Whitehorse Daily Star

Officer reacted to tip, truck’s rolling stop

Breath samples have been thrown out in the case of a man charged with impaired driving in Whitehorse.

By Emily Blake on July 17, 2017

Breath samples have been thrown out in the case of a man charged with impaired driving in Whitehorse.

Territorial Judge Michael Cozens made the decision to exclude the evidence from trial recently, finding that Daniel Winston Wells’ Canadian Charter of Rights and Freedoms rights had been breached.

“The need for police officers to comply with Charter obligations, in light of the powers provided to police officers, is important in order for confidence in the justice system to be maintained,” Cozens said.

Defence lawyer Joni Ellerton filed the charter application alleging that Wells’ rights against unreasonable search or seizure, and to not be arbitrarily detained or imprisoned, had been breached.

She also argued that there had been an unreasonable delay in taking the breath samples.

The charges against Wells stem from the evening of June 3, 2016.

The RCMP received an anonymous call at around 7:11 p.m. that an individual who had been drinking at the 202 Motor Lounge had left in a truck. The caller provided a description of the vehicle and the licence plate number.

Arresting officer Const. Brian Harding testified that he suspected the caller had concerns about the possible impairment of the driver.

Approximately 18 or 19 minutes later, he located a truck matching the description provided heading west on Main Street. He followed it for several blocks to confirm the plate numbers.

When the truck turned right onto Fourth Avenue from Lambert Street, Harding observed that it failed to come to a complete stop at the stop sign.

Cozens noted from the video recording that the failure to come to a complete stop was minimal in that it fell just short of being complete.

Harding pulled the truck over. He informed Wells, who was alone in the vehicle, that he had failed to make a complete stop and of the complaint from the 202.

Harding testified that he did not detect any liquor coming from either inside the truck or from Wells and did not note any other symptoms of impairment.

During questioning, he noted Wells did not appear to want to talk to him, and was evasive in his answers to questions.

Wells did not admit to having consumed alcohol and said he did not recall whether he had been at the 202.

Harding then asked Wells to step out of his truck to provide a breath sample.

He said his grounds for the demand included the complaint, the rolling stop, that Wells was alone in the truck and evasive in his responses, and the lack of a clear answer on whether Wells had been consuming alcohol.

While reading the breath sample, Harding asked Wells when he had consumed his last alcoholic drink.

At first, Wells said he did not remember, that he may have had one “shortly a while ago,” and that he was not sure whether he’d had any alcohol before leaving the bar.

He then stated that he’d consumed two quick drinks “moments ago” after he left the bar.

Harding decided to wait to take a breath sample to make sure that no residual mouth alcohol could affect the test.

Using 7:30 as the time of the pullover, he decided to wait until 7:45 to conduct the breath test.

At 7:47, Wells provided a breath sample which resulted in a “fail” reading.

He was arrested for suspected impaired driving and transported to the RCMP detachment at 7:54.

After an observation period, Wells provided a breath sample at 8:28 that registered as an “insufficient sample”.

He provided another breath sample at 8:30 that registered at 120 mg per cent and an additional sample at 8:54 that registered at 130 mg per cent.

Ellerton said that in order to make a valid demand to provide a breath sample, Harding needed to have a reasonably objective belief that Wells had consumed alcohol and there was alcohol present in his body.

She argued that in this case, Harding’s belief was not reasonable, as all he had was a tip that a driver of the described truck might be impaired and an observation of a rolling stop.

Harding could not even be certain that Wells was the person who left the 202, Ellerton said, because no description of the individual was provided by the caller and there was no continuous observation of the truck.

Crown prosecutor Eric Marcoux, for Leo Lane, however, argued that there had been sufficient evidence to justify a breath demand.

He said this included the anonymous tip, the location of the described truck in the downtown area 18 minutes later, and Wells’ evasive response to questioning.

Cozens found that given the anonymous tip and the rolling stop, the stop of Wells’ truck was proper, but there had been insufficient evidence for the breath test demand.

While Harding had acted in good faith, the judge said, the officer’s belief that Wells was impaired was not objectively reasonable, and he should have taken further investigative steps.

Cozens did not find that there had been an unreasonable delay in taking the samples.

Comments (16)

Up 22 Down 2

Groucho d'North on Jul 19, 2017 at 7:46 am

So the only tangible evidence in this case was thrown out and the hearsay remains? Anybody else see those signs on the highways about calling 911 to report impaired drivers? The courts are failing our society and should be ashamed.

Up 3 Down 8

Teddy on Jul 19, 2017 at 1:58 am

I think it depends on how the other person knew he was driving drunk. If they seen him loaded at the bar...I would say he would have more grounds to do the roadside test than merely bad driving.
I heard they were changing the roadside test rules to not needing grounds to demand one, but as far as I know they didn't yet.
Normally I find myself on the side of the police, but if the sole grounds were a complaint (possibly driving based) and no smell of alcohol, and being nervous (imagine being nervous when being stopped by the police), or being evasive with questions (which could point to any wrong doing not drunk driving) then that seems to be a bit of a long shot with the current laws.
I think the officer acted in what he thought was the best interest of society....and shame on this guy for driving drunk, but....I agree based on what I've heard.

Up 3 Down 11

stu nanson on Jul 18, 2017 at 6:42 pm

Josey Whales- what are you saying? Its seems so convoluted and negative and anti-establishment. I assume you have high school matriculation and are not going on and on about those who went to university.

Are you part of the counterculture? I know the mayor and RCMP and judges are somewhat authority figures, but really, it's still a very small town the horse is, a very small pool. And as you say, it could be a much better to place to live in that we agree.

