Two charges of impaired driving have been dismissed against a Whitehorse man after what Judge Michael Cozens called “a long case.”

In July 2012, at around 2:30 a.m., two RCMP officers were responding to an unrelated call when they found Dan Fotheringham slumped over the dash of his vehicle.

The vehicle was running and in gear.

When the officers found Fotheringham unresponsive, they shone a strobe flashlight at him, then smashed his window.

As Fotheringham exited the vehicle, the officers arrested him for suspected impaired driving. They also began questioning him before offering the opportunity to speak with a lawyer.

Last February, defence counsel Jennifer Cunningham argued that this was a violation of Fotheringham’s rights under the Canadian Charter of Rights and Freedoms.

At the time of arrest, she said, there was no clear evidence of impairment, and no proper investigation had taken place to determine impairment.

A video account of the incident showed that RCMP Const. Drew Horbachewsky arrested Fotheringham just 34 seconds after arriving on the scene.

In Horbachewsky’s testimony, he said he could smell booze on Fotheringham. That fact was not, however, included in his notes from that night.

Crown prosecutor Leo Lane agreed that this piece of testimony (that Horbachewsky could smell booze on Fotheringham) was the only evidence that suggested Fotheringham had been drinking.

The RCMP didn’t discover beer in Fotheringham’s vehicle until after they’d arrested him.

When police testified Fotheringham was confused and disoriented, Cunningham suggested this could have been the result of his having awakened to a smashed window and strobe flashlights in his face.

Judge Cozens agreed last Thursday that Fotheringham’s rights had been breached.

As a result, some of the evidence from that night was inadmissible, including the results of the breathalyzer and the statements Fotheringham made after his arrest.

“At best, Constable Horbachewsky could have had a suspicion, albeit a strong one,” said Judge Cozens, noting that suspicion isn’t enough to make an arrest.

He agreed with Lane that there’s a high social interest in cases involving impaired driving, but also concurred with Cunningham that Charter rights can’t be ignored.

After ruling out this evidence, there was not enough information to proceed with the charges.