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Section 24(2) & Reasonable and Probable Grounds in ‘Over 80’ Practice – A Shift Towards Au-Yeung from the (Ontario) Court of Appeal?

Case: R. v. Ho, 2015 ONCA 559 (CanLII)

Keywords: Approved Screening Device; Officer’s Knowledge; Reasonable and Probable Grounds; Impaired Driving; Over ‘80’; Sections 8 and 24 of the Charter; R. v. Au-Yeung

Synopsis:

Police conduct a formal ‘RIDE’ program in the City of Markham. Mr. Ho is stopped for a sobriety check. The officer notes his eyes are bloodshot and the smell of alcohol emanates from the vehicle (note: not from the accused’s breath). Mr. Ho admits to having consumed three ‘drinks’ earlier that night. The officer forms reasonable suspicion, and a demand is made to participate in roadside testing – administration of the ‘approved screening device’ (ASD).

Two ASD’s are present at the ‘RIDE’ checkpoint. One has been ‘tested’ by the officer at the beginning of his shift, the other not. This second device – the one used to test Mr. Ho – is tested by a ‘rookie’ officer. A series of technical/operational errors (on the part of the officer) precede a roadside test where Mr. Ho ultimately registers a ‘fail’, is arrested and handcuffed, driven to local police detachment, booked, and asked to provide additional samples into the Intoxilyzer 8000C. Readings: 132 and 133.

At trial, the arresting officer’s evidence does not show he had subjective reasonable grounds to make the arrest and (in light of the admission that he had no way to know whether the ASD was working properly) those grounds were found not to be objectively reasonable. Consequently, a serious s. 8 breach is found and the breath readings were excluded under ss. 24(2).

The Crown appealed Mr. Ho’s acquittal at trial (on the charge of ‘over 80’) to the Ontario Superior Court of Justice. There McIsaac J. entered a conviction and remitted the matter to the trial judge for sentencing. The appellant brought an application to the Court of Appeal. The appeal was allowed to the extent that the order directing conviction was set aside and a new trial ordered.

Importance:

To better appreciate the significance of the Court of Appeal decision in Ho, it is necessary to consider the stark difference between McIsaac J.’s decision in R. v. Ho, 2014 ONSC 5034 (CanLII) and Ducharme J.’s decision in R. v. Au-Yeung, 2010 ONSC 2292 (CanLII).

Au-Yeung and Ho represent competing views on both the severity of the Charter breach that follows where officers lack the required knowledge to arrest for suspicion of ‘over 80’ at the roadside, and the appropriate remedy for that breach under ss. 24(2).

McIsaac J. minimized the impact of the Charter right engaged when an accused person is handcuffed, arrested, placed in a police car, and transported to the police station for further testing – favouring inclusion of the subsequently obtained breath readings.

On the other hand, the court in Au-Yeung favoured exclusion.

More recently, in R. v. Steele, 2014 CarswellOnt 15534, 2014 ONCJ 583, Paciocco J. favoured the Au-Yeung line and excluded test results on the basis that a serious breach of an accused’s s. 8 right occurred. On the ss. 24(2) analysis, society’s interest in the adjudication of each case on its merits is tempered by the fact that arresting a person where the officer fails to recall even the most basic procedural requirements of the ASD would bring the administration of justice into disrepute.

In Ho, the Court of Appeal decided the reasonableness of the officer’s belief proper protocol had been followed was, “inadequate to provide the necessary grounds for a reasonable belief”. It remains to be seen how lower courts will interpret this judgment in crafting future ss. 24(2) analyses.

Concluding Thoughts:

What is the greater evil: that an accused person arrested without proper grounds has their breath readings excluded (even where those results are in fact ‘over 80’) or that an accused person arrested without proper grounds is subsequently convicted?

For this Court of Appeal, it appears that the former should prevail – otherwise, as in Au-Yeung, the administration of justice will be put into disrepute. The public can be confident that, where an officer arrests a citizen relying on specialized equipment (such as the ASD), they actually understand how to use that equipment.

Counsel for the Appellant: Peter Lindsay and Maleeka Mohamed (Peter Robert Lindsay Professional Corporation, North York)

Counsel for the Respondent: John Patton (Ministry of the Attorney General (Ontario), Toronto)

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Posted: Wednesday, August 05, 2015