Hannah Spray (The Star Phoenix) – Police breached the right to privacy of a fellow RCMP officer when they entered his open garage during a drunk driving investigation, says a provincial court judge.
Tyson Robert Drabinasty, 33, was charged after police responded to a report of a collision between a car and pedestrian on a North Battleford street on July 3, 2011.
Drabinasty, on off-duty RCMP officer, allegedly spent the evening drinking at his next-door neighbour’s July long-weekend barbecue before getting in an argument with his common-law wife as she stood beside his car. He drove away, possibly causing his wife to fall down, and returned to his house on foot before police arrived, court heard at his trial in May in North Battleford.
Two RCMP officers attended the scene and interviewed witnesses before approaching Drabinasty, who had entered his garage and opened the overhead door. Drabinasty was informally arrested in the garage and formally arrested while he was in the back of the police car.
Police didn’t have a warrant to enter Drabinasty’s home and defence lawyer Ron Piche argued Drabinasty’s right to privacy was breached. In a written decision issued in August, Judge Dolores Ebert agreed.
“It would appear that the officers did not really turn their minds to the legality of their entry into Drabinasty’s garage and yet police ought to be keenly aware that their authority to enter into one’s dwelling house is limited by law and they are required to uphold the law,” Ebert wrote.
She ruled that any evidence obtained after police entered Drabinasty’s garage – including the breath test results obtained later at the RCMP detachment – was to be excluded. His readings were .11, which is higher than the legal limit of .08.
Drabinasty is charged with driving with a bloodalcohol level higher than .08, impaired driving and dangerous driving. The .08 charge is likely to be dismissed following Ebert’s ruling, Piche said.
“It’s always encouraging to see the courts strongly protect the charter rights, especially when it comes to the sanctity of the home,” Piche said in an interview. “The charter rights are there to protect the rights of citizens. Even though Mr. Drabinasty is a police officer, he’s equally entitled to that protection.”
Two other charter arguments were raised by Piche, one alleging a breach of Drabinasty’s right to know the charges he faced when he was arrested, as the dangerous driving charge was added by the Crown months later. Ebert ruled that wasn’t a breach, as there is nothing requiring a person be arrested for an offence with which he is charged.
The other breach Piche argued alleged Drabinasty’s right to counsel was violated after he couldn’t get ahold of his preferred lawyer and was pressured to hurry up to speak to a lawyer because of the time elapsing between the alleged offence and the blood-alcohol testing. Ebert found Drabinasty’s rights were breached when a police officer entered the room while he was on the phone with a lawyer.
Drabinasty’s next court date is Dec. 7 in North Battleford, where counsel will likely set a date to make their arguments on the impaired driving and dangerous driving charges.