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Man not guilty of refusing to provide a breath sample

A Yukon judge has acquitted a Whitehorse man of refusing to provide a breath sample to the RCMP.

By Gord Fortin on May 17, 2019

A Yukon judge has acquitted a Whitehorse man of refusing to provide a breath sample to the RCMP.

Mahamadou Traore Sangare appeared before Judge Peter Chisholm in territorial court last Friday. Chisholm provided his oral decision in French.

The accused drove to the Whitehorse RCMP detachment during the evening of Sept. 8, 2017. He had his son and another individual in his vehicle.

Const. Jeff Reid was outside helping someone when Traore Sangare pulled up.

The accused told the constable that he was in the middle of a fight with his spouse. Reid smelled alcohol.

Chisholm accepted evidence that this conversation between Reid and Traore Sangare took place in a mix of French and English.

Reid asked for a breath sample, and brought the accused into the detachment. He asked one of his colleague, Const. Timothy Heighington, if he had an approved screening device.

Traore Sangare was brought outside to Heighington’s vehicle to give a sample. He addressed the accused in English and testified that he believed Traore Sangare seemed to understand him.

The accused tried to blow into the device 12 times without success.

Traore Sangare appeared frustrated that he could not provide a sample. He testified he could not blow properly due to chest pain. The two constables testified that he had shown no signs of such pain.

After being arrested, Traore Sangare was taken to the Whitehorse Correctional Centre (WCC) Arrest Processing Unit (APU). He was taken to Whitehorse General Hospital later that night over chest pain.

Traore Sangare is from Mali and primarily speaks Bambara. He learned French as a second language in Mali and claims he does not speak English well.

At trial, defence counsel Vincent Larochelle argued that his client’s Charter of Rights and Freedoms rights under Section 7 were violated. This is the section that covers life, liberty and security of person.

Larochelle said there was a disclosure issue over videos from the incident.

The defence further argued that Traore Sangare could not provide a breath sample due to health conditions and he did not understand the instructions due to his limited English.

Larochelle argued the lack of video evidence is an important issue.

Crown prosecutor Ludovic Gouaillier said the materials requested by the defence was not even provided to him. He added there is no evidence of a health condition.

Chisholm said Larochelle has a point about the video evidence. He added he is perturbed that the RCMP did not react more quickly to the defence request. Even now, he said, not all the desired videos can be found.

Two such videos were discovered, one from the detachment and the other from the WCC.

Chisholm explained that to convict Traore Sangare, the Crown would need to prove that police made the breath sample demand, and that the accused understood the instruction but refused to comply, with no reasonable excuse.

The judge noted that the accused testified in French. He observed that it was obvious that French was not Traore Sangare’s first language.

He remarked that neither Reid nor Heighington took notes. Reid only began his report five days after the fact; Heighington started his report two months after.

Chisholm explained that this caused issues.

He next went over the reliability of the evidence. He believed that neither constable was lying nor trying to mislead the court.

That said, he was not convinced without a doubt that Traore Sangare had understood the instruction, and thus entered an acquittal.

“The defendant is acquitted,” Chisholm said.

Traore Sangare also faced one count of failing to appear in court, to which Gouaillier entered a stay of proceedings.

Comments (8)

Up 32 Down 3

Disgusted on May 20, 2019 at 4:37 pm

So, he could tell he is in the middle of a fight with his spouse. But couldn’t understand any more...right. What does he do for a living, I wonder.

I immigrated here 25 years ago and would be ashamed to play the social and judicial system in a country that isn’t mine, heck, even in my original country I would not pull this bs. Never mind to not even bother to learn the language. Well, it’s called morals I guess.

Up 31 Down 6

Gringo on May 19, 2019 at 9:25 pm

This a pure example when the charter protects the criminal. So what there is no video evidence. The rule of law is if the police smelled liquor they can make a demand. A deaf person that is challenged can figure out what is needed. Chest pain bruuuahaha ....joke. Come on justice system start taking impaired driving seriously, MADD and DADD are here for a reason.

Up 38 Down 8

Juniper Jackson on May 18, 2019 at 7:33 pm

The legislation is in place.. it's the courts that are irresponsible. Why are people in this country that can not speak either of the official languages? This drunk driver obviously speaks enough English to tell the RCMP he has chest pain and should go to the hospital. He knew what he was doing ok. They all do. It is amazing how some people, of any nationality, race, religion, if they have a criminal/entitled 'bent' in their makeup.. they learn to outwit the law/milk the systems.. they go from welfare to workers comp, back to welfare. They have no sense of responsibility, no forethought of consequences for their actions..they just slide though their lives on some one else's dime, squeeze out of legal mishaps. The legal system, as it is being administered by the courts, are turning justice over to the victims. The times.. they are a' changin'

Up 14 Down 10

Mitch on May 18, 2019 at 2:37 pm

Why do the police not have another option besides breathalyzer for accused drinking & driving. There a a lot of people who can not take a deep breath. Will all of these be charged? If someone can not blow hard enough, they should be offered the option of a blood test. Then if they refuse, charge them. It is possible the accused in this case was telling the truth, his chest hurt and he could not provide a sample.

And by the way, I have met this individual and his english is very poor.

Up 54 Down 6

Mr M on May 18, 2019 at 9:33 am

Oh the old I don't understand english BS. Had this happen to me when a woman ran a stop sign and hit my truck. She needed a Cantonese interpreter. She didn't and she can speak english very well. Just an easy way to get out of paying a fine or dealing with the consequences. Justice system fails again. No wonder the RCMP have a hard time doing their job. Feel frustrated for the RCMP.

Up 37 Down 2

My Opinion on May 18, 2019 at 1:47 am

OMG. What is happening to the world?

Up 41 Down 6

charles on May 17, 2019 at 7:14 pm

This Judges decision is a good reason for the R.C.M.P to make sure to have at least one French speaking Officer on duty per Shift. Otherwise all these guys are getting a Get out of Jail Card. Watch, this could happen again. Some People are very shifty and can play the law to their side.

Up 41 Down 9

Clarence Darrow on May 17, 2019 at 6:00 pm

A mockery of Justice and justice mocks itself.

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