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.