BRANDON -- A Brandon man has been acquitted of impaired driving on his snow machine because an RCMP constable went too far when he pulled his gun on the accused, a provincial court judge has ruled.
Judge John Combs acquitted Joel Donald Kempthorne, 49, of impaired driving and driving with his blood alcohol level over the legal limit, because the arresting officer's actions were "excessive."
The judge said the nervous constable could have waited for backup to arrive, instead of trying to arrest Kempthorne and his buddy by himself.
"His doing so with his firearm pointed at them was, in my view, unnecessary and potentially very dangerous," Combs stated in a written decision delivered this week.
Kempthorne and his friend were arrested in the early morning of Jan. 6, 2008.
During his trial on Dec. 16, 2009 and March 24 of this year, Kempthorne testified that he and a friend went on a snowmobile ride.
He had a beer before leaving Brandon, then four drinks during two hours at a Carberry bar.
Kempthorne and his buddy then rode away from the bar, stopping just outside Carberry, where they had two beers each.
Kempthorne also swigged from a bottle of schnapps after his snowmobile got stuck at that spot.
It was then that he and his friend were arrested. Kempthorne testified that a pistol was put to his neck as he lay on the ground.
The arresting officer told court he pulled out his gun because he was concerned for his safety. He believed he was dealing with two riders who had "fled" after the officer spotted them in Carberry.
Combs ruled that the officer didn't have reasonable grounds to conclude Kempthorne was one of the elusive snowmobile riders.
At the time, Kempthorne was told he was being arrested after showing signs of impairment and because he was found with a quarter-full bottle of schnapps and a pair of beers.
Breathalyzer tests later placed his blood-alcohol level at more than double the legal limit.
Combs agreed Crown attorney Garry Rainnie proved Kempthorne's blood-alcohol level was over the legal limit when he rode his machine.
However, the evidence of impairment and the breathalyzer results can't be accepted, Combs ruled.
The gunpoint arrest was arbitrary and unnecessary and breached Kempthorne's rights under the Charter of Rights and Freedoms, the judge wrote.
"The public would be concerned if evidence was admitted which was obtained in the manner of this case."
I completely agree with this ruling. This officer breached this man's Charter rights, by holding a gun to him, which was excessive and unnecessary. That is unacceptable.
This officer breached the man's Charter rights, which is completely unacceptable. It seems that the posters here either don't care about human rights being upheld or have no clue how the justice system truly works. If you don't care about human rights, how about we take away yours completely and see how you like that! When police don't follow proper arrest procedures and are excessive in their actions, they violate a person's rights.
Yes, it's too bad that some people get away with breaking the law when the police don't follow proper procedures. Don't get mad at the judge or the justice system; get mad at the police officer who screwed up the arrest.
It works this way to protect the rights of all of us from unreasonable treatment by the police - guilty and innocent alike. Concepts like probable cause are part of this. The alternative is to give the police unlimited power to do ANYTHING to make an arrest. Is that really better? What if you're the one who some day gets arrested unfairly? You have to look at the big picture. I think it's worth the price of a few people getting off to protect our rights.
Everyone is harping that the person was acquitted because the mountie used excessive force - an conclusion that is understandable given the article title and focus. However, this is not the reason for the acquittal.
The key statements in the article are:
"Combs ruled that the officer didn't have reasonable grounds to conclude Kempthorne was one of the elusive snowmobile riders. .... The gunpoint arrest was arbitrary and unnecessary and breached Kempthorne's rights under the Charter of Rights and Freedoms, the judge wrote."
The law grants us the right to be free from arbitrary search and siezure. The officer apparently couldn't be certain that these men were the ones he'd seen earlier, thus it seems that stopping these men constituted an arbitrary act.
The acquittal had nothing to do with the level of force used. The judge merely offered additional commentary to his assessment of the case.
