SECTIONS 7 AND 9 - DRAWING OF FIREARM LEADS TO EXCLUSION OF EVIDENCE
Saturday, December 15, 2012 at 2:29PM The accused and a friend drove their snowmobiles from Brandon to Carberry where they stopped at a hotel. At just after 1:00 a.m., the accused and his friend left the hotel and drove into a field south of Carberry. Sometime later, the accused's snowmobile became stuck in a snow fence near a railway track. As he and his friend attempted to extricate it, they were arrested by an RCMP officer.
The officer testified that he first noticed the snowmobilers in the parking lot of the hotel and that he never lost visual sight of the snow machines from the that time until the arrest some 45 minutes later. During that time, he stated that he tried to stop the accused and his friend twice; once he turned his emergency lights on and the next time he had both siren and lights on. The officer walked about half to three-quarters of a kilometre down railway tracks and came upon the accused and his friend. He drew his firearm as he approached them. The accused's friend got on the ground but the accused remained on his knees in the snow. The officer pushed the shoulder of the accused forcing him to the ground and then handcuffed the accused and his friend.
At trial the court found that section 9 was breached due to the arrest of the accused being arbitrary. The court also found that section 7 had been breached as the court concluded that the officer's conduct was excessive and unnecessary in the circumstances. The court then excluded the evidence of impairment and the results of the breath tests and entered acquittals. The Court of Queen's Bench upheld the acquittals. R. v. Kempthorne, 2012 MBQB 45