July 11, 2013 - 8:07 PM
KAMLOOPS - The rights of an accused man were violated, a judge ruled today in B.C. Supreme Court.
That much was clear to B.C. Supreme Court Justice Deborah Kloegman, however the question remained whether the evidence collected during the violation of rights was detrimental to the Crown's case.
Kloegman cited case law in saying she had to weigh the necessity of the evidence to discovering the 'truth' versus implications using it may have had on the integrity of the judicial system.
The severity of this case was clear — two people are dead. But could the case proceed without the evidence?
"The impunged evidence is not all that important to the case," she ruled.
Wayne Fedan, 52, is charged with multiple charges including impaired driving causing death, cause of an accident resulting in death and dangerous driving causing death after allegedly rolling a truck on March 20, 2010 and killing his passengers, Brittany Plotnikoff and Kenneth Craigdallie.
A voir dire hearing — a trial within a trial — began last week to determine the admissibility of three pieces of Crown evidence in the trial.
Defence lawyer Sheldon Tate fought to dismiss a statement Fedan gave to police following the accident; Fedan's admission to consuming alcohol and the smell of alcohol on Fedan's breath.
Tate said Fedan's constitutional rights were violated when he was deprived of information at the accident scene by Const. Mike Penman and was unable to consult counsel.
Under Canada's Charter of Rights and Freedoms, everyone has the right upon arrest or detention to retain and instruct counsel without delay and to be informed of that right.
Penman took the stand during the hearing and told the court he was overwhelmed as the primary investigator in his first catastrophic case.
Crown prosecutor Bernie Caffarro told the court earlier this week he would not be admitting a blood sample at the trial taken from Fedan at the hospital, violating his rights.
However, Caffarro argued Fedan was not held under detention by Penman at the time evidence was gathered. Tate disagreed, saying Fedan was under 'psychological detention', and Kloegman sided with the defence.
"The accused was in a weakened, injured position," she said, adding he was distraught over the two deaths, was warned by police, and injured himself.
While she said Penman did not act in bad faith, there was no acceptable explanation for him failing to pull out a card from his pocket listing Fedan's full rights nor for failing to allow Fedan a call to a lawyer.
"These are very basic, minimal modes of conduct that are expected of the police in this country," she said.
Kloegman said the Crown should be able to prove identification of the driver and alcohol as a factor without these pieces of evidence, and the trial is set to continue.
Fedan is expected to appear in court next on July 29 to fix a date for trial.
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News from © InfoTel News Ltd, 2013