Mary Jane is not legal yet, are you perhaps smoking a lot of weed and and eating a little too much in your homemade brownies? Maybe it's medical MJ or post traumatic stress from something. Please check to see if your consumption of MJ is related to your prolific media comments. And of course I am not being judgmental, but just assessing what on earth is going on in your head.

Sure, I do appreciate your comments as I do a rooster letting me know its 4.47 am and time to go to sleep or a dog barking to let me know a bear or prowler may be in the greenbelt or the dark dark woods near our home.You are perhaps the rooster of Whitehorse social issues, crowing and crowning in the early morning to let us know when the system is unjust for the average wage earner. Yes, the poorer people see those well educated blowhards as you call them and wonder why they do so well. Some truth in that but our judges and police and even the mayor occasionally make good calls.

Hope I did not rant too much- my sleep was disturbed by a rude rooster.

Up 4 Down 5

Josey Wales on Jul 18, 2017 at 4:58 pm

Seriously...members of M division.
Take a few weeks off, maybe three...seems a few need live in the real world? Certain that would thin out our herd up here, change a few idealistic philosophies in regards to "hugs and understanding"
Who knows maybe folks would figure out really what chaos and order do in fact look like...feel like etc.

In short...thanks for putting up with our many s**theads and as in this case...beating your head against the wall.
I know where much of this compost we deal with in our community comes from...that insane asylum we used to call our halls of justice.
Liberal engineered lab rats...all of us, in the same cage. What could happen?
Been this way since Justine's papas team designed it.
Now it better than winning the lottery...if slaying and maiming western soldiers is ones craft.

Up 16 Down 0

Anie on Jul 18, 2017 at 3:08 pm

Deathbybeaurocracy: in a word, yes. If that person isn't driving drunk, then it's no big problem. But if you are so petty as to pull that stunt, you have bigger problems to worry about

Up 16 Down 14

woodcutter on Jul 18, 2017 at 2:16 pm

Abolish the charter of rights and freedoms? Are you on medication? or just looking for an excuse for poor police work?
Never heard anything so stupid today...yet

Up 41 Down 4

Tater on Jul 17, 2017 at 9:04 pm

So, you let the RCMP know someone is driving drunk. They stop him, and his rights are breached and he gets off. What about my rights of security? We have a serious problem with the Charter.

Up 40 Down 6

Just Say'in on Jul 17, 2017 at 8:38 pm

This should be appealed. Or make drunk driving legal because obviously he was impaired and driving. Also a witness clearly saw him and reported it to the RCMP. The "Legal System" has clearly lost it's way.

Up 21 Down 24

DeathBYBureaucracy on Jul 17, 2017 at 5:55 pm

Hmmm , so if someone whose opinions I disagree with during a bar-room 'discussion' gets in a truck, all I have to do is phone the cops with his plate and sit back and watch him get pulled over ?

Up 35 Down 8

jc on Jul 17, 2017 at 5:20 pm

What does that all matter? The driver failed the breath test and was impaired. Time to abolish the stupid Canadian Charter of Rights and Freedom Act. How many innocent people have been killed or injured because of it. And I think from the evidence I have received over the years, most judges don't understand the act anyway. It's time for them to protect the public from the criminal element or take responsible for a future vigilante system.

Up 27 Down 2

June Jackson on Jul 17, 2017 at 5:18 pm

in order for confidence in the justice system to be maintained,” Cozens said.
Does anyone know what justice system Cozens is talking about? I know we have 'law'.. but that doesn't equate to justice here.. is he talking about some place else?

P.S. Good one Al!!!!! Josie..Shame, Woodcutter.. couldn't agree more.. love your comments.. love the Star for being gutsy enough to print opinion that is at best, far far away from 'political correctness'

Up 14 Down 9

Josey Wales on Jul 17, 2017 at 4:54 pm

Reeeeeemmemmber folks...the charter we read of so so much?
The same charter that let convicted murders vote, race laws, catch and release justice...etc.
Same one I bleat about with freely expressing myself...yup same one.
Yes folks the part time substitute drama teachers...daddies LIBERAL administrators!
With a great deal of help from papa... the architect, of identity politics, class warfare, race battles...man I could go on.

To that I say....
DR. JORDAN PETERSON for prime minister...before we are destroyed by liberal ideology

Up 39 Down 16

Josey Wales on Jul 17, 2017 at 4:12 pm

Hey...does that mean the part time substitute drama teacher is going to peel off a cheque for 8 million for said breach?
Or is that reserved for 7th century sycophants whom slay western soldiers?
Raymond Silverfoxes estate should get a deposit too, his were violated to death. His death... not a soldier of the west.

We do not have enough drunks in traffic...appearently we need some more?

Up 49 Down 7

woodcutter on Jul 17, 2017 at 3:58 pm

Try a rolling stop on your drivers test. Seems that a rolling stop, as long as its not too much, is ok in a court of law.

Up 65 Down 15

Shame on Jul 17, 2017 at 3:53 pm

Ah Canadas' judges, the criminals best friends... How can anything resembling justice be served when you have this coming from the bench? Anyone who wants to start bleating about the charter of rights has to know it is being twisted in ways that was never meant to happen. It was never meant to protect drunk drivers, murderers, rapists, and immigrants who throw grenades and kill our allies soldiers, but these are the very people who blanket themselves in it and cry their 'rights' have to be protected. Absolutely sickening and disgusting!

Up 56 Down 11

AL on Jul 17, 2017 at 3:48 pm

"Territorial Judge Michael Cozens made the decision to exclude the evidence from trial recently, finding that Daniel Winston Wells’ Canadian Charter of Rights and Freedoms rights had been breached."

I wonder does this mean that Wells will get 10.5 million and an apology??

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