ONTARIO COURT OF JUSTICE

CITATION: R. v. Barletta, 2026 ONCJ 300

DATE: May 28, 2026

COURT FILE No.: 25-47100190

BETWEEN:

HIS MAJESTY THE KING

— AND —

ANTHONY BARLETTA

Before Justice Robert S. Gee

Heard on January 14, April 14 and 16, 2026

Ruling on Charter Application released on May 28, 2026

Alannah Grady.................................................................................... counsel for the Crown

Leora Shemesh............................................................................. counsel for the accused

Gee J.:

INTRODUCTION

[1] Mr. Anthony Barletta applies for relief under ss. 8, 9, 10(a), and 10(b) of the Canadian Charter of Rights and Freedoms, seeking the exclusion pursuant to s. 24(2) of a loaded firearm discovered when the police searched his jacket at the police station. The police had located the accused on January 10, 2025, at 3:30 am stopped in his pickup truck in the middle of a controlled intersection with its engine running. The accused was unresponsive and was difficult to wake. After an investigation on the scene, he was arrested for impaired operation and a demand for breath samples was made. He was taken to the police station for those samples where the firearm was found when the police conducted a more thorough search of the jacket he was wearing.

[2] The defence submits that the entirety of the police interaction was constitutionally compromised, beginning with an arbitrary detention and culminating in an unlawful arrest, unlawful searches, and breaches of the accused’s right to counsel. The Crown, by contrast, submits that the officers’ conduct was justified at each stage, supported by objective facts, giving rise to lawful investigative detention and subsequent arrest, and that all Charter obligations were met. For the reasons that follow, I conclude that the defence has not established any infringement of the accused’s Charter rights. In the alternative, even if I had found one or more breaches, I would not exclude the evidence under s. 24(2).

FACTS

[3] The facts are largely uncontroverted, based on the testimony of Police Constables Dunham and Simpson, Detective Constable El‑Hassen, and the various video recordings taken during the investigation. The dispute centres not so much on what occurred, but on the legal characterization of the police conduct at each stage. The interaction began, when Detective Constable El‑Hassen, who was off duty at the time, observed a black pickup truck stopped in the middle of a controlled intersection. He testified that the vehicle remained stationary through multiple traffic light cycles with its engine running and that the driver appeared unresponsive. He became concerned that the driver might be impaired or otherwise incapacitated and called 911. He remained on scene to monitor the situation. I accept this evidence. It is internally consistent, corroborated by the timing evidence and video, and reflects a reasonable response to an objectively concerning situation.

[4] Uniformed officers, including PC Dunham and PC Simpson, arrived shortly thereafter. Their observations of the accused’s vehicle was consistent with that of Detective Constable El-Hassan’s. Both officers testified multiple attempts were made to rouse the driver by knocking on the window and shining flashlights into the cabin, with little immediate response. When the accused eventually awakened, he appeared disoriented. PC Dunham testified that she observed red eyes, slurred speech, and unsteadiness upon the accused’s exit from the vehicle. PC Simpson’s observations were consistent in material respects, particularly regarding the accused’s delayed responsiveness and unsteady footing. The defence seeks to minimize these observations, pointing to the lack of an odour of alcohol and the eventual breath readings of 11 mg and 8 mg per 100 ml of blood. However, as the Crown correctly submits, the jurisprudence makes clear that impairment is not limited to alcohol and that police are entitled to rely on their training and experience in assessing indicia of impairment in the moment. The absence of certain indicators does not negate the presence of others. I accept the officers’ evidence as credible and reliable. Also, I must caution against reasoning backwards from the breath results. It is the constellation of factors available to the officers at the time the demand and arrest was made that drives the analysis, the results of the accused’s breath tests, obtained later, do not impact on the reasonableness of the demand and arrest.

ANALYSIS

[5] The first issue is whether the accused’s detention was arbitrary contrary to s. 9 of the Charter. The defence submits that the circumstances were benign and analogous to fatigue or mechanical delay, relying on R. v. Harrison 2009 SCC 34, [2009] S.C.J. No. 34, where the Supreme Court cautioned that a “hunch” cannot substitute for proper Charter standards when interfering with liberty. However, the present case is far removed from the arbitrary stop at issue in Harrison. The police here did not initiate a detention based on a vague suspicion, they responded to an objectively dangerous and easily observable situation, namely a vehicle stopped in a live intersection with an unresponsive driver. The governing principles are set out in R. v. Mann 2004 SCC 52, [2004] 3 S.C.R. 59, which permits investigative detention where there are objective grounds to suspect that the individual is connected to a particular criminal investigation and that such detention is reasonably necessary. The Crown relies on R. v. Mann to support the proposition that detention is justified where there is a constellation of facts pointing to a legitimate investigative purpose.

[6] Applying these principles, I find that the initial detention was lawful. The officers were confronted with a driver who had failed to proceed through multiple light cycles, who did not respond to repeated efforts to wake him, and who was in control of a running vehicle in an intersection. Even if one accepts that fatigue was a possible explanation, the police were not required to rule out innocent alternatives before acting. The situation engaged immediate public safety concerns and justified intervention. The detention was brief, focused, and rationally connected to the investigation of possible impaired operation or medical distress. It therefore does not constitute an arbitrary detention.

