A .08 charge pertaining to a driving-related fatality is unlikely to hold up in court after a judge determined the driver's Charter rights were breached when an RCMP officer demanded a breath or blood sample.

After a single-vehicle rollover two years ago that killed 22-yearold Ryan Dubois, driver Marilyn Hunter was charged with impaired driving causing death, .08 causing death and dangerous driving causing death. The Crown later stayed the impaired driving charge, asking the judge to render a decision on the two remaining charges.

Because defence lawyer Greg Chovin argued the RCMP's demand for a breath or blood sample constituted a breach of his client's Charter rights, Queen's Bench Justice Catherine Dawson first had to decide whether that evidence - which measured Hunter's blood alcohol level as .097 several hours after the crash - was admissible.

On Tuesday, Dawson returned with a lengthy decision, finding the RCMP officer did not have the reasonable and probable grounds to make the demand, meaning Hunter was detained and the sample seized contrary to her rights, making the sample inadmissible.

Dawson's decision was critical of the RCMP officer - then on the force for two years - finding his evidence unreliable and inconsistent, both within itself and when comparing it to that of other witnesses at the trial.

The officer told the court he'd observed an odour of alcohol, bloodshot eyes and slurred speech. But court also heard from two witnesses who were working with EMS at the time of the crash, neither having noted such symptoms despite being near Hunter and despite having made note of signs of intoxication on a passenger in Hunter's vehicle.

With the evidentiary issue determined, Dawson will now decide whether Hunter is guilty of the two charges. That decision has been set for June 19.

At the centre of the dangerous driving charge is whether Hunter's choice to drive while tired makes her guilty of that offence. Court heard she had been up all night and might have nodded off behind the wheel in the early morning of April 22, 2012, resulting in the rollover just east of Punnichy on Highway 15.

Court heard there was no evidence of speeding, swerving or other reckless driving behaviour.

Source: Leader Post


Last updated on: 2014-05-30 | Link to this post