I have clients who ask me to represent them for charges of impaired. One wonders if police officers have reasonable and probable grounds for effecting such arrests. Well, Justice Durno in R. v. Bush, 2010 ONCA 554, gave the following criteria to be considered:
“There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively existed. Consideration of the totality of the circumstances includes the existence of an accident. However, that the accident could have caused some of the indicia relied upon when they could also have been caused by the consumption of alcohol does not mean the officer has to totally eliminate those indicia from consideration: R. v. Duris, 2009 ONCA 740 at para. 2. They have to be considered along with all the other indicia in light of the fact there may be another explanation. To the extent that Uppal determines otherwise, with respect, it was wrongly decided.
58 Here the investigating officer testified that he took into consideration that the respondent had been in an accident. In assessing whether reasonable and probable grounds objectively existed, the trial judge appropriately considered that there had been an accident. However, that there might be another explanation for some of the factors the officer properly took into account in forming his opinion of impairment to drive did not eliminate the indicia or render them unreliable …”
Applying the above test, Justice Calsavara in R v. Carmola-Chambers at 2020 ONCJ 493, gave the following factors as having occurred in a case before him:
• At 1:49am, she was dispatched to the scene for a ‘medical assist’ and advised that an anonymous caller reported a grey Toyota (with the specific licence plate) in a live lane at Derry Road West
• The caller reported the vehicle had two missing front tires
• The caller reported that the driver was passed out and the caller tried to knock and wake up the driver
• The car was running
• When the officer attend at 1:54am, she located the grey Toyota identified by the anonymous caller with its rear end in a parking lot and the front in a live lane on Derry road, facing northbound
• There were two front tires missing and front end damage
• The two front end rims were damaged as if they had been driven on
• The car was running with keys in the ignition
• Both the headlights and rear lights were on
• A man [Mr. Carmola-Chambers] was the sole occupant and seated in the driver’s seat, upright with his hands in his lap apparently asleep
• The driver’s door window was down by several inches
• The arresting (along with another officer who separately attended the scene) rapt on the driver’s side window and spoke loudly through the open window in an attempt to rouse the driver awake
• The driver remained unresponsive
• When her colleague reached in the vehicle to unlock and open the door, the officer shook the occupant’s shoulder multiple times
• It took 30 seconds or more and multiple attempts, but she was able to wake up the driver
• The driver’s speech seemed slurred and was incoherent
• The officers demanded that the driver step out of the vehicle, but he didn’t and instead reached toward his right hip area near the console
• After demanding that he step out a second time, the officers took hold of the driver’s left arm; however the driver grabbed onto to the steering wheel with his right hand and would not let go
• The officer pried his right hand off the steering wheel in order to remove him from the vehicle
• The officer noted that the driver was unsteady on his feet when he exited
• The driver’s eyes were watery and bloodshot and there was a strong odour of alcohol coming from his breath
• The driver had no visible injuries
• At 2:01 the officer formed the opinion the driver was impaired and in care or control of a motor vehicle
Based on all these factors, the Judge ruled that the above factors were objectively reasonable given these circumstances known to the officer and so, based on all of the above factors, the officer had reasonable and probable grounds to undertake the arrest.
Well, the case above is a good example in laying out the various grounds and factors that an officer can consider when effecting an arrest. This means that it is not a straightforward single-point factor an officer decides that an accused has committed an offence of being impaired and is then arrested. They are circumstantial – an entire set of factors given above that the officer uses to come to a determination.
At Shankar Law, we are happy to assist and guide you through whatever challenges you have related to criminal and family life issues. We work all over Ontario, but primarily in three counties: Huron, Bruce, and Grey and span several cities (Southampton, Kincardine, Goderich, Wiarton, Hanover, Dundalk, Walkerton, Meaford, Markdale, Chatsworth), through our two locations in Port Elgin and in Owen Sound.
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