The defence lawyer for a man charged with impaired driving in 2012 wants the evidence thrown out, arguing the police had no reasonable grounds to arrest his client.

The argument is part of a challenge the defence brought under the Charter of Rights and Freedoms, alleging the man’s rights had been violated.

Daniel Fotheringham, 34, was charged on July 12, 2012 with impaired driving.

That night, the police approached his car as the vehicle was running and in gear, but parked.

Fotheringham was slumped over the wheel and unresponsive to officers’ yelling at him.

They broke the driver’s side window and shone their flashlights into his eyes. One officer grabbed his sternum.

As he stepped out, an RCMP member shouted that he was under arrest.

But the officer didn’t have reasonable probable grounds to arrest his client, defence lawyer Jennifer Cunningham told Judge Michael Cozens on Wednesday in Yukon territorial court.

He should have first conducted an investigation, for example talking to the driver, and smelling his breath before arresting him, the lawyer said.

“There was no evidence of impairment at the time of the arrest,” Cunningham said.

Only after the arrest did one of the officers see a beer on the vehicle console, she said.

The initial approach by the police was justified, she conceded, as they believed his client could have been in medical distress.

While one of the arresting officers, Const. Drew Horbachewsky, testified he could smell alcohol on Fotheringham’s breath, that fact wasn’t in the officer’s notes, the defence noted.

Cunningham asked the judge to ignore that part of the officer’s testimony.

Crown prosecutor Leo Lane confirmed that was the only exclusive evidence before the arrest proving impairment by alcohol.

The officers also testified the man was disoriented and confused.

That, however, is normal, as they had just smashed his window, shone lights into his face and were yelling at him, Cunningham argued.

The officers also started questioning him as they were telling him he had the right to call a lawyer.

Telling him about his rights is not enough – he must have the opportunity to talk to a lawyer before being questioned, she said.

And while Const. Marie-Eve Brindamour testified that the man made that call with Horbachewsky present, she didn’t directly witness it, the defence said.

Horbachewsky himself denied facilitating Fotheringham’s call to his lawyer, she said.

The evidence – results of a breathalyzer – should be thrown out, as the RCMP showed a “complete lack of respect for Fotheringham’s Charter rights,” Cunningham said.

Maintaining Charter standards is more important than adjudicating this case, she said.

At the time of the arrest, Const. Horbachewsky had more than 60 cases of impaired driving in which he acted as a qualified technician, the prosecutor noted.

It was immediately clear for him that Fotheringham was impaired.

And were the judge to rule his rights were violated, the evidence should still be admitted, he added.

The violation was short-lived, and there’s a public interest in having impaired driving cases heard, Lane said.

The accused was not present in court that day.

Cunningham told the court he was supposed to join by phone, but his plane had been delayed and he had been unable to take part.