ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
KAREN DION-MALOZZI
Before Justice T. Lipson
Released on March 11, 2025
Mr. H. Manning counsel for the Crown
Mr. D. Locke counsel for the defendant
Lipson J.:
REASONS FOR JUDGMENT
1Ms. Dion‑Malozzi entered pleas of not guilty to charges of impaired operation and Over 80mgs.
Overview of the evidence
2Shortly before midnight on November 16, 2024, Ms. Dion‑Mallozzi’s black Cadillac SUV left the eastbound lanes of Eglinton Avenue West, mounted the curb, and struck a wooden hydro pole. A passing motorist, Mr. Murtaza Haidari, saw the collision, called 911, and assisted her from the driver’s seat. No other occupant was seen. The accident was captured by Mr. Haidari’s in car camera and entered into evidence.
3Constable Thomas arrived within minutes. The road was dry and traffic light; the airbags had deployed. Ms. Dion‑Mallozzi was crying, breathing quickly with an audible wheeze on inhalation, and intermittently leaning on the vehicle. She identified herself and said she had consumed two glasses of wine earlier that evening.
4Mindful of her distress, the officer requested an ambulance as a precaution. Based on his experience as a breath technician and former paramedic, P.C. Thomas concluded that despite hyperventilating she remained lucid, oriented, and capable of following instructions and of providing a proper sample had she chosen to do so. He noted that her exhalation was normal when speaking and that she understood simple directions.
5At approximately 11:59 p.m., P.C. Thomas issued an Approved Screening Device (ASD) demand. He explained and demonstrated the technique: sealing the lips around the mouthpiece and blowing one steady breath until the device signalled a valid sample. Several opportunities were given. Each time, she either held her breath or produced only a short puff that the device would not accept. Between attempts she conversed clearly and showed no difficulty exhaling while speaking. After repeated failures, he arrested her at 12:07 a.m. for refusing to comply with the ASD demand and advised her of her right to counsel.
6As her breathing settled, additional signs of intoxication emerged: slurred speech, bloodshot and watery eyes, and an odour of alcohol on the breath. Considering those observations together with the single‑vehicle collision, her admission of drinking, and her refusal‑type behaviour moments earlier, P.C. Thomas formed reasonable and probable grounds at 12:13 a.m. to arrest for impaired operation. He issued an approved‑instrument demand and again advised her of her right to counsel, which she wished to exercise.
7At Etobicoke General Hospital, officers held off on investigation until she could consult a lawyer. She attempted to reach counsel of choice but lacked contact details. Duty counsel returned the call at 2:19 a.m. She spoke privately with duty counsel for several minutes. Only then did the breath technician proceed.
8Qualified breath technician Constable Darayaram had readied the Intoxilyzer 8000C and confirmed satisfactory diagnostics, blank, and calibration checks. He obtained two suitable samples at 2:35 a.m. and 2:58 a.m., registering 217 mg and 211 mg of alcohol in 100 mL of blood. Between samples he observed that when she walked a short distance, she displayed a swaying gait. A Certificate of a Qualified Technician was completed and served
9The issues in this case are:
(1) whether the ASD demand and the refusal arrest were lawful under ss. 8 and 9;
(2) whether the impaired‑operation arrest was lawful
(3) whether the right to counsel under s. 10(b) was respected;
(4) if any breach occurred, whether exclusion of evidence is justified under s. 24(2); and
(5) whether the Crown has proven the offences beyond a reasonable doubt.
Applicable Legal Principles
10An officer may require a driver to provide a roadside breath sample ‘forthwith’ where there are reasonable grounds to suspect alcohol in the driver’s body within the prior three hours (Criminal Code, s. 320.27(1)(b)). ‘Forthwith’ connotes immediacy; the Supreme Court has emphasized that the device must be immediately available and that delay undermines the demand (R. v. Woods, 2005 SCC 42; R. v. Breault, 2023 SCC 9).
11There is no right to consult counsel before complying with a valid ASD demand. Once a person is arrested or detained for investigative purposes, police must promptly inform them of the right to counsel and provide a meaningful opportunity to exercise it, holding off on investigation until then (R. v. Thomsen, 1988 73 (SCC), [1988] 1 S.C.R. 640; R. v. Orbanski; R. v. Elias, 2005 SCC 37; R. v. Suberu, 2009 SCC 33; R. v. Taylor, 2014 SCC 50).
12If a Charter breach is established, the court considers exclusion of evidence under s. 24(2) using the framework in R. v. Grant, 2009 SCC 32: the seriousness of the breach, its impact on the accused’s Charter‑protected interests, and society’s interest in a trial on the merits.
13For impaired operation, any degree of impairment, even slight, suffices; the trier of fact considers the cumulative indicia (R. v. Stellato, 1994 94 (SCC), aff’g 1993 3375 (ONCA)). For the Over 80 count, properly obtained approved‑instrument readings are conclusive proof of BAC at analysis if statutory prerequisites are met, and a two‑hour presumption applies when the first sample is taken more than two hours after driving.
Analysis of the Charter Issues
Section 8 and the lawfulness of the ASD demand.
14The officer had more than a hunch: a late‑night single‑vehicle collision on a clear, dry road; an admission of recent drinking; and behaviour consistent with alcohol consumption. Those facts easily met the low threshold of reasonable suspicion for a ‘forthwith’ ASD demand under s. 320.27(1)(b).
