The Yukon Territorial Court has upheld a search warrant authorizing the seizure of medical samples and records in an impaired driving investigation.

Concerns had been raised about whether there was sufficient information to issue the warrant – and if the investigating RCMP officer should have attended in-person before the judge.

But Judge Michael Cozens recently found that RCMP Const. Scott Guthrie had complied with the telewarrant procedure and that he provided adequate evidence for the warrant.

Deputy Judge Donald Luther issued the telewarrant in the case on Nov. 17, 2014 in territorial court in Whitehorse.

It granted the seizure and analysis of James Robert Enns’ blood and urine samples as well as medical records from Whitehorse General Hospital.

The evidence comes from Enns’ assessment and treatment at the hospital following a vehicle collision on Oct. 8, 2014 near Carmacks.

Enns, the driver, had been trapped in the vehicle, which sustained severe damage to its front driver’s side from the crash. He suffered a compound fracture to his left femur.

Another vehicle ended up in a ditch next to the highway. Its driver also sustained injuries, including a sore chest and a small cut on her hand.

Enns is facing several charges in relation to the incident.

In his Information to Obtain the search warrant (ITO), Guthrie said it would be “impracticable” for him to appear personally before a judge in Whitehorse.

He added that there was no judge in Carmacks on that date and that the resident justice of the peace is not authorized to sign search warrants.

But Richard Fowler, Enns’ lawyer, argued that the case did not meet the requirements for seeking a telewarrant as there was “no risk of any evidence being destroyed.”

He noted that the samples and records were securely held at the hospital for seven weeks before they were retrieved by the police. He added that the RCMP drove to Whitehorse to collect the evidence.

Guthrie relied on several grounds for the warrant in the ITO, including that the road at the scene of the accident is “straight and flat.”

He also included several statements to police from people at the scene who alleged witnessing Enns showing signs of intoxication.

One bystander claimed that Enns told him, “I f---ed up; I’m drunk.”

As well, a first responder claimed that she could smell alcohol and that Enns was disoriented, unable to stay on topic, and unable or unwilling to follow basic instructions.

Fowler, however, said the ITO neglected to include relevant information like the fact that Enns denied to a first responder that he had been drinking before driving.

Other missing information, Fowler said, included the fact that the temperature that evening was between minus one and minus two degrees Celsius and there was some snow on the road.

Fowler also said the evidence in the ITO about Enns’ demeanour and behaviour should have been considered by Judge Luther in the context that he had been injured in a collision.

But Crown prosecutor Ludovic Gouaillier said it would have been reasonable for Luther to know that Enns’ injuries could have impacted his behaviour.

He dismissed allegations that Guthrie omitted the information with the intent to mislead the judge.

Guthrie testified that it was the second ITO he had ever written, and he worked on it for several weeks based on a template.

Judge Cozens agreed that Guthrie did not deliberately omit evidence, and that he “made efforts to draft the ITO carefully, in particular given his very limited experience in doing so.”

And he agreed with Guthrie’s assessment that it would be impracticable for him to attend a judge in-person in Whitehorse for the warrant.

Cozens noted there is a two-hour drive between the city and Carmacks, and that urgency is not a requirement for a telewarrant.

“The same could be said of other communities in the Yukon,” he added.

Cozens also said that requiring Guthrie to time the warrant application to when a circuit judge was sitting in Carmacks could be “problematic”.

“It may not always be possible for an officer on duty to access the judge for the purposes of obtaining a warrant, given the competing demand for court time,” he said.

Fowler has raised other issues with evidence in the case, claiming they have violated Enns’ rights under the Canadian Charter of Rights and Freedoms.

These include concerns with Enns’ arrest, the search of his vehicle and taking samples of his blood at the hospital.

Enns’ vehicle was searched by police after he was taken to the hospital.

Officers found four unopened cans and one open can of beer which was “nearly empty” on the passenger floor.

Guthrie testified that he searched the vehicle without a warrant to look for evidence of an offence and to secure any valuables.

At the hospital, an officer also requested that medical staff take blood from Enns and said that a search warrant would be issued.

It remains unclear if the samples were taken at the request of the officer or during the course of medical treatment.

The Charter issues are expected to be fully argued in further court proceedings.