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Charge(s): Driving While Impaired, Over 80, & Possession of a Schedule I Substance
Location: Saugeen Shores / Port Elgin, Ontario
Our Client(s): Mr. S
Complainant(s): Saugeen Shores Police Service
Year: 2019
Lawyer: Justin Marchand
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Please Note: Past results not predictive of future results.

The Background

Before the police can place you under arrest, they need to form reasonable grounds for the arrest. Police cannot arrest you without justification and search for evidence to support the arrest afterwards. This rule is protected by section 9 of the Charter, which protects you against arbitrary detention and arrest. This protection is vital in a free society. If the government could simply arrest you without reasonable grounds and look for evidence of wrongdoing after we would be at the mercy of a police-state.

Very early on a February morning police were called to the site of the one-vehicle collision. Said vehicle was in a ditch and seemed to have taken out a stop sign. A man who appeared intoxicated approached from across the street, claiming to be the owner of the vehicle; this was Mr. S He explained that while he owned the vehicle, he wasn’t the driver, another man (Mr. T) had been driving.  After the collision Mr. T left the scene on foot and Mr. S remained.

The officer didn’t believe Mr. S and placed him under arrest for impaired operation of a motor vehicle. At the police station, he was searched, and several painkillers were found in his pockets. Mr. S explained they belonged to the wife, and he carried them for her. Mr. S was given his right to counsel, and eventually contacted duty counsel. He provided a breath sample, which registered over 80, and he was charged with impaired operation of a vehicle, blood alcohol over 80, and possession of a controlled substance. Mr. S was then released to his wife, and Aitken Robertson was contacted to represent him.

The Goals

From the beginning, it was clear that Mr. S had a strong case of his section 9 rights being violated. The police justified their arrest by combining Mr. S’ ownership of the vehicle and intoxicated state with presumptions that there was no Mr. T and that the vehicle likely crashed recently. We felt this was unlikely to hold up if challenged, and if the Crown was unwilling to drop the charges based on that, then we would raise it at trial.

The Strategy

During initial negotiations with the Crown the possession charges were dropped and the case focused on the impaired driving and over 80 charges. The key evidence the Crown needed to win the trial was all obtained after the arrest: primarily the breath tests done at the police station. We focused on the section 9 challenge, contesting that the initial arrest was unreasonable. Under the Charter, any evidence collected through rights violations may be deemed inadmissible. If we could convince the Court that the arrest itself was a violation of section 9, all of the subsequent evidence could be deemed inadmissible and the Crown’s case would be too weak to prove guilt beyond a reasonable doubt.

At trial, we focused heavily on the lack of connection between Mr. S and the necessary “care and control” of the vehicle needed for a charge of impaired driving. We referred to the case of Boudreault to demonstrate that Mr. S lacked what the Court has previously said it needed to have that care and control. We also heavily criticized the number of assumptions the officer’s arrest was based on. The judge agreed with many of our criticisms.

The Results

The judge found the arrest to be a “serious breach” with a “serious impact on Mr. S,” and excluded the evidence obtained from the arrest. The Crown did not contest that their case was too reliant on the lost evidence to proceed, and the Court dismissed Mr. S’s charges. Mr. S was free, unhindered by a criminal record, and the state was once again shown that rights cannot be violated based on assumption and suspicion alone.


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