Court File and Parties

Ontario Court of Justice

Date: 2015-04-09

Court File No.: Orangeville 11-1427

Between:

Her Majesty the Queen

— and —

Giulio Cardillo-Giuliano

Before: Justice J.W. Bovard

Heard on: September 25, 2014

Reasons for Judgment released on: April 9, 2015

Counsel:

• Mr. M. Poland, counsel for the Crown
• Mr. R. Napal, counsel for the defendant Giulio Cardillo-Giuliano

BOVARD J.:

Introduction

[1] These are the court's reasons for judgment after the trial of Giulio Cardillo-Giuliano on the charge of driving a motor vehicle with more than 80 milligrams of alcohol in 100 milliliters of blood on November 19, 2011.

Issues

[2] The issues are:

1. Did the police breach Mr. Cardillo-Giuliano's Charter rights under sections 7, 8, 9, and prior to going to the police station only, under sections 10 (a) and (b)?

   • (a) If the police breached any of Mr. Cardillo-Giuliano's Charter rights, should the evidence of the Intoxilyzer breath tests be excluded?

2. Did Officer Perreira have reasonable and probable grounds to arrest Mr. Cardillo-Giuliano for impaired care or control?

3. Was Mr. Cardillo-Giuliano in care or control of his motor vehicle?

4. Was the arresting officer wrong to administer an ASD test after he arrested Mr. Giulio Cardillo-Giuliano for impaired driving?

5. Is bolus drinking a defence in this case?

The Evidence

[3] At 1:18 a.m. on the day in question, Officer Perreira responded to a call regarding a suspicious vehicle in front of a residence. He had been an officer for four years and had performed over one hundred traffic stops, including stops for drinking and driving. He had done two or three arrests for drinking and driving charges. He did not arrive at the scene until 2:45 a.m. because he had to attend to another situation involving a vehicle while he was on his way.

[4] When he got to the scene he saw a large dual-axel Ford pickup truck facing the wrong way on the paved portion of the rural two-way highway. Its lights were on and the engine was running. The officer said that there are "a bunch of houses along there". The truck was "totally on the roadway" in front of a private residence. His notes indicate that it was "facing northbound in the southbound lane…" He resisted the defence's suggestion that it was on the shoulder. He testified that had the truck been on the shoulder he would have written "shoulder" in his notes.

[5] Positioned as it was, the truck would have "interrupted" any traffic that came its way. He said that there was no traffic at the time, but "If there had been a road user, yes it would have posed a danger". But Officer Perreira did not think that he had to move the truck right away because he had his "full light package on", which would have warned oncoming traffic that there was a police investigation in progress. This makes sense. I accept his evidence.

[6] Mr. Cardillo-Giuliano was sitting in the driver's seat asleep. Officer Perreira tapped on the window and woke him up. He asked him what he was doing there. Mr. Cardillo-Giuliano told him that he was waiting for a friend. He seem disorientated so the officer "asked him if, where he was, and he said that he was at the Trump" – later evidence indicates that this meant the Trump Tower in downtown Toronto. When he asked this question the officer meant where Mr. Cardillo-Giuliano was.

[7] He did not make a note that he was clear that he meant to ask where Mr. Cardillo-Giuliano was, but in cross-examination he said that he had an independent recollection of having asked "where he was, where he thought he was at the time". (emphasis in transcript)

[8] Officer Perreira noted the odour of an alcoholic beverage on Mr. Cardillo-Giuliano's breath. He asked him if he had had anything to drink. Mr. Cardillo-Giuliano told him that he had drunk "a few beers".

[9] He asked him again if he knew where he was just to see if his answer would change and Mr. Cardillo-Giuliano told him that he was "on Mayfield". The officer took this to mean Mayfield Road, which was south of where they were.

[10] Officer Perreira demanded to look at Mr. Cardillo-Giuliano's driver's licence, ownership and insurance. Mr. Cardillo-Giuliano looked for these documents and gave the officer his O.H.I.P. card. It had a picture on it with which he identified him. He asked him again for his driver's licence. Mr. Cardillo-Giuliano pointed to his health card. When Officer Perreira asked him again for his ownership and insurance, Mr. Cardillo-Giuliano produced them.

[11] At this point, based on all of the circumstances, Officer Perreira formed reasonable grounds to believe that Mr. Cardillo-Giuliano's ability to operate a motor vehicle was impaired by alcohol. Although his notes say that he arrested him for "over 80 care and control" at 2:50 a.m., Officer Perreira testified that he arrested him for "impaired care and control". He could not explain why he wrote "over 80 care and control" in his notes other than to say that "we're at the side of the road and make, trying to do, tryin' to do our job plus make notes so I couldn't tell you exactly how I wrote down over 80 care and control".

[12] Regarding telling Mr. Cardillo-Giuliano the reason for the arrest, there is nothing in his notes about it but he said that he would have told him when he arrested him. He testified that "when I make arrest (sic) I inform people of the reason for their arrest". It is the first thing that "we do. You are under arrest for, and that's what I've done to, to the defendant". He did not have a reason for not having recorded it in his notes, but he said that just because he did not make a note of it does not mean that he did not do it.

[13] Officer Perreira put handcuffs on Mr. Cardillo-Giuliano and searched him incident to the arrest. The officer realized that he had never laid a charge of "impaired care and control" before so he "decided to err on the side of caution and [he] decided to read the ASD demand and then give him the ASD device".

[14] Officer Perreira stated that he was not sure that the "impaired care and control" charge was the correct one and he "wanted to protect the accused's rights and try to follow proper procedure". He decided that "it would probably be better just to read the ASD demand to him and then give him the device to, to take a, give a sample with". He said that "if he took the ASD and then he failed…that would also give me the reasonable grounds to believe that his blood alcohol content was above 80 milligrams of alcohol in 100 millilitres of blood." (emphasis mine)

[15] He said that he had a reasonable suspicion that Mr. Cardillo-Giuliano had alcohol in his body. He based this suspicion on his admission of having drunk alcohol and on the odour of alcohol on his breath. He read the demand to Mr. Cardillo-Giuliano at 2:55 a.m. At 2:58 a.m. Mr. Cardillo-Giuliano said that he understood the demand. Officer Perreira demonstrated how to give a breath sample by giving a sample himself. He used an Alcotest 7410 GLC with a serial number of ARLN0715. An officer with badge number 10261 calibrated the device on November 13, 2011. Officer Perreira determined that the device was in proper working order.

