Court Information

Date: September 14, 2020

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Michael Palumbo

Before: Justice Leslie Pringle

Heard on: August 21 and August 24, 2020

Reasons for Judgment released on: September 14, 2020

Counsel

For the Crown: D. Pyper

For the Accused: A. Nathan

Judgment

Pringle, J.:

Introduction

[1] Mr. Palumbo is charged with drinking and driving offences alleged on May 26, 2019: operating a motor vehicle while his ability was impaired by alcohol; and having a blood alcohol concentration that was equal or over 80 within two hours of operating a motor vehicle. Both charges arise out of allegations that he was driving erratically on Bathurst St.

[2] The Crown called two civilians and three police officers, and relied on a number of exhibits. As was his right, Mr. Palumbo called no evidence on the Charter hearing or on the trial itself.

[3] Mr. Palumbo raises two arguments with respect to proof of the charges, submitting that the Crown's evidence fails to prove:

1. That he was the driver of the vehicle changing lanes and speeding; and

2. That his ability to drive the vehicle was impaired by alcohol.

[4] He raises additional arguments relating to alleged Charter violations, and seeks the exclusion of the breath readings under s. 24(2), specifically submitting there was:

3. Violation of s. 9 when he was handcuffed;

4. A violation of s. 10(b) when he was asked booking questions about alcohol before he exercised his right to counsel;

5. A violation of s. 10(b) when police failed to provide him with a second opportunity to consult with counsel when he said he did not know if he was satisfied with duty counsel's advice, and finally;

6. A violation of s. 9 when he was not released for almost an hour after the completion of the investigation.

[5] I will address each issue separately, referring to the evidence necessary to understand the issue.

Identification as the Driver

[6] Mr. Watson and Mr. Haywood were driving north on Bathurst Street after midnight in the early morning of May 26, 2019, heading home. They had been at a friend's place, where they had consumed a small amount of alcohol. Mr. Watson said he had a half glass or a glass of wine, and Mr. Haywood said he had a glass of champagne when they first arrived. They said they were not big drinkers, and had not been taking any drugs.

[7] Mr. Watson said that he saw a blue car weaving in and out of the traffic erratically and speeding. He said he first noticed the driver at Eglinton Street, through his passenger mirror. He then saw him driving "way over the limit", changing lanes twice. He testified that he noticed the driver again at Lawrence Avenue while they were stopped at a light, and he realized it was the guy in the blue car who was speeding, and got a closer look at him.

[8] Mr. Haywood noticed the small blue car moving "rather fast" from lane to lane after they passed Lawrence Avenue. He did not notice the driver at the time.

[9] After Bathurst Street, the car was behind them and Mr. Haywood said he heard a noise, and he told Mr. Watson to pull over because he thought they might have been hit. When they stopped, both Mr. Watson and Mr. Haywood saw a blue car stopped behind them, which they said they recognized as the one they had seen driving north and changing lanes. Mr. Watson said he saw the driver get out of the driver's door, while Mr. Haywood said the person was already out when he exited. They both heard the person say, "you cut me off, look at what you did to my car". They then saw some damage to the blue car's right front tire area, but there was no damage to their car. They surmised that the driver had hit the curb and damaged his own car.

[10] Mr. Watson said the man seemed inebriated, since his sentences were broken and the only clear thing he was repeating was, "you cut me off". Neither he nor Mr. Haywood smelled alcohol on the man, but they did not get close to him. At some point, two other men got out of the back seat of the blue car, and either Mr. Watson or Mr. Haywood took a picture of the three of them, (EX 1).

[11] Mr. Watson and Mr. Haywood said they did not want to get into a confrontation and felt it was best to let the police deal with the situation, so they called police.

[12] The police arrested the person that Mr. Watson and Mr. Haywood pointed out as the driver, who told them "you cut me off". It is conceded that this person was Mr. Palumbo, and that he was the registered owner of the vehicle.

[13] The Defence points out that there were some inconsistencies in Mr. Watson and Mr. Haywood's testimony: what time they arrived at their friend's place, and who saw the driver of the blue car when; who took the photograph in EX 1. The Defence also submits that Mr. Watson himself was not entirely consistent about when he first saw the driver, or whether it was a glass or a half glass of wine he had to drink.

[14] I agree these were inconsistencies, but I found they were in relation to small matters of little importance to the issues. In part, Mr. Watson and Mr. Hayward's different viewpoints as driver or as passenger could account for different observations. In the main, I found both gentlemen to be unbiased citizens, simply attempting to recount what they recalled happening. In that context, these small inconsistencies were of little significance.

