Suspected drunk motorcyclist rides free on technicality
An accused impaired driver was acquitted in NWT Territorial Court after the Crown prosecutor fell for a trap set by an Edmonton defence lawyer.
The Yellowknife man was found in a dazed state by passing motorists one evening last summer, the court heard, beneath his large motorcycle on the side of Highway 3.
He was later pursued through the streets of Yellowknife by an RCMP cruiser with siren and lights activated.
However, a preliminary hearing last week ground to a halt when it was discovered the arresting officer could not verify the originality of a breathalyzer certificate as he was testifying by video from his current post in Délı̨nę.
“There’s a reason why I always consent to these applications for virtual appearances, because this happens every time,” said Shannon Gunn Emery, whose firm specializes in impaired driving cases.
“I know that my friend is not super experienced, and I … have been in her position before.
“But … she ought to have turned her mind to this.”
By email after this article was first published, Gunn Emery denied she “took advantage of an inexperienced Crown” in securing the acquittal. “There was no trap set,” she wrote.
Cst Greg Ellis testified that on July 13, 2021, responding to a report of an impaired driver, he spotted the suspect motorcycle at the entrance to the NWT legislature and turned on his blue lights.
The driver failed to stop, so he switched on the siren. The driver didn’t pull over until near the intersection of 47 Street and 50 Avenue downtown.
The driver “took his helmet off, and I could smell liquor that appeared to be coming from his breath and he had a red face,” said Ellis. “I noted that there was blood on [his] leg and asked if he had been in an accident or if he was injured, to which he replied that he had and he was uninjured.”
The driver failed a roadside test. A technician later conducted two breathalyzer tests at the Yellowknife detachment. The driver was fingerprinted, photographed and released with a copy of a breathalyzer analysis certificate.
The original document was filed at the detachment and brought to the March 24 hearing by Crown prosecutor Sonya Sehgal.
However, Judge Donovan Molloy noted the police officer had to be able to verify the originality of the certificate for it to be allowed into evidence, not just refer to the copy he held in his hand in Délı̨nę.
“I am not sure how you are going to show it to him … when he is on the video,” the judge said to the prosecutor.
“The Crown made an application for this witness to testify virtually … when the court grants that, it assumes that the party calling the witness has turned its mind to and contemplated how its various documentary and other exhibits are going to be properly identified and exhibited, despite the fact that the witness is appearing remotely.
“So it falls to you to deal with this. And I am trying to be helpful and edify you without sort-of making it seem like I am picking on you.”
Lawyer Gunn Emery also asked: “And how does my friend know she has the original? Is she going to give evidence on that?”
Molloy refused to give Sehgal a recess – “You are expected to be able to present your case competently,” he said – and agreed to her request to enter acquittals to charges of operation while impaired and having a blood-alcohol content of over .08.