[16] Mr. Cardillo-Giuliano made his first attempt to give a breath sample at 3:00 a.m. He registered an error because he did not blow hard enough. Officer Perreira warned him about the consequences of failing to provide a breath sample. He tried again at 3:01 and the same thing happened. He warned him again. Finally, at 3:03 a.m. Mr. Cardillo-Giuliano gave a proper sample and registered a fail.

[17] This gave Officer Perreira reasonable grounds to believe that Mr. Cardillo-Giuliano was over 80. At 3:04 a.m. he told Mr. Cardillo-Giuliano that he was arresting him for "over 80 care and control".

[18] At 3:06 a.m. he read him his rights to counsel from his note book. This was 16 minutes after he had arrested him for "impaired care and control" and handcuffed and searched him.

[19] Mr. Cardillo-Giuliano said that "Yup" he understood his rights to counsel. He said that he did not want to speak to a lawyer. Officer Perreira cautioned him at 3:07 a.m. He understood it. He did not wish to make a statement.

[20] At 3:09 a.m. he read the Intoxilyzer breath demand to Mr. Cardillo-Giuliano. The officer asked him if he understood and he said "Yup".

[21] Next, Officer Perreira searched Mr. Cardillo-Giuliano's truck and found a six pack of empty beer bottles within arm's reach of the driver's seat.

[22] Then the officer called a tow truck to tow away Mr. Cardillo-Giuliano's truck. Officer Perreira's notes say that he and Mr. Cardillo-Giuliano left the scene at 3:39 a.m. and arrived at the police station at 3:38 a.m. He corrected this in his testimony by saying that they left the scene at 3:24 a.m. He verified the correct time with the police dispatcher.

[23] Mr. Cardillo-Giuliano was booked in at the station. Officer Perreira called duty counsel for him. He did not remember why he did this in spite of the fact that Mr. Cardillo-Giuliano told him at the roadside that he did not want to speak to a lawyer. Nor does he have any notes on what his reason was. But he thinks that it is important to safeguard the accused's rights.

[24] Mr. Cardillo-Giuliano spoke to duty counsel from 4:11 a.m. to 4:19 a.m. At 4:25 a.m. Officer Perreira turned him over to Officer Munro, the breath technician. The certificate of the technician and the notice to produce it are Exhibit 1 on consent.

[25] Dr. S. Krishnan, testified as an expert toxicologist. He said that his report, which is Exhibit 3, is accurate based on the assumptions provided to him by defense counsel: the subject weighed 150 pounds, was 5'10" tall and 24 years old. He consumed two 330 mL bottles of beer with 5% alcohol from 7 p.m. to about 9:30 or 10:00 p.m. on November 18, 2011. He stopped driving at about 12:30 a.m. and from that time to about 2:20 a.m. he drank six bottles of the same beer and 4 ounces of scotch which contain 40% alcohol.

[26] Dr. Krishnan states that based on these assumptions his "calculated max Blood alcohol concentrations" would be as follows:

• 12:30 a.m. - 0 mg percent
• 2:45 a.m. - 196 to 218 mg percent (average 207 mg percent)
• 4:29 a.m. - 161 to 201 mg percent (average 181 mg percent)
• 4:52 a.m. - 154 to 197 mg percent (average 175 mg percent)

[27] He said that at 2:15 a.m., Mr. Cardillo-Giuliano's blood-alcohol concentration would have been approximately 186 to 213.

[28] He testified that someone's ability to operate a motor vehicle would "most probably" be impaired if they had a blood-alcohol concentration of 207 mg percent. He added that a person's ability to operate a motor vehicle can be impaired, even though they are not showing impairment of their gross motor skills. He also said that disorientation as to location and with regard to following directions could be indicia of "alcohol impairment".

[29] The case could not be completed on the first day of trial, September 25, 2014. It was adjourned for continuation to January 20, 2015 when Mr. Cardillo-Giuliano testified. On September 25, 2014, the defense told the court that Mr. Cardillo-Giuliano "will be giving evidence on the voir dire and I'm sure the Crown will be calling an officer on the voir dire, although we anticipated the voir dire will be a blended voir dire" (transcript, page 7, lines 23-28). I interpret this as meaning that he is testifying both on the Charter voir dire and the trial.

[30] He said that on the night in question he had dinner at the Keg. He was there from 7:00 p.m. to 12:00 a.m. During this time he had dinner and drank two Heineken beers.

[31] At around midnight he spoke to his friend, Mike, who was working at the Trump Hotel Tower. Mike told him that he would be finished at 2:00 a.m. They made plans to see each other that night. Mike was going to pick up a woman and her friend after work. Then they were going to go to one of their homes. Mike told him that he would pick him up if he went to the area where she lived, which was Credit View and Boston Mills. Mr. Cardillo-Giuliano told Mike that he would wait for him on Boston Mills.

[32] Mr. Cardillo-Giuliano had bought a six pack of Heineken beer the day before and it was still in his truck. He told Mike that he would have a couple of beers while he waited for him and asked him if he could arrange to have him picked up. He thought that one of the women was going to drive his truck to the other one's home. He did not remember how they were going to travel to his location.

[33] Mr. Garbowski testified and confirmed that he was working on the night in question and that he had plans to see a couple of women. When Mr. Cardillo-Giuliano called him they decided to meet. He was supposed to get off work between 1:30 a.m. and 2:00 a.m.

[34] He planned to pick up the women and meet Mr. Cardillo-Giuliano in the area where one of them lived. Mr. Cardillo-Giuliano told him that he was going to have some drinks while he waited for them so either he (Mr. Garbowski) or one of the women would drive Mr. Cardillo-Giuliano's vehicle.

[35] Mr. Cardillo-Giuliano drove to the meeting place and drove onto the shoulder of the road. He did not recall whether the shoulder was gravel or if it was narrow. He was on the wrong side of the road because on the other side there was a lot of shrubbery. No part of his truck was on the traveling part of the road, however. He was off the road and his lights were on. He posed no risk to other cars. In addition, he did not have any intention to drive the vehicle so he felt that no one was endangered. He said that he did not think that he was in a public place.

