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 firstname.lastname@example.org