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DUI charges hit constitutional snag
Lawyers challenge police on properly informing accused of legal rights

John McFadden
Northern News Services
Friday, April 14, 2017

For the second time in less than a week, RCMP actions in a drunk driving case are being raised in a Yellowknife courtroom.

Defence lawyer Paul Falvo is representing a Yellowknife woman charged last July 26 with impaired driving and blowing over the legal limit after an early morning traffic stop on Franklin Avenue near Gitzel Street.

The woman's vehicle was clocked on radar doing 68 kilometres an hour in a 45-kilometre zone.

Nicholas Michaels, a Municipal Enforcement Division constable at the time, testified via video from Hinton, Alta., where he now lives.

He said when he spoke to the woman that day, she had glossy, bloodshot eyes and seem confused about providing proper proof of insurance.

He said when she admitted to consuming one alcoholic beverage earlier in the evening, he made the decision to call RCMP to investigate possible impaired driving.

Falvo has filed a motion calling for the exclusion of evidence, arguing his client's Charter rights were violated, specifically due to a lack of opportunity to contact legal counsel and unreasonable search and seizure.

The case echoes one heard in court in Yellowknife last Friday, where the lawyer for Hay River Town Councillor Keith Dohey successfully challenged similar police actions.

Judge Christine Gagnon ruled in that case the breathalyzer readings were not admissible as evidence because Dohey was not given ample opportunity to seek legal counsel before submitting to the test.

That case remains before the court while the Crown prosecutor decides whether to proceed without the breath readings as evidence. Like the woman in Yellowknife, Dohey was also charged with impaired driving and blowing over the legal limit.

This latest trial began Wednesday in territorial court in front of judge Bernadette Schmaltz.

Under questioning from Crown prosecutor Martha Chertkow, arresting officer RCMP Const. Kerwin Broadis testified the woman failed a roadside breath test. He said he then arrested her on suspicion of drunk driving and read the woman her rights, including the right to legal counsel, while she sat in the back seat of his police vehicle.

On the witness stand, Broadis read from his notes that he said he made that night. He said he asked the woman if she wanted to contact a lawyer and she said, "No."

There is no audio or video recording of the exchange. Broadis testified that he did not recall reminding the woman of her right to call a lawyer when they arrived at the RCMP detachment.

The woman testified she recalls being read her rights, including the right to remain silent.

But she said she does not recall being told she had the right to speak to a lawyer before she took the breathalyzer test.

"I felt I was obligated to take the test. I did not know that I had the right to call a lawyer," she testified.

The woman said she had one drink about two hours before being pulled over and added she was surprised she blew over the legal limit of .08. She admitted to speeding.

In the Dohey case, Gagnon's ruling referred to what is known as a Prosper warning, which directs that a detainee must be advised of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel.

It also requires that police refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity to contact a lawyer.

Court heard that Mounties in Hay River had called a lawyer in the early morning hours on behalf of Dohey but were only able to leave a voice mail message. Gagnon said that officers failed in their obligation to tell Dohey that he still had the right to speak to a lawyer, including calling the 24-hour legal aid hotline, before he took the breath test. Court heard that Dohey did in fact decline the police offer to call another lawyer.

Sue Glowach, spokesperson for the Department of Justice, stated in an e-mail a legal aid service is provided 24/7. She said the department does not provide the number to the public.

There was no evidence in the case this week that the woman was read a Prosper warning after saying she did not want to contact a lawyer.

The case will continue on May 3, when Falvo and Chertkow will make submissions on the Charter motion to dismiss evidence.

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