[36] He had a cigarette and started drinking the beer. He sat outside of the truck while he drank the beer and he also had a few shots of Crown Royal. He finished the six pack and the Crown Royal. It was cold so he got back into his truck and started it. He turned the heat on to warm up and he fell asleep. Looking back, he thinks that drinking the beer and the Crown Royal was not a good choice. He said that he was not intoxicated, but he felt the effects of the alcohol.

[37] The next thing that he remembers is Officer Perreira knocking on the window. When he woke up he was "fairly hazy". When the officer asked him for his driver's license he could only produce his health card because he had lost his license.

[38] The officer asked him where he was, where he was coming from, and where he was going. He told him that he was waiting for a friend who was coming from the Trump. He also told him that he had drunk a few beers. He got out of the truck and the officer arrested him and put handcuffs on him. He could not recollect being given his rights to counsel until he was at the police station.

[39] He said that Officer Perreira got irritated when he could not give a sample of breath right away into the ASD. When he finally gave a proper sample and failed Officer Perreira "rearrested" him. He remembered hearing "impaired" or "over 80" and "care and control".

[40] Mr. Cardillo-Giuliano said that for the first arrest it was "impaired". He was confused by the mention of "care and control". He said that he was "slightly dazed and confused" due to having been asleep. It was not due to the alcohol he had drunk. He did not fumble with his documents and he got out of the car without any problem.

[41] He spoke to Mike after a day or so, Mike told him that there had been a problem at work and he had to stay there until 3:30 a.m. He looked for him but he was not there. Mr. Cardillo-Giuliano's phone was dead. So Mike could not call him. Mike just went ahead with his plans.

[42] After all of the evidence was in and the parties had closed their cases the defense asked the court to reopen the trial so that he could ask Mr. Cardillo-Giuliano what he would have done had the police not found him.

[43] Defense counsel advised the court that he had told Mr. Cardillo-Giuliano what the question was going to be. He asked the court to allow him to ask the question and consider this circumstance with regard to the weight that the court gives Mr. Cardillo-Giuliano's answer. The Crown consented to the reopening on this basis.

[44] Mr. Cardillo-Giuliano said that had the police not found him and no one had come to pick him up. He could walk to his parent's home, which was 30 minutes away. He would have asked them to take him back to his truck, so that he could bring it. He had made this one before. He said that had he woken up on his own he would not have driven his truck because he knew how much he had had to drink and that it was not safe to drive, even had he woken up at noon. He said that he did not mention this in his examination in chief because he did not know that he could "make a statement". He did not make this up.

[45] Mr. Garbowski (Mike) testified that he has known Mr. Cardillo-Giuliano for about 15 years. He confirmed that he was working on the night in question and that he had plans to see a couple of women. When Mr. Cardillo-Giuliano called him they decided to meet. He was supposed to get off work between 1:30 a.m. and 2:00 a.m.

[46] He planned to pick up the women and meet Mr. Cardillo-Giuliano in the area for the one whose home they were going to lived. Mr. Cardillo-Giuliano told him that he was going to have some drinks while he waited for them so either he (Mike) or one of the women would drive Mr. Cardillo-Giuliano's vehicle.

[47] Mr. Garbowski did not finish work until between 2:00 a.m. and 2:30 a.m. He tried to call Mr. Cardillo-Giuliano, but he did not receive a response. He got to their meeting place at about 4:00 a.m. but did not see him. They looked around for him but did not find him.

[48] That was all of the evidence.

The Position of the Defence

[49] The defense's position is as follows:

The Charter

1. Officer Perreira did not have reasonable probable grounds to arrest Mr. Cardillo-Giuliano for impaired care or control. The only evidence was the odour of an alcoholic beverage on Mr. Cardillo-Giuliano's breath. Therefore, there were breaches of sections 7, 8, 9.

2. Officer Perreira did not tell Mr. Cardillo-Giuliano the reason for his arrest, nor did he give him his rights to counsel when he arrested him. Therefore, he breached Mr. Cardillo-Giuliano's rights under sections 10 (a), (b).

Bolus Drinking

1. The defense contends that the expert testimony shows that Mr. Cardillo-Giuliano's Intoxilyzer readings relate to Mr. Cardillo-Giuliano's blood-alcohol concentration after he parked his truck.

Care or Control

1. The defense maintains that Mr. Cardillo-Giuliano was not in care or control of his truck because he did not have an intention to drive the truck when he got into it and he had a plan for his friend to come pick him up so he would not have to drive. Furthermore, Mr. Cardillo-Giuliano did not pose any danger to the public.

[50] The defense does not take issue with the fact that the Information charges "operate" a motor vehicle over 80, and that all of the evidence is with regard to care or control. The case proceeded on the basis that it is a care or control case, not an operation case. Both counsel agreed that care or control is included in a charge of operating a motor vehicle. See: R. v. Drolet, [1990] S.C.J. No. 101, affirming , [1988] J.Q. no 2283.

[51] Mr. Justice Campbell recently reaffirmed this principle in a summary conviction appeal, R. v. Rana, [2014] O.J. No. 2732:

Had I concluded that this verdict was unreasonable, I would have dismissed the appeal in any event, and substituted a conviction for impaired "care or control" for the conviction for "impaired operation." There is no dispute that the appellant is, in fact, guilty of "impaired care or control." That offence, for which the appellant would be liable to the same punishment, is an included offence of the offence of "impaired operation." See: R. v. Handy (1971), 1971 ALTASCAD 25, 3 C.C.C. (2d) 298 (Alta.C.A.); R. v. Morton (1975), 14 N.S.R. (2d) 384, [1975] N.S.J. No. 438 (C.A.); R. v. Plank (1986), 28 C.C.C. (3d) 386 (Ont.C.A.); R. v. Drolet, [1990] 2 S.C.R. 1107, affirming: , 20 Q.A.C. 94, 14 M.V.R. (2d) 50 (C.A.); R. v. Shepherd (1991), 1991 ABCA 158, 117 A.R. 158 (C.A.), leave denied: [1991] S.C.C.A. No. 356; R. v. Bechtold, [2005] O.J. No. 2311 (S.C.J.), at para. 6; R. v. Cliffe (2008), 62 M.V.R. (5th) 38, [2008] O.J. No. 19 (S.C.J.), at para. 10; R. v. Brzozowski, 2013 ONSC 2271, [2013] O.J. No. 2483, at paras. 56-61; R. v. Dumont, 2014 ONCJ 47, [2014] O.J. No. 571, at para. 26. … (para. 14).

