The Dec. 5 Court of Appeal of New Brunswick decision in R. v. Bossé, 2024, NBCA 138, involved Hugo Bossé, who challenged his impaired driving conviction on the basis of his dealings with one of his arresting officers.
It was during the early morning hours of July 5, 2020, that Bossé was pulled over and arrested. He was put into a cruiser and informed of his rights — including his right to contact a lawyer.
Bossé told the officer that his cousin was a lawyer who “specialized in marriages and real estate contracts.” To this, the officer explained to Bossé that he needed a criminal lawyer, rather than one practicing civil law.
The officer told Bossé that the province’s legal aid body could assist, but that he could still contact his cousin, should he so desire.
Upon arriving at the police station, Bossé was given a contact list of lawyers, including his cousin’s. In the end, he opted for a legal aid lawyer. After contacting one, Bossé provided police with “breath samples in the approved instrument.”
At trial, Bossé alleged his Charter rights were violated in relation to the conversation he had with the officer about choosing a lawyer. The trial judge found Bossé had “spontaneously mentioned his cousin’s name and that [the officer] had informed him of the differences between criminal and civil law and offered legal aid.”
“The judge found that during the conversation between Mr. Bossé and [the police officer], the latter, wishing to inform Mr. Bossé, had influenced the choice of lawyer, which constitutes a violation of his right under s. 10(b) of the Charter,” notes the Appeal Court.
The trial judge did an analysis of whether this should result in the evidence of the breath sample being thrown out.
Turning to a test seen in R. v. Grant, 2009 SCC 32, the trial judge had to consider three items — one of which was how serious the officer’s “infringing conduct” was.
The Grant analysis dictates that a “holistic” approach must be used when determining state fault, and that courts “must also ask whether the presence of surrounding circumstances attenuates or exacerbates the seriousness of the state conduct.”
All said, the trial judge decided that admitting the breath sample results as evidence “would not undermine the administration of justice” — in fact, its exclusion would likely “undermine” public confidence in the justice system.
Thus, Bossé was found guilty.
Bosse appealed to the province’s summary conviction appeal court, which reversed the trial judge’s decision and issued an acquittal. This led to the Crown turning to New Brunswick’s appeal court.
Appeal court Justice Denise LeBlanc, with Justices Ernest Drapeau and Charles LeBlonde in agreement, reinstated the trial judge’s decision.
The appeal court’s ruling revolved around Bossé’s discussions with the police officer about choosing a lawyer to contact.
“In my opinion, after having found a breach of Mr. Bossé’s rights under s. 10(b) of the Charter, the trial judge correctly assessed the seriousness of the state’s conduct to situate it on the scale of culpability,” states Justice LeBlanc.
In this, she notes the trial judge found there was “no bad faith or abusive behaviour” on the part of the officer in this regard, and that the officer’s comments “were not intended to undermine the lawyer’s credibility.”
In other words, the trial judge found that this “absence of bad faith” meant that the officer’s conduct “fell towards the lower end of the scale of seriousness.”
Neither Bosse’s lawyer nor the Crown returned requests for comment by press time.
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