Charges may be dropped against a Calgary man accused in a fatal hit and run, if a judge sides with defence and agrees police behaved improperly during their interrogation.
Robert Mark Varley, 60, is on trial for a hit and run resulting in the death of Farida Abdurahman, 33. She was struck in a crosswalk on Centre Street N. near 43rd Avenue at about 11:15 p.m. on July 27, 2015.
Varley had beaten three sets of drunk driving charges in British Columbia before he moved to Calgary in 2011.
On July 28, 2015, about 10 hours after Abdurahman was hit, Varley was arrested and brought to police headquarters once police found his damaged Buick Regal a few blocks away from the collision.
He was questioned by Det. Mark Enright and Const. Dennis Vink at police headquarters. Varley had contacted a lawyer and repeatedly told police he was instructed to keep quiet but eventually confessed, saying he believed he had hit either a deer or a dog.
Varley's current counsel says police violated his Charter rights during that interview. Stephen Wojick argued on Tuesday that officers belittled Varley's first lawyer as a strategy to keep the suspect from asserting his right to silence.
A video of the interview was presented in court on Tuesday.
"How much skin do you think he has in this game," asks Vink.
"If you get charged, if you don't get charged, if we walk out of here as best friends and go for dinner, does he win, lose or draw? Nothing. He's sitting at home, or in his office doing whatever, probably has an afternoon tee time," Vink continues.
"He has nothing vested in this," adds Enright.
"Right," says Varley.
"Right? For him, it's a paycheque, that's all it is," says Vink. "He has four-fifths of nothing in this."
"Right," Varley responds.
Wojick says this exchange was a turning point in the interrogation, changing the dynamic of the interview.
"Never again does Mr. Varley express a right to silence after those comments. Instead what he asks is 'what happens if someone gets charged with this type of thing,'" said Wojick.
Prosecutor Thom Forsyth said police were entitled to the investigative techniques used during the interview and asked that Court of Queen's Bench Justice Rosemary Nation look at the interrogation in its entirety rather than at individual exchanges.
After making the comments about Varley's lawyer, police then launch into inducements, suggesting to the suspect the judge will go easy on him if he confesses, which Wojick says calls into question the voluntariness of his client's statement.
Nation noted Tuesday it's the first time she's seen a case where police officers talk about knowing judges and speaking directly with them.
Nation will make her ruling on the admissibility of Varley's police statement Wednesday morning.
"Obviously this is not a black and white case," said Nation before adjourning for the day.
If the statement is excluded as evidence, it is likely the charges against Varley will be dropped. If the evidence is admitted, the trial, which is set to last all week, will continue.
Varley was charged with impaired driving in 2003, 2004 and 2009 in Richmond, B.C. He pleaded guilty to the lesser, traffic offence of careless driving for the 2003 and 2009 infractions and was acquitted of the 2004 charge.
Abdurahman was living with her sister Timaj at the time of her death. Timaj and other members of their family have been in court the past two days.