A man will be facing another trial for drunk driving and drug possession charges after the Yukon Supreme Court overturned his acquittal.
Curtis Rowat was arrested and charged in January 2017 with two counts of impaired driving and one count of possession of a controlled substance following an early-morning traffic stop along the Alaska Highway in Whitehorse.
Territorial court judge Richard Schneider acquitted Rowat in May following a two-day trial, largely because Schneider found that the RCMP officer who stopped Rowat did not have legal grounds to do so in the first place, and therefore violated Rowat’s Charter rights. As a result, Schneider deemed all evidence collected during the stop admissible in court.
The Crown appealed the acquittal.
In a decision release Nov. 13, late Yukon Supreme Court Justice Leigh Gower found that Rowat’s Charter rights were not, in fact, violated.
Gower wrote that while the trial judge recognized that random road stops to ensure safety and driver sobriety have been deemed constitutionally valid, he also concluded that Rowat’s stop “was not random” and based on the officer’s “subjective belief” that Rowat was the same driver seen speeding on Two Mile Hill earlier that night.
Schneider thus concluded that the stop had been arbitrary and a Charter violation took place.
“With respect, the flaw in this reasoning is the apparent premise that all selective stops under s. 106 of the Yukon (Motor Vehicles Act), or equivalent legislation elsewhere, must be based on reasonable suspicion,” Gower wrote.
“Putting it another way, if purely random and arbitrary stops are justifiable under this type of legislation, where the police have no grounds whatsoever to stop a motorist, providing they do so for purposes of regulating and enforcing highway safety, then why should an officer who has a ‘suspicion’ that a motorist is committing a particular highway safety offence, such as speeding, be required to have reasonable grounds for that suspicion? The answer must surely and logically be that there is no requirement for such reasonable grounds.”
“…Clearly, in my view, this was a case where the purpose of the police officer in making the stop was the enforcement and regulation of highway safety under s. 106 of the Yukon (Motor Vehicles Act),” Gower wrote.
Gower also found that the defence should have given the Crown earlier notice that it was going to file a Charter application so that the Crown would have had time to prepare a proper response.
Gower reversed the acquittal and ordered the matter back to territorial court for another trial.
The decision is believed to be among the last ones Gower wrote before his sudden death on Oct. 29.
Contact Jackie Hong at jackie.hong@yukon-news.com