15The defence submits that the officer should not have proceeded with the ASD because Ms. Dion‑Mallozzi was hyperventilating. I respectfully disagree.
16The officer’s decision to proceed with the ASD demand despite Ms. Dion’s initial distress did not render the demand unlawful nor did it amount to a Charter breach. The legal framework governing roadside screening emphasizes the constitutional importance of immediacy. The Supreme Court of Canada has confirmed that the validity of the roadside screening regime depends on the requirement that the demand be made and complied with “forthwith,” subject only to short functional pauses necessary to enable the test (R. v. Thomsen, 1988 73 (SCC), [1988] 1 S.C.R. 640; R. v. Orbanski; R. v. Elias, 2005 SCC 37).
17The accused’s observable condition did not amount to a medical emergency or demonstrate an inability to understand or follow simple instructions. She was coherent, answered questions appropriately, identified herself, and demonstrated the capacity to follow directions. Although she appeared anxious and briefly hyperventilated, these were transient post‑collision symptoms typical of situational anxiety. The officer, a former paramedic and flight medic, reasonably assessed that she was able to comply. His immediate call for an ambulance as a precaution reflected attention to her wellbeing, not disregard for it.
18Authorities such as R. v. Breault, 2023 SCC 9; R. v. MacMillan, 2013 ONCA 109; and R. v. Moser, 1992 2839 (ONCA) do not assist the defence. These cases confirm that in unusual or medically risky circumstances, officers may delay a demand; none requires delay absent evidence of actual danger or incapacity. In contrast to the hidden serious injuries in Moser or the competing exigencies in MacMillan, nothing in this case suggested that providing a short, sustained exhalation posed any medical risk. The transient anxiety observed here is far removed from the medical concerns contemplated in those cases.
19The accused’s repeated inability—or unwillingness—to sustain airflow long enough for the ASD to register a proper sample reflected non‑compliance rather than incapacity. By the final attempts, she was breathing normally, conversant, and able to position the mouthpiece. Each attempt involved an abrupt cutoff, indicative of truncation rather than medical limitation. The officer was not required to infer a medical justification nor to delay screening for paramedics to reassess a condition he was qualified to evaluate.
20The officer administered the ASD in a careful, patient, and methodical manner. He demonstrated proper use of the device, coached the accused, provided multiple opportunities, and gave clear warnings. The screening demand was therefore authorized by law, the governing law is reasonable, and the manner of execution was reasonable. The demand did not infringe s. 8 of the Charter, and the associated detention was not arbitrary under s. 9.
Section 9 and the arrest
21The refusal arrest followed repeated opportunities, clear instructions, and a clear finding that she was capable of complying; it was authorized by law and was not arbitrary. Shortly afterward, as her anxiety settled, classic indicia of impairment became apparent — slurred speech, bloodshot and watery eyes, odour of alcohol — which, combined with the collision, admission of drinking, and refusal conduct, provided reasonable and probable grounds to arrest for impaired operation.
Section 10(b) right to counsel
22Police met both duties. Informationally, the right to counsel was given promptly after each arrest. Implementationally, officers held off on any investigation at the hospital until a private call occurred. Although counsel of choice could not be reached, duty counsel returned the call within a reasonable time and spoke privately with Ms. Dion‑Mallozzi before any testing.
Section 7 and the unfairness argument
23Nothing in the police conduct approaches unfairness or oppression. The officer summoned paramedics, moderated his interaction while the accused was distressed, and delayed testing until after legal consultation. Section 7 adds nothing here.
Section 24(2)
24No breach is established. If I am wrong and a technical lapse occurred, I would not exclude the breath results. The officer acted in good faith; the impact on Charter‑protected interests was limited by the hold‑off and private consultation; and the readings are reliable, objective evidence. The Grant factors favour admission.
25In the result, I would admit the breath test results in this case.
Findings on the Charges
26Over 80 (s. 320.14(1)(b)). The technician obtained two suitable approved‑instrument samples (217 mg and 211 mg) after successful diagnostics, blank, and calibration checks and the required interval. Under s. 320.31(1), those readings are conclusive of BAC at the time of analysis; because the first sample was taken more than two hours after driving, the two‑hour presumption in s. 320.31(4) also applies. The Crown has proven this count beyond a reasonable doubt.
27Impaired operation (s. 320.14(1)(a)). The law does not require dangerous or erratic driving; any degree of diminished ability is enough (Stellato).
28First, there is the evidence of the collision. on a dry roadway with light traffic and no external cause, leaving one’s lane and striking a fixed object strongly suggests diminished attention or reaction consistent with the effects of alcohol.
29Second, there are the indicia of impairment displayed by Ms. Dion-Malozzi: slurred speech, droopy and bloodshot eyes, and the odour of alcohol appeared minutes after the collision. Also, the breath technician observed a swaying gait when Ms. Dion‑Mallozzi walked a short distance. That was an independent marker of impaired balance.
30Taken together, these strands form a coherent, mutually reinforcing body of evidence that leaves no reasonable innocent explanation. Alcohol impaired Ms. Dion‑Mallozzi’s ability to operate a motor vehicle at the relevant time.
31The Crown has proven beyond a reasonable doubt that Ms. Dion-Malozzi is guilty of both charges
Released: March 11, 2026
Justice T. Lipson