The Position of the Crown

The Charter

1. With regard to the alleged breaches of s. 10 (b), the Crown argues that the issue is when s. 10 (b) should be given. There is nothing wrong with administering an Approved Screening Device breath test after an officer subjectively believes that he or she has grounds to arrest a person for impaired driving.

2. Officer Perreira did not have to give Mr. Cardillo-Giuliano his rights to counsel after he arrested him for impaired care or control because he was detaining him to give him the Approved Screening Device breath test, for which detention he was not obligated to give him his rights to counsel.

3. With regard to the alleged breaches of sections 7, 8, 9, the Crown points out that there is no need for there to be gross motor skills impairment in order to establish reasonable and probable grounds to arrest for impaired driving. Officer Perreira had plenty of objective information to form the subjective belief that he had reasonable and probable grounds to arrest Mr. Cardillo-Giuliano for the impaired offense.

4. With regard to care or control, the Crown argues that the presumption applies and that Mr. Cardillo-Giuliano did not rebut it. He can say now that he would have walked home had he woken up on his own, but when a person's judgment is altered by the consumption of alcohol there is a risk that the person would not make that decision. Especially in this case, when Mr. Cardillo-Giuliano said that it was cold.

5. Mr. Cardillo-Giuliano knew that his friend, Mike, could have been delayed, which is what happened. He also did not know if the women were going to drive his truck home. All that he had was a hope, not a viable plan. In any case, the way he parked his truck caused a danger.

Analysis

[52] At the outset, I instruct myself that since Mr. Cardillo-Giuliano testified I must follow the instructions of the Supreme Court of Canada in D.W. v. The Queen, 63 C.C.C. (3d) 397 @ 409:

First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[53] In addition, I remind myself that the Crown has the onus of proving the charge beyond a reasonable doubt and that the defence has the onus on a balance of probabilities to prove any Charter breaches.

Did Officer Perreira Have Reasonable Probable Grounds to Arrest Mr. Cardillo-Giuliano for Impaired Care or Control? Did He Breach Mr. Cardillo-Giuliano's Rights Under s. 8 of the Charter?

[54] In R. v. Bush, 101 O.R. (3d) 641, 2010 ONCA 554 the court explained at paragraph 54 that:

"Whether reasonable and probable grounds exist is a fact-based exercise dependent upon all the circumstances of the case. The totality of the circumstances must be considered: see Shepherd, at para. 21; R. v. Rhyason, [2007] 3 S.C.R. 108, [2007] S.C.J. No. 39, 2007 SCC 39; R. v. Elvikis, [1997] O.J. No. 234, 31 O.T.C. 161 (Gen. Div.), at para. 26; Censoni, at para. 47"

[55] They stated further that:

Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires the officer to have an honest belief the suspect committed the offence: R. v. Bernshaw, [1995] 1 S.C.R. 254, [1994] S.C.J. No. 87, at para. 51. The officer's belief must be supported by objective facts: R. v. Berlinski, [2001] O.J. No. 377, 9 M.V.R. (4th) 67 (C.A.), at para. 3. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest: R. v. Storrey, [1990] 1 S.C.R. 241, [1990] S.C.J. No. 12, at p. 250 S.C.R. (para. 38).

[56] The court further explained in paragraph 40 that:

In Storrey, Cory J. addressed the importance of the requirement that officers have reasonable grounds as follows, at pp. 249-50 S.C.R.:

The importance of this requirement to citizens of a democracy is self-evident. Yet society also needs protection from crime. This need requires that there be a reasonable balance achieved between the individual's right to liberty and the need for society to be protected from crime.

[57] In paragraph 44, the court quoted Doherty J. In R. v. Golub, [1997] O.J. No. 3097 (para. 21), where he stated:

In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable: R. v. Storrey, supra, at pp. 423-24; Chartier v. The Attorney General of Quebec (1979), 48 C.C.C. (2d) 34 at 56 (S.C.C.); R. v. Hall (1995), 39 C.R. (4th) 66 at 73-75 (Ont. C.A.); R. v. Proulx (1993), 81 C.C.C. (3d) 48 at 51 (Que. C.A.).

[58] The Bush court commented in paragraph 45 on another decision of Justice Doherty's to the effect that "police in a drinking and driving investigation were involved in making quick but informed decisions whether there were reasonable and probable grounds: see R. v. Smith (1996), 28 O.R. (3d) 75, [1996] O.J. No. 372 (C.A.)".

[59] In paragraph 55, the court pointed out that in assessing whether reasonable and probable grounds existed, trial judges are often improperly asked to engage in a dissection of the officer's grounds looking at each in isolation, opinions that were developed at the scene "without the luxury of judicial reflection": Censoni ([2001] O.J. No. 5189) (citation added), at para. 43; also Jacques (), [1996] 3 S.C.R. 312 (citation added), at para. 23.

[60] They stated in paragraph 56 that:

"An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as the essential test. There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively existed: Censoni, at para. 46. The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding of reasonable and probable grounds based on the observed indicia and available information: R. v. Costello, [2002] O.J. No. 93, 22 M.V.R. (4th) 165 (C.A.), at para. 2; Wang (2010 ONCA 435), [2010] O.J. No. 2490, at para. 21 (citation added).

[61] In paragraph 47 Bush pointed out that:

There is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probable grounds to arrest: R. v. Deighan, [1999] O.J. No. 2413, 45 M.V.R. (3d) 90 (C.A.), at para. 1. Impairment may be established where the prosecution proves any degree of impairment from slight to great: R. v. Stellato (1993), 12 O.R. (3d) 90, [1993] O.J. No. 18 (C.A.), affd , 18 O.R. (3d) 800, [1994] 2 S.C.R. 478, [1994] S.C.J. No. 51.

[62] The court further stated that "The test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive was even slightly impaired by the consumption of alcohol: see R. v. Stellato, supra; Moreno-Baches and Wang, at para. 17 (para. 48)

[63] The court pointed out that "The important fact is not whether the officer's belief was accurate. It is whether it was reasonable at the time of the arrest" (para. 66).

