Is lack of reasonable and probable grounds still a defence for an impaired driving or over 80 case? Well, this is an interesting issue. I did a video on this number of years ago and this was a very legitimate defence where we regularly won cases on and let me give an example of how the defence worked and theory could still work but I’ll explain how this has become more limited.
So, the police see you swerving and maybe have an odour of alcohol on your breath, a swerve, slight swerve and an odor of alcohol. That's it. And one swerve. Now they have to make a decision. Do I have reasonable grounds that's reasonable and probable grounds to arrest that person for impaired driving? In other words, do I really have grounds that they're impaired, just based on an odour of alcohol and just one swerve. Or should I give them a screening test because I don't have those reasonable grounds? I would argue in that case, there’s an argument that they should maybe give them a screening test because that is sort of on the edge that they may not have proper grounds. Now, back in the old days, if I might put it this way, we brought a section eight search and seizure argument, under the Charter and a section nine, unlawful detention, that they didn't have proper grounds, with a view to excluding that evidence, excluding the breath sample, and any statements they made under section 24(2) to the Charter. 24 (2) says, the breach has brought the administration of justice into disrepute. It was all sorts of tests they have to exclude it so that was really good defence. We won a lot of cases for that because the police sometimes overstep their boundaries. They arrest someone when they didn't really have grounds, they just had an odour of alcohol and maybe one other minor symptom that was just slight. By the way, if you have a bit of concerted bad driving and a slur and an odour of alcohol, that's probably reasonable grounds. I mean, I don't make it more, make a rule of thumb but when you have, you know more than say, when you have at least three symptoms, it's probably reasonable probably grounds. That's a bit of a rule of thumb, although I don’t want to say that but slurring and bad driving, clearly is a motor vehicle accident, and an odour of alcohol could be, so we won a lot of cases like that. So, what happened in recent years, the Supreme Court of Canada came out and Ontario Court of Appeal. And they really limited that defence because under 24, two of the Charter, there's certain tests that have to be applied to whether administration justice brought in disrepute. And the Court essentially said they really limited the defence. It's hard to win it now because it has to be a very egregious breach. One of our lawyers recently won a case, which was a really interesting case on this very point. Where it was an egregious breach, the court found that the officer really, screwed up and breach their rights. But just in a standard, you know what the officer made a bad judgment call but it was they were doing it. Honestly, you're probably not going to win an RPG argument anymore, reasonable probably grounds argument. I have won in another case, which is very interesting where not to get into it. But the officer really screwed up. I think I'm going to be able to establish the breach in that case, but it's been really narrowed now. So, it's going to be hard, harder right. Now, on the other hand, if you've got a refusal case, the interesting thing about if you refuse to provide a breath sample, by the way, you should tend to always do the breath sample. I’m never telling someone to refuse. But if the officer lacked reasonable probably grounds to arrest someone for impaired driving, and they ultimately refused the breath sample you have an absolute right to refuse if the officer didn't have reasonable probable grounds, so the case gets thrown out. So that defence is still valid. I have a video on that. So, the message I'm giving you unfortunately, I’m a bit of the bearer of bad news. If you're charged with a DUI, is the reasonable probably grounds section eight Charter application and section nine unlawful detention application where you're arguing lack of reasonable probably grounds to throw out your breath samples that's become a much more difficult, not impossible, but much more difficult type of application to bring and it used to be kind of liquid gold, won those things for years, but, you know, a lot of commentators think it's a good thing and I won’t comment either way. And, you know, DUI people drinking driving is not a good thing, obviously. So, let's face it, but that's it in a nutshell about what's going on with reasonable probable grounds defence side of the Charter in Canada.
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