Gridlock in the courts

Russell Wangersky
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Every single day, across this country, there are scores of cases filling up the courts with astounding minutiae from drunk-driving cases — and almost all of them involve the collision between the Charter of Rights and the police asking a suspect to take a breathalyzer test.

Read enough of them, and you’ll be convinced there’s no sense in law, and no step too silly to engender an aquittal.

In British Columbia, a woman has beaten a drunk-driving conviction by a nose — a police officer’s nose. The case is called R versus Dumaine, and it’s a simple one, really.

At around 2 a.m., an RCMP officer named Harvey was following a vehicle south through Quesnel, B.C., noticing that the car was travelling well under the speed limit and swerving back and forth so that its wheels touched the centre line and the line on the edge of the road.

After watching the swerving, and knowing it was closing time for bars, Harvey pulled the car over and asked for the driver’s licence and registration. He stopped the vehicle quickly, because the road ahead had a hill and sharp turns, and he felt the driver would not be able to handle the road — when he put his emergency lights on, it took longer than usual for the car to stop.

At the time of the stop, Harvey noticed the driver had no trouble finding her driver’s licence, but had trouble getting the registration. He also, according to the judge “made observations, observed her eyes to be bloodshot, glassy, and appeared to be watery.”

The woman involved told the police officer that she had one beer with supper several hours earlier.

Harvey clearly didn’t believe the woman, who claimed her bad driving was the result of an argument with her boyfriend, who was a passenger in the vehicle.

He got a breathalyzer test, and the woman was charged with impaired driving.

At the time, though, there was a problem.

Harvey was sick.

“He testified that during the shift, he had no ability to smell, that because of an illness, a cold, his nasal passages were completely blocked and he could not smell anything,” the judge said.

That was important. The judge threw out the breathalyzer results, and the case fell apart.

“I must determine if the officer had grounds for a reasonable suspicion. This opinion must be based on subjective and objective grounds; in other words, it must be ‘reasonable.’ Beyond the officer’s subjective assessment there must also be confirmatory evidence that supports the suspicion in an objective way. There must be objective evidence that a reasonable person would recognize as supporting an assessment that someone has alcohol in their body. The obvious objective factor is the smell of alcohol. … I conclude that Constable Harvey did not have the objective factor necessary for the suspicion. Without the odour of liquor, the officer did not have objective factors to reach his conclusion.”

What’s interesting about the case is that the judge originally turfed out the breathalyzer evidence in July 2009, and then was asked to reconsider the decision after a Supreme Court of Canada decision in 2009 refined the definition of illegal detention by police officers, particularly referring to breathalyzer evidence.

Here’s what the Supreme Court of Canada said:

“On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused’s body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive.”

Even in the review of the Dumaine case, the judge determined that the driver’s rights had been violated, and again threw out the breathalyzer evidence.

What’s the problem?

Well, that drunk-driving legislation is a mess.

Police officers basically have to go through a menu of suspicions to legitimately test someone for impaired driving, and the courts are stuffed full of cases with more technicalities than common sense.

Somewhere there has to be a sensible common ground, a middle line where the guilty can be successfully charged and all citizens can have their rights protected.

Right now, all we have is a recipe for wasted court time.

Russell Wangersky is The Telegram’s editorial page editor. He can be reached by email at

Organizations: RCMP, Supreme Court of Canada

Geographic location: British Columbia, Quesnel, Canada

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Recent comments

  • Ted
    January 26, 2011 - 23:08

    In reference to Russell Wankerskys column -----There has never been much common sense in the Justice System. It has always been about technicalities and who's provided with the priciest Lawyer. It makes you wonder who they push through Law School, as it certainly doesn't seem critical thinking skills are a requirement. This Police Officer was basically ridiculed by the Judge, by allowing this obviously impaired driver to be released. Police Officers are trained to detect and this officer did a fantastic job. without his sense of smell. There are many of us with altered sense of smell and it doesn't have to be related to the flu. If this woman passed the breathilizer great -- should warrant only an apology. Instead she failed it, so she and the Judge should be thanking the Police Officer for perhaps saving their lives. This is common sense rationale that shouldn't require any further explanation. If a lay person like myself can see this, why is it so complicated for the courts-----total waste of tax payers money.