Im­paired charge held over fail­ure to use French

Vancouver Sun - - CANADA - hArold cArMichAel

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.

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