Maybe the officer should have testified that he went to check if the men needed assitance (since they were stuck) whereupon he discovered they were drunk, which lead to the arrest. Not enough detail on the arrest to know if this version of events would have held up. Maybe then the arrest wouldn't be ruled as arbitrary since finding them drunk would merely be a chance discovery.
It's really, really not in the public interest to let the police make their own rules - you end up with nothing but anarchy. When cops screw up, charges don't stand: It's a basic rule of Western law. It's either that or fire the cop involved but then I get the feeling that you'd all be crying about "Why are we taking cops off the street?"
The rules are there for a reason. To protect the innocent from being arbitrarily harrassed and/or assulted by police and with all that has happened in recent years it is all the more important that we make sure the police are following the rules, because they have frequently not been following said rules. It is a shame that a drunk driver got away, but it would be even more of a shame to let police run like a gang of bullies.
"There is a difference between having rules against unreasonable actions of police, but I have always said that if one is innocent, what does it matter?"
Ask any of the people who were wrongfully convicted of a crime due to overzealousness on the part of law enforcement. Thomas Sophonow and David Milgaard spring to mind. If police don't do things by the book, innocent people get hurt, killed, or falsely arrested and/or convicted. The prospect of getting a case thrown out of court on the grounds that police violated people's rights is one effective way of ensuring that police follow their own rules. It also makes them accountable.
"i love how people are whining about human rights for these idiots who break the law. What about my rights!! i am tired of these morons getting released on technicalities, just so they can go do it again. the law isn’t there as a friendly suggestion. obey it or face the consequences, period. if someone is driving drunk me nor anyone should care if the officer pushed them a little too hard, just get them off the road.
how many of you would be whining about human rights if these guys killed a family member?
i'm tired of this city/prov treating criminals like normal citizens. you broke the law, now face the consequences. and for the really bad guys, i say we take a page from our neighbors to the south and fry ‘em. i don't know about you but i'm sick of paying taxes so these animals can hang out in jail.
and before i get people angry, i'm not saying use the death penalty for everyone, just the ones who are repeat offenders or mass offenders and have been proven without a shadow of a doubt to be guilty. and the rest can be put to manual labour like the chain gangs of the past"
"There is a difference between having rules against unreasonable actions of police, but I have always said that if one is innocent, what does it matter? Innocent people don't run from police officers, they obey the officer's instructions.
There is a difference between the intent of the rules and how they are being utilized by the courts. Is it any wonder the citizenry is getting frustrated with the legal system (I refuse to call it a justice system since justice isn't being served).
Perhaps the change that needs to be made is adding a category. Guilty, innocent, and something in between since guilt isn't necessarily at question, but a procedural question arises."
"The public would be concerned if evidence was admitted which was obtained in the manner of this case."
He is really got to be joking! Since when have the judges ever been concerned about what the public thinks? What really concerns most of the public is that criminals are allowed to go free over and over again because of all these ridiculous so-called technicalities. This [guy] was more than TWICE the LEGAL LIMIT. That fact doesn't change because the officer may have done something that APPEARS inappropriate to the judge. This is complete and total injustice. And we wonder why these drunks never GET IT!!
@ Intangible---"I think it's worth the price of a few people getting off to protect our rights." A FEW?? You have got to be joking as well, or just plain blind. You think it's okay to let someone (who may be caught with a dead body in his trunk) off because the cop made some little error? That is pretty much what this ridiculous decision amounts to!
You had better worry about your rights when one of these drunks mows you or one of you loved ones down. There is a MUCH bigger chance of that happening than of your being arrested unfairly."
"Intangible, more like out to lunch! The pistol wasn't drawn to effect arrest, it was drawn for officer safety. The rules of firearm use in enforcement are being proactive, not reactive. The officer is trained to not fire the pistol unless needed. Two drunken sled heads versus one officer at the time. I'm also sure that the officer would have contacted telecoms every step of the way while investigating the incident."
