Constitution, not directive, prevented breathalyzer

A failure to collect a breathalyzer sample from a man who killed someone after driving recklessly had nothing to do with an order not to enforce new drunk driving laws, say Yukon RCMP.

A failure to collect a breathalyzer sample from a man who killed someone after driving recklessly had nothing to do with an order not to enforce new drunk driving laws, say Yukon RCMP.

On July 2, 2008, police across Canada were given two new tools to help nab drunk drivers – they could apply a standardized field sobriety test and they could use a drug-recognition expert to determine if a driver was high.

The laws were part of Bill C-2, a major justice bill passed by Parliament earlier that year.

But here, those tools were put on hold.

On July 6, Sgt. John Sutherland sent an e-mail to the officers of the Yukon’s M Division.

“Please note until national policy is developed and distributed and M Division determines if we are able to enact the use of the Standard Field Sobriety Testing (SFST) and drug-recognition experts, we will not be utilizing these provisions of the Criminal Code,” says the e-mail.

One week later, Jamie McBride was driving on the wrong side of the Alaska Highway when he collided with Diane Roby’s van, killing her.

He had been at the bar where he drank nonalcoholic beer and had fallen asleep at the wheel, he told police.

Based on this claim, and the lack of any evidence he was drunk, police did not administer a breathalyzer.

He was charged with driving while impaired, driving dangerously resulting in death and driving recklessly, a breach of the territorial Motor Vehicles Act.

On November 29, the two criminal charges were dropped against McBride.

He was only convicted with driving recklessly. He was fined $1,000 and ordered to serve 30 days’ probation.

Police didn’t fail to administer a breathalyzer on McBride because of Sutherland’s directive, said RCMP spokesperson Sgt. Don Rogers.

“None of that had any bearing on that case,” he said.

The officer at the scene would not have been more relaxed about getting a breath sample because of the order, he said

“It was clearly stated in the court decision and the record that there were no grounds to believe that the person had been impaired.”

Even if the laws had been enforced, it wouldn’t have made a difference, he said.

“If you don’t have grounds to believe their impairment, you can’t use (the new laws),” said Rogers.

Driving on the wrong side of the road is not grounds to believe someone is drunk, he said.

“I’ve pulled people over who were driving on the wrong side of the TransCanada Highway stone-cold sober,” he said.

Autopsies have returned from head-on collisions involving someone on the wrong side of the road with no alcohol in people’s bodies, added Rogers.

It’s normal for there to be a delay between a new law going into force and its ability to be enforced.

“If it is something new where there isn’t a policy previously developed, one has to be developed,” said Rogers.

Things like training, how to maintain instruments and certification methods have to be worked out, he said.

“Policy isn’t created until the law is created and policy isn’t created overnight.”

If a court were to hear a cop didn’t have the training for something used in the investigation, they would throw out the case, said Rogers.

“I don’t know of a specific incident, but that would be the result if you didn’t have the training,” he said.

While an officer’s training might appear arbitrary, defence lawyers regularly ask for such information, he said.

“Defence requests everything now,” he said.

“They not only request the investigation information, they’ll also seek disclosure of the calibration of the instrument and the calibration records for the last year.”

Rogers didn’t know how many Yukon RCMP had yet received training for the new aspects of impaired driving law.

“I believe there are members here who are trained. I don’t have the information off the top of my head,” he said.

The information could not be assembled before press time.

Contact James Munson at

jamesm@yukon-news.com

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