The Alberta Court of Appeal has ruled that Rodney Arens will get a new trial.
Justice Kirk Sisson sentenced Arens to five years and six months in prison in June 2014. He was given credit for 185 days for time served before and during the trial. His sentence also included a driving prohibition for 10 years.
Arens was found guilty of impaired driving causing death, impaired driving causing bodily harm, dangerous driving causing death, dangerous driving causing bodily harm and breach of recognizance.
Those convictions was overturned last week in the Alberta Court of Appeal after initially being heard last September. Justice Ronald Berger, Justice Peter Martin and Justice Barbara Lea Veldhuis delivered their decision last Friday.
Berger and Veldhuis both ruled Arens’ conviction be overturned and that a new trial be ordered, while Martin ruled the appeal be dismissed.
According to court documents reason for grounds of appeal included there was insufficient evidence to support a guilty impairment charge. Other reasons included that Sisson misapprehended and misapplied the law on proof of impairment and that Aren’s Charter rights were violated. A final reason was because of Sisson’s reversal of his voir dire ruling on the basis there was reasonable and probable ground for arrest.
Prior to trial, Arens filed a notice that his section eight and nine Charter rights had been violated by the RCMP when he was arrested, asked to give breath samples, and then taken to the detachment to be held overnight.
A voir dire (which is a trial held within a trial to determine if evidence is admissible) was held to determine if Aren’s Charter rights were breached and whether the evidence obtained as a result of the alleged breaches should be admitted. The evidence consisted of the observations by officers made after Arens was arrested and video recordings of him at the station.
The crown conceded a section eight Charter violation in a letter dated May 8th, 2014, and conceded a section nine Charter violation during oral argument. These concessions were made on the basis the arresting officer lacked reasonable and probable grounds to arrest the appellant and to make an evidentiary breath demand. There was a great deal of discussion between counsel and the court with respect to whether some evidence of alcohol consumption is required to form reasonable and probable grounds for an arrest for impaired driving.
Sisson ruled at trial that there was enough evidence to convict Arens without the Charter rights violation. Ultimately the Alberta Court of Appeal said Sisson used that inadmissible evidence to support his decision.
Meanwhile, the crown may appeal the decision to overturn Aren’s conviction and order a new trial to the Supreme Court. If they do decide to move forward with that appeal, they have 30 days to do so.
Arens will return to the Court of Queen’s Bench in Red Deer on March 7th.