[15] Ms. Nathan submitted that in some respects Mr. Watson's evidence seemed exaggerated, e.g. that the speed of the blue car was "way over the limit", but then estimating it as 10 km over the limit. Similarly, he indicated the driving was "erratic" and the blue car was "weaving in and out", but acknowledged there were only two lane changes. Finally, he indicated he was "over 100% certain" that the driver of the blue car was Mr. Palumbo, and I agree completely with Ms. Nathan that especially in relation to identification issues, there is a weak link between confidence and accuracy.

[16] Nonetheless, I find that in the totality of circumstances, it is clear that Mr. Palumbo was the driver of the blue vehicle, considering:

• The vehicle was indeed a distinctive colour of blue (see EX 1);
• The observations by Mr. Watson and Mr. Haywood took place over a relatively short distance and time;
• Both Mr. Watson and Mr. Haywood saw only one person outside the blue vehicle after it stopped;
• We know now that the person was Mr. Palumbo and it is conceded it was his car;
• and perhaps most significantly in my view, we know Mr. Palumbo was saying repeatedly to Mr. Watson and Mr. Haywood, "you cut me off", suggesting that he was acknowledging that he was the driver;
• The other two men got out of the back seat.

[17] I am satisfied that Mr. Palumbo was the driver of the blue vehicle beyond a reasonable doubt.

Impaired Driving

[18] Section 320.1(1)(a) requires that the Crown prove that Mr. Palumbo's ability to operate his motor vehicle was impaired "to any degree" by alcohol. However, I agree with Ms. Nathan that absent the breath readings, the only evidence of alcohol consumption was the fact that Constable Garbutt smelled alcohol on Mr. Palumbo's breath at the roadside, and Constable Rao smelled it at the station. Of course, consumption of alcohol itself does not necessarily equate to impairment by alcohol.

[19] The evidence of driving itself does not lead to a strong inference of impairment by alcohol. While Mr. Watson stated the driver was speeding "way over" the limit, he then estimated it as 10 km over the limit, and Mr. Haywood simply described it as "rather fast". They both agreed that there were approximately two lane changes. As a result, I am somewhat wary of Mr. Watson's description of this as "weaving", or his conclusion that the driving as "erratic". While the driving was such that it drew both Mr. Watson and Mr. Haywood's attention to it, I do not find that it was so out of the ordinary that an inference of impairment can clearly be drawn.

[20] For the Crown, Mr. Pyper referred to the possible collision with the curb as a factor indicating impairment. However, the evidence on a potential collision with the curb was thin: it is unclear if this was the noise that Mr. Haywood heard, and the police do not appear to have investigated any damage to Mr. Palumbo's vehicle at the scene. While Mr. Palumbo berated Mr. Watson by saying "look what you did to my car, you cut me off", Constable Garbutt testified that Mr. Palumbo honestly believed that the other car forced him to the curb. In the end result, I am unsure whether there was a collision with the curb, and if there was, what caused the collision.

[21] Similarly, there was little evidence of any physical impairment of Mr. Palumbo. Constable Rao noted that Mr. Palumbo was unsteady on his feet for a few seconds at the roadside, but this was not noted by anyone else. Mr. Watson said he thought Mr. Palumbo was inebriated because he was not making sense, but Mr. Haywood said there was nothing remarkable about the way Mr. Palumbo was talking. Aside from the odour of alcohol, Constable Garbutt said she did not note any other indicia of impairment.

[22] For the Crown, Mr. Pyper referenced the breath readings as being some evidence that I could take into account in finding Mr. Palumbo's ability to drive a motor vehicle was impaired by alcohol. However, I am unaware of any authority that has changed the law set out by the Ontario Court of Appeal in R. v. Letford, where the Court held:

With respect to the impaired count, the trial judge was wrong in law in proceeding on the basis that he could use the results of the breath test in support of a finding of the degree of impairment, absent expert evidence relating the results to that issue. See R. v. Ostrowski (1958), 122 C.C.C. 196 (Ont. H.C.).

[23] Since there was no expert evidence about the readings here, I am not prepared to consider them as evidence of impairment by alcohol.

[24] Absent expert evidence as to the significance of the readings, I find the remaining evidence is insufficient to prove Mr. Palumbo's ability to operate his motor vehicle was impaired by alcohol beyond a reasonable doubt. There will be a finding of not guilty on count 2.

Was Handcuffing a Violation of s. 9?

