Winnipeg Free Press

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C O N S T R U C T I O N Z O N E Sunscreen Glass, Power Heated Mirrors, Aluminum Wheels, Roof rack System, Anti- lock Disc Brakes I T sounds like an open- and- shut case: A man is pulled over for having a broken headlight and the police officer notices the smell of alcohol inside the car. The glassy- eyed driver admits he's had a couple of beers and agrees to take an alcohol- screening test, which he fails. But this incident, which happened at the side of a Winnipeg street in 2009, has proven to be anything but routine. And now the matter is the subject of a hotly contested legal battle, which will form the basis of future precedents for Manitoba justice officials. Rhys Mitchell was the driver behind the wheel. He fought his arrest on the grounds his charter rights were violated because the arresting officer didn't have sufficient grounds to make the roadside demand. He lost his case at the provincial court level, only to have a Queen's Bench justice overturn his drunk- driving conviction and set him free. Now the Manitoba Court of Appeal has agreed to step in, saying the seesaw case raises a " significant" legal principle that is in need of clarifying. It's a rare occurrence for the high court to agree to hear a summary conviction appeal that has already been the subject of two previous - and conflicting - court rulings. " This is an area of the law that affects the administration of justice on a daily basis," Appeal Court Justice Barbara Hamilton wrote in a decision released this week. " The appeal will be an opportunity for this court to provide at least some guidance to police, counsel and the courts on what constitutes a reasonable suspicion for an ASD ( alcohol screening device) demand." Much of the facts of the case are not in dispute. Mitchell was driving the car along with three other friends when they were stopped. The arresting officer admits he couldn't directly tie the smell of alcohol to Mitchell, conceding it's possible the passengers were the cause of it. He also conceded Mitchell's eyes were only " slightly" glassy and he took no further steps to quiz the driver about exactly when he'd consumed the two beers he admitted to. As well, no one is denying the fact Mitchell failed the ASD test, plus a follow- up breathalyzer. However, the key issue is whether police had the legal authority to make the ASD demand, because without that initial fail there would have been no grounds for any followup. The original trial judge cited concerns with the circumstances of the arrest, calling it a " sloppy" and " poorly conducted" police investigation. However, he allowed the evidence to stand, saying it was not obtained through " egregious conduct by the officer, nor resulted in an affront of bodily integrity or private personal privacy." In essence, no harm, no foul. But the higher court disagreed, saying the trial judge made a major mistake in giving the green light to a case that was " inadequate in all the circumstances and infringed upon Mitchell's rights." The justice said the police officer should have taken further steps to ensure the ASD demand was based on more than just a hunch or assumption. The Crown then elected to fight that decision, but first had to convince the Appeal Court there was a basis. In their 19- page written decision, Hamilton stressed they are not tipping their hands by agreeing to hear the case. She said there appears to be conflicting case law on the issue, but nothing the Appeal Court has ever ruled on. That will soon change. No date has been set for the hearing, which will no doubt be watched by many sets of legal eyes. Mitchell's fate also hangs in the balance, even though his specific case will likely be overshadowed by the broader issue being weighed. www. mikeoncrime. com Routine test hits Appeal Court Drunk- driving case will set precedents By Mike McIntyre JONATHAN HAYWARD / THE CANADIAN PRESS ARCHIVES Mitchell failed a breathalyzer test. BORIS MINKEVICH / WINNIPEG FREE PRESS Aboriginal culture comes to The Forks The Summer Bear Dance Troupe performs during Kidsfest 2012 at The Forks on Thursday. The festival runs through Sunday. A_ 10_ Jun- 08- 12_ FP_ 01. indd A10 6/ 7/ 12 9: 03: 39 PM ;