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.