COURT FILE NO.: 22-A8842 DATE: 2024-08-13

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Appellant – and – Derek Jones Respondent

Counsel: Carl Lem and Julian Whitten, for the Appellant Nader Fakih, for the Respondent

HEARD: July 24, 2024

Reasons for Decision Summary Conviction Appeal Rees J.

Overview

[1] The Crown appeals the respondent’s acquittal on a charge of refusing to comply with an approved screening device demand, contrary to s. 320.15(1) of the Criminal Code, R.S.C. 1985, c. C-47.

[2] The Crown raises two grounds of appeal.

[3] First, it argues that the trial judge applied the wrong legal standard. The Crown argues that the trial judge erred in acquitting the accused because the police officer did not have reasonable and probable grounds to believe that the accused had driven or had care or control of a motor vehicle, when the standard in s. 320.27(1) only requires the police officer to have reasonable grounds to suspect.

[4] Second, the Crown argues that the trial judge erred in assessing the validity of the screening demand at the time of the respondent’s arrest, rather than at the time the police officer made the demand.

[5] The respondent argues that despite the trial judge using the phrase “reasonable and probable grounds to believe”, the trial judge applied the correct standard of reasonable grounds to suspect.

[6] I conclude that the trial judge erred by applying an incorrect legal standard and that this affected the verdict. In the result, the appeal is allowed, and a new trial is ordered.

Facts & Procedural History

[7] The police were dispatched to a shopping centre in Ottawa’s west end. The police were advised that a male appeared to be stumbling as he approached his car, as though he may be intoxicated. When the dispatched officer arrived on the scene, he saw the car had been moved from where he had been told it would be, and it was parked between an LCBO and a bank. The officer ran the car’s license plate through the CPIC database and it was reported stolen.

[8] The officer saw the respondent, Derek Jones, who matched the description provided by dispatch, leaving the LCBO. Mr. Jones walked towards the car, holding two small bottles of vodka. The officer approached him and asked him whether he had anything to drink. Mr. Jones responded, “Go fuck yourself”. The officer immediately arrested him for possession of stolen property.

[9] The officer placed Mr. Jones in the back of the police cruiser. The officer conducted a search incident to arrest and found a car key in Mr. Jones’ pocket. The officer lowered Mr. Jones’ medical mask and smelled alcohol on his breath. The officer then used the car key to start the car found at the scene. He did this to determine whether Mr. Jones had care or control of the car.

[10] Mr. Jones was charged with refusing to comply with an approved screening device demand, contrary to s. 320.15(1) of the Criminal Code; operating a conveyance while prohibited from doing so, contrary to s. 320.18; and causing a disturbance, contrary to s. 175(1)(a)(i).

[11] The Crown withdrew the charge for operating a conveyance while prohibited. Following the close of evidence at trial, the Crown invited an acquittal on the count of causing a disturbance, and the trial judge entered a verdict of not guilty on this count.

[12] The trial judge also acquitted Mr. Jones of refusing to comply with an approved screening device demand. The Crown appeals Mr. Jones acquittal on this count.

Analysis

Standard of review

[13] The Crown argues that the trial judge erred in his application of the legal standard under s. 320.27(1) to the facts of the case. The application of the legal standard to the facts of a case is a question of law: R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20. Although a trial judge’s factual findings are entitled to deference, the ultimate legal conclusion is subject to review for correctness. Thus, an appellate court must conduct its own legal analysis and substitute its view of the correct legal conclusion: R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 54.

Did the trial judge apply the wrong legal standard?

[14] There is no dispute on appeal that the correct legal standard under s. 320.27(1) is reasonable grounds to suspect. The only dispute on the Crown’s first ground of appeal is whether the trial judge applied the wrong legal standard.

The law

[15] Section 320.27(1)(b) of the Criminal Code provides:

320.27 (1) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug:

(b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose;

[16] Section 320.11 defines “operate” to include to drive or to have care or control of a motor vehicle.

[17] Before a police officer may make a screening demand under s. 320.27(1), the officer must have reasonable grounds to suspect two things: (i) that the person has alcohol or a drug in their body; and (ii) that the person has, within the preceding three hours, driven or had care or control of a motor vehicle. For authorities considering the predecessor to s. 320.27(1): see R. v. Matharu, 2017 ONSC 6851, at paras. 22-24; R. v. Pociurko, 2015 ONCJ 583, at paras. 11-13, aff’d 2016 ONSC 6691; R. v. Xhelili, 2011 ONCJ 420, at para. 12; R. v. Mackenzie, 2012 ONCJ 424, at paras. 13-22.

[18] Reasonable suspicion and reasonable grounds to believe are distinct standards. The former is a lower threshold than the latter. The Supreme Court has held that “while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime”: R. v. Chehil, [2013] 3 S.C.R. 49, at para. 26. As Binnie J. explained in R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at para. 75: “‘Suspicion’ is an expectation that the targeted individual is possibly engaged in some criminal activity. A ‘reasonable’ suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.”

[19] By contrast, the reasonable and probable grounds standard requires “reasonable probability” or “credibly-based probability”: Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145, at p. 167; R. v. Fearon, [2014] 3 SCR 62, at para. 66; R. v. Tse, 2012 SCC 16, [2012] 1 SCR 531, at para. 33.

[20] In both cases, the suspicion or belief must be subjectively held and objectively reasonable. They must be “grounded in objective facts that stand up to independent scrutiny”: MacKenzie, at para. 74.

The trial judge applied the wrong legal standard

[21] I must read the trial judge’s reasons functionally and contextually: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at paras. 68-69. Assessed on this basis, I conclude that the trial judge applied the wrong legal test – reasonable and probable grounds to believe rather than reasonable grounds to suspect – to the facts.

[22] The respondent argues that despite the trial judge using the phrase “reasonable and probable grounds to believe”, the trial judge applied the correct standard of reasonable grounds to suspect. I disagree. The trial judge misapplied the standard frequently throughout his reasons for judgment. I am persuaded that this error occurred too many times to be a mere slip.

[23] It is true that the trial judge interjected during closing submissions and correctly identified the legal standard, as the respondent argues. But on that occasion, the trial judge was reading the applicable section of the Criminal Code directly.

[24] The trial judge’s error arose from the defence’s submissions. The trial judge formed the view that s. 320.27(1) requires the officer making a screening demand: (i) to have reasonable grounds to suspect that a person has alcohol in their body; and (ii) to have reasonable and probable grounds to believe that the person has, within the preceding three hours, driven or had care or control of a motor vehicle.

[25] As discussed, this was an error. Section 320.27(1) requires reasonable suspicion of both elements: (i) that the person has alcohol or a drug in their body; and (ii) that the person has, within the preceding three hours, driven or had care or control of a motor vehicle.

[26] Applying the wrong legal test affected the verdict. The trial judge acquitted the respondent on the basis that the police officer who made the screening demand did not, at the time of arrest, have reasonable and probable grounds to believe that the respondent had care or control of the car.

[27] Given my conclusion on the Crown’s first ground of appeal, it is not necessary for me to consider the Crown’s second ground of appeal.

[28] This is not an appropriate case to substitute a conviction. I am not satisfied that the trial judge made all the findings of fact necessary to support a verdict of guilty. Thus, a new trial is the appropriate remedy.

Disposition

[29] The appeal is allowed, and a new trial ordered.

Justice Owen Rees Released: August 13, 2024