Cops are there to enforce the laws in a proper manner. They screw up big time, then what they were trying to do gets thrown out. Simple. The big picture is our fundamental rights must be maintained.
in Canada we don't take away somebodies Charter rights because they do (or say) something stupid. If we did you'd be in big trouble. They are our rights and the police have to follow them - period. Do you want cops pulling out guns at checkstops when somebody doesn't move fast enough for them? I'd much rather have a judge determine what excessive force is than you.
"The pistol wasn't drawn to effect arrest, it was drawn for officer safety."
So you're saying that placing the nose of a pistol against a man's throat is a "safety" precaution? The cop put HIMSELF in a situation he never should have in the first place. If he hadn't done that, there would be no need to fear for his own safety. People can argue that if he hadn't stopped the snowmobilers so-and-so might have happened but that's complete speculation and doesn't justify the officer's actions.
"You think it's okay to let someone (who may be caught with a dead body in his trunk) off because the cop made some little error? That is pretty much what this ridiculous decision amounts to!"
Yes, actually. You can't open the door just a crack to allow the police to violate someone's rights in certain cases but not in others.
"You had better worry about your rights when one of these drunks mows you or one of you loved ones down. There is a MUCH bigger chance of that happening than of your being arrested unfairly."
I'll take my chances, thanks. If I wanted to live in a country that has no human rights protections, I'd move to China.
"the law isn’t there as a friendly suggestion. obey it or face the consequences, period."
The same goes for the police. When they violate someone's rights, the consequences are that cases get thrown out of court, period.
"i'm tired of this city/prov treating criminals like normal citizens."
All of Canada and the U.S. follow the same policies. It's not a local phenomenon.
I have rights, you have rights, all Canadians have rights and they don't get thrown out after we have a few drinks. To equate what we have said to wanting drunks on the road is rather ridiculous. I'm sure you're not the only poster who doesn't get it. By that I mean, what the alternative is.
what they did was wrong and they should not have walked away from the court unpunished. But they did because the justice system broke down and then it corrected itself.
You say, "I refuse to call it a justice system since justice isn't being served." Yet you are blind to the root cause in this incident. The Charter of Rights was passed by our elected politicians. Same with the laws. The law was broken. It went to court and a Judge interpreted the laws and the charter rights to the case at hand. He had much more information than is supplied in this article, by the way. The Judge ruled as he should and you don't like the outcome. Rather than blaming the police officer for not doing his job, you blame the judge. The justice system is working just fine.
"What I want is for you and the others defending these two to stand up and say what they did was wrong and they should not have walked away from the court unpunished."
I haven't defended the two snowmobilers. Agreeing with the judge's decision doesn't mean I approve of DUI. The person to blame for them getting off is the RCMP officer for not doing his job properly. If he had, these two just might have been later arrested and convicted. Instead, he jumped in, pulled out a gun, and put all three of them at risk.
You may not agree with the end result but that's the way our Canadian laws are written. If I were you, I wouldn't hold my breath waiting for the Crown to appeal.
Vic, "You do live in a country where there are no human rights protections, for victims that is...It should be called *Criminal Rights* not Human Rights!
I would be willing to bet you have never read the Canadian Charter of Rights and Freedoms passed in 1982. Why don't you do that, then come back and comment. If a police officer breaks the law to obtain evidence then it gets thrown out. I'm pretty sure a judge's hands are tied when that is proven. We create the rules and laws for the judges to follow because we elect the MP's that create the laws. We includes you, so go ahead and push for the changes to laws that you want. If you aren't prepared to do that, this is Canada, and this is what you've got. Or you can move to a country that better reflects your views of right and wrong.
Catalyst: Being the legal expert you are could you please direct me to the statute that says a police officer is breaking the law if he draws his gun when he believes he is in danger. And while you are at it you could tell us why you believe drawing his gun was excessive force. Given that the Breathalyzer tests were done later no evidence was forced from the pair at the time of the arrest. Do you know something we don't, if you do know something we don't please inform us uneducated masses o wise one.
