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Yu-Sung Soh, in a previous post, expressed his frustration over what he perceived as an absence of common sense in R. v. Rhyason 2007 SCC 39. As Julian Ho has provided a synopsis of the case, I will not engage in an extensive summary of the facts. However, I do wish to counter Yu-Sung’s argument that legal formalities do not protect individuals from unreasonable state intrusion. This protection is actually derived from a strict adherence to due process, as the minority persuasively argues in Rhyason. The sharply divided Supreme Court demonstrates that the intricacies of due process are not always clear, resulting in an exercise in semantics that understandably sparked Yu-Sung’s criticism. Yet the minority’s assertion that due process requirements result in less confusion is a compelling one. Followed closely, due process affords more common sense to the legal system than a wavering and often emotional approach to the rules, especially in drunk driving cases.
In Rhyason, the main source of contention was whether the officer on duty had the appropriate grounds to demand a breath sample from Mr. Rhyason following a car accident. Section 254(3) of the Criminal Code governs the requirements necessary for a breath sample demand: the peace officer must believe on reasonable and probable grounds that a person has driven in an impaired state in order to request a sample. The trial judge incorrectly stated that there is no strict requirement that an arresting officer have evidence of impairment due to alcoholic consumption. Rather, the judge said that evidence of consumption, coupled with a combination of facts that formed the officer’s reasonable and probable grounds, could adequately indicate impairment and justify the breath sample demand. The relevant facts in this case included Mr. Rhyason’s bloodshot eyes, slow blinking, obvious shaking, and odour of alcohol on his breath, all noted by the officer at trial. Due to these observations, the trial judge decided that the officer did have the necessary grounds to demand a breath sample from Mr. Rhyason.
The SCC was in agreement that the trial judge’s explanation of the test was incorrect. However, the majority determined that the judge merely misspoke in his assessment of the breath sample requirements, and that read as a whole, the judge’s reasons reflect a proper application of the test. The minority disagreed with this characterization, holding that an overall finding of reasonable and probable grounds was not sustained by the judge’s findings. The minority also highlighted the fact that an accident with no other obvious cause, a factor that often contributes to a finding of reasonability, did not form part of the officer’s stated grounds for believing an offence had been committed. The trial judge’s reference to the accident was therefore characterized by the minority as an ex poste facto inference drawn at trial to justify his approval of the breath demand. In light of this argument, in addition to the trial judge’s mischaracterization of the legal test, the minority found that the breath demand was unjustifiable.
The minority concluded with a particularly interesting observation in light of Yu-Sung’s opinion. The dissenting judges suggested that if the trial judge had used the proper legal test of reasonable and probable grounds for impairment, rather than assuming that consumption was enough to justify a breath sample demand, he might not have so easily glossed over the fact that the accident was not given much weight by the officer. Essentially, the minority advocated for a close adherence to the legal test in order to cut down on the desire to attribute subjective and ex poste facto explanations to areas of factual contention.
This may seem counterintuitive at first, as increased common sense would not appear to flow from a reinvigorated devotion to rules. Confusion over rules, requirements and arguable misstatements led to this series of appeals, after all. Strict readings do not seem particularly helpful, since closely following a “reasonable and probable grounds” requirement does not clarify what constitutes the meaning of reasonability. However, following such legal indicia ensures that rules are not bent in highly emotional cases, causing the uneven administration of criminal justice.
It is clear from the contentious breath sample that Mr. Rhyason was driving while impaired, and to argue over the admissibility of the incriminating sample would appear nonsensical at first. Viewed in light of the underpinnings of the criminal justice system, however, admitting ill-gotten evidence is a highly problematic side effect of wavering legal standards. By permitting the trial judge to significantly mischaracterize the legal test, thus admitting the contentious breath sample, it appears as though the SCC was acting upon the greater goal of convicting a known drunk driver. While this is an admirable intention, it sits upon a slippery slope. How far can a trial judge deviate from a legal test before a court draws a line? Under what circumstances are such deviations allowed, and which topics elicit a stricter adherence to rules? The further away from a close reading the court drifts, the more subjective the basis for a legal finding becomes. This is certainly not a common sense approach to legal rules. A closer reading should prevail, especially in such emotional cases, to reduce the increased possibility of unfairness in criminal trials.