Care or Control

[64] Before deciding whether Officer Perreira had reasonable and probable grounds to arrest Mr. Cardillo-Giuliano for impaired care or control, in addition to the officer's grounds for arrest regarding impairment, I have to examine the circumstances with regard to whether he had reasonable and probable grounds that Mr. Cardillo-Giuliano was in care or control of his vehicle.

[65] The Supreme Court held in R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157 that:

"care or control", within the meaning of s. 253(1) of the Criminal Code, signifies (1) an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk, as opposed to a remote possibility, of danger to persons or property (para.9).

The existence of a realistic risk of danger is a matter of fact (para. 11). The court said that "The risk of danger must be realistic and not just theoretically possible: Smits, at para. 60. But nor need the risk be probable, or even serious or substantial" (para. 34). The "realistic" risk standard "establish[es] a low threshold consistent with Parliament's intention to prevent a danger to public safety (para. 35).

[66] The court pointed out that:

In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways. First, an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property (para. 42).

[67] The court said that in determining whether a realistic risk exists, "The trial judge must examine all of the relevant evidence to this end and may consider a number of factors: see e.g. R. v. Szymanski (2009), 88 M.V.R. (5th) 182 (Ont. S.C.J.), at para. 93, per Durno J.; R. v. Ross, 2007 ONCJ 59, 44 M.V.R. (5th) 275, at para. 14, per Duncan J (para. 50).

[68] The court stated that "a conviction will normally ensue where the accused, as in this case, was found inebriated behind the wheel of a motor vehicle with nothing to stop the accused from setting it in motion, either intentionally or accidentally" (para. 12). Furthermore, "an intention to set the vehicle in motion is not an essential element of the offence: Ford v. The Queen, [1982] 1 S.C.R. 231, (para. 36).

[69] The court further stated that "Absent evidence to the contrary, a present ability to drive while impaired, or with an excessive blood alcohol ratio, creates an inherent risk of danger. In practice, to avoid conviction, the accused will therefore face a tactical necessity of adducing evidence tending to prove that the inherent risk is not a realistic risk in the particular circumstances of the case (para 13).

[70] The court explained that even

an accused who satisfies the court that he or she had no intention to set the vehicle in motion will not necessarily escape conviction: An inebriated individual who is found behind the wheel and has a present ability to set the vehicle in motion -- without intending at that moment to do so -- may nevertheless present a realistic risk of danger (para. 41).

the absence of an intention to drive is not a defence and is only relevant to rebutting the presumption in s. 258(1) (a) of the Criminal Code.

[71] Further pronouncements by the court that apply to the case at bar are the following:

…anyone found inebriated and behind the wheel with a present ability to drive will -- and should -- almost invariably be convicted. It hardly follows, however, that a conviction in these circumstances is, or should be, "automatic". A conviction will be neither appropriate nor inevitable absent a realistic risk of danger in the particular circumstances of the case (para. 45).

The care or control offence captures a wide ambit of dangerous conduct: Anyone who is intoxicated and in a position to immediately set the vehicle in motion faces conviction on those facts alone (para. 46).

[72] In Boudreault, the accused had arranged a plan to get home that did not involve him driving. He was waiting for a taxi while he sat in the driver's seat of his vehicle. This is analogous to the situation in the case at bar where Mr. Cardillo-Giuliano had arranged for his friend, Mike, and the two women that he was going to be with to pick him up.

[73] The Boudreault court said the following regarding alternate plans:

The impact of an "alternate plan" of this sort on the court's assessment of the risk of danger depends on two considerations: first, whether the plan itself was objectively concrete and reliable; second, whether it was in fact implemented by the accused. A plan may seem watertight, but the accused's level of impairment, demeanour or actions may demonstrate that there was nevertheless a realistic risk that the plan would be abandoned before its implementation. Where judgment is impaired by alcohol, it cannot be lightly assumed that the actions of the accused when behind the wheel will accord with his or her intentions either then or afterward (para. 52).

[74] They pointed out further in para. 53 that:

Even where it is probable that the taxi will appear at some point and the accused occupied the driver's seat with a valid excuse or reasonable explanation, the trial judge may nonetheless be satisfied beyond a reasonable doubt that there remained a realistic risk of danger in the circumstances

Analysis Regarding Reasonable and Probable Grounds to Arrest for Impaired Care or Control and Breach of s. 8 of the Charter

[75] The evidence was that Mr. Cardillo-Giuliano had two beers with dinner between 7:00 p.m. and 12:00 a.m. At around midnight he spoke to his friend, Mike, who was working at the Trump Hotel Tower. Mike told him that he would be finished at 2:00 a.m. They made plans to see each other that night. Mr. Cardillo-Giuliano was to go to a specific spot in a rural area where he would wait for him. Mike told him that he was going to pick up a couple of women and then they would pick him up and go to one of the women's homes, which was close to the meeting place.

[76] Mr. Cardillo-Giuliano had bought a six pack of Heineken beer the day before and it was still in his truck. He told Mike that he would have a couple of beers while he waited for him and asked him if he could arrange to have him picked up. He thought that one of the women was going to drive his truck to the other one's home. He did not remember how they were going to travel to his location.

[77] I find that this is a pretty bare bones plan that leaves out a lot of important details. For example, was one of the women going to drive his truck? Mr. Cardillo-Giuliano testified that he thought that one of them was going to do this. Could they drive a truck as big as his? What had the women been doing up to the time that they were going to meet him? Was it possible that they might be under the influence of some intoxicant (as opposed to a situation in which the plan included a pick up by a taxi driver who it is reasonable to expect would be sober).

[78] As indicated above, the court reopened the case on consent to allow Mr. Cardillo-Giuliano to testify that had he woken up on his own and determined that his friend was not going to pick him up, he would have walked to his parents' home, which was a 30 minute walk from where he was. Defence counsel told the court that he had already told Mr. Cardillo-Giuliano that he was going to ask him about this plan "B" before he testified.

[79] I do not place any weight on this testimony. I do not believe it. Mr. Cardillo-Giuliano did not mention this in his examination-in-chief, which in a case like this is quite peculiar. It leads me to conclude that the idea just came to him after he testified. I find as a fact that there was no plan "B".

