EDITORIALS

Cops, Drunk Driving & Acquittals – Forget the Conspiracy Theories

Impaired Driving (Photo JGJ)

“Officer’s impaired driving acquittal a result of incompetent investigation.”

It’s not the kind of headline we could ignore.

“Another cop charged – another botched investigation,” Dan Lett of the Winnipeg Free Press writes.

Lett was referring to the recent acquittal of Winnipeg Police Constable Leslie McRae who was charged with impaired driving in November of 2017.

McRae wasn’t the only Winnipeg Police Officer charged with impaired driving in 2017, in fact, a total of five (5) sworn officers were charged with drinking and driving related offences that year.

As of today, all but one (1) of those charges has been dealt with;

Dispositions;

  • Guilty Plea – 1 charge
  • Guilty Plea – 1 charge (curative discharge)
  • Acquittal – 2 charges
  • Pending – 1 charge (Justin Holz – Drive Impaired Cause Death)

Lett was perplexed by McRae’s acquittal.

How, you may ask, does anyone avoid an impaired driving conviction with underlying evidence such as this,” he asks.

The evidence Lett cited in his report was the strong smell of alcohol coming from McRae’s vehicle and signs of slurred speech & imbalance.

(McRae subsequently refused to provide a breathalyzer sample, however, that charge was stayed by the Crown as the RCMP lost the video evidence that supported the charge.)

Lett points out a number of questions that typically arise in these cases;

  • Did the court demonstrate any bias or deference because the accused was a police officer?
  • Did the prosecutor ease up on the case for the same reason?
  • Was there a subpar performance by the police who were tasked with investigating another police officer?

(The inference in the latter suggestion is the subpar performance would have been intentional.)

Conspiracy theorists will run with one or all the above suggestions.

Lett suggests the latter scenario, that incompetence at the investigative level is the most likely cause of the failure to convict in McRae’s case.

It’s an easy conclusion to draw given the comments delivered by the presiding Judge Rob Finlayson;

 “A police officer’s notes are the lifeblood to his or her credibility.”

In the decision, Finlayson criticized the arresting officer for his failure to record detailed, substantive notes regarding his observations, arrest & investigation.

Dan Lett – WFP

Lett writes;

“There’s a very good chance that Oddo (the arresting officer) did not do “catch-up” notes – additional details added to an officer’s notebook immediately after an arrest – because he thought prosecutors would have a slam dunk conviction of the charge of refusing a breathalyzer. That is a mistake that many police officers make, according to defense lawyers. In this case, it was a major mistake.”

So let’s break it down…

How, you may ask, does anyone avoid an impaired driving conviction with underlying evidence such as this?”

The evidence against McRae reported in Lett’s story consists of;

  • the strong smell of alcohol coming from the car
  • signs of slurred speech
  • signs of imbalance

While I’m no impaired driving expert, I arrested many impaired drivers during my law enforcement career.

The common signs of impairment experienced officers look for include;

  • the strong smell of liquor on a subject’s breath
  • signs of slurred speech
  • signs of slow or exaggerated movements
  • signs of a lack of coordination
  • signs of lack of comprehension
  • signs of anger or aggression
  • observations that a subject is unsteady (imbalance) on their feet

It’s important to note the smell of alcohol coming from a car does not hold nearly the evidentiary value as the smell of liquor coming from a subject’s breath.

(There is an intentional distinction made between the smell of alcohol and that of liquor – google it.)

It’s equally important to note the manner of driving (accidents, speeding, swerving, red light or other infractions) is often very significant evidence presented in an impaired driving case.

In McRae’s case, he was pulled over on the side of the road when he was first observed by the RCMP Constable so there was no manner of driving evidence.

When you do the analysis, you can see the underlying evidence presented in this case simply wasn’t as strong as one may have thought.

The Slam Dunk Conviction Theory

The notion police officers dummy down their notes because they believe they have a “slam dunk” case is ludicrous.

“The truth is – any experienced police officer knows there is no such thing as too much evidence in any criminal case.”

Don’t get me wrong, I’m sure Mr. Lett was told as much.

The truth is – any experienced police officer knows there is no such thing as too much evidence in any criminal case – impaired driving, shoplifting, robbery, murder and/or everything in between.

