Free 30 minute consultation

Get help now!



* All identifying information has been edited to protect client confidentiality.

The police found Angela sleeping in her car. Angela was arrested for impaired and over 80 “care and control” of a motor vehicle.
Angela was sleeping in the driver’s seat of her car with the engine running. The car was parked on the street. The police knocked on the window, but Angela continued to sleep. The police opened the door and spoke with Angela. She was arrested for having care and control of a motor vehicle while impaired. At the station, Angela blew over 80 on the Breathalyzer.
Brett McGarry argued that Angela’s arrest was illegal because the arresting police officer did not have reasonable and probable grounds to believe that she was impaired by alcohol. The officer was extensively cross-examined at the trial to show that he did not understand the legal standard for arresting someone for impaired care and control.
The judge ruled that the police officer lacked the legal grounds to arrest Angela. As a result, Angela’s Charter rights were violated. All the evidence against Angela was excluded. She was found not guilty of all charges. Final result, Angela was found not guilty of impaired care and control.
The trial judge ruled:As my review of Constable Doe’s evidence indicates, he never said he believed he had reasonable grounds to believe the accused’s ability to operate a motor vehicle was impaired and while those words need not be specifically said, I must be satisfied that that was the belief he had and that, more importantly, he understood the belief that he needed to have.It is important that I find that he knew what was required of him before arresting and making a breath demand. He spoke at length about suspicion because of odour in the car. He said she appeared drunk. He went on to explain in the same sentence that what he meant by that is that she might have consumed some alcohol or might be impaired in some way. That is at page seven of the transcript. At page eight, he says he thinks he has grounds to believe she was impaired after she answered his questions. At page ten, he spoke again of the suspicious odour in the car and on her breath. He said again that when he smelled the alcohol that was a suspicion the person had consumed alcohol. He kept referring to the suspicion of the alcohol that I had smelled. He said, “She looks drunk to me.” He kept referring to some grounds. Again when asked at another time what “drunk” meant, he said that was a sign that person has had a few to drink.I find his evidence is ambiguous and it is far from clear that he knew what grounds were required. I am also not satisfied that he smelled alcohol on her breath before the arrest. There is much contradictory evidence on that point. He said, “I think,” in relation to when he smelled the breath and then he was asked if he was certain because it changed from one answer to the next. […]I find this is one of the rare cases where I am not satisfied the officer had the requisite subjective belief necessary to arrest and make the breath demand, and given that I am unable to conclude he smelled alcohol on her breath prior to the arrest, I do not find that objectively the grounds existed either. Therefore I find a violation of the accused’s section 8 and 9 Charter rights.
Brett McGarry Criminal Law
200 Elgin Street, Suite 800 Ottawa, Ontario , Canada K2P 1L5
Phone: 613-884-8576 URL of Map