[80] Turning to the execution of plan "A", Mr. Cardillo-Giuliano said that he drove to the location and pulled over onto the shoulder of the road. He could not recall whether the shoulder was gravel or if it was narrow. He said that he was on the wrong side of the road because on the other side there was a lot of shrubbery. No part of his truck was on the traveling part of the road, however.

[81] Officer Perreira testified that he found him parked on the travel part of the highway facing the wrong way. He said that Mr. Cardillo-Giuliano was not on the shoulder of the road. I note that Mr. Cardillo-Giuliano agrees with Officer Perreira that he was on the wrong side of the road.

[82] I accept Officer Perreira's evidence over Mr. Cardillo-Giuliano's and I find as a fact that he parked his truck as described by Officer Perreira. The officer is trained to make these kinds of observations. In addition, he testified that one of his duties is traffic control. Moreover, he had notes of the location of the truck. Mr. Cardillo-Giuliano did not make notes and he was under the influence of alcohol. His recollection of where he parked on a night in November 2011 would be weak and questionable.

[83] It is not clear from the evidence, but this finding implies that Mr. Cardillo-Giuliano parked his truck on the highway when he arrived at the location. There is no evidence that he moved the truck after he stopped there. This makes me wonder about his judgment and state of sobriety when he got to the location. Parking in this way is not a reasonable or safe thing to do. This behaviour is consistent with an inebriated person, not a sober one. A further oddity is that he said that he did not think that he was in a public place. How could the highway not be a public place? This further supports the possibility that Mr. Cardillo-Giuliano was under the influence of alcohol when he got to the meeting place.

[84] Mr. Cardillo-Giuliano said that after he got to the meeting place he got out of the truck, had a cigarette and started drinking the beer. He sat outside of the truck while he drank the beer and he also had a few shots of Crown Royal.

[85] He said that he did not recall where he sat to do this drinking. It could have been on the dirt, the grass or the snow. I find that it is quite odd that he would not remember. I especially find that the idea that he would have sat on the snow on a cold November morning is strange. It was around 1:00 or 2:00 in the morning. Why would he sit outside in the dark and cold to do his drinking? No one asked him and he did not refer to this aspect of the situation. One might imagine that maybe he sat in the light of his headlights, but that poses an implausible scenario and is speculation.

[86] Why would he even get out of his truck to do all of this drinking? It must have taken a considerable amount of time to drink six beers and the whiskey that he he consumed. It was cold. It was November 11 at around 1:00 or 2:00 in the morning on a rural highway. In fact, Mr. Cardillo-Giuliano testified that after he finished drinking he got into the truck and turned it on to warm up because it was so cold. The implication of his evidence is that he sat outside, in the dark and in the cold during all of the time that it took him to drink six beers and the whiskey. I do not believe this.

[87] It is much more plausible that he arrived at the meeting place, parked his truck, started drinking in the truck, and either left it running or turned it off and then back on again later to warm up, and then fell asleep where Officer Perreira found him. I note that Officer Perreira testified that he found the six pack of empty beer bottles inside the truck within the reach of the driver's seat.

[88] When Officer Perreira found him in this situation, he tapped on the driver's side window and woke up Mr. Cardillo-Giuliano. He noted the odour of an alcoholic beverage on Mr. Cardillo-Giuliano's breath. He asked him if he had had anything to drink. Mr. Cardillo-Giuliano told him that he had drunk "a few beers".

[89] He asked Mr. Cardillo-Giuliano where he was and he told him that he was "on Mayfield". The officer took this to mean Mayfield Road, which was south of where they were. So Mr. Cardillo-Giuliano was obviously disorientated. One could argue that it was from just having been awakened, but it was after he had been speaking with the officer so he would have had a bit of time to orientate himself. Moreover, the area was familiar to him.

[90] He testified that his parents lived a 30 minute walk away and that had Officer Perreira not found him, and his friends not come, he would have walked to his parents' house. Common experience shows that when a sober person wakes up in a familiar environment they almost invariably remember where they are within a few seconds.

[91] Officer Perreira demanded to look at Mr. Cardillo-Giuliano's driver's licence, ownership and insurance. Mr. Cardillo-Giuliano looked for these documents and gave the officer his O.H.I.P. card. It had a picture on it with which Officer Perreira identified him. He asked him again for his driver's licence. Mr. Cardillo-Giuliano pointed to his health card. When Officer Perreira asked him again for his ownership and insurance, Mr. Cardillo-Giuliano produced them.

[92] Mr. Cardillo-Giuliano testified that he had lost his licence and that was why he produced his O.H.I.P. card when Officer Perreira asked him for his licence. Curiously, he did not tell that to the officer when he asked him. He had two chances to do so.

[93] I find as a fact that Mr. Cardillo-Giuliano's behaviour outlined above constituted clear indicia of impairment of his ability to operate a motor vehicle.

The Presumption of Care or Control Under s. 258 (1) (a) Criminal Code

[94] Section 258 (1) (a) of the Criminal Code creates a presumption of care or control that applies when the accused is found in the driver's seat. The relevant part of the section for the case at bar is:

where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle …the accused shall be deemed to have had the care or control of the vehicle…unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle …in motion…

[95] I accept Mr. Cardillo-Giuliano's evidence that once he got to the meeting place he parked his truck with the intention of not driving or setting it in motion anymore that night, but instead to wait for Mike to come pick him up with the women, one of which was going to drive the truck from the scene.

[96] I find that even if he got out of the truck to drink and then got back into it, he maintained the same intention to wait for Mike and the women.

[97] Therefore, he has rebutted the presumption.

[98] However, as the following passages from Boudreault cited above hold that,

an accused who satisfies the court that he or she had no intention to set the vehicle in motion will not necessarily escape conviction: An inebriated individual who is found behind the wheel and has a present ability to set the vehicle in motion -- without intending at that moment to do so -- may nevertheless present a realistic risk of danger (para. 41).

the absence of an intention to drive is not a defence and is only relevant to rebutting the presumption in s. 258(1) (a) of the Criminal Code.

Disposition Regarding Reasonable and Probable Grounds to Arrest for Impaired Care or Control and Breach of s. 8 of the Charter

[99] After considering the jurisprudence, all of the circumstances and counsels' submissions, I find that Mr. Cardillo-Giuliano was in care or control of his truck and that based on the circumstances of this case outlined above, Officer Perreira had reasonable and probable grounds to arrest Mr. Cardillo-Giuliano for impaired care or control. The arrest was lawful.

