R. v. Bush, 2010 ONCA 554 (CanLII)
[54] Whether reasonable and probable grounds exist is a fact-based exercise dependent upon all the circumstances of the case. The totality of the circumstances must be considered: see Shepherd at para. 21; R. v. Rhyason, 2007 SCC 39 (CanLII), 2007 SCC 39 (CanLII), 2007 SCC 39 (CanLII), 2007 SCC 39; R. v. Elvikis [1997] O.J. No. 234 at para. 26; Censoni at para. 47. That an accident occurred, including the circumstances under which it occurred and the possible effects of it, must be taken into account by the officer along with the other evidence in determining whether there are reasonable and probable grounds to arrest for impaired driving. Consumption plus an unexplained accident may generate reasonable and probable grounds although that may not always be the case: Rhyason, supra at para. 19.
[55] In assessing whether reasonable and probable grounds existed, trial judges are often improperly asked to engage in a dissection of the officer’s grounds looking at each in isolation, opinions that were developed at the scene “without the luxury of judicial reflection”: Jacques at para. 23; also Censoni at para. 43. However, it is neither necessary nor desirable to conduct an impaired driving trial as a threshold exercise in determining whether the officer’s belief was reasonable: R. v. McClelland, [1995] A.J. No. 539 (C.A.).
An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as the essential test. There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively existed; Censoni at para. 46. The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding of reasonable and probable grounds based on the observed indicia and available information: R. v. Costello (2002), 22 M.V.R. (4th) 165 (Ont. C.A.) at para. 2; Wang, at para. 21.
Consideration of the totality of the circumstances includes the existence of an accident. However, that the accident could have caused some of the indicia relied upon when they could also have been caused by the consumption of alcohol does not mean the officer has to totally eliminate those indicia from consideration: R. v. Duris, 2009 ONCA 740 (CanLII), 2009 ONCA 740 (CanLII), 2009 ONCA 740 (CanLII), 2009 ONCA 740 at para. 2. They have to be considered along with all the other indicia in light of the fact there may be another explanation. To the extent that Uppal determines otherwise, with respect, it was wrongly decided.
[58] Here the investigating officer testified that he took into consideration that the respondent had been in an accident. In assessing whether reasonable and probable grounds objectively existed, the trial judge appropriately considered that there had been an accident. However, that there might be another explanation for some of the factors the officer properly took into account in forming his opinion of impairment to drive did not eliminate the indicia or render them unreliable.
I am persuaded that the appeal judge erred in finding the trial judge had permitted the accident to muddy the waters and failed to assess all the surrounding circumstances.
In making his or her determination, the officer is not required to accept every explanation or statement provided by the suspect: Shepherd at para. 23. That the officer turned out to be under a misapprehension is not determinative: Censoni at para. 35. The important fact is not whether the officer's belief was accurate. It is whether it was reasonable at the time of the arrest. That the conclusion was drawn from hearsay, incomplete sources, or contained assumptions will not result in its rejection based on facts that emerge later. What must be assessed are the facts as understood by the peace officer when the belief was formed: R. v. Musurichan, [1990] A.J. No. 418 (C.A.).
[67] An officer is required to assess the situation and competently conduct the investigation he or she feels appropriate to determine if reasonable and probable grounds exist. In some cases, that might include interviewing witnesses and/or the suspect if necessary: Golub at para. 19. In others, the officer’s observations and information known at the time may readily establish the requisite grounds.
[68] Here, the officer could have asked the respondent if he had consumed alcohol. What weight the officer attached to the answer would have been for the officer to determine. If he said he had one beer or nothing to drink, the officer was not required to accept what he was told and terminate the investigation.
[69] The officer could have asked the respondent how the accident occurred. However, if he provided an explanation unrelated to intoxication, the officer was not required to accept the explanation and eliminate the accident from consideration. At trial, the respondent admitted that he hit the curb because he was making cell phone calls and looking up numbers as he drove. His cell phone records confirmed he made six calls to his girlfriend which were continually disconnecting within five minutes of the accident. Continuing to make telephone calls while driving into curbs could also be seen as a sign of impairment: see Shepherd at para. 23.
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