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This article was published 14/2/2019 (620 days ago), so information in it may no longer be current.
A Winnipeg police officer who said he was tired, not drunk, when he was found reclining in the driver's seat on the side of the Trans-Canada Highway has been acquitted of impaired driving.
Provincial court Judge Robin Finlayson ruled Thursday evidence of impairment was lacking, saying Crown attorney Brett Rach should have called other witnesses to support the charge, including others at the Headingley RCMP detachment when Winnipeg Police Service Const. Leslie McRae was taken in. McRae, 42, had refused a breathalyzer when he was arrested Nov. 20, 2017.
The Crown had suggested McRae wouldn't have refused a breathalyzer if he'd simply been too tired to drive.
In such a case, Finlayson said, the Crown should have called other witnesses who could have testified about whether McRae appeared to be impaired.
"In this particular case, in my view, that evidence was critical, and it was missing," Finlayson said.
McRae was one of five Winnipeg city police officers to be charged with impaired driving in 2017. Of those, two were acquitted and two pleaded guilty. Charges against Justin Holz, who is no longer a member of the police service, are still before the court. He is accused of impaired driving in a fatal hit-and-run that took the life of 23-year-old Cody Severight in Oct. 2017.
McRae's defence lawyer, Evan Roitenberg, argued the court should have been shown video footage from the detachment's "breath tech" room when McRae was asked to give a breath sample.
The lack of available footage led the Crown to stay a charge of refusing to provide a sample at the start of McRae's trial in September. Rach asked the judge to draw a "negative inference" from McRae's refusal, but Finlayson said he couldn't do that because that charge was not before the court.
When McRae testified Thursday morning, he admitted he "said no" when asked to give a breath sample, but Rach didn't ask him why he had refused.
The only evidence the Crown presented was the testimony of the RCMP officer who didn't make notes about all of the signs of impairment he later testified McRae exhibited.
The judge criticized the Mountie's note-taking skills.
"A police officer's notes are the lifeblood to his or her credibility," Finlayson said. "This is particularly so because police officers deal with so many cases. Hundreds of cases in the course of a year. So it is incumbent on the officer to keep detailed and absolutely crystal-clear notes of the individual that they are dealing with at any particular given time."
Without detailed notes or any blood-alcohol reading, it was the word of RCMP Const. Marcello Oddo against the word of McRae. Both men had been police officers for 12 years.
Oddo testified he was on patrol on the Trans-Canada Highway outside Headingley when he saw someone "drinking a can" in the reclined driver's seat of a parked car on the side of the highway while he was driving in the opposite direction. After he made a U-Turn and pulled over to investigate, he said he smelled alcohol in the driver's car, noticed the driver had bloodshot eyes and was slurring his words. He testified the driver fumbled for his licence and registration and that he had to guide the man over to the police vehicle, where the accused asked for a ride as an officer-to-officer courtesy.
McRae testified he'd worked a night shift and afterward had a bonfire at Assiniboine Park with a high school buddy, where he drank three or four rum-and-Cokes over about four hours.
He started to drive home, but was too tired, "doing the head-bobs," and was worried he'd fall asleep at the wheel. He said he pulled over, reclined his seat, left the car running and slept, waking up to Oddo's knock on his window about four hours later.
He told Oddo he'd been resting. He testified he asked Oddo to give him a ride home because he was tired. He denied trying to get special treatment because he is a police officer.
McRae also testified he wasn’t impaired and that he knew his limits.
"I was pretty sure to watch how much I drank, just from stuff that happened in the paper lately and just from knowing my job," he said, later adding that he’d seen alcohol-related car crashes in his policing career "so I try to monitor what I do myself in my own personal life."
He also testified he doesn't drink beer and wouldn't have told the officer he did.
"There were a number of inconsistencies between the evidence of Const. Oddo and Mr. McRae," Finlayson said, deciding McRae's testimoney was "credible."
The judge said Oddo's assertion that he'd seen the driver drinking from a can was "totally obliterated on cross examination."
Oddo wrote that McRae had slurred speech and bloodshot, watery eyes, but much of Oddo's evidence about McRae's impairment came from his testimony, not the notes he made at the time of the arrest. He wrote that McRae admitted to drinking beer, but when he testified in court, he couldn't specifically remember McRae's words.
After his acquittal, McRae declined to speak to reporters.
Katie May reports on courts, crime and justice for the Free Press.
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