Whitehorse Daily Star

Impaired driver fined $1,000, loses licence

A 22-year-old Vancouver man has been found guilty of impaired driving, fined $1,000 and lost his licence for one year.

By Gord Fortin on September 19, 2018

A 22-year-old Vancouver man has been found guilty of impaired driving, fined $1,000 and lost his licence for one year.

Dylan Reed appeared for trial last Thursday in Whitehorse, with Judge William Digby presiding.

The trial proceeded by way of voir dire, and saw testimony from two Crown witnesses, while the defence did not call any evidence.

Crown prosecutor Leo Lane first called RCMP Const. Matthew Smee. The officer had pulled over Reed’s car early on Oct. 27, 2017.

He told the court he had responded to a call from the Kwanlin Dün First Nation community safety officer. That officer had reported a burgundy Chevrolet Cavalier driving erratically at 1:26 a.m. The vehicle was reported to have no plate when it was spotted in the McIntyre subdivision.

Smee drove along Hamilton Boulevard looking for the vehicle. He spotted what he believed to be the suspect vehicle heading north toward Elijah Smith Elementary School. The officer activated his emergency lights and performed a U-turn over the barriers.

Smee said the vehicle did not immediately pull over. He told the court the vehicle slowed down and turned onto Falcon Drive and pulled over there.

This was at 1:47 a.m.

He noticed that this vehicle, a Buick Regal, had a licence plate which was obscured by dirt.

The officer noted two occupants and a case of beer in the back seat.

When he got to the driver’s window, it was still rolled up, which he thought was bizarre. He motioned for the window to be lowered, and the driver responded.

Smee testified that the driver, Reed, avoided looking him. He said Reed held the steering wheel and looked forward.

The officer became even more suspicious when the driver spoke to him, positioning his face away to redirect his breath.

Smee said he could smell alcohol, and Reed fumbled to hand over his licence. The officer reported Reed slurred his words when saying his name.

The officer added that the driver’s eyes were red and watery, and his skin was flush. The driver admitted to having consumed alcohol an hour earlier.

The officer would do a roadside test – which Reed failed. He was arrested, while his passenger was released.

At the detachment, Reed was tested two more times. At 2:51 a.m., he tested at 110 mg. At 3:02 a.m., he tested at 100 mg.

Lane asked about the Watchdog video and audio recording system in the police vehicle.

The officer explained that the system was not working. The key to the lock to access the system had broken off in it. The system had not recorded any footage from Oct. 2 to Dec. 17, 2017.

Reed’s lawyer, Joni Ellerton, asked Smee if he was certain Reed’s car was burgundy. He said he was certain it was either burgundy or purple.

She showed him digital photographs, taken by Smee during the traffic stop. She asked for the vehicle’s colour. Smee said it look grey, based in the photos.

She asked the officer if Reed’s vehicle had stood out to him; Smee said it had not. He explained that he realized Reed’s car was not the vehicle he was looking for once he’d pulled it over, but explained he still had a duty to inform the driver why he had been stopped by police.

Ellerton asked the officer to explain Reed’s slurred words. She questioned how Reed could slur his name when it’s made up of few syllables.

Smee said he could not be specific but remembers slurred words.

The next Crown witness called was Daryl Berube, the manager of the radio workshop at the Whitehorse RCMP detachment. He testified on the operations of the Watchdog system.

Berube confirmed that this system had not been working properly in the vehicle in question. He confirmed the broken key in the lock, adding the device had charging problems. As well, the hard drive was not working properly, and there was damage from spilled coffee.

During cross-examination, Berube said the hard drive had been replaced, but he could not confirm when.

He did say the system is activated when an officer turns on the emergency lights, presses the record button on the unit or uses a remote microphone. Once activated, the system includes the previous 30 seconds.

The defence did not call evidence. Ellerton moved straight to her arguments.

She said there had been three violations against Reed’s Canadian Charter of Rights and Freedoms rights, the first being section 9, the right to not be arbitrarily detained.

She said Smee had been looking for a specific vehicle which did not match Reed’s. She said this was not a random stop, as the officer had been following up a complaint.