[100] I find as a fact that Mr. Cardillo-Giuliano intentionally parked his truck on a highway facing the wrong direction, after which he drank a considerable amount of alcohol while sitting in the driver's seat. He drank so much that his ability to drive was impaired and he fell asleep. Finally, in these circumstances he created a realistic risk to persons and their property who could have reasonably been expected to be using the highway.

[101] Therefore, I dismiss Mr. Cardillo-Giuliano's application under s. 8 of the Charter. He has not proved on a balance of probabilities that Officer Perreira breached his rights under this section.

[102] It follows that since I find that the arrest was lawful, that Officer Perreira did not arbitrarily detain Mr. Cardillo-Giuliano. I dismiss his Charter application with regard to s. 9. He has not proved on a balance of probabilities that Officer Perreira breached his rights under this section.

Section 10 (a)

[103] Section 10 (a) of the Charter states that, "Everyone has the right on arrest or detention to be informed promptly of the reasons therefore".

[104] Officer Perreira testified that there is nothing in his notes that indicates that he told Mr. Cardillo-Giuliano the reason for his arrest, but he said that he would have told him when he arrested him. He testified that "when I make arrest (sic) I inform people of the reason for their arrest". It is the first thing that "we do. You are under arrest for, and that's what I've done to, to the defendant". He did not have a reason for not having recorded this in his notes, but he said that just because he did not make a note of it does not mean that he did not do it.

[105] Mr. Cardillo-Giuliano's evidence in this regard was scant. He said that when he failed the ASD test Officer Perreira "rearrested" him. He remembered hearing "impaired" or "over 80" and "care and control".

[106] Mr. Cardillo-Giuliano said that for the first arrest it was "impaired". He was confused by the mention of "care and control". He said that he was "slightly dazed and confused" due to having been asleep.

[107] I find as a fact that Officer Perreira conveyed sufficient information to Mr. Cardillo-Giuliano about why he was arresting him to satisfy the requirements of s. 10 (a) of the Charter. Officer Perreira may have not had specific notes on this, but he testified that it is his practice to tell persons that he arrests why he is arresting them. This makes sense and I accept that he told Mr. Cardillo-Giuliano the reason why he arrested him. Even in Mr. Cardillo-Giuliano's hazy recollection he remembers the officer saying "impaired" and "care and control". This supports my finding that the officer told him why he was arresting him.

[108] Therefore, I dismiss Mr. Cardillo-Giuliano's application under s. 10 (a) of the Charter. He has not proved on a balance of probabilities that Officer Perreira breached his rights under this section.

Section 10 (b)

[109] Officer Perreira arrested Mr. Cardillo-Giuliano for "impaired care and control" at 2:50 a.m. He put handcuffs on him and searched him. Then he decided to "err on the side of caution" and give him an ASD breath test because he had never before laid a charge of "impaired care and control". He was not sure that the "impaired care and control" charge was the correct one and he "wanted to protect the accused's rights and try to follow proper procedure". He decided that "it would probably be better just to read the ASD demand to him and then give him the device to, to take a, give a sample with".

[110] It is not clear from Officer Perreira's testimony why he was not sure that "impaired care and control" was the correct charge. He testified that he had "reasonable grounds to believe that [Mr. Cardillo-Giuliano's] ability to operate a motor vehicle was impaired by alcohol". That would make a correct charge. He should know that. He had been an officer for four years and had performed over one hundred traffic stops, including stops for drinking and driving.

[111] Therefore, in this context I am not sure what he meant by erring on the side of caution and wanting to protect Mr. Cardillo-Giuliano's rights by then making a demand for a breath sample into an ASD. Regardless of the officer's good intentions and lack of experience, I cannot find a justifiable reason for arresting, handcuffing and searching Mr. Cardillo-Giuliano and then delaying 16 minutes to give him his rights to counsel to do something that was legally superfluous.

[112] His testimony in cross-examination that he decided to administer an ASD test to Mr. Cardillo-Giuliano after he had already arrested him for "impaired care and control" because "if he took the ASD and then he failed…that would also give me the reasonable grounds to believe that his blood alcohol content was above 80 milligrams of alcohol in 100 millilitres of blood" is troubling. It appears that the officer was overly concerned about having a valid charge and that he was not administering the ASD just to protect Mr. Cardillo-Giuliano's rights. His "erring on the side of caution" appears to refer more to him getting the right charge than to Mr. Cardillo-Giuliano's rights.

[113] Officer Perreira, read him his rights to counsel from his note book at 3:06 a.m., after Mr. Cardillo-Giuliano failed the ASD test. This was 16 minutes after he had arrested and detained him for "impaired care and control", handcuffed and searched him. There is no doubt that he was detained as soon as Officer Perreira arrested him for impaired care or control and put handcuffs on him.

[114] Mr. Cardillo-Giuliano testified that he could not recollect being given his rights to counsel until he was at the police station. I accept Officer Perreira's testimony that he gave him his s. 10 (b) rights at the scene after he failed the ASD test. Officer Perreira made a note of this. Mr. Cardillo-Giuliano was under the influence of alcohol, he made no notes and it has been since November 2011 that this occurred. In these circumstances I find that Mr. Cardillo-Giuliano's testimony is questionable and that Officer Perreira's is much stronger on this point. Therefore, I find as a fact that Officer Perreira, read him his rights to counsel from his note book at 3:06 a.m., after Mr. Cardillo-Giuliano failed the ASD test.

[115] However, I find that, ironically, Officer Perreira breached Mr. Cardillo-Giuliano's rights under s. 10(b) of the Charter by failing to inform him of his rights to counsel when he arrested him for "impaired care and control". Section 10 (b) of the Charter states that "Everyone has the right on arrest … to retain and instruct counsel without delay and to be informed of that right ;" (emphasis added).

[116] After considering all of the circumstances, he law and counsels' submissions I am satisfied on a balance of probabilities that Officer Perreira breached Mr. Cardillo-Giuliano's rights under s. 10(b) of the Charter. Therefore, I grant the defence's Charter application in this regard.