"The evidence uncovered is still proof of the crime, so why should it be thrown out?"
It should be thrown out because violating a suspect's rights means that the evidence collected is tainted. As such, it isn't acceptable in a court of law. It's about one standard being applied to all citizens, regardless of the type of offense they may have committed.
Ever fight a parking or speeding ticket and have it thrown out due to human error in writing up the ticket? That's the same principle. If you believe that you are entitled to fight a ticket and win, then you have to believe that court cases should be thrown out on the same grounds too. Otherwise, you're just cherry-picking based on the type of offense committed and your own feelings about it.
"You do live in a country where there are no human rights protections,----for victims that is-----. And the last time I looked, most victims are humans. All the rights at present are geared toward the criminals. It should be called *Criminal Rights* not Human Rights!
And no one is saying that police should not be held accountable when they do make errors while carrying out their law enforcement duties. But to throw out a case based on such an error is totally ridiculous. The evidence uncovered is still proof of the crime, so why should it be thrown out? There are other ways police should be held accountable for their misconduct.
If you think it is okay to allow a murderer to go free based solely on a procedural error, you are utterly insane. Of course, that's also great for murderers. Another loophole!"
I'm sure there is no statute that says a police officer is breaking the law if he draws his gun when he believes he is in danger. And I don't pretend to be a legal expert as you suggest. However, I'm pretty sure that if somebody breaches your rights under the Charter of Rights and Freedoms they are breaking the law and charges could be laid. The crown probably wouldn't want to do that in this case. Why do I believe drawing his gun was using excessive force? A better question would be, why do you believe otherwise? The judge has access to far more information than you or I do from a very short article in a newspaper.
"Did the officer use the gun to force the defendents to take the Breathalyzer tests."
It sounds like he used a gun to make the arrests and the Breathalyzer evidence flowed from that.
I'm assuming the judge weighed the three test factors of how society would view the Charter violation, how it affected the accused, and the merits of the case and concluded that, overall, it would bring the administration of justice into disrepute to allow the evidence to be admitted.
By producing a gun, the officer used unreasonable force. It didn't sound like the suspects posed any threat. The officer was "nervous" and overreacted in a situation he shouldn't have initiated without proper backup. These were two drunk guys on snowmobiles, not armed drug warlords.
I'm no lawyer and I wasn't at the trial so I don't know the specific reasons for the judge's decision.
From the Canadian Charter of Rights and Freedoms:
"24(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute."
Wikipedia's explanation of Section 7 of the Charter, regarding the principles of fundamental justice:
"Overbreadth - The "Principles of Fundamental Justice" require that means used to achieve a societal purpose or objective must be reasonably necessary. This principle is violated when the government, in pursuing a "legitimate objective", uses "means" that unnecessarily and disproportionately interfere with an individual's rights."
From Wikipedia re the test for excluding evidence includes:
"(1) the seriousness of the Charter-infringing conduct (focusing on a review of how society would view the actions of the state), (2) the impact of the breach on the Charter-protected interests of the accused (focusing on a review of how the state's actions affected the accused), and (3) society's interests in the abjudication of the case on its merits (focusing on a review of the importance and reliability of the evidence)."
violating a suspect's rights means that the evidence is tainted.
It works this way to protect the rights of all of us from unreasonable treatment by the police - guilty and innocent alike. Concepts like probable cause are part of this. The alternative is to give the police unlimited power to do ANYTHING to make an arrest. Is that really better? What if you're the one who some day gets arrested unfairly? You have to look at the big picture. I think it's worth the price of a few people getting off to protect our rights.
Everyone is harping that the person was acquitted because the mountie used excessive force - an conclusion that is understandable given the article title and focus. However, this is not the reason for the acquittal.
