.”

Due to a shift change at 6 a.m., when the incoming staff sergeant had to deal with other issues, and the request by Tessier to have his police documents in French, he was not released from custody until after 10:30 a.m.

“She clearly did not prioritize the accused’s release,” said the judge.

A typical release of a drunk driver, Guay said, occurs about 30 minutes after breath tests are done providing there is no safety issue with the accused.

Guay ruled that Tessier’s Charter rights were clearly violated.

“His Section 10b Charter rights were violated,” said Guay.