[7] The defence further argues that the use of handcuffs converted the detention into a de facto arrest without lawful grounds. It is well established that handcuffing is a significant intrusion on liberty and must be justified, but it does not automatically transform a detention into an arrest. In R. v. Grant 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court recognized that the nature of police conduct, including the use of physical restraint, must be assessed contextually (see paragraphs 32-33 and 44). Similarly, R. v. Mann acknowledges that officer safety considerations may justify more intrusive measures during an investigative detention (see paragraphs 41 to 45). The evidence here is that the interaction took place on what all officers described as an extremely cold night, in an active roadway, with a driver whose condition was uncertain. The officers did not know whether the accused might attempt to re-enter the vehicle, flee, or act unpredictably. PC Simpson testified that handcuffing was employed for safety reasons, and I accept that evidence. The restraint was temporary and proportionate to the risk. It was not used to facilitate interrogation or to circumvent Charter obligations. In these circumstances, the use of handcuffs did not render the detention unlawful.

[8] The next issue concerns the lawfulness of the arrest. The defence relies on R. v. Storrey 1990 125 (SCC), [1990] 1 S.C.R. 241 and R. v. Brown 2012 ONCA 225, [2012] O.J. No. 1569 for the proposition that arrest requires both subjective belief and objective grounds and submits that the indicia relied upon here were insufficient. The defence further argues that the indicia described by the officers are contradicted by the video recordings, particularly those taken both at the roadside and later at the station. Specifically, the defence submits that the videos do not demonstrate unsteadiness or slurred speech and therefore undermine the officers’ credibility or reliability on these key observations. I do not accept that submission.

[9] It is important to recognize the limitations of the video evidence in this case. While the recordings provide helpful context, they do not capture the entirety of the accused’s condition at the scene. The in‑car camera footage does not consistently provide clear, unobstructed images of the accused’s gait immediately upon exiting the vehicle, when the officers’ observations of unsteadiness were first made. As a result, the assessment of the accused’s balance and coordination at that critical moment depends in large measure on the testimony of the officers who were in a position to make a direct observation. I accept their evidence in that regard. Moreover, as the Crown submits, there is at least one portion of the in‑car video, shortly before the accused is placed into the cruiser, where it can be seen that the accused’s movement is less than steady in a manner that is consistent with the officers’ descriptions.

[10] With respect to the accused’s speech, I agree with the Crown’s submission that portions of the video reflect speech that is at times difficult to understand. While the audio quality is not perfect throughout, there are segments that reasonably support the officers’ evidence that the accused’s speech was not clear. The video does not, in my view, contradict the officers’ testimony in any meaningful way on this point. Rather, it provides some confirmation, albeit imperfect, of their observations.

[11] The defence also relies on the videos taken at the police station, submitting that they demonstrate the accused walking without any noticeable unsteadiness and therefore undermine the earlier observations. I do not accept that this necessarily leads to the conclusion urged by the defence. The indicia of impairment are not static and may fluctuate over time, particularly where a person has been roused from sleep, is experiencing fatigue, or is in a changing physiological state. The fact that an accused may appear steadier or composed at a later point in time does not negate earlier observations made in different circumstances. This principle has been recognized in cases such as R. v. Grant, 2014 ONSC 1479, R. v. Sousa, 2018 ONCJ 806, and R. v. D’Cunha, 2005 O.J. No. 2253, each of which cautions against measuring the validity of grounds by reference to later observations or outcomes rather than the information known to the officers at the time of arrest.

[12] The defence submission also risks engaging in impermissible hindsight reasoning, particularly by relying on the later breath test results and subsequent video evidence to challenge the reasonableness of the officers’ earlier conclusions. As I have already noted, the analysis must be grounded in the constellation of factors available to the officers at the time the decision to arrest was made. Those factors included the accused being found unresponsive in a running vehicle in the middle of an intersection, the difficulty in rousing him, his disorientation upon waking, his red eyes, speech that was at times difficult to understand, and observations of unsteadiness upon exiting the vehicle. These are well-recognized indicia of impairment. While not every possible indicator was present, the law does not require that all indicia be observed, nor does it require certainty. It requires that the officer’s belief in the existence of grounds be both subjectively held and objectively reasonable considering the totality of the circumstances.

[13] I am satisfied that PC Dunham subjectively believed that the accused had operated his truck while impaired and that this belief was objectively reasonable. I do not accept the suggestion that the officers constructed or embellished their observations after the fact to justify the arrest. Their evidence was consistent, and supported, at least in part, by the video recordings. When properly viewed in context and without the distorting effect of hindsight, the grounds for arrest were sufficient in law.

