Reasonable and probable grounds defined

R. v. Lapensee, 2010 ONSC 2171, released this week, has a good summary of the law regarding reasonable and probable grounds.  This case deals with a drinking and driving matter but the definition is broad enough to use in other areas:

39.  Reasonable and probable grounds has been described as "credibly based probability-reasonable probability":  The Queen v. Baron et al 1993 CanLII 154 (S.C.C.), (1993), 78 C.C.C. (3^rd) 510 (S.C.C.) at 531-2 per Sopinka J.  It has also been stated that reasonable and probable grounds "does not amount to proof beyond a reasonable doubt":  Proulx v. Quebec (A.G.), [2001] S.C.J. No.65 at para, 151,206 per L'Heureux-Dube J.  In Regina v. Simpson 1993 CanLII 3379 (ON C.A.), (1993), 79 C.C.C. (3^rd) 482 (Ont. C.A.) at 501 Doherty J.A. referred to a "Constellation of objectively discernible facts" as underlying a finding of reasonable grounds.  In R v. Hall [2004] O.J. No. 6175 the Ontario Superior court held that" it would be improper to look at the relevant factors in isolation".  Referring to R.v.Censoni [2001] O.J. No. 5189 the court in R v. Hall held that "the officer's subjective belief is typically based on a constellation of factors.  It is the combined effect of the available information which must be considered in determining the officer's subjective belief." (para. 10).  Furthermore, the court held that  the officer making the breath demand is only required to have reasonable and probable grounds for his belief, he is not required to be satisfied that there is enough evidence to establish a prima facie case for conviction before he is entitled to arrest or demand a breath sample. (para. 8).  In R.v. Oduneye ((1995) 15 M.V.R. (3^rd) 161, the Alberta Court of Appeal, after a review of the leading authorities, determined that the question which must be asked is the following; "Does the totality of the evidence available to the peace officer at the time he formed the belief support an objective finding that he had reasonable and probable grounds to believe that the ability of the driver was impaired by alcohol?" (para. 20).

40.  In determining whether certain facts can properly be considered in forming a belief that reasonable and probable grounds exist, the courts have provided some guidance.  In R. v. Stellato (1993), O.J. no. 18 (Ont.C.A.), confirmed 1994 CanLII 94 (S.C.C.), (1994) 90 C.C.C. (3^rd) 160 (S.C.C.), the court held that Impaired driving does not require marked impairment but simply requires impairment, even of a slight degree. (para.14) A fortiari, a police officer need only have a subjective belief of a slight degree of impairment to make a demand under section 254 (3) of the Criminal Code.  In R. v. Hall, supra at para. 20-21 the court held that information leading the officer to believe the subject is lying is a factor which can be taken into consideration in determining whether or not reasonable and probable grounds exist. Also, in R. v. Hall, supra (at para. 18) and at R v. Censoni, supra (at para. 36-42) the court held that an officer can draw on his knowledge and experience in forming his subjective belief.

41.  The test for determining whether an arresting officer has reasonable and probable grounds has both a subjective and an objective component.

42.  I must determine firstly whether Constable MacKnight was acting in good faith, and in so doing subjectively believed that Mr. Lapensee was driving while impaired. 

43.  Secondly, I must also determine whether a reasonable person in the situation of the officer would, on an objective analysis, also reach that conclusion; R.v. Storrey, 1990 CanLII 125 (S.C.C.), [1990] 1 S.C.R. 241 at para. 17.