Winnipeg Free Press - ONLINE EDITION

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

  • Print

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."

www.mikeoncrime.com

Fact Check

Fact Check

Have you found an error, or know of something we’ve missed in one of our stories?
Please use the form below and let us know.

* Required
  • Please post the headline of the story or the title of the video with the error.

  • Please post exactly what was wrong with the story.

  • Please indicate your source for the correct information.

  • Yes

    No

  • This will only be used to contact you if we have a question about your submission, it will not be used to identify you or be published.

  • Cancel

Having problems with the form?

Contact Us Directly
  • Print

You can comment on most stories on winnipegfreepress.com. You can also agree or disagree with other comments. All you need to do is be a Winnipeg Free Press print or e-edition subscriber to join the conversation and give your feedback.

You can comment on most stories on winnipegfreepress.com. You can also agree or disagree with other comments. All you need to do is be a Winnipeg Free Press print or e-edition subscriber to join the conversation and give your feedback.

Have Your Say

New to commenting? Check out our Frequently Asked Questions.

Have Your Say

Comments are open to Winnipeg Free Press print or e-edition subscribers only. why?

Have Your Say

Comments are open to Winnipeg Free Press Subscribers only. why?

The Winnipeg Free Press does not necessarily endorse any of the views posted. By submitting your comment, you agree to our Terms and Conditions. These terms were revised effective April 16, 2010.

letters

Make text: Larger | Smaller

LATEST VIDEO

Kevin Cheveldayoff announces Maurice contract extension

View more like this

Photo Store Gallery

  • PHIL HOSSACK / WINNIPEG FREE PRESS 070619 LIGHTNING ILLUMINATES AN ABANDONED GRAIN ELEVATOR IN THE VILLAGE OF SANFORD ABOUT 10PM TUESDAY NIGHT AS A LINE OF THUNDERSTORMS PASSED NEAR WINNIPEG JUST TO THE NORTH OF THIS  SITE.
  • A female Mallard duck leads a group of duckings on a morning swim through the reflections in the Assiniboine River at The Forks Monday.     (WAYNE GLOWACKI/WINNIPEG FREE PRESS) Winnipeg Free Press  June 18 2012

View More Gallery Photos

Poll

Do you agree with the province’s crackdown on flavoured tobacco products?

View Results

View Related Story

Ads by Google