[14] The conclusion that the arrest was lawful is also a complete answer to the defence submission that the police were limited to making an ASD demand. That argument overlooks that the two forms of demand available to police, address distinct investigative thresholds and are not interchangeable. Where police have only a reasonable suspicion that a person has alcohol in their body, they are authorized to make an ASD demand. However, where the investigation has progressed to the point that police have reasonable grounds to believe that the person’s ability to operate a motor vehicle is impaired by alcohol, the legal framework requires a different response, the person must be arrested, and a demand made for breath samples into an approved instrument. The determination reached by the officer based on the information available at the time dictates which of these investigative steps is available, and once that threshold is met, it directs the officer to proceed under the higher-threshold regime rather than reverting to the lower-threshold option. In this case, having concluded that reasonable grounds to arrest existed, the officers were not confined to an ASD demand but were entitled to proceed as they did.

[15] Turning to s. 10(a), the defence submits that the accused was not informed promptly of the reasons for his detention. The case law, including R. v. Mann and R. v. Nguyen, 2008 ONCA 49 emphasizes that detainees must be informed “without delay” of the reasons for their detention in clear and simple language. The defence argues that this obligation was not met at the initial moment when the accused was handcuffed. However, the evidence shows that the accused was advised that he was being detained and, within a matter of minutes, was informed that he was under arrest for impaired operation. It would, of course, have been preferable for the officers to have explicitly articulated at the earliest opportunity that the detention related to an investigation for impaired driving. That said, the surrounding circumstances in this case were such that a reasonable person in the position of the accused would have understood the nature of the police concern. The accused was stopped in the middle of a controlled intersection, he had been found unresponsive in a running vehicle, he was surrounded by multiple police officers upon waking, and he was asked questions directed at alcohol consumption, including whether he had been drinking and PC Simpson can be heard on the video making comments to him about his slurred speech. In these circumstances, the purpose of the detention would have been apparent. The law does not require instantaneous and perfectly formulated articulation in dynamic and potentially unsafe situations, but rather clear communication when reasonably practicable. In this case, the brief delay, when viewed in context, does not amount to a breach of s. 10(a).

[16] With respect to s. 10(b), the defence submits both that the accused was not informed of his right to counsel without delay and that he was not afforded a meaningful opportunity to exercise that right when his jeopardy changed following the discovery of the firearm.

[17] I find there was no s. 10(b) breach. The accused was advised of his right to counsel promptly upon arrest, and the officers then made repeated and reasonable efforts to contact the accused’s counsel of choice, Jaime Stephenson. These efforts included following voicemail instructions to call an associate of Ms. Stephenson’s and then ultimately leaving a message for her to return the call. Ms. Stephenson did return the call but not long before she called back, the firearm was discovered. PC Dunham testified she advised Ms. Stephenson, before she spoke to the accused, not just about the impaired charge, she told her that the firearm had been found, but at that time the precise firearm related charges had not yet been determined.

[18] The accused, who also had been told that the firearm had been found, then spoke with counsel. Once the investigation progressed and the specific firearm-related charges were formulated, the accused was advised of these additional charges and was again offered an opportunity to speak with counsel, which he declined. In these circumstances, the police did not impede access to counsel, delay unreasonably, or continue their investigation in a manner that undermined the accused’s right to meaningful consultation. Rather, the evidence shows counsel of choice was contacted, counsel was advised of the circumstances the accused was facing before speaking to him and the accused spoke to counsel without any interference by the police. I find the police demonstrated careful and ongoing compliance with their obligations, and I find no breach of s. 10(b).

[19] Having concluded that no Charter violations have been established, it is unnecessary to consider s. 24(2). However, given the thorough submissions of counsel, I address the issue in the alternative. The framework for analysis is set out in R. v. Grant, which requires consideration of the seriousness of the state conduct, the impact on the accused’s Charter-protected interests, and society’s interest in adjudication on the merits. The defence relies on R. v. McGuffie, 2016 ONCA 365 to argue that where the first two factors favour exclusion, the third will rarely overcome them. While that proposition is correct in appropriate cases, it presupposes serious and impactful breaches, which are not present here.

[20] Even if I had found breaches, I would characterize any such conduct as falling at the lower end of the seriousness spectrum. The officers were responding to a live and potentially dangerous situation involving a stopped vehicle in an intersection. Their actions were grounded in legitimate safety concerns and informed by their understanding of the law. There is no suggestion of bad faith, deliberate disregard of Charter rights, or systemic misconduct. This distinguishes the present case from authorities such as R. v. Harrison, where the Court condemned egregious and unjustified police conduct. The impact on the accused’s Charter-protected interests would also be limited. The detention was brief, there was no coercive questioning, and the accused was afforded meaningful access to counsel. The third factor strongly favours admission. The firearm is highly reliable, real evidence central to the Crown’s case, and its possession engages significant public safety concerns. As noted in authorities such as R. v. Omar, 2018 ONCA 975, 2019 SCC 32 and R. v. Bzezi, 2022 ONCA 184 courts have recognized society’s strong interest in the prosecution of firearms offences and the admissibility of reliable evidence in such cases. Balancing these considerations, I am satisfied that admission of the evidence would not bring the administration of justice into disrepute.

CONCLUSION

[21] In conclusion, the applicant has failed to establish any violation of ss. 8, 9, 10(a), or 10(b) of the Charter. Even if such violations had been established, the evidence would not be excluded under s. 24(2). The Charter application is therefore dismissed.

Released: May 28, 2026

Signed: Justice Robert S. Gee