ONTARIO COURT OF JUSTICE

CITATION: R. v. Altobelli, 2026 ONCJ 272 DATE: 2026 05 08 COURT FILE No.: Oshawa 24-28102607

BETWEEN:

HIS MAJESTY THE KING

— AND —

AUSTIN ALTOBELLI

Before Justice Joseph Hanna

Reasons for Judgment released on May 8, 2026

T. Hignett.............................................................................................. counsel for the Crown M. Rombis...................................................................................... counsel for the defendant

HANNA J.:

Introduction

[1] On March 1, 2024, Marvin Powell was driving south on Jim Flaherty Street in Whitby after leaving his job at the Sobeys Distribution Centre. His vehicle was struck forcefully by a white pickup truck that failed to stop at a stop sign. The Crown alleges that the defendant, Austin Altobelli, was driving that truck.

[2] Police responded to the collision and investigated. Mr. Altobelli was administered an approved screening device test, which he failed. He was then arrested for operating a conveyance with an excessive blood‑alcohol concentration. He was transported to the police station, where he provided breath samples into an approved instrument, the results of which were above the legal limit.

[3] At his trial Mr. Altobelli brought an application to exclude evidence pursuant to s. 24(2) of the Charter for alleged violations of ss. 7, 8, 9, and 13 of the Charter. He later abandoned his s. 7 and s. 13 applications given that the Crown advised it was not seeking to introduce the defendant’s statements for their truth.

[4] By the end of the trial, the defence no longer disputed that the arresting officer had a reasonable suspicion to issue the ASD demand. Its position was instead that the officer could not reasonably have relied on the ASD result and therefore lacked reasonable and probable grounds to arrest the defendant. If the officer did not have sufficient grounds for the arrest and the breath demand, then breaches of ss. 8 and 9 of the Charter would be established.

[5] During closing submissions, defence counsel advised that he wished to raise an additional issue—namely, whether the breath samples were taken “as soon as practicable.” The Crown argued that this issue should be summarily dismissed, both because it was contrary to binding authority and because the defence had not provided proper notice of it. Submissions did not proceed as originally scheduled due to a medical issue involving defence counsel. Counsel was directed to file a written argument explaining why the “as soon as practicable” issue remained viable in light of R. v. Ridley, 2023 ONSC 5967 and R. v. Ridge, 2024 ONSC 2231, and why he should be permitted to advance it despite not having raised it in his initial pleadings. The Crown was given the opportunity to respond.

[6] Should the samples be excluded, the Crown’s case collapses. If admitted, I must determine whether the Crown has established beyond a reasonable doubt that the defendant was the driver of the white pick-up truck.

The Charter Issues

Reliance on the ASD Result

[7] The defence concedes that P.C. Thomas, the arresting officer, had a reasonable suspicion to make a roadside screening demand. I agree and indeed I find that the officer had ample grounds to do so. He was aware that a collision had just occurred; the defendant admitted to having driven the pickup truck (an admission relevant only to grounds); his explanation for the collision did not make sense to the officer; another officer who had interacted with the defendant advised P.C. Thomas that the defendant might be impaired; and the defendant admitted consuming two beers. Taken together, there was an abundance of grounds to make an approved screening device demand.

[8] The defendant submits that the result of the approved screening device test in this case did not provide P.C. Thomas with reasonable and probable grounds to make an arrest.

[9] In R. v. Gundy, 2008 ONCA 284, the Court of Appeal held that “in the absence of some credible evidence to the contrary, it is not reasonable to infer that an officer who says that he or she used an approved screening device actually used an unapproved device”: see para. 47. See also, R. v. Kosa (Ont. C.A.), [1992] O.J. No. 2594; R. v. Priestly-Campbell, 2023 ONSC 3906, at para. 9. In this case, the unchallenged evidence of P.C. Thomas, which I accept, was that he used an approved screening device.

[10] When a roadside test results in a “fail,” the Crown is not required to prove that the approved screening device was technically functioning. Nor must it show that the officer knew the device’s calibration schedule, its settings, or that the device was in proper working order. The Crown need only establish that the officer had reasonable grounds to believe the device was operating properly, such that they could rely on the “fail” result to form reasonable and probable grounds for arrest: R. v. Mastromartino, 2004 28770 (ON SC), [2004] O.J. No. 1435 (S.C.), at para. 79; R. v. Hepfner, 2022 ONSC 6064, at paras. 48 -49; R. v. Topaltsis (2006), 2006 26570 (ON CA), 214 O.A.C. 115 (C.A.); R. v. Womack, 2020 ONSC 72, at para. 33.