[117] I recognize that looked at another way, one might argue that since Officer Perreira breached Mr. Cardillo-Giuliano's rights to counsel and then compelled him to give samples of his breath into the ASD, that the fail result on the ASD should be excluded and, consequently, there would be no grounds upon which to base the demand for breath samples into the Intoxilyzer. The effect of this would be to breach Mr. Cardillo-Giuliano's rights against unlawful search and seizure under s. 8 of the Charter. This would be a finding that is contrary to my finding above that Officer Perreira did not breach his rights under s. 8.

[118] However, I do not agree with this approach to the issue because I find that the full extent and seriousness of the breach of Mr. Cardillo-Giuliano's s. 10 (b) rights did not fully crystalize until the 16 minutes passed before Officer Perreira gave him his rights to counsel and this is the ultimate factual situation that is before the court. Moreover, the defence did not make this argument. I do not think that I should engage in judicial activism and consider an argument raised by me. Especially, since the Crown has not had an opportunity to makes submissions in this regard.

Did the Police Breach Mr. Cardillo-Giuliano's Rights Under Sections 7 of the Charter?

[119] The defence made hardly any submissions regarding s. 7 of the Charter. I infer from that that the defence does not think there is a meritorious argument that Officer Perreira breached Mr. Cardillo-Giuliano's rights under this section. I agree that the defence has not proved on a balance of probabilities that Officer Perreira breached Mr. Cardillo-Giuliano's rights under s. 7. Therefore, I dismiss his application in this regard.

Is Bolus Drinking a Defence in This Case?

[120] Based on the facts as I have found them, I do not think that Mr. Cardillo-Giuliano can avail himself of the defence of bolus drinking. His evidence is that he drank a large amount of alcohol and then got into his truck and fell asleep until the police woke him up at, which was at 2:45 a.m. I did not accept his evidence as to having drunk the alcohol outside of his truck. I found that he drank it while sitting in the driver's seat.

[121] I found that he was in care and control of his motor vehicle at 2:45 a.m. when Officer Perreira found him on the highway. The Intoxilyzer readings indicate that his blood alcohol concentration (BAC) was above the legal limit at this time. The certificate is Exhibit 1. It shows readings of 170 at 4:29 a.m. and 150 at 4:52 a.m. In addition, Dr. Krishnan's evidence was that Mr. Cardillo-Giuliano's BAC was over the legal limit at 2:45 a.m.

[122] Therefore, his BAC resulted from alcohol that he drank while he was in care or control of his vehicle while he was committing the offence.

Should the Evidence of Mr. Cardillo-Giuliano's Breath Readings be Excluded Under s. 24 (2)?

[123] The last issue is whether in light of the s. 10 (b) breach the court should exclude the evidence of the Intoxilyzer breath tests.

[124] In R. v. Grant, 2009 SCC 32, 66 C.R. (6th) 1, the Supreme Court of Canada set out the test for the determination of this issue:

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

Application of Grant to the Case at Bar

(1) The Seriousness of the Charter-Infringing State Conduct

[125] The court stated in paragraph 74 that:

State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.

[126] I do not think that the breach in the case before me is inadvertent or minor. Nor do I think that it was a wilful or reckless disregard of Mr. Cardillo-Giuliano's Charter rights.

[127] However, I find that the breach of Mr. Cardillo-Giuliano's rights to counsel was serious. Although Officer Perreira said that he was erring on the side of caution and trying to protect Mr. Cardillo-Giuliano's rights, I find that he was also quite concerned that he lay the correct charge. Perhaps this was part of being concerned with Mr. Cardillo-Giuliano's rights. But in this situation, in terms of Mr. Cardillo-Giuliano's jeopardy it did not matter whether he laid a charge of impaired care or control or over 80 care or control. They both carry the same penalties.

[128] In addition, he testified that one of his main duties is traffic control. As such, he should have known that the impaired care or control over 80 charge that he first laid was lawful. He said that he had reasonable and probable grounds to lay this charge and I agree with him.

[129] Because of his second thoughts about the charge that he laid he embarked on an unnecessary course to administer an ASD breath test to Mr. Cardillo-Giuliano who was already under arrest and handcuffed. He did this without giving him his rights to counsel. This resulted in 16 minutes of detention for Mr. Cardillo-Giuliano without being given his rights to counsel. This is inconsistent with his stated desire to protect his rights.

[130] Therefore, in this case this factor militates in favour of exclusion of the evidence of the breath tests.

(2) The Impact of the Breach on the Charter-Protected Interests of the Accused

[131] In paragraphs 76 and 77, the court outlined the concerns with regard to this factor:

This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute (para. 76).

To determine the seriousness of the infringement from this perspective, we look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests…The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute (para. 77).

[132] I find that Mr. Cardillo-Giuliano's being forced to endure a 16 minute detention while under arrest and handcuffed in the middle of the night on a rural road while being subjected to a compulsory procedure of giving breath samples all without being advised that he had the right to call a lawyer to ask what was going on constitutes a serious impact on his "Charter-protected interests".

[133] Therefore, in this case this factor militates in favour of exclusion of the evidence of the breath tests.

(3) Society's Interest in the Adjudication of the Case on Its Merits

[134] In paragraphs 79 to 83, the court outlined the factors that are relevant under this heading:

Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society's "collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law": R. v. Askov, [1990] 2 S.C.R. 1199, at pp. 1219-20. Thus the Court suggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence (para. 79).

The concern for truth-seeking is only one of the considerations under a s. 24(2) application (para. 80).

The reliability of the evidence is an important factor in this line of inquiry. If a breach…undermines the reliability of the evidence, this points in the direction of exclusion of the evidence…Conversely, exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute (para. 81).

The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry…the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution (para. 83).

[135] According to Grant, I must "balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute" (para. 71).

[136] In the case at bar the evidence that the defence asks that I exclude under s. 24 (2) is evidence of Intoxilyzer breath samples obtained by the police. I recognize that in Grant, the court said that "where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive" (para. 111).

Disposition Regarding s. 24 (2) of the Charter

[137] After considering all of the factors set out in Grant and the circumstances of the case before me and for the reasons expressed above, I conclude that it would bring the administration of justice into disrepute to admit into evidence the breath sample results. Therefore, I grant the defence's application to exclude the evidence of the Intoxilyzer readings. There being no other evidence to support the charge, Mr. Cardillo-Giuliano is found not guilty of care or control over 80.

Released: April 9, 2015

Justice J.W. Bovard