Rhyason: Legal Reasoning vs. Common Sense

Perhaps the summer vacation has dulled any legal reasoning abilities I may have gained in the past two years of law school, but reviewing the recent Supreme Court of Canada decision in R. v. Rhyason, I was taken aback by the disconnect between the type of reasoning engaged in by lawyers and judges and common sense that people use to make decisions in their daily lives.

Rhyason involves a person who was charged and convicted of impaired driving causing death. For those who are interested, Julian Ho provides a more comprehensive summary of the Rhyason decision in an earlier post.

The issue at the heart of the dispute is whether the conviction should be set aside because the trial judge used an inappropriate test to hold that the police officer at the scene of the accident had reasonable and probable grounds to demand a breath sample. The trial judge had made certain statements in his reasons which indicated that evidence of mere consumption (rather than impairment) was enough to order the breath test.

The SCC unanimously held that a police officer must have something more than evidence of mere consumption of alcohol in order to demand a breath sample. However, they were split 5-4 in upholding the conviction, with the majority holding that, when read as a whole, the trial judge’s reasons applied the correct test despite his “misstatement.”

For non-lawyers, this type of decision must be bewildering. It is not a case which deals with whether or not the accused was impaired when he drove and killed a pedestrian at a crosswalk. The results of the breathalyzer test showed that his blood alcohol level was well over the legal limit. It is not even a case which deals with whether or not the police officer at the scene had reasonable and probable grounds to demand a breath sample from the accused. For both the majority and the minority, it appears that evidence of circumstances of accident, which took place at a dry, well lit crosswalk, combined with the police officer’s observations of the accused, who had bloodshot eyes, the smell of alcohol on his breath, and was shaking, may have been sufficient to provide probable cause. The minority’s problem with this position is that the police officer did not explicitly state that the circumstances of the accident formed part of his belief that the accused was impaired. Justice Charron, for the minority, wrote:

What defeats the argument here is that the circumstances of the accident did not form part of the evidential basis upon which Constable Stevens based his demand. Had Constable Stevens given evidence about his observations of the scene of the accident, and relied on inferences drawn from those observations as part of his basis for making his demand, the situation might have been different. But Constable Stevens nowhere said that an “accident with no other obvious cause” formed part of his grounds for believing that an offence had been committed.

While I understand that judges can only use the evidence before them, common sense makes it difficult for me to accept that the circumstances surrounding the accident would not be in the police officer’s mind as he decided to demand a breath sample. The fatal accident was the very reason why Constable Stevens was on the scene observing and questioning the accused. The lack of any other explanations for the cause of the accident must have been at the forefront of the officer’s thoughts. I do recognize that courts cannot simply infer or assume the state of the officer’s mind where there has not been sufficient testimony to that effect. However, it is a strange notion that this conviction could have been overturned simply because the police officer had not explicitly provided a step-by-step account of his thought process at the scene, when it is clear that most ordinary people in the circumstances would have come to the same conclusion as the officer.

However, the analysis does not end there. A further consideration for the SCC was whether the trial judge, regardless of the police officer’s testimony, applied the correct test in determining that there was reasonable and probable grounds. From a plain reading of the impugned passage from the trial judge’s reasons, it appears that he did not:

There is no strict requirement that the officer deciding to arrest or demand a breath sample have evidence of impairment (as distinct from, and additional to, mere consumption) before proceeding … Therefore, it is clear that the argument of the Accused, to the effect that the officer must have evidence of impairment as well as consumption, fails.

Notwithstanding this statement, the majority constructed an artificial reading of trial judge’s reasons by making connections and implications from other parts of the judgment in order to arrive at what some may see as the correct decision, at least according to common sense.

I understand the rationale behind providing individuals with protection against unreasonable intrusions by the state, and that the courts are one of the most important pillars of that protection. Still, there must be an approach to providing this protection that allows for common sense to prevail over what are purely legal formalities.