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Yellowknife

Judge scolds ‘deficient’ investigation in failed drunk-driving case

Last modified: May 31, 2021 at 9:42am


Yellowknife RCMP showed a “lack of professionalism” and took an “appalling lack of basic notes” in an investigation labelled deficient by a judge who tossed impaired driving charges against a city man.

Territorial Court Judge Donovan Molloy found the driver not guilty of impaired driving and refusal of a breath sample in relation to an early morning incident on February 5, 2020, where the man marooned his Ford Escort on a “an unanticipated snow bank in the middle of Franklin Avenue” during snow clearing operations. 

In reading his decision on Friday, Molloy excoriated two RCMP officers for detaining the man in the “drunk tank” through the night – not releasing him until nearly noon – perhaps, the judge said, as punishment for “very unpleasant verbal and physical exchanges” with the officers after his arrest.

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Through video and audio recordings, the court was able to witness what happened in the detachment. 

“The unpleasant verbal exchanges were aggravated by one of the officers intentionally leading [the accused] to inject homophobic comments into the already crass verbal exchange. This is a tactic that the officers view as an appropriate means to defuse such situations,” said Molloy.

“While [the accused’s] comments to the officers regarding their spouses were deplorable and reprehensible, they did not give the officers carte blanche to ignore his right not to be arbitrarily detained or imprisoned.”

The court heard the incident started when Cst Gordon Raeside was patrolling downtown in a marked vehicle, accompanied by his immediate supervisor and watch commander, Cpl Jason Archer. The roads were heavily rutted and covered with snow and ice.

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Snow clearing operations were under way, where windrows are routinely plowed into the centre of a street to be scooped up by a front-end loader.

A green Ford Escort drove past the patrol vehicle – coming from the area of the Kilt & Castle Pub – and fishtailed on the ice at a corner. 

The officers were advised by dispatch that a report had just been received about a possibly impaired driver just leaving the area of the Kilt & Castle. The officers soon encountered the accused’s green Ford Escort stuck on about a foot of snow left by the plows. 

Cst Raeside observed the young man’s “droopy and tired eyes” and noticed alcohol on his breath. No testing was administered at the scene, but the man was arrested and taken to the nearby detachment.

Lack of notes, training

The level of the accused’s intoxication was a contentious issue during trial. The arresting officer stated the man was “very drunk” and had difficulty walking. However, a video from the detachment’s garage bay showed the man easily walking from the RCMP vehicle into the detachment.

Another issue at trial was the failure of Cpl Archer to take notes, as there were numerous instances where he could not recall details of that night.

”Cpl Archer agreed that detailed notes are very important and that as a supervisor it is also very important for him to mentor less experienced officers on good note-taking,” said the judge. “Cpl Archer noted that despite 12 prior years of service as an RCMP officer, he is still working on taking adequate notes.”

Molloy rebuked the two officers for being ill-trained with their equipment and unaware of some police policies. Those included:

  • not knowing if there was an approved impaired-driving screening device in their patrol vehicle;
  • what the policy was, if any, on carrying an approved screening device in a patrol vehicle while conducting general patrols of the community;
  • whether any request had been made to fix the patrol vehicle’s broken dashboard camera (known to be inoperable for an extended period of time); and
  • the details of policies and procedures regarding the release of prisoners allegedly detained for their own protection due to severe alcohol impairment.

“Perhaps what is most unfortunate about the officers’ testimony were the suggestions that standards and expectations of policing are somehow different and not as rigorous as they are in the south,” said Molloy.

“The people of the North deserve the best that policing agencies have to offer, not the minimum any such agencies feel they can get by with in discharging their enforcement duties and obligations in Canada’s North.”

‘Not guilty, but nothing to be proud of’

The man was given a breathalyzer test in the detachment by a trained person, but evidence as to whether the two attempts at providing a sample were “feigned or genuine” was not made available, as the Crown did not call that technician.

The judge ruled police could have asked the man to provide a breath sample into a roadside screening device but they failed to do so. 

“The defence conceded that if the Crown had proven the lawfulness of the breath demand, [the accused] intentionally refused to provide a breath sample without any reasonable excuse,” noted Molloy. 

“In dismissing the impaired driving charge I am not saying that [the accused] was not impaired to any degree, but simply that the evidence tendered did not prove that his ability to operate a motor vehicle was impaired to any degree.

“I cannot convict [the accused] based on his morally offensive and abhorrent comments. I have no doubt that the prolonged verbal abuse that [the man] engaged in would test the patience of Job. That, however, does not excuse the officers intentionally ignoring the rights and freedoms guaranteed to [the accused] and all citizens by our Canadian Charter of Rights and Freedoms.”

Speaking directly to the accused, Molloy said: “You are not guilty, sir, but you have nothing to be proud of.”

Emily Blake contributed reporting.


Correction: May 31, 2021 – 9:40 MT. This article initially suggested the failure to call a breathalyzer technician in part led to the judge’s decision. This in actuality was not a factor. Our report has been amended accordingly.

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