[11] The defence specifically raises the issue of P.C. Thomas’s failure to turn his mind to the possibility of residual mouth alcohol.

[12] In R. v. Notaro, 2018 ONCA 449, the Ontario Court of Appeal addressed this issue and stated the following at para. 22:

There can be reasonable grounds even where an officer fails to consider the presence of residual mouth alcohol. This will be so where, despite the officer's failure to consider the presence of residual mouth alcohol, the officer honestly believes that the ASD fail result shows that the driver has more than 80 milligrams of alcohol in 100 millilitres of blood, and the information known to the officer at that time provides reasonable grounds for that belief.

[13] The Court summarized the effect of residual mouth alcohol on the objective component of the reasonable grounds test at para. 43:

*If the information known to an arresting officer about a suspect's residual mouth alcohol would make it unreasonable for the officer to rely on the accuracy of an ASD fail result, reasonable and probable grounds will not be established, whether or not the arresting officer turned her mind to the presence or effect of residual mouth alcohol.

*If it is reasonable for the arresting officer to rely on an ASD fail result based on the information known to her, then the failure of the arresting officer to turn her mind to the presence or effect of residual mouth alcohol is immaterial.

[14] In this case, the officer testified that he conducted a self-test of the device to ensure its accuracy, which yielded a zero reading. He further stated that he had received training in the use of the device and was satisfied that it was in proper working order.

[15] P.C. Thomas acknowledged that he did not turn his mind to the possibility of residual mouth alcohol. The defendant admitted to consuming two beers that evening but did not indicate when he had finished drinking. The officer explained that he did not detect an odour of alcohol and reasoned that, given his close proximity to Mr. Altobelli, he would have expected to do so if the defendant had just finished drinking. He also did not observe any alcohol in the vehicle.

[16] Taken together, the evidence known to the officer disclosed nothing beyond the mere possibility that the defendant had consumed alcohol within the preceding 15 minutes. It is well established that such a possibility is insufficient to undermine reasonable reliance on an ASD “fail” result: Notaro, at para. 61.

[17] I note that P.C. Thomas’s body-worn camera footage shows that Mr. Altobelli was chewing gum at the time the test was administered. While reviewing the video in court, the officer testified that he had not noticed this at the scene. Nothing in cross-examination undermined his evidence on this point, and I found it to be entirely credible.

[18] Based on the “fail” result, the officer formed the belief that Mr. Altobelli’s blood alcohol concentration exceeded 80 mg of alcohol per 100 mL of blood. I accept the officer’s testimony as sincere and find, on the totality of the evidence, that his belief was objectively reasonable.

[19] I therefore conclude that the arresting officer’s reliance on the ASD “fail” did not give rise to a breach of s. 8 or s. 9 of the Charter. P.C. Thomas had reasonable and probable grounds to arrest the defendant and to make an approved instrument demand.

The soon as practicable issue

[20] In closing submissions, defence counsel sought to raise the issue that the breath samples were not taken as soon as practicable. This issue was not articulated in the Charter application, nor was it raised at any point prior to closing submissions.

[21] The Crown seeks summary dismissal of this argument on the basis of prejudice. The defence submits that no prejudice arises.

[22] An application filed in non‑compliance with the Court’s Rules risks summary dismissal: R. v. Singh, 2026 ONCJ 124, at paras. 7 and 15. The Supreme Court of Canada’s decision in R. v. Haevischer, 2023 SCC 11, did not remove this discretion: R. v. D.S., 2025 MBCA 16, at paras. 48 - 57.

[23] In deciding whether to exercise its discretion to hear, or to refuse to hear, such an application, the court must consider a number of factors. These include: “the reasons for, and degree of, the lack of compliance with the rules of the court; the prejudice, if any, to the Crown; the degree of disruption to the proceedings; the history of the litigation; the merits or absence of any real indication of a prospect of success on the application; and, justice and fairness to all parties”: R. v. Thombs, 2023 ONCA 850, at para. 13.

[24] In Ridley, the summary conviction appeal court held that “Parliament removed the requirement that the samples needed to be taken within two hours of the accused driving the vehicle in order to gain the benefit of the presumption”: see para. 20. The court further concluded that “there is no Charter-protected right that breath samples be taken ‘as soon as practicable’”: see paras. 21–38. The summary conviction appeal judge in Ridge reached the same conclusion: see paras. 26–40.

