R. v. A.P.

(Calgary PC) Client was charged with impaired driving and refusing to supply a breath sample at roadside. The defence argued a plethora of issues under the Charter. The trial judge ultimately entered a judicial stay of proceedings on grounds that the police contravened section 8 by arresting the client without authority pursuant to section 495 of the Criminal Code.  Section 495 of the Criminal Code of Canada stipulates that for a hybrid offence such as refusing to supply a roadside sample, the police can only arrest if certain preconditions to the arrest are met. Those preconditions are as follows: (1) the police cannot ascertain the identity of the accused.  (2) The officer has reasonable grounds to believe the accused will fail to attend court.  (3). The arrest is necessary to bring the commission of the offence to a halt. (4) The arrest is necessary to preserve evidence. If these conditions are not met, it is very likely that the arrest of the accused was "unlawful".  In recent years police in Calgary and other jurisdictions have used the power of the uniform to initiate arrests under s. 495 rather than their powers conferred by the criminal law. AP has become one of the routinely cited cases for Charter challenges under s. 495.  David Chow is a Calgary impaired driving lawyer who routinely makes unique and sophisticated arguments.