Appeal court decision compares ‘believe’ and ‘suspect’

Law360 Canada (September 25, 2024, 11:35 AM EDT) --

John L. Hill

If seeing is believing, is seeing also suspecting? The answer to that question was at the heart of a recent case in the Ontario Superior Court, R. v. Jones, 2024 ONSC 4486. Although the distinction between the words “believe” and “suspect” may seem trivial, it was the basis for the Crown’s winning an appeal and having a new trial ordered.

Police stopped Derek Jones in a west-end Ottawa shopping centre after an observer noticed a man stumbling toward a car, appearing intoxicated. When the police officer arrived, the car had been moved from the location indicated by the dispatcher. The physical description of the man reported as intoxicated matched Jones. The vehicle that Jones was approaching had been reported as stolen.

As the officer approached Jones, he was asked if he had anything to drink. Jones, using profane language, refused to address the issue. Jones was arrested for possessing stolen property and placed in the police cruiser. In a search incidental to the arrest, police located the car keys to the vehicle Jones had approached. Police also detected the odour of alcohol on Jones’s breath. The car keys found on Jones started the car with the stolen plates. Jones refused a breathalyzer test. This led to additional charges for operating a conveyance while prohibited and causing a disturbance.
After a trial, the Crown withdrew the operating a conveyance while prohibited charge. The Crown did proceed with refusing to comply with the breathalyzer demand, but the trial judge found the accused not guilty. He did not find the police had reasonable and proper grounds “to believe” Jones had operated the vehicle. The Crown appealed that decision.

Justice Owen Rees heard the summary conviction appeal. The Crown argued that the trial judge erred in acquitting Jones because the police officer lacked reasonable and probable grounds to believe Jones had driven or had care and control of a motor vehicle. The governing section of the Criminal Code, s. 320.27(1), says that to make the demand, the police officer needed “reasonable and probable grounds to suspect” the violation. Did the use of the word “believe” recorded in the trial judge’s decision constitute an error in law requiring appellate intervention when the trial judge ought to have considered what the arresting officer suspected?

Justice Rees found that a police officer may make a screening demand once the officer has reasonable grounds to suspect that the person has alcohol in their system and, secondly, that the person has driven or had the care and control of a motor vehicle within the previous three hours.

Reasonable suspicion and reasonable grounds to believe are distinct standards. Reasonable suspicion is a lower standard. While suspicion and belief must be grounded on objective facts, reasonable suspicion engages the reasonable possibility of criminal behaviour. Reasonable belief requires a reasonable probability of criminal activity (R. v. Kang-Brown, [2008] 1 S.C.R. 456). Reasonable suspicion means more than mere suspicion but something less than a reasonable belief. Reasonable belief requires a credibly based probability (Hunter et al. v. Southam Inc. [1984] 2 S.C.R. 145; R. v. Fearon, [2014] 3 S.C.R. 621)

On reading the trial judge’s decision functionally and contextually, as required under R. v. G.F., [2021] S.C.J. No. 20, Justice Rees concluded the trial judge applied the wrong legal test. Furthermore, using the term “reasonable grounds to believe” throughout the trial judge’s judgment, Justice Rees could not conclude that the use of the phrase was simply a verbal slip of the tongue.

Although a trial judge is entitled to deference when assessing the facts of a case, correctness is the standard applicable when determining the application of law to those facts (R. v. Shepherd, [2009] 2 S.C.R. 527). An appellate court must conduct its own legal analysis and substitute its view when a trial judge has erred (R. v. MacKenzie, [2013] 3 S.C.R. 250).

In the Jones case, it was shown that although the words “believe” and “suspect” are commonly used interchangeably in common parlance, it is an error in law for a judge to do so.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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