Exclusion of blood sample argued at THC fatal impaired driving trial

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The defence has argued that a woman’s roadside blood test result should be thrown out because it was collected in the course of several charter breaches after she hit and killed nine-year-old Baeleigh Emily Maurice.

It’s the latest of several charter challenges since Taylor Ashley Kennedy’s Saskatoon provincial court trial began in 2023. Most of the trial has been in a voir dire to determine the admissibility of evidence.

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Kennedy, 29, was charged in 2022 with driving with a THC-blood level higher than the legal limit causing death after the fatal crash around 9 a.m. on Sept. 9, 2021. Court heard Kennedy struck Maurice while the girl was in a crosswalk on her scooter at the intersection of 33rd Street and Avenue G.

On Friday, defence lawyer Thomas Hynes argued a series of breaches — including not providing Kennedy the right to speak with a lawyer in a timely manner and the delayed collection of her saliva sample — led to the blood collection being unconstitutional. Those charter breaches were argued during a hearing in July.

Officers at the crash scene administered an oral fluid test followed by a blood test after Kennedy told an officer that she used cannabis and micro-dosed psilocybin the previous night.

In June, Judge Jane Wootten ruled that Kennedy was not compelled, or forced, to make the drug admission.

According to Section 24(2) of the Charter, if “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 circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

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Crown prosecutor Michael Pilon argued that even if the defence proved the alleged charter breaches, the administration of justice would not be brought into disrepute by the blood sample evidence being admitted.

He said the argument that police “took too long” has minimal impact, considering the seriousness of impaired driving, noting that police are highly criticized in impaired driving investigations — if they act too quickly they’re being hasty, and when they “do a proper investigation” they are said to be taking too long.

This investigation happened three years after cannabis was legalized, Hynes noted. He argued police knew, or ought to have known, that these types of investigations “would be coming,” and should have known what to do.

“Police actions can and should be reviewed for compliance with the charter at all times,” Hynes said.

But Pilon argued that this theory ignored the reality of the situation. Police have to get Parliament’s approval for drug-testing devices, and training was at a standstill during the pandemic, he said.

Hynes argued that officers didn’t tell Kennedy they were pursuing an impaired driving investigation. One officer testified that he didn’t want to upset her because it would make the investigation “difficult to continue.” This blatantly infringed her rights, Hynes said.

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He argued that if Kennedy had been informed of her right to counsel as soon as she was “psychologically detained” at the scene, she might not have made the drug admission, and could have learned why she had the right to refuse a blood demand.

Pilon argued we don’t get to consider what might have happened because that’s a different scenario, adding Kennedy admitted in her testimony that she never asked to call a lawyer.

The defence is also arguing that Kennedy has been denied a trial within a reasonable time, and that her charge should be stayed.

The Supreme Court’s R. v. Jordan decision requires provincial court trials to take place within 18 months of charges being laid. Hynes argued there has been a net delay of 23 months when taking into account any delays caused by the defence.

Pilon said some of the delay can be attributed to a COVID-related backlog, as well as the court needing time to render decisions on a plethora of constitutional and charter challenges.

Taking this into account, Pilon argued the delay would be closer to 14 months.

The case was set over to Sept. 4, when Wootten will choose a date for her decision on all the charter and constitutional challenges currently before the court.

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CONSTITUTIONAL CHALLENGE 

A constitutional challenge was also heard on Friday, alleging Section 320.31(9) of the Criminal Code is unconstitutional. Constitutional lawyer Katherine Roy appeared on behalf of the Attorney General of Saskatchewan.

The section reads: “A statement made by a person to a peace officer, including a statement compelled under a provincial Act, is admissible in evidence for the purpose of justifying a demand.”

Roy argued that police can rely on “roadside statements” to establish grounds for further investigatory steps, and that this part of the Criminal Code allows police to capture evidence that is “fleeting.”

Hynes said the defence interpreted a recent Supreme Court decision as being at odds with the Criminal Code section.

” … The section of the Criminal Code should be unconstitutional because it conflicts with this Supreme Court case that says unconstitutionally obtained evidence should be struck out from officers’ grounds,” Hynes explained outside court.

“And if you don’t apply the section of the Criminal Code, then you get into the charter argument saying that the police wouldn’t have had sufficient grounds to make the fluid sample demand in the first place.”

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DEFENCE REQUESTS KENNEDY APPEAR BY VIDEO

The defence requested Kennedy appear by video from a different room in the courthouse after she left the courtroom in tears during a morning break.

“We made the request that we did today because we viewed some of the commentary that’s made from the gallery as interfering with her right to meaningfully participate in the trial by being present in court,” Hynes said.

The request was granted, to the dismay of some of Maurice’s family members.

“To see Taylor, on a video, smiling and laughing, I understand that comments were made in the gallery, but people have to sympathize that we’re a family who lost a little girl who meant everything to us,” Maurice’s aunt, Rhane Mahingen, said outside court.

“I know this case is very complex, but I don’t want people to forget that Baeleigh had a life, that she was important to people.”

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