The key statements in the article are:
"Combs ruled that the officer didn't have reasonable grounds to conclude Kempthorne was one of the elusive snowmobile riders. .... The gunpoint arrest was arbitrary and unnecessary and breached Kempthorne's rights under the Charter of Rights and Freedoms, the judge wrote."
The law grants us the right to be free from arbitrary search and siezure. The officer apparently couldn't be certain that these men were the ones he'd seen earlier, thus it seems that stopping these men constituted an arbitrary act.
The acquittal had nothing to do with the level of force used. The judge merely offered additional commentary to his assessment of the case.
Maybe the officer should have testified that he went to check if the men needed assitance (since they were stuck) whereupon he discovered they were drunk, which lead to the arrest. Not enough detail on the arrest to know if this version of events would have held up. Maybe then the arrest wouldn't be ruled as arbitrary since finding them drunk would merely be a chance discovery.
It's really, really not in the public interest to let the police make their own rules - you end up with nothing but anarchy. When cops screw up, charges don't stand: It's a basic rule of Western law. It's either that or fire the cop involved but then I get the feeling that you'd all be crying about "Why are we taking cops off the street?"
The rules are there for a reason. To protect the innocent from being arbitrarily harrassed and/or assulted by police and with all that has happened in recent years it is all the more important that we make sure the police are following the rules, because they have frequently not been following said rules. It is a shame that a drunk driver got away, but it would be even more of a shame to let police run like a gang of bullies.
"There is a difference between having rules against unreasonable actions of police, but I have always said that if one is innocent, what does it matter?"
Ask any of the people who were wrongfully convicted of a crime due to overzealousness on the part of law enforcement. Thomas Sophonow and David Milgaard spring to mind. If police don't do things by the book, innocent people get hurt, killed, or falsely arrested and/or convicted. The prospect of getting a case thrown out of court on the grounds that police violated people's rights is one effective way of ensuring that police follow their own rules. It also makes them accountable.
"i love how people are whining about human rights for these idiots who break the law. What about my rights!! i am tired of these morons getting released on technicalities, just so they can go do it again. the law isn’t there as a friendly suggestion. obey it or face the consequences, period. if someone is driving drunk me nor anyone should care if the officer pushed them a little too hard, just get them off the road.
how many of you would be whining about human rights if these guys killed a family member?
i'm tired of this city/prov treating criminals like normal citizens. you broke the law, now face the consequences. and for the really bad guys, i say we take a page from our neighbors to the south and fry ‘em. i don't know about you but i'm sick of paying taxes so these animals can hang out in jail.
and before i get people angry, i'm not saying use the death penalty for everyone, just the ones who are repeat offenders or mass offenders and have been proven without a shadow of a doubt to be guilty. and the rest can be put to manual labour like the chain gangs of the past"
"There is a difference between having rules against unreasonable actions of police, but I have always said that if one is innocent, what does it matter? Innocent people don't run from police officers, they obey the officer's instructions.
There is a difference between the intent of the rules and how they are being utilized by the courts. Is it any wonder the citizenry is getting frustrated with the legal system (I refuse to call it a justice system since justice isn't being served).
Perhaps the change that needs to be made is adding a category. Guilty, innocent, and something in between since guilt isn't necessarily at question, but a procedural question arises."
"The public would be concerned if evidence was admitted which was obtained in the manner of this case."
He is really got to be joking! Since when have the judges ever been concerned about what the public thinks? What really concerns most of the public is that criminals are allowed to go free over and over again because of all these ridiculous so-called technicalities. This [guy] was more than TWICE the LEGAL LIMIT. That fact doesn't change because the officer may have done something that APPEARS inappropriate to the judge. This is complete and total injustice. And we wonder why these drunks never GET IT!!
@ Intangible---"I think it's worth the price of a few people getting off to protect our rights." A FEW?? You have got to be joking as well, or just plain blind. You think it's okay to let someone (who may be caught with a dead body in his trunk) off because the cop made some little error? That is pretty much what this ridiculous decision amounts to!
