Drunk driving charge thrown out over officer’s errant advice

One “unfortunate phrase” from a police officer is all it took for a Yukon judge to throw out evidence in an impaired driving case.

One “unfortunate phrase” from a police officer is all it took for a Yukon judge to throw out evidence in an impaired driving case.

Territorial judge Peter Chisholm excluded breathalyzer samples taken from a 68-year-old Yukon woman, ruling the arresting officer didn’t properly instruct the woman on her Charter rights.

As the samples constituted most of the case against her, impaired driving charges were dismissed Nov. 16, 2016.

Chisholm’s oral judgment was only recently published online.

The officer, who is not named in the judgment, stopped Lis Densmore on Aug. 8, 2015 on the South Klondike Highway.

The officer suspected Densmore had consumed alcohol and asked her to blow in a screening device. The device doesn’t give a precise reading but shows either a pass/fail result the officer can use to make a breathalyzer demand.

Densmore failed the test and the officer told her he would ask for breathalyzer samples.

She asked to contact a private lawyer she knew, but the officer couldn’t get a hold of the lawyer.

Densmore questioned whether she really needed to talk to a lawyer.

The officer told Densmore she could contact an on-call lawyer from Legal Aid.

“In so doing, he used an unfortunate phrase, ‘if you’re confused or you don’t know exactly what’s going on, you can talk to Legal Aid,’” Chilsholm said.

While the officer made the request in an “innocent way,” Chisholm said, it could be understood in the sense that a person could talk to a lawyer if they’re confused because they’re intoxicated.

“A detainee might be concerned that a call to Legal Aid would therefore buttress the motion that she is impaired,” Chisholm said.

Ultimately while the officer tried to help, he complicated the situation, the judge said.

“His reference to reasons for contacting Legal Aid was quite unhelpful,” Chisholm said.

“There are more reasons to speak to a lawyer than for the purpose of attempting to resolve confusion.”

The Supreme Court of Canada ruled that the police have to advise detainees a second time of their right to counsel if it seems they’ve changed their mind about speaking to a lawyer.

“In the circumstances of this case, the officer was obligated to advise Ms. Densmore that he must hold off from attempting to elicit incriminatory evidence until she had a reasonable opportunity to contact counsel,” Chisholm said.

“At least this would have impressed upon her the fact that she could take some time, as opposed to reflecting upon it very briefly, before making this important decision.”

When deciding whether to exclude evidence collected as a result of a Charter breach, judges have to weigh the seriousness of the breach and its impact on the accused against the public interest in having the case heard.

“There is a strong public interest in the detection of individuals who operate motor vehicles while under the influence of alcohol,” Chisholm said.

But balancing that with the two other parts of the test, he decided that including the evidence would be detrimental to the justice system.

Contact Pierre Chauvin at pierre.chauvin@yukon-news.com

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Dawson the dog sits next to the Chariot Patrick Jackson has loaded and rigged up to walk the Dempster Highway from where it begins, off the North Klondike Highway, to the Arctic Circle. (Submitted)
Walking the Dempster

Patrick Jackson gets set for 405-kilometre journey

Liberal leader Sandy Silver speaks outside his campaign headquarters in Dawson City following early poll results on April 12. (Robin Sharp/Yukon News)
BREAKING: Minority government results will wait on tie vote in Vuntut Gwitchin

The Yukon Party and the Liberal Party currently have secured the same amount of seats

Yukonomist Keith Halliday
YUKONOMIST: The Neapolitan election

Do you remember those old bricks of Neapolitan ice cream from birthday… Continue reading

Chief Medical Officer of Health Dr. Brendan Hanley. (Crystal Schick/Yukon News)
Exposure notice issued for April 3 Air North flight

Yukon Chief Medical Officer of Health Dr. Brendan Hanley has issued another… Continue reading

Crystal Schick/Yukon News file
Runners in the Yukon Arctic Ultra marathon race down the Yukon River near the Marwell industrial area in Whitehorse on Feb. 3, 2019.
Cold-weather exercise hard on the lungs

Amy Kenny Special to the Yukon News It might make you feel… Continue reading

Today’s Mailbox: Rent freezes and the youth vote

Dear Editor, I read the article regarding the recommendations by the Yukon… Continue reading

Point-in-Time homeless count planned this month

Volunteers will count those in shelters, short-term housing and without shelter in a 24-hour period.

The Yukon’s new ATIPP Act came into effect on April 1. Yukoners can submit ATIPP requests online or at the Legislative Assembly building. (Gabrielle Plonka/Yukon News file)
New ATIPP Act in effect as of April 1

The changes promise increased government transparency

A new conservancy in northern B.C. is adjacent to Mount Edziza Provincial Park. (Courtesy BC Parks)
Ice Mountain Lands near Telegraph Creek, B.C., granted conservancy protection

The conservancy is the first step in a multi-year Tahltan Stewardship Initiative

Yukon RCMP reported a child pornography-related arrest on April 1. (Phil McLachlan/Black Press file)
Whitehorse man arrested on child pornography charges

The 43-year-old was charged with possession of child pornography and making child pornography

Team Yukon athletes wave flags at the 2012 Arctic Winter Games opening ceremony in Whitehorse. The postponed 2022 event in Wood Buffalo, Alta., has been rescheduled for Jan. 29 to Feb. 4, 2023. (Justin Kennedy/Yukon News file)
New dates set for Arctic Winter Games

Wood Buffalo, Alta. will host event Jan. 29 to Feb. 4, 2023

Victoria Gold Corp. has contributed $1 million to the First Nation of Na-cho Nyak Dun after six months of production at the Eagle Gold Mine. (Submitted/Victoria Gold Corp.)
Victoria Gold contributes $1 million to First Nation of Na-cho Nyak Dun

Victoria Gold signed a Comprehensive Cooperation and Benefits Agreement in 2011

Most Read