Whitehorse resident Curtis Steven Rowat has been acquitted of impaired driving and possession of a controlled substance.

Territorial Judge Richard Schneider presided over the trial, which took place Tuesday and Wednesday.

Rowat, 32, had a been charged with possession of a controlled substance for the purpose of trafficking.

The Crown decided to downgrade the charge to simple possession. Crown Leo Lane said he wanted to proceed summarily.

Lane called evidence from RCMP Const. Kerry Jury by voir dire.

Jury said she was working the night shift on Jan. 26-27, 2017.

While out on patrol, she clocked in a speeder driving 117 km/h in the 60 km/h zone up Two Mile Hill at around 1:40 a.m.

Jury was heading toward downtown. She turned around and activated her security equipment, but quickly lost sight of the vehicle.

She continued on Hamilton Boulevard and saw a vehicle on the Alaska Highway, heading north. She turned around to follow this vehicle and eventually pulled it over.

Lane asked if she had any indication that this was the same car that had been speeding. Jury said there was not.

She did not get a make, model, colour, size nor licence plate number of the speeding vehicle because of the dark conditions.

She pulled over the vehicle, which was registered to Rowat, because it was the only one on the road near where she’d lost the speeder.

Lane asked if the car she pulled over had stood out in any way, or if she had any concerns about the driving.

Jury said it did not stand out, and she had no reason to be concerned.

The constable got out of her car and asked for the driver’s credentials.The driver produced a valid Yukon driver’s licence, but his registration and insurance had expired. She did not smell alcohol at the time.

Jury ran his licence through dispatch and wrote a ticket for no insurance and no registration. She intended to have the car towed.

She returned to the driver’s window and smelled alcohol this time. She asked him if he had been drinking, to which the driver said he’d had one beer.

She asked him to get out of the car and did a roadside test. He failed, and was arrested.

Searching Rowat’s vehicle, Jury found his wallet and three cellphones. She also found a white powder substance in seven small baggies, as well as a small container, which she thought was drugs.

When Lane asked why she’d searched the vehicle, Jury said it was to look for valuables and alcohol.

She felt the white powder was cocaine, and that there was enough for her to believe Rowat was trafficking the drug. She felt the multiple cellphones strengthened that belief.

Back at the detachment, Rowat was subject to two more impairment tests. The first test found he had 130 mg of alcohol in his blood, while the second test showed 110 mg. Both were fails, as the legal limit is 80 mg.

The powder substance totalled 2.4 grams. Rowat was released on a promise to appear in court not long after.

Lane next asked about the audio and video recording system in the police cruiser. Jury said her vehicle was equipped with such a device called Watch Guard.

She said she does not remember if it was recording that night. It should have been once she activated her sirens, but both the hard drive as well as USB drive were full. This meant no new footage could be recorded.

After that night, Jury said, she found out there was no video from that specific vehicle from Jan. 16 to Feb. 2.

Joni Ellerton, Rowat’s attorney, asked if Jury had noticed any characteristics about the speeding car. Jury said that because it was dark, she could not remember any significant details, other than the vehicle was dark-coloured.

Ellerton asked if she had pulled over Rowat because he was the only car on the road. Jury said she did.

Ellerton asked if Jury had inquired if there were any valuables in the vehicle prior to searching it. Jury said she did not remember.

Moving to the cameras, Ellerton asked Jury what she did once she noticed the Watch Guard drives were full. Jury said she pulled over and informed dispatch that the camera was not recording.

Ellerton asked if Jury had checked both the hard and USB drive’s capacity before going out on patrol. Jury said she couldn’t remember but said she usually does check before shifts.

After cross-examination, Ellerton brought forward a Section Nine of the Canadian Rights and Freedoms violation. This section reads that: “everyone has the right not to be arbitrarily detained or imprisoned.”

Ellerton argued that Jury may have inferred that Rowat was the speeder she’d encountered earlier, but had no evidence to prove it.

She added that the constable did not observe any concerns over Rowat’s driving when she encountered him on the Alaska Highway.

“She should not have proceeded to stop the vehicle,” Ellerton said.

She further argued that Jury had performed an unauthorized search of the vehicle. She felt the constable already had enough to arrest Rowat for impaired driving and did not need more evidence.

In this light, she felt the vehicle search was a “fishing expedition.”

Ellerton argued that Jury should have asked if there were valuables in the vehicle before searching it.

Lane argued there were no grounds for a Charter violation because the Yukon Motor Vehicles Act makes it clear that police can perform random traffic stops pertaining to a traffic safety concerns. If Jury thought she was stopping a speeder, Lane said, the traffic stop was fully justified.

But Judge Schneider said this was not a random check stop, and that Jury was looking for the speeder.

Lane maintained that since the stop was made for traffic safety concerns, nothing had been done wrong. He believed the judge’s concerns enhanced his argument, as she was looking for the speeder.

Lane said that regardless, if this traffic stop was a section nine violation, Section One of the Charter makes it legal. Section one reads: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

As for the vehicle search, Lane argued that impaired drivers often have alcohol in the vehicle, meaning she had a reason to search the car.

Lane added that Jury was not thinking about drugs until she found multiple cellphones. This made her think of possible drug trafficking.

Judge Schneider said Tuesday he wanted to take the night to consider his decision. On Wednesday, he delivered his reasoning for acquitting Rowat of all charges, including due to a lack of evidence.

He reaffirmed that he did not agree with the Crown’s argument that the traffic stop had been legal, because it was not a random safety stop. That scenario is not consistent with Jury’s testimony.

“There was no rational basis for stopping Rowat’s car,” Schneider said.

He further elaborated that Rowat had displayed nothing wrong with his driving, and there was no way Jury could connect him to the speeder.

She did not have any identifying features of the car she had seen earlier.

The judge said the impact of this wrongful stop may not be egregious, but it is not trivial. He affirmed that Jury was not found to be acting in bad faith.

Ellerton asked for the wallet and cellphones to be returned, saying they are all work phones.

Schneider said they would be – but the powder would not be returned.