[25] After Mr. Palumbo registered a fail on the Approved Screening Device, Constable Garbutt arrested him, read him his rights to counsel, cautioned him and read him a demand for samples on an Approved Instrument. She then handcuffed him to the rear, explaining to him that she was going to double lock the cuffs and they would tighten up. In court, she explained that double locking secures the cuffs so that they would not accidentally tighten any further and cause pain to the detainee.

[26] Constable Garbutt agreed that Mr. Palumbo was cooperative, compliant and polite. He had no weapons and was not aggressive. However, she said that she handcuffs arrested individuals to secure them and to protect them from harming themselves and her. She agreed she had discretion not to handcuff a detainee, but recounted an instance where she did not cuff a prisoner who then punched her in the face when she opened the door of the scout car to allow him to step out, causing her a bloody nose and a black eye. As a result, she said she has reverted to her training which tells her to handcuff someone under arrest even when they are in the back of the cruiser in a fully sealed and contained area. While she does this routinely, the officer said that she would not handcuff a child, or someone who was being released at the scene.

[27] Exhibit 4, the video from the in-car camera, shows that en route to the station, Mr. Palumbo told the officers that he was "pretty uncomfortable", and Exhibit 3, the video on booking, shows that when the booking sergeant asked Mr. Palumbo if he had any injuries, he said, "not right now, aside from wrist irritation".

[28] After the parade, Mr. Palumbo was taken into the report room. Acting Staff Sergeant Lloyd testified that detainees are usually cuffed to the bench by one wrist to ensure that they do not run out while the officer is completing the paperwork on the computer. If there is an interview room free, they might be detained in there without cuffs, but those rooms were not on the same floor. Alternatively, the person could be detained in the cells without cuffs.

[29] Constable Rao had no concerns for safety with Mr. Palumbo. He said that he did notice some signs of intoxication and felt it was for the best if he remained seated in close proximity to him. Other officers were coming in and out of the report room, and that night was busy at the station. Mr. Palumbo was cuffed by one wrist to the railing along the back of the bench, at shoulder level. According to Constable Rao, there was at least one other arrest for impaired operation that night, and that detainee was also cuffed to the railing on the bench.

[30] Mr. Palumbo did not remain in handcuffs when he spoke to counsel, when he went to the washroom, or when he was in the breath room.

[31] The factors that may be considered in assessing whether a particular use of force by police was excessive were set out in R. v. Magiskan, [2003] O.J. No. 4490 at para. 27. In Magiskan, Justice Zelinski stated:

The nature and quality of the act that must be considered begins with the decision to use force of any kind in the first instance (s. 25(1)). Justification for that decision, once made, is limited by all of the circumstances that affect the "nature and quality of the act that constitutes the excess". Some such circumstances would include:

• the nature and seriousness of the offence for which the arrest is being made (one does not engage a bulldozer when a flyswatter is sufficient).
• the certitude of the fact of the offence which is the basis of the arrest having taken place (Persons are presumed to be innocent until proven guilty. The more that is known about the circumstances that establish guilt, the more thorough the inquiry, the more complete the objective evidence and the more reasonable the grounds upon which the arrest is made are important considerations which govern necessity and reasonableness).
• the need for detention as an aspect of intervention;
• the protection of the officers and other persons from violence;
• the prospect of flight/escape;
• the likelihood of continuation/resumption of offending conduct;
• the apparent physical condition of the person being arrested and/or alleged victims;
• police modules and training affecting the use of force;
• the prospect of escalation and retaliation;
• knowledge of the identity and access to the person to be arrested; (A person who is to be arrested does not, of necessity, have to be arrested at that time and place if use of force is contemplated when it is reasonable that this can be accomplished on another occasion without violence or with less violence.);
• the nature and extent of the force reasonably contemplated as likely to be necessary;
• other exigent circumstances.

[32] The "nature and quality of the act" in Magiskan was the officers pepper-spraying the arrestee in the face, and placing him in a chokehold when he refused to get out of the vehicle he was in.

[33] The "nature and quality" of handcuffing has been examined in a few cases, and in some, it has been found to be an unreasonable use of force. For example, in R. v. Orde, 2017 ONCJ 822, Justice De Filippis found that while waiting for an ASD to arrive, it was unreasonable for an officer to handcuff the detainee in the back of the scout car while the officer went to a coffee shop for 7-8 minutes to urgently use the washroom. In R. v. Gladue, [1993] A.J. No. 1045, the Alberta Provincial Court Judge found it was unreasonable for the arresting officer to shove Ms. Gladue's face against a cement wall as he handcuffed her, pushing her so hard that she bruised her forehead and cheek, causing her to cry and be afraid for her safety.

