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Manitoba high court reinstates man's overturned drunk-driving conviction

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Rhys Mitchell’s legal status is a lot like the weather in the Prairies: constantly changing.

The Winnipeg man was convicted of drunk driving at the provincial court level, had the decision overturned by a Court of Queen’s Bench judge and has now seen Manitoba’s highest court reinstate his guilty finding.

In the process, a case that may have seemed open-and-shut at first blush has proven to be anything but.

Mitchell first came to the attention of Winnipeg police in 2009 when he was pulled over for having a broken headlight and the officer noticed the smell of alcohol inside the car. The glassy-eyed Mitchell admitted he’d had a couple of beers and agreed to take an alcohol-screening test, which he failed.

Mitchell then 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.

Since then, judges of various stripes have taken different views of both the evidence and the legal test they must follow.

For now, the Court of Appeal gets the final word and Mitchell is once again a convicted criminal. It’s possible his lawyer may seek leave to appeal to the Supreme Court, noting the Manitoba high court previously agreed this case raises an important area of law.

Many of the facts of the case were not in dispute. Mitchell was driving the car, with three other friends as passengers, when it was 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 alcohol screening device (ASD) test, plus a follow-up breathalyzer. However, the key issue was 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." 

But the Queen’s Bench justice who heard the summary conviction appeal 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, a move which would prove to be prudent when the Appeal Court agreed in their recent decision.

"The facts remain that the accused was driving at night, on a busy thoroughfare, without lights, that there was an odour of alcohol emanating from the car and the accused, in answer to a legitimate question in the circumstances, acknowledged that he had consumed alcohol," Justice Michel Monnin wrote in the 21-page decision.

"In my view, after considering all of the evidence known to the officer, he had reasonable grounds to make the ASD demand when he did. It was an error in law by the trial judge to find otherwise."

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