Source: CanLII

CR. AM 2431

SUPREME COURT OF NOVA SCOTIA

BETWEEN:

ROBERT JEAN GAUDET

APPELLANT

-and-

HER MAJESTY THE QUEEN

RESPONDENT

DECISION

HEARD: at Amherst, Nova Scotia before the Honourable Justice Allan P. Boudreau on February 28, 1995.

JUDGMENT: February 28, 1995

DECISION: February 28, 1995

COUNSEL: Hazen Brian, for the appellent
Paul Bychok, for the respondent

Boudreau, J.

The appellant Robert Jean Gaudet was convicted of driving a vehicle with a blood alcohol concentration over 0.25 mg per litre of blood. By application of the accused, the trial took place in French with the aid of an interpreter since the officer who testified for the prosecution only spoke English.

The trial took place in Amherst, Nova Scotia on June 28, 1994. During the trial, officer Richardson, the Crown's witness, filed his certificate of analysis as exhibit P-1. At that time, the certificate hadn't been read by the police officer nor had it been translated into French by the interpreter at trial. The trial judge declared that it wasn't necessary for officer Richardson to read the certificate for it to be filed into evidence. Defence counsel objected to allowing the officer to read the certificate before it was admitted into evidence by the judge. Following this objection, the judge decided that they would read the document themselves and thus, it wouldn't be necessary for officer Richardson to read the document. The document was not read or translated. The trial judge and prosecution counsel did not consider it necessary to have the document translated in writing or in person by the interpreter at trial.

The prosecution closed their evidence after the testimony of officer Richardson, who was their sole witness, and after filing the certificate of analysis as exhibit P-1. Defence counsel indicated that they did not have any intention to introduce evidence. Counsel then moved on to their closing arguments. In their closing argument, the prosecution did not refer to the translation of the certificate of analysis.

On the other hand, during their closing argument, the defence argued that exhibit P-1, the certificate of analysis, had to be translated into French since that was the trial language. In support of this proposition, the defence cited the decision in Boudreau from the Court of Appeal of New Brunswick. The prosecution and the judge admitted they were not aware of such a requirement. After hearing extensive submissions on the topic, the judge adjourned the trial to October 28 and asked counsel for written submissions on the topic.

The trial continued on October 28. The found that, in order to be admitted as evidence against Mr. Gaudet, the certificate of analysis had to be translated into French. In doing so, the judge accepted the defence's submissions and the prosecution's admission.

On his own motion and without consulting the prosecution, the judge reopened the trial to allow the reading of the certificate of analysis and its translation into French by the interpreter, which would corrected the error committed on June 24.

The judge accepted that responsibility for failing to allow the reading and translation of the certificate of analysis by the interpreter during the June 24 trial. Officer Richardson was not present on October 28 during the reading and translation of the certificate. The defence therefore did not cross-examine the witness. However, the judge invited the defence to present evidence, make argument and provide comments on the procedure that was followed to correct the June 24 error. The defence did not make any requests or provide any comments.

I also note that during the initial trial date, June 24, 1994, the defence had been in possession of a translation of the certificate of analysis for some time. The prosecution had provided this translation as a part of their obligation to divulge evidence.

The dispute in this case is whether the judge was entitled to reopen trial on October 28 to permit the translation of the certificate of analysis. I find that they were. At the reopening, the defence did not present any other evidence. Therefore, they were not subject to any prejudice by the reopening of trial. They had been aware of the translation for some time. The defence was partly responsible for the error since they had objected when officer Richardson attempted to read the document on June 24, 1994 in the presence of an interpreter. Additionally, during the continuation on October 28 after the reading of the certificate, the trial judge gave the defence every possible opportunity to make full answer and defence. The defence could have asked for officer Richardson to return to continue his cross-examination. The June 24 error was a procedural error and not a substantial error. The error could have been corrected without causing prejudice to the defence and I find that this is what happened. As Hallett J. wrote in Godine, “[TRANSLATED] the objectives of criminal law must prevail”.

Therefore, I dismiss the appeal.

J.