Ellerton next pointed to section 8, the protection from “unreasonable search and seizure.”

She felt Smee was not a reliable witness. She argued that he had not asked about consumption. She also doubted that he could have properly looked into the vehicle just standing beside it in the dark.

She based this on Smee’s height compared to the car’s height, and questioned how well he could haved observed her client being flushed.

“I think it would be difficult in the conditions,” she said.

The final Charter violation, Ellerton submitted, was section seven, which covers life, liberty and security of the person.

Here, the lawyer felt that the malfunctioning Watchdog system was a violation.

She said Smee never made an effort to get the video, and pointed to a lack of training on the system. She felt that some footage should have been retrievable.

Lane argued that the traffic stop was statutorily authorized under section 106 of the Motor Vehicle Act, which covers stopping for a police officer.

He pointed to Smee’s testimony that Reed did not immediately respond to the officer’s lights.

“There can be no question that Const. Smee pulled the vehicle over for traffic safety purposes,” he said.

Lane argued that Reed’s behaviour was suspicious to the officer when he refused to make eye contact. The prosecutor added that when Reed attempted to redirect his breath, this caught the officer’s attention.

Digby dismissed all the Charter arguments and found Reed guilty.

The judge said the defence had to prove that Charter rights had been violated in the absence of video.

He concluded that Ellerton had not proved her case, reasoning that since video of the traffic stop did not exist in the first place, police did not have to preserve it.

Digby said that despite the fact the vehicle did not match the car in the original complaint, he was satisfied that Smee was still working within the Motor Vehicles Act.

He also reasoned that Reed did not immediately respond to the officer’s emergency lights.

As well, the judge said Reed’s posture in his vehicle during the exchange was suspicious.

He did not give any weight to the slurred words, but said Smee smelled alcohol and saw an open case of beer.

The judge issued a $1,000 fine for impaired driving and a $300 victim fine surcharge.

Reed’s licence will also be suspended for one year.

Comments (5)

Up 1 Down 0

Moose on Sep 25, 2018 at 10:48 pm

We need tougher fines and penalties all round for infractions from speeding to drunk driving. WAY too many people speeding around here and too much drinking and driving as well. It must be disheartening for the police currently. Catching people and having them get off with little to nothing.

Up 9 Down 1

My Opinion on Sep 23, 2018 at 2:09 am

@Max Mack
Read what I said. RCMP did a great Job but the Courts do their best to throw it out. There is a problem but it is not the cops.

Up 2 Down 5

Josey Wales on Sep 23, 2018 at 12:55 am

Hey MO and Max...at time of me pecking this out both are near tied for thumbs up 15&12.
And no down ones for either, when you are essentially saying very different things.
Not a total freakout, nor even a register on the irritant scale ....just an ol fashion odd?
Don’t ya think?
On a side note for y’all...was that last week of sunshine and awesome fall days not thee best?
Bet if you plotted the cranky days here in this public forum, with the weather...pissy people pissing about pissy weather...may contribute to the snarkometer or hypersensitivity with all of us participating in said public forum?
...random thoughts, by Josey.

Up 25 Down 2

Max Mack on Sep 20, 2018 at 12:28 pm

@My Opinion
What are you talking about? The story clearly shows that the RCMP were able to do their work. They followed up on a tip of impaired driving, located a suspect vehicle, observed behaviours that indicated impairment, required a road-side breathalyzer which the driver failed, and made an immediate arrest. Job not only done but well done!

Up 29 Down 0

My Opinion on Sep 20, 2018 at 10:17 am

Glad this guy got charged and that it stuck. But for crying out loud it is almost a year ago. What is the matter with our court system?

Something has to be done as well about the RCMP's ability to do their work. If they are impaired they should be stopped and arrested. If they are not then they have nothing to worry about.

We have to get tougher on crime.

Add your comments or reply via Twitter @whitehorsestar

In order to encourage thoughtful and responsible discussion, website comments will not be visible until a moderator approves them. Please add comments judiciously and refrain from maligning any individual or institution. Read about our user comment and privacy policies.

Your name and email address are required before your comment is posted. Otherwise, your comment will not be posted.