R. v. Deighan
The Court held that the officer had reasonable and probable grounds to arrest the appellant for intoxication and intended driving, that an accused's subjective belief in the unlawfulness of an arrest is irrelevant and not a defence, and that the sentence was properly imposed with 71 days remaining to be served on...
Source-derived case information.
- Citation
- C30177
- Parties
- Respondent: Her Majesty the Queen; Appellant: Gary Wayne Deighan
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 28 June 1999
- Procedural Posture
- Criminal / Appeal (court of Appeal Decision)
- Outcome
- Leave to appeal granted; appeal dismissed.
- Legal Topics
- Arrest and Detention, Reasonable and Probable Grounds, Intoxication, Intermittent Sentence, Defences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Her Majesty the Queen
Respondent
Gary Wayne Deighan
Appellant
Procedural Posture
Criminal / Appeal (court of Appeal Decision)
Legal Issues
- 1 Whether the arresting officer had reasonable and probable grounds to arrest the appellant for intoxicated operation
- 2 Whether an accused's belief that an arrest is unlawful constitutes a defence
- 3 Whether the sentence imposed contained an error and calculation of remaining intermittent sentence days
Ratio Decidendi
The Court held that the officer had reasonable and probable grounds to arrest the appellant for intoxication and intended driving, that an accused's subjective belief in the unlawfulness of an arrest is irrelevant and not a defence, and that the sentence was properly imposed with 71 days remaining to be served on the specified intermittent terms.
Court Disposition
Leave to appeal granted; appeal dismissed.
Orders
- Leave to appeal granted
- Appeal dismissed
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Deighan Collection Decisions of the Court of Appeal Date 1999-06-28 Docket numbers C30177 Judges Doherty, David H.; Goudge, Stephen Thomas; O’Connor, Dennis Subject Criminal Decision Content DATE: 19990628 DOCKET: C30177 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) v. GARY WAYNE DEIGHAN (Appellant) BEFORE: DOHERTY, GOUDGE and O’CONNOR JJ.A. COUNSEL: Matthew T. McGarvey for the appellant Miriam Bloomenfeld for the respondent HEARD: June 24, 1999 On appeal from the order of Mr. Justice MacPherson dated June 25, 1998. ENDORSEMENT [1] The trial judge found that the officer had reasonable and probable grounds to believe that the appellant was intoxicated and intended to drive his motor vehicle away from the scene. We reject the contention that the appellant’s level of intoxication and his words were not such as could reasonably justify those findings. The finding of intoxication was available on the evidence. We do not agree that as a matter of law only extreme intoxication amounting to stupefaction will suffice to justify an arrest under the relevant legislation. The findings of fact are supported by the evidence and, in our view, there is no error in law. [2] A belief that an arresting officer does not have reasonable and probable grounds to arrest and that the arrest is therefore unlawful is not a defence to the charge. The Crown must prove that the arrest was in fact lawful and that it was made on reasonable and probable grounds, but an accused’s assessment of the lawfulness of the arrest is irrelevant. [3] In our view, the sentence imposed reveals no error in law. However, we wish to make it clear that on the proper interpretation of the sentence, the appellant has 71 days left to serve on this intermittent sentence. It is also our intention that the appellant serve the sentence on the normal terms, that is that he surrender by 7:00 p.m. on each Friday and that he be released by 6:00 a.m. or earlier, if possible, on each Monday until the sentence is served. [4] Leave to appeal is granted and the appeal is dismissed.