[34] Other cases have found that placing a detainee in the cells prior to breath testing may be unreasonable: see R. v. Bouchard, 2011 ONCJ 610, R. v. Brezenski, 2013 ONCJ 831 and R. v. Poon, 2017 ONCJ 639. (In Bouchard, Justice Fraser called this a significant act of placing a human being in a cage, cautioning those in the criminal justice system to guard against becoming desensitized to it.)

[35] This case does not rise to the level of concern that was present in any of those decisions.

[36] Looking at Mr. Palumbo's situation in light of the Magiskan factors and the evidentiary record, I note the following:

• When he was first handcuffed at the scene, Mr. Palumbo was lawfully under arrest for driving with excess alcohol in his system, and he was required by law to be detained for the purpose of providing two samples of his breath into an Approved Instrument. At the roadside, Constable Garbutt had reasonable grounds to believe that he had over 100 mg of alcohol in 100 ml of his blood;
• Constable Garbutt explained her reasons for handcuffing an arrestee in the scout car in a way that made sense for safety purposes and was in accordance with her training. Ms. Nathan's suggestion that cuffs were unnecessary in the enclosed space of the scout car was undermined by Constable Garbutt's own experience of being punched in the face by an uncuffed detainee as he got out of the scout car;
• The officers were polite and professional with Mr. Palumbo throughout his arrest and detention. While Mr. Palumbo told the officers he was uncomfortable in the scout car and complained of some wrist irritation on his arrival at the station, this appears to have been relatively minor. There is no evidence that he was uncomfortable in the report room where he spent the majority of the time he was under arrest;
• As for the decision to handcuff Mr. Palumbo to the railing in the report room at the station, it was a busy night and there were officers in and out of the report room, with at least one other civilian detainee there for breath testing. Since there were grounds to believe Mr. Palumbo was over the legal limit, Constable Rao's explanation that it was for the best to keep him nearby was reasonable, and I do not believe anyone is suggesting it would have been preferable to put Mr. Palumbo in the cells.

[37] I am not suggesting that handcuffing a prisoner's wrist to the bench at the police station will always be reasonable, however on the evidentiary record in this case, I am not prepared to find that it was unreasonable. Mr. Palumbo has not shown that this aspect of his detention was arbitrary.

Did the Booking Questions Violate s. 10(b)?

[38] Upon arrival at the police station, Acting Staff Sergeant Lloyd asked Mr. Palumbo a series of standard questions, including whether he understood the charges he was facing, whether he was suffering from any injuries, and whether he had consumed any alcohol or drugs. When Mr. Palumbo responded that he had consumed some alcohol, Sergeant Lloyd asked him how much and where it had been consumed.

[39] Sergeant Lloyd testified that the purpose of these questions was to ensure the detainee's well being, although he conceded that the location of consumption was not particularly relevant to this concern. He indicated that the questions about alcohol and drugs were focused on health and safety. He noted that in his experience, the answer to the question about the amount of alcohol consumption was "never accurate", by which I took him to mean that he believes everyone underestimates or understates their consumption. However, he said that if a large amount such as a "26er" was indicated, he would want to know. Sergeant Lloyd acknowledged that any admission of consumption of alcohol by a detainee could be evidence, but said that his intent in asking the question was related to health and safety, not evidence.

[40] In this case, the Crown does not seek to admit any of the responses for the truth of their contents at trial. Nonetheless, the Defence submits that it was a violation of Mr. Palumbo's rights to be asked the questions in the first place.

[41] In R. v. Dupe, 2010 ONSC 6594, counsel for the accused made a similar submission, arguing that the well-known duty on the police to hold off on questioning until a detainee has an opportunity to consult with counsel precludes the asking of standard booking questions like the ones asked here. Justice Dambrot disagreed, explaining that the sort of questioning that is prohibited is questioning that is "intended to elicit evidence", sometimes referred to as "investigative questioning". At para. 26 in Dupe, Justice Dambrot held, "questioning that is not designed to elicit incriminatory evidence, or at least to elicit evidence relating to the offence under investigation, is not prohibited".

[42] Justice Dambrot's reasoning was agreed with, and his decision followed in R. v. Mullins, 2015 ONSC 1552 at para. 40, and R. v. Khairi, 2015 ONSC 1552, at para. 123. I agree with, and adopt, Justice Dambrot's reasoning on this point. However, I also endorse Justice Molloy's approach in Mullins at paras. 41-42, where she notes that when the Crown seeks to admit responses to the standard booking questions, trial fairness may dictate that they should not be admitted even though there was no Charter breach, see R. v. Hector, 2014 ONSC 2037 and R. v. Smith (2007), 163 C.R.R. (2d) 41.