You had better worry about your rights when one of these drunks mows you or one of you loved ones down. There is a MUCH bigger chance of that happening than of your being arrested unfairly."
"Intangible, more like out to lunch! The pistol wasn't drawn to effect arrest, it was drawn for officer safety. The rules of firearm use in enforcement are being proactive, not reactive. The officer is trained to not fire the pistol unless needed. Two drunken sled heads versus one officer at the time. I'm also sure that the officer would have contacted telecoms every step of the way while investigating the incident."
Cops are there to enforce the laws in a proper manner. They screw up big time, then what they were trying to do gets thrown out. Simple. The big picture is our fundamental rights must be maintained.
in Canada we don't take away somebodies Charter rights because they do (or say) something stupid. If we did you'd be in big trouble. They are our rights and the police have to follow them - period. Do you want cops pulling out guns at checkstops when somebody doesn't move fast enough for them? I'd much rather have a judge determine what excessive force is than you.
"The pistol wasn't drawn to effect arrest, it was drawn for officer safety."
So you're saying that placing the nose of a pistol against a man's throat is a "safety" precaution? The cop put HIMSELF in a situation he never should have in the first place. If he hadn't done that, there would be no need to fear for his own safety. People can argue that if he hadn't stopped the snowmobilers so-and-so might have happened but that's complete speculation and doesn't justify the officer's actions.
"You think it's okay to let someone (who may be caught with a dead body in his trunk) off because the cop made some little error? That is pretty much what this ridiculous decision amounts to!"
Yes, actually. You can't open the door just a crack to allow the police to violate someone's rights in certain cases but not in others.
"You had better worry about your rights when one of these drunks mows you or one of you loved ones down. There is a MUCH bigger chance of that happening than of your being arrested unfairly."
I'll take my chances, thanks. If I wanted to live in a country that has no human rights protections, I'd move to China.
"the law isn’t there as a friendly suggestion. obey it or face the consequences, period."
The same goes for the police. When they violate someone's rights, the consequences are that cases get thrown out of court, period.
"i'm tired of this city/prov treating criminals like normal citizens."
All of Canada and the U.S. follow the same policies. It's not a local phenomenon.
I have rights, you have rights, all Canadians have rights and they don't get thrown out after we have a few drinks. To equate what we have said to wanting drunks on the road is rather ridiculous. I'm sure you're not the only poster who doesn't get it. By that I mean, what the alternative is.
what they did was wrong and they should not have walked away from the court unpunished. But they did because the justice system broke down and then it corrected itself.
You say, "I refuse to call it a justice system since justice isn't being served." Yet you are blind to the root cause in this incident. The Charter of Rights was passed by our elected politicians. Same with the laws. The law was broken. It went to court and a Judge interpreted the laws and the charter rights to the case at hand. He had much more information than is supplied in this article, by the way. The Judge ruled as he should and you don't like the outcome. Rather than blaming the police officer for not doing his job, you blame the judge. The justice system is working just fine.
"What I want is for you and the others defending these two to stand up and say what they did was wrong and they should not have walked away from the court unpunished."
I haven't defended the two snowmobilers. Agreeing with the judge's decision doesn't mean I approve of DUI. The person to blame for them getting off is the RCMP officer for not doing his job properly. If he had, these two just might have been later arrested and convicted. Instead, he jumped in, pulled out a gun, and put all three of them at risk.
You may not agree with the end result but that's the way our Canadian laws are written. If I were you, I wouldn't hold my breath waiting for the Crown to appeal.
Vic, "You do live in a country where there are no human rights protections, for victims that is...It should be called *Criminal Rights* not Human Rights!
