From Reasonable Suspicion to Reasonable Grounds to Beyond a Reasonable Doubt: Legal Burdens in Drinking and Driving Offences

In R. v. Bush, 2010 ONCA 554 (CanLII), 259 C.C.C. (3d) 127, at paras. 36-37, the Court of Appeal set out the statutory regime for the enforcement of drinking and driving offences and the legal burden attaching to each step:

Drinking and driving prosecutions involve a continuum of findings, beginning with a reasonable suspicion the driver has alcohol in his or her body, the standard for an approved screening device (roadside) demand pursuant to s.254(2) of the Criminal Code. At the other end of the continuum, is the standard for conviction, proof beyond a reasonable doubt that the operator's ability to operate a motor vehicle was impaired by the consumption of alcohol or that the driver's blood alcohol concentration was over the legal limit.

Between suspicion and proof beyond a reasonable doubt lies reasonable and probable grounds.  Section 254(3) of the Criminal Code authorizes peace officers to demand Intoxilyzer breath samples provided the officer "has reasonable and probable grounds [sic] to believe that a person is committing or at any time within the preceding three hours has committed" the offence of impaired operation or driving 'over 80'" (emphasis added). Reasonable and probable grounds does not amount to proof beyond a reasonable doubt or to a prima facie case.

Focusing, then, on the standard of “reasonable and probable” grounds, the Court, at paras. 47-48, made clear that,

There is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probable grounds to arrest: R. v. Deighan, [1999] O.J. No. 2413, 45 M.V.R. (3d) 90 (C.A.), at para. 1. Impairment may be established where the prosecution proves any degree of impairment from slight to great: R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 12 O.R. (3d) 90, [1993] O.J. No. 18 (C.A.), affd (1994), 1994 CanLII 94 (SCC), 18 O.R. (3d) 800, [1994] 2 S.C.R. 478, [1994] S.C.J. No. 51. Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function, whether impacting on perception or field of vision, reaction or response time, judgment and regard for the rules of the road … .

The test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive was even slightly impaired by the consumption of alcohol … . [Emphasis added.]

The significance of an accident in proving reasonable grounds 

In R. v. Rhyason, 2007 SCC 39 (CanLII), [2007] 3 S.C.R. 108, at paras. 18 and 19, the Supreme Court observed that,

[T]here is abundant jurisprudence confirming that the circumstances of an accident can be taken into account, along with other evidence, in determining whether an officer had reasonable and probable grounds to arrest an individual for impaired driving.

This is not to suggest that consumption plus an unexplained accident always generates reasonable and probable grounds or, conversely, that it never does. What is important is that determining whether there are reasonable and probable grounds is a fact-based exercise dependent upon the circumstances of the case.

An accident involving a single vehicle or, as in the case of R. v. Rhyason, a collision with a pedestrian, is more incriminatory than an unexplained accident involving two cars on a busy highway.

See R. v. Lofthouse, 2017 ONCJ 9 (CanLII), at para 40.

Nevertheless, it is of course the totality of the circumstances that must be considered.

 R. v. Bush, supra, at para. 54.

While incoherence, and even slurring and misidentification, can potentially be explicable as sequellae of the physical or other trauma of the accident, slurring is also a classic symptom of alcohol impairment and providing false names can be evidence of compromised judgment.