[43] Trial fairness is not in issue here, as the Crown does not seek to rely on any of the responses in any event.

[44] I accept Sergeant Lloyd's testimony that the questions at issue here were not for the purpose of eliciting evidence from Mr. Palumbo, but rather related to his health and safety. I find no breach of s. 10(b) arising out of the standard booking questions in this case.

Was There a s. 10(b) Violation When the Police Did Not Provide a Second Opportunity to Consult with Counsel?

[45] Constable Garbutt read Mr. Palumbo his rights to counsel which he said he understood. When she asked him if he wanted to call a lawyer, he responded that he did not know the number, and she told him she could put him in touch with one. At the station, Mr. Palumbo was placed into the privacy booth to speak to duty counsel at 2:31 a.m. and completed the call at 2:39 a.m.

[46] In the breath room, the video shows that the Qualified Breath Technician, P.C. Morgan, had the following interaction with Mr. Palumbo, although Mr. Palumbo is mumbling and hard to hear on video:

Q: Did you have an opportunity to speak to duty counsel or counsel?

A: Briefly.

Q: Were you satisfied?

A: (sounds like) I don't know.

Q: Ok. Was it duty counsel or choice of your own lawyer?

A: It was duty counsel.

[47] When played the video in court, Constable Morgan thought the answer to the question, "were you satisfied?" was "yup". He explained that Mr. Palumbo was nodding and gesturing with his head down, and he felt that Mr. Palumbo was pretty comfortable. He testified that if he had felt Mr. Palumbo did not understand or was not satisfied, it would have been a headlight for him, and he would have let Mr. Palumbo speak to duty counsel again. The officer said that he has done this before, and he has had no problem with letting someone do that.

[48] Having watched the video myself, I can say that I agree with the Defence that Mr. Palumbo does appear to have responded, "I don't know", although P.C. Morgan does not seem to register the response. When P.C. Morgan moved on without addressing Mr. Palumbo's response, Mr. Palumbo did not repeat or elaborate on his statement. My conclusion is that P.C. Morgan did not hear Mr. Palumbo, who was mumbling and had his head hanging down. If Constable Morgan had heard Mr. Palumbo, I accept that he would have taken further steps to investigate what Mr. Palumbo meant.

[49] The Defence submits that in these circumstances, there was a breach of Mr. Palumbo's rights pursuant to s. 10(b), because he was not provided a reasonable opportunity to consult with counsel.

[50] In R. v. Sinclair, 2010 SCC 35, at paras. 52-55, the Supreme Court confirmed that when there is reason to question the defendant's understanding of the advice he received, there may be an obligation to give him a further opportunity to speak to counsel. The analysis has to take into account the specific facts of the case; the question is whether a further opportunity to consult a lawyer is necessary to fulfill the purpose s. 10(b).

[51] At paras. 57 and 67 of Sinclair, Justices McLachlin and Charron, speaking for the majority, held:

It is assumed that the initial legal advice received was sufficient and correct in relation to how the detainee should exercise his or her rights in the context of the police investigation. The failure to provide an additional opportunity to consult counsel will constitute a breach of s. 10(b) only when it becomes clear, as a result of changed circumstances or new developments, that the initial advice, viewed contextually, is no longer sufficient or correct. This is consistent with the purpose of s. 10(b) to ensure that the detainee's decision to cooperate with the police or not is informed as well as free.

…The bottom line in such a situation is whether the circumstances, viewed as a whole, indicate that the detainee required further legal advice in order to fulfill the purpose of s. 10(b) of providing legal advice on his choice as to whether to cooperate with the police or not. (emphasis added)

[52] I do not believe that Mr. Palumbo's mumbled indication that he did not know if he was satisfied with duty counsel's advice amounted to a changed circumstance. It did not suggest that the initial advice he received was insufficient or incorrect, just that he did not know if he was satisfied. While it would have been better if P.C. Morgan asked him to repeat what he said and investigated further, Mr. Palumbo did not express any reason for possible dissatisfaction, and the circumstances did not reveal any reason to think the advice was inadequate. As a result, I do not believe the police were required to provide Mr. Palumbo a further opportunity to consult with duty counsel. I see no breach of s. 10(b).

[53] If I am wrong in that, I would not exclude the evidence of the breath tests pursuant to s. 24(2). Applying the factors set out in R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1, I do not find that Constable Morgan's failure to hear Mