Cop violated teen's rights during arrest, judge says

A Brandon provincial court judge has found a youth not guilty of impaired driving charges after ruling that the arresting officer violated the teen’s rights.

Judge John Combs ruled that the youth’s rights under the Charter of Rights and Freedoms were breached when he was arrested without reasonable grounds and denied his right to legal counsel without delay.

"It is hard to accept … that an experienced officer would arrest an accused (particularly a youth) and deny him the right to consult a lawyer while subjecting him to what was, in effect, an invalid search," Combs commented in a written decision.

Prosecuted by Crown attorney Marycia Sieklicki and defended by lawyer Bob Harrison, the youth stood trial on March 12 on counts of refusing to provide a breath sample and impaired driving.

Combs acquitted the youth of both charges and outlined his findings in a written decision released on Thursday.

Around 1:45 a.m. on May 23, 2011, a Brandon Police Service officer received a report that a red minivan was being driven erratically and was swerving all over the road.

Within five minutes, the officer noticed that the driver of a red van had turned across his path, about three-quarters of a city block ahead, without using the turn signal.

He then watched as the van travelled at a "rather high rate of speed" and swerved on the road.

The officer later acknowledged, however, that the van may not have been speeding and there was no clarification on what was meant by "swerving".

The police officer pulled the van over into a school parking lot where the suspect vehicle did a power U-turn that caused dust to fly as it came to a stop.

The officer ordered the 17-year-old male driver, who had glossy eyes and a flushed face, out of the van and arrested him for impaired driving.

While handcuffed in the police vehicle and still at the scene, the driver denied that he’d had any alcohol, but the officer believed he could smell it on the accused.

Uncertain that the accused was over the legal limit, however, the officer demanded that the youth supply a breath sample using a roadside approved screening device (ASD).

Numerous attempts to get a sample failed and the officer, believing the youth was purposely hampering the effort, charged the teen with refusing to provide a breath sample.

But the officer had done things backwards, Combs ruled in his decision — the demand for a breath sample using the ASD should have been made before the youth was arrested.

An ASD is supposed to be used to determine whether there are reasonable grounds to suspect that a driver may be over the legal limit and whether a more conclusive test, such as a breathalyzer, is needed.

When a person is arrested for impaired driving, the assumption is that the officer already has grounds to make the arrest and the accused is to be taken for further tests "as soon as practicable".

Doing the ASD test after the arrest would have prevented the officer from meeting the "as soon as practicable""requirement, Combs wrote.

Based on case law, Combs concluded that the officer overstepped his authority by demanding an ASD sample after arrest.

Attempting to get the ASD sample also prevented the officer from providing the youth his right to consult counsel without delay under the Charter of Rights and Freedoms.

Combs noted that the accused was arrested around 1:50 a.m. but wasn’t advised of his right to counsel until 26 minutes later, after the officer had questioned him, made the ASD demand, tried to perform numerous tests and arrested the youth for refusal.

The judge also concluded that the officer didn’t have grounds to arrest the youth for impaired driving in the first place as shown, in part, by the officer’s need to get a sample using an ASD. The erratic driving, flushed face and glossy eyes noted by the officer wasn’t enough.

As a result, the youth was arbitrarily detained, Combs determined — another Charter breach.

As a result of the Charter violations, Combs tossed out the evidence of refusal and acquitted the youth of that charge.

Combs also concluded that the Crown hadn’t proven that the youth was driving while impaired. Besides the erratic driving, flushed face and glossy eyes — not enough for a conviction — the only other sign of impairment was the smell of alcohol which was only noted after the youth was wrongfully detained.

» ihitchen@brandonsun.com

Republished from the Brandon Sun print edition June 1, 2012