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R. v. Shepherd, 2009 SCC 35, [2009] 2 SCR 527 CanLII

The accused was charged with impaired driving, driving “over 80” and failure to stop for a police officer.  The arresting officer saw the accused go through a stop sign without stopping and drive at a speed over the posted speed limit.  The officer activated his police cruiser’s siren and flashing lights, and followed the accused for over three kilometres while the accused accelerated and changed lanes multiple times before finally pulling over.  The accused told the officer that he had not stopped because he thought the police car was an ambulance.  The officer observed that the accused had red eyes, that he smelled of alcohol, that he appeared lethargic and fatigued and that his movements and speech were slow and deliberate.  ...

There is both a subjective and an objective component to establishing reasonable and probable grounds for making a breath demand under s. 254(3) of the Criminal Code.  The officer must have an honest belief that the accused committed an offence under s. 253 of the Code, and there must be reasonable grounds for this belief.  The officer need not demonstrate a prima facie case for conviction before pursuing his investigation.  The issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question of law.  Here, the trial judge erred in finding that the officer’s subjective belief of impairment was not objectively supported on the facts.  There was ample evidence to support the officer’s subjective belief that the accused’s ability to drive was impaired by alcohol.  The officer’s belief was based not only on the accused’s erratic driving pattern, but also on the various indicia of impairment which he observed after he arrested the accused.  Since the officer had reasonable and probable grounds to make the breath demand, the demand was lawful. [3] [17] [20] [23]

Jim O'Neil, LL.B.

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