After numerous Charter arguments, a local man was found to be not guilty of impaired driving.
John Rogers was charged with impaired driving, but his rights under the Canadian Charter of Rights and Freedoms were found by presiding Judge Karl Bazin to have been violated by the arresting Estevan Police Service constable. The defence and Crown argued a remedy during Estevan provincial court proceedings April 5, after Bazin's decision came March 29.
The problems arose when an EPS officer investigated a car accident in order to identify the driver and determine his ability to drive. The vehicle in question was located at an apartment building, and because the security door to the building was open, the officer entered. Bazin found that when the officer entered the building, it was similar to walking into a person's apartment just because the door was open.
He noted the officer entered the accused's dwelling without a warrant for the purpose of obtaining evidence, and deemed that search unreasonable.
Bazin found that the officer had reasonable grounds to suspect Rogers had alcohol in his body, as he knew Rogers was the driver of the vehicle in question and noticed slurred speech and staggering when he walked. Bazin noted when seeing Rogers in the courtroom that he has an irregular walk, dealing with arthritis issues for many years.
The judge however, said there weren't reasonable grounds to demand a breath sample.
"This test is higher than mere suspicion," reads Bazin's decision. "From the officer's own testimony, he indicated he was wanting to use the approved screening device (ASD) to confirm his suspicion."
After Rogers could not provide a sample for the ASD, he was arrested. At the police station, the officer made a breath demand, despite no new evidence to Rogers' impairment.
Bazin also found a problem when Rogers requested to speak to counsel. He was then questioned for a further 16 minutes before a lawyer was arranged for him. The Crown however, did not pursue tendering the evidence obtained during that period.
As a result of the Charter violations, the judge found that Rogers was arbitrarily detained for 20 hours by police.
"These are not trivial breaches, these are serious breaches," said Lori Dunford, one of his defence lawyers, when arguing what remedy would be acceptable for the Charter violations.
It was determined that any evidence gathered from the unreasonable search would be omitted, and the Crown did not wish to put forth any new evidence.
"So in a sense all the evidence is excluded, so I find him not guilty," said Bazin.
