October 09, 2015 - 4:30 PM
KAMLOOPS - A man convicted of dangerous driving killing his two passengers could have his guilty verdict overturned if lawyers successfully prove key evidence in the case against him was in violation of his charter right against unreasonable search and seizure.
Defence lawyers Micah Rankin and Anthony Varesi appeared in the B.C. Court of Appeal in Kamloops today, Oct. 9, to challenge the conviction of Wayne Rodney Fedan, born 1961, on the basis that RCMP seized evidence from Fedan’s truck without a warrant.
Last year, Justice Deborah Kloegman convicted Fedan of two counts of dangerous driving causing the deaths of Brittany Plotnikoff, 20, and Ken Craigdallie, 38. The trio had been drinking whiskey before accepting a ride from Fedan. The driver reached speeds higher than twice the posted limit and rolled his pickup truck near Mackenzie Avenue. Plotnikoff was killed instantly while Craigdaillie later died from his injuries.
Fedan received a three-year jail sentence.
Evidence of the vehicle’s activity before the crash hinged on data pulled from Fedan’s GMC Sierra pickup truck. The sensing diagnostic module or so-called blackbox recorded five seconds of information on the vehicle’s movements before the crash. Court heard the truck was travelling 106 kilometres per hour the second before it left the road and rolled into a fence near the Woodland trailer park.
After the crash, the blackbox was seized from Fedan’s truck at the tow lot by RCMP Sgt. Barry Noonan. The investigating officer downloaded the data in an effort to recreate the crash scene.
Rankin argued Fedan’s privacy rights were violated as Noonan did not obtain the warrant to seize the blackbox and to download the information within it.
“They have to have a warrant anytime they’re going to be taking custody of the vehicle,” he said. “There isn’t even prior authorization to take out the device."
Rankin called Noonen’s attitude towards proceeding without a warrant "cavalier."
During trial, Noonan testified that he didn’t think he needed to include the blackbox on the warrant because he received a memo telling him it wasn’t necessary because the blackbox doesn’t contain personal identifiers.
“This information is about a vehicle. How is it connected to Fedan?” Justice Daphne Smith asked. “It’s about how the vehicle is being operated."
“It’s about how the vehicle is being operated by the driver,” Rankin replied.
Crown prosecutor David Layton disagreed Noonan was cavalier about seizing the black box and was only acting on good faith, which Kloegman determined in her decision to convict Fedan.
“What is clear is that Sgt. Noonan did legitimately believe that he didn’t need a search warrant for what he was doing,” Layton said. "This was highly reliable evidence and without it the Crown’s case would have been substantially weakened."
In two voir dires which determine admissibility of evidence in a trial, Kloegman tossed out two of Fedan's blood alcohol samples. The appellant was originally charged with two counts of impaired driving causing death, two counts of causing an accident resulting in death and two counts of dangerous driving causing death.
The three Court of Appeal judges reserved their decision for a later date.
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News from © InfoTel News Ltd, 2015