Woman found not guilty of drunk driving, judge rules her charter rights were violated

A woman arrested and charged with drinking and driving near Yorkton, Sask., has been found not guilty after a provincial court judge ruled her charter rights were violated in the arrest. 

The defence argued that the officer arbitrarily detained the 28-year-old woman, and did not have a reasonable suspicion that she had alcohol in her body before asking her to take a roadside test.

"While she said she would accompany [the officer], and got out of her vehicle, I am not satisfied that this was an informed consent," wrote Judge Ross Green in his June 1 decision.

"Nor am I satisfied that she waived her right to be free from being arbitrarily detained by the officer."

The judgment noted that the woman had no criminal record and had never been arrested before the incident on Oct. 29, 2017.

The woman was visiting family and friends in Yorkton, where her parents reside. She'd had drinks the night before, and stayed overnight at a friend's home, before picking up a passenger and leaving for Yorkton the next day.

The court document noted the woman had testified "she was feeling fine, was having no difficulty in operating the vehicle and was driving cautiously." It also noted that her passenger described her as driving normally, without speeding or driving erratically.

No reasonable suspicion

On that same morning, a police officer had received a complaint about a dark-coloured SUV nearly running another motorist off the road, followed up by a similar complaint, and had been on the lookout for the vehicle.

When he saw the oncoming black Jeep driven by the woman, passing another vehicle, he did a U-turn and stopped her.

He told her about the report of the erratic driving, asking her if she had been drinking or texting, to which she responded she had not.

"The officer admitted that [the woman] had no difficulty producing her driver's licence, and that there was no smell of alcohol coming from her or her vehicle," read the court document.

The officer asked her to follow him to the police vehicle for a roadside test, to which she agreed. She felt she had no choice but to accompany him, and did not think he had clarified the test was voluntary, according to the document.

Green said he accepted the woman's arrest had a significant impact on her life.

"It has affected her job and her self-esteem and she has not had an operator's licence since the charge."

Since the detention was not authorized by law, Green wrote it was a violation of her rights.

He found her not guilty of impaired driving and since the evidence of the roadside screening was excluded, he further found her not guilty of driving while the concentration of alcohol in her blood exceeded the legal limit.

Liberals push for mandatory screening

The Liberal government introduced Bill C-46 last spring, which includes legislation that would allow police to conduct random roadside breathalyzer tests without needing reasonable grounds to suspect the driver may be impaired by alcohol.

Defence lawyers described this as worrisome, with Regina lawyer Bob Hrycan describing the move at the time as government overreach.

"Not only can they pull you over for any reason, they can demand breath samples from you for no reason," Hrycan told CBC. "So that's a significant erosion of rights."

Bill C-46 has come before the Senate, with the Senate's legal and constitutional affairs committee voting in May to delete the provision to allow police to conduct random breathalyzer tests.

Conservative Sen. Denise Batters proposed the change on the grounds that the provision is likely to violate the Charter of Rights and would, therefore, be struck down by the courts as unconstitutional.