A judge has criticized North Vancouver RCMP policy after a 14-minute delay in administering a breath test forced her to toss out a case against a suspected drunk driver.
In an Oct. 3 ruling, Judge Carol Baird Ellan said that the actions of a constable-in-training in an incident last year violated a driver's charter rights, leaving her no choice but to dismiss a charge of failing to provide a breath sample even though "the defendant overtly refused."
The accused, Kevin John Hughes, was driving up Lonsdale Avenue June 25, 2010 when North Vancouver RCMP Const. Jennifer Witt reportedly saw him run a red light. When she pulled him over, said the officer, she smelled alcohol on his breath.
After several minor delays, Witt told Hughes to blow into a roadside screening device. Hughes tried three times, making "a horse-like sound" and appearing to block the mouthpiece with his tongue, according to the constable. Witt offered to switch out the straw, but Hughes then said he had changed his mind, she testified. Witt arrested the driver for refusing to supply a sample and took him back to the station.
Hughes, a stocky man in his middle years with long blond hair, defended himself in court, attacking the Crown's case on several fronts, from the officer's credibility to the reliability of the device. Baird Ellan dismissed all of his arguments except one hinging on the timing of the breath test.
About 14 minutes passed between the moment Witt smelled alcohol on Hughes's breath and the moment she got him to blow into the device.
In that time, she took his licence and registration, walked to her car where she called for backup and ran his information, returned to his vehicle, asked him to step out, explained how the roadside screening device worked and then got him to blow. That, in Baird Ellan's view, was too long.
When an officer in Canada stops someone they suspect of drunk driving, that person's charter rights are considered temporarily suspended for practical reasons to allow the officer to take a breath sample.
This suspension, dubbed the "forthwith window," is extremely short, and a drunk driving suspect detained for longer must be allowed to call a lawyer, said Baird Ellan. The exact duration of the window isn't clear, but case law cited by the judge suggests it's closer to six minutes than to 14. In her view, the clock started running when the constable smelled liquor, but Hughes didn't have an opportunity to contact legal counsel until he got back to the detachment. Witt testified that she doesn't allow suspects to use a cellphone at roadside for safety reasons.
That lag time rendered the detention illegal, Baird Ellan ruled, and she tossed the case. Hughes was visibly emotional at the result, wiping away tears and hugging a supporter.
In her reasons, the judge didn't blame the constable, but rather the detachment.
"The delay to the making of the demand is essentially unexplained other than by the need to wait for backup," the judge wrote. "That is a policy decision of the RCMP not to staff a patrol vehicle with more than one officer, and in this case, one who was under training."
"I see this as another example of North Vancouver RCMP departmental policy . . . defying the plain dictates of the case law regarding the need to comply with charter rights."
Speaking to the North Shore News after the judgment, spokesman Sgt. Peter DeVries defended the detachment.
There is no departmental policy against allowing a suspect to contact a lawyer at roadside, he said, regardless of the number of officers present. Nonetheless, in an isolated place, it can be dangerous for an officer working alone to do that, as the suspect could conceivably use the unmonitored phone call to call in friends to extract him from the situation by force, said DeVries.
"I'm not saying that is necessarily (likely) to happen, but we're in the business of accounting for the rare occasion," he said. "We have to make sure we allow people to exercise their right in a way that doesn't compromise . . . safety."
Drunk driving investigations are especially complex when it comes to balancing rights with other considerations, said DeVries.
"I'm just giving you the tip of the iceberg in terms of what's going through a police officer's mind," he said. "There's nothing that was done by the officer in this case (that didn't adhere to) what's considered our best practices."
The detachment would nonetheless ensure its membership was aware of the case with an eye to learning from it, he said.