Police officers are trained to take detailed, extensive notes in every case; criminal, civil or even a simple neighbourhood dispute.

Do some officers get complacent?

Absolutely.

Did it happen in this case?

We don’t know.

There may be an explanation for the officer’s suggested incompetence.

Incompetence at the Investigative Level

Credit to Mr. Lett for not advancing the typical “blue wall” conspiracy theory so popular in mainstream media.

The fact is, you may have to be an insider to truly understand the forces that could be in play here.

RCMP – Vacancy Rates CBC

In April of 2017, I was an observer at an impaired driving causing death case proceeding in the Court of Queen’s Bench in Winnipeg.

The lead investigator was an RCMP officer with five (5) years of police experience.

The officer testified he had previously investigated six or seven impaired driving cases, however, the case before the court was his first fatal impaired driving case.

While the officer did his very best, there were significant deficiencies in his notes.

The signs of impairment presented in the case were minimal.

It was clear – a lack of experience, a lack of supervision, a lack of support and mentoring were all contributing factors to the quality of evidence presented in the case.

Did the officer investigating the McRae case have the experience, supervision, support and mentoring required to discharge his duties in a thorough and professional manner?

Did he have any experience investigating impaired driving cases?

I can’t say.

Mr. Lett can’t say.

What I can tell you is police agencies across the country have been running short-staffed for many years now.

The good news – there’s never been a better time to pursue a career in law enforcement.

The bad news – the impacts of short staffing can be significant.

Front line police resources generally feel the greatest pain when it comes to staffing issues.

The RCMP have been in crisis mode for several years now because of it.

Lack of front line experience, lack of experienced supervisors, lack of investigative control, lack of coaching and lack of mentoring.

It can all translate to mistakes.

Mistakes that can end up embarrassing a police officer in a court of law.

Mistakes that can result in acquittals for alleged offenders – police officers or civilians.

The X Factor

Evan Roitenberg – The X Factor (Gindon Wolson Simmonds Roitenberg)

Not discussed in Lett’s article was the X factor.

Constable McRae was represented by criminal defence attorney Evan Roitenberg.

Roitenberg has been practicing criminal law since 1992 and earned his stripes under the tutelage of Sheldon Pinx, one of Winnipeg’s most experienced, successful criminal defence attorneys.

He is currently a member of the Gindin – Wolson – Simmonds – Roitenberg team – one of our cities top law firms.

Roitenberg is very good at what he does.

He’s relentless, aggressive, detailed and thorough.

The prosecution was represented by Brett Rach.

Rach was an articling student from May 2014 – June 2015 and has been a Crown Attorney for 4 years and 10 months.

I’m sure Rach is a highly capable prosecutor, regardless of the fact he has roughly 22 years less experience than Roitenberg.

Nevertheless, experience matters.

Advantage defence.

It could very well be that by the time Roitenberg was done with  Constable Oddo there was little Rach could do to salvage the case.

The bottom line…

When it comes to cops, drunk driving & acquittals – it almost always has more to do with a lack of training & experience, a lack of resources or a lack of supervisory control.

Don’t forget, the onus is on the Crown to prove the defendant’s guilt beyond a “reasonable doubt.”

Advantage defence.

In this case, it seems the deck may have been stacked.

You can forget the conspiracy theories.

There’s almost always more to the story.

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2 Comments

  1. I recall a case from a number of years ago when I was in the Traffic Division.

    My partner and I charged a male with Impaired Driving, a case in which a conviction would have resulted in mandatory prison time. Fast forward to the trial, a senior criminal lawyer facing off against a junior Crown.

    Prior to court, the defence lawyer tells the Crown identity will not be an issue. Evidence is presented in a Question/Answer format with no cross examination. Crown rests and Defence lawyer gets up and asks that case be dismissed because his client was never identified.

    Crown argues that agreement was reached and identity would not be an issue. Defence counters identity was not an issue in that his client was arrested, charged and took a breathalyzer, but identity WAS the issue as to whether or not he was the driver.

    (He had been lone occupant passed out within 3 feet in back lane.)

    Crown couldn’t re-open and judge acquitted.

  2. Impaired driving cases are hard to win at the best of times, that’s what the public doesn’t get.

    And yes, the RCMP are critically understaffed and significantly underpaid. You get what you pay for.

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