[25] In R. v. Saini, 2025 ONSC 5046, another summary conviction appeal decision, the court confirmed that s. 320.28(1)(a) places the onus on the detainee to provide a breath sample as soon as practicable and does not engage s. 8 Charter protections in the same manner as the initial demand by police. The court noted, however, without elaboration, that an “unexplained, unreasonable delay in facilitating access to the Intoxilyzer could lead to a s. 7 or s. 9 Charter breach”: see para. 22.

[26] I am bound by the summary conviction appeal decisions referenced above. Accordingly, there is no basis upon which I could find a s. 8 breach arising from a failure to obtain breath samples as soon as practicable. Nor could I find that any delay in obtaining the samples deprives the Crown of the evidentiary shortcut provided for in the Criminal Code.

[27] I appreciate that the court in Saini left open the possibility that an unexplained and unreasonable delay in obtaining breath samples could give rise to a Charter issue. I observe, however, that the earlier decision in Ridley expressed a broad conclusion that there is no Charter-protected right requiring that samples be taken as soon as practicable (though that case was admittedly decided in the context of a s. 8 argument). To the extent that a potential claim under s. 7 or s. 9 may arise from delay, I would not permit the defence to advance such an argument in this case.

[28] The extent of the non-compliance with the rules was considerable, as the issue was only raised at the conclusion of the evidence. No reasonable explanation was provided for this non-compliance. The Crown was clearly prejudiced, having not been alerted to the need to call evidence addressing any delay in obtaining the samples. Further, the defence has pointed to no evidentiary foundation upon which this proposed Charter argument could succeed. The evidence presented establishes that the defendant was arrested at 2:11 a.m., and that the first breath sample was taken at 3:26 a.m. On its face, this does not reflect an unusually lengthy interval.

[29] In these circumstances, the mere assertion of a breach, without more, together with the absence of any reasonable explanation for the failure to comply with the applicable rules, does not justify the use of valuable court resources to adjourn and reopen the case in order to permit the issue to be litigated.

[30] For the reasons given, the defence’s soon as practicable Charter argument is summarily dismissed for non-compliance with the rules.

Has the Crown Proven the Offence Beyond a reasonable doubt?

[31] Mr. Altobelli is presumed innocent. The onus rests on the Crown to prove his guilt beyond a reasonable doubt.

[32] Proof to an absolute certainty is not required; however, proof beyond a reasonable doubt lies much closer to absolute certainty than to proof on a balance of probabilities. A reasonable doubt may arise from the evidence or from the absence of evidence.

[33] Where the Crown relies on circumstantial evidence, the question is whether, on the totality of the evidence, the accused’s guilt is the only reasonable conclusion available.

[34] There was no challenge to the admissibility of the Certificate of the Qualified Technician aside for the Charter applications, which I have dismissed.

[35] With the readings admitted, the defence agrees that the sole issue is whether the Crown has proven that Mr. Altobelli was operating the white pickup truck involved in the collision shortly before police arrived.

[36] Based on the cumulative effect of the following factors, I am satisfied that the Crown has met its burden.

[37] First, Mr. Powell observed the defendant near the pickup truck very shortly after the collision and was speaking with him within a minute or two.

[38] Second, Mr. Powell did not observe anyone else in the immediate area, apart from a colleague whom he recognized.

[39] Third, the defendant asked Mr. Powell if he was alright.

[40] Fourth, when P.C. Thomas arrived on scene shortly thereafter, he did not observe anyone near the truck other than Mr. Powell and Mr. Altobelli.

[41] Fifth, Mr. Altobelli retrieved documents from the truck while interacting with the officer.

[42] Sixth, at 1:53:11, the body-worn camera footage shows Mr. Altobelli alone near the truck, and the vehicle’s lights are off.

[43] Seventh, at 1:54:57, the body-worn camera footage shows the defendant holding a large set of keys while standing in the doorway of the truck.

[44] Eighth, at 2:06 a.m., the body-worn camera footage shows Mr. Altobelli alone at the driver’s side of the vehicle, with the driver’s door open and the vehicle’s lights on.

[45] Having considered the evidence in its totality, including its gaps, I am satisfied that the Crown has established the defendant’s identity as the driver of the white pickup truck beyond a reasonable doubt.

Conclusion

[46] For the reasons given, the defendant’s Charter motion is dismissed. The Crown has proven the essential elements of the offence and I accordingly find Mr. Altobelli guilty.

Released: May 8, 2026

Signed: Justice Joseph Hanna