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. (3rd) 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. (3rd) 482 (Ont.
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. (3rd) 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.
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