I would be willing to bet you have never read the Canadian Charter of Rights and Freedoms passed in 1982. Why don't you do that, then come back and comment. If a police officer breaks the law to obtain evidence then it gets thrown out. I'm pretty sure a judge's hands are tied when that is proven. We create the rules and laws for the judges to follow because we elect the MP's that create the laws. We includes you, so go ahead and push for the changes to laws that you want. If you aren't prepared to do that, this is Canada, and this is what you've got. Or you can move to a country that better reflects your views of right and wrong.
Catalyst: Being the legal expert you are could you please direct me to the statute that says a police officer is breaking the law if he draws his gun when he believes he is in danger. And while you are at it you could tell us why you believe drawing his gun was excessive force. Given that the Breathalyzer tests were done later no evidence was forced from the pair at the time of the arrest. Do you know something we don't, if you do know something we don't please inform us uneducated masses o wise one.
"The evidence uncovered is still proof of the crime, so why should it be thrown out?"
It should be thrown out because violating a suspect's rights means that the evidence collected is tainted. As such, it isn't acceptable in a court of law. It's about one standard being applied to all citizens, regardless of the type of offense they may have committed.
Ever fight a parking or speeding ticket and have it thrown out due to human error in writing up the ticket? That's the same principle. If you believe that you are entitled to fight a ticket and win, then you have to believe that court cases should be thrown out on the same grounds too. Otherwise, you're just cherry-picking based on the type of offense committed and your own feelings about it.
"You do live in a country where there are no human rights protections,----for victims that is-----. And the last time I looked, most victims are humans. All the rights at present are geared toward the criminals. It should be called *Criminal Rights* not Human Rights!
And no one is saying that police should not be held accountable when they do make errors while carrying out their law enforcement duties. But to throw out a case based on such an error is totally ridiculous. The evidence uncovered is still proof of the crime, so why should it be thrown out? There are other ways police should be held accountable for their misconduct.
If you think it is okay to allow a murderer to go free based solely on a procedural error, you are utterly insane. Of course, that's also great for murderers. Another loophole!"
I'm sure there is no statute that says a police officer is breaking the law if he draws his gun when he believes he is in danger. And I don't pretend to be a legal expert as you suggest. However, I'm pretty sure that if somebody breaches your rights under the Charter of Rights and Freedoms they are breaking the law and charges could be laid. The crown probably wouldn't want to do that in this case. Why do I believe drawing his gun was using excessive force? A better question would be, why do you believe otherwise? The judge has access to far more information than you or I do from a very short article in a newspaper.
"Did the officer use the gun to force the defendents to take the Breathalyzer tests."
It sounds like he used a gun to make the arrests and the Breathalyzer evidence flowed from that.
I'm assuming the judge weighed the three test factors of how society would view the Charter violation, how it affected the accused, and the merits of the case and concluded that, overall, it would bring the administration of justice into disrepute to allow the evidence to be admitted.
By producing a gun, the officer used unreasonable force. It didn't sound like the suspects posed any threat. The officer was "nervous" and overreacted in a situation he shouldn't have initiated without proper backup. These were two drunk guys on snowmobiles, not armed drug warlords.
I'm no lawyer and I wasn't at the trial so I don't know the specific reasons for the judge's decision.
From the Canadian Charter of Rights and Freedoms:
"24(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute."
Wikipedia's explanation of Section 7 of the Charter, regarding the principles of fundamental justice:
"Overbreadth - The "Principles of Fundamental Justice" require that means used to achieve a societal purpose or objective must be reasonably necessary. This principle is violated when the government, in pursuing a "legitimate objective", uses "means" that unnecessarily and disproportionately interfere with an individual's rights."
From Wikipedia re the test for excluding evidence includes:
"(1) the seriousness of the Charter-infringing conduct (focusing on a review of how society would view the actions of the state), (2) the impact of the breach on the Charter-protected interests of the accused (focusing on a review of how the state's actions affected the accused), and (3) society's interests in the abjudication of the case on its merits (focusing on a review of the importance and reliability of the evidence)."
violating a suspect's rights means that the evidence is tainted.
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