Taylor Kennedy is accused of being over the legal limit for cannabis when she struck a nine-year-old girl with her truck.
A Saskatoon provincial court judge heard arguments Thursday on whether police officers violated the Charter of Rights and Freedoms in their interactions with a woman accused of impaired driving causing the death of a nine-year-old girl.
Officers at the scene asked Kennedy to provide a saliva sample after she admitted using cannabis and micro-dosing psilocybin in the 24 hours prior to the collision, this was followed by a blood test.
Judge Jane Wootten last month ruled that officers did not force Kennedy to make the admission. The trial remains in a voire dire, or trial within a trial, focused on the admissibility of evidence.
On Thursday, defence lawyer Thomas Hynes contended police failed to adequately advise Kennedy of her right to a lawyer; he referenced case law that he argued supported the notion Kennedy was “psychologically detained” by the officers at the scene, and as such should have been advised sooner of her right to speak to a lawyer.
Hynes said officers “singled out” Kennedy for questions, further creating the impression she was detained, and ought to have offered access to counsel when she was asked to move away from the crash scene accompanied by an officer.
He said officers were near Kennedy “at almost all times” and that this could be interpreted by a reasonable person as a sign that she wasn’t free to leave. Hynes further noted that the test for a judge to determine if a person is psychologically detained is based on their inference of how “a reasonable person” would feel in the circumstances, not an assessment of the accused’s feelings at the time.
Hynes further argued officers “streamed” Kennedy into speaking to a Legal Aid lawyer when they did advise her of her right to a lawyer, rather than making it clear she could choose her own counsel. He pointed to instances where officers told Kennedy they could connect her with a lawyer working free of charge, and an instance where an officer handed her a cellphone to speak to Legal Aid.
Kennedy gave a saliva sample about an hour after the collision. Hynes argued this was an unreasonable delay and that recent case law did not allow police to use a lack of training or readily available equipment as excuses to delay collecting samples.
Hynes argued that if Wootten finds Kennedy was detained without being given proper access to counsel, she should exclude evidence collected by police afterwards, including the saliva and blood samples.
Crown prosecutor Michael Pilon opened his remarks by arguing the Crown wasn’t given sufficient notice that Hynes planned to cite a 2023 Supreme Court decision in his arguments. The decision expanded instances where police cannot rely on evidence obtained while breaching the Charter; Hynes argued the ruling creates a new line of argument for Wootten to disallow Kennedy’s saliva and blood samples as evidence.
This lack of notice about the new case meant the Crown did not have a constitutional law expert present Thursday, Pilon told court, adding he was concerned about any further delays in proceedings given the defence has made a motion arguing the case has been unreasonably delayed.
Pilon further disputed the notion Kennedy was “psychologically detained” by officers responding to the crash.
Pilon noted officers were dealing with a scene that could be described as “hell on Earth” — first responders were trying to save Maurice and a crowd of bystanders was gathering, with some swearing at and threatening Kennedy.
He noted case law stating officers acting to control incident scenes aren’t considered to be detaining people, even when these actions may interfere with freedom of movement.
Detention requires “a serious deprivation of liberty,” Pilon argued, suggesting nothing the officers did met this standard.
He noted Kennedy was only asked to move away from the scene after people began making threats against her. She was never handcuffed or ordered to comply. He further noted she was seated in a police vehicle with the door open, and was freely allowed to shift position and to sit outside.
Kennedy was also allowed to keep her cellphone and at no point forbidden from using it, Pilon said, adding she was allowed at one point to take a call from her mother.
Pilon also pointed to Kennedy’s own testimony earlier in the trial, in which she stated she wanted to stay at the scene to provide any help she could for Maurice.
Addressing the argument that officers took too long to take the saliva sample, Pilon noted that in 2021, drug screening devices had only recently been approved for police use; their availability was limited, and relatively few officers had been trained in their use.
He said recent case law has tightened up the timeline for officers to test for alcohol, but that the situation with drug screening devices in 2021 was similar to when breathalyzers for alcohol were still new in the 1980s, and some delay related to device availability and officer training was not unreasonable for drug-testing.
Pilon further argued that “the clock” on when officers need to take a sample begins when they’ve formed “a reasonable suspicion” a driver is impaired. While Hynes argued police had formed their suspicion when Kennedy made the admission to using drugs, Pilon argued police had only “a hunch” until an officer trained in handling drug-impaired driving cases arrived at the scene.
Pilon noted Kennedy also vomited after the collision, which would mean a 15-minute wait was required to properly take a saliva sample.
Pointing out instances where officers have been chastised for proceeding too quickly in investigating impaired driving, Pilon suggested police can face criticism for both being too quick and not being quick enough.
“The law does not demand perfection,” Pilon argued, suggesting Wootten look at the entirety of the circumstances in assessing whether police acted in accordance with the Charter.
Wootten adjourned the case to July 23, when lawyers are to set dates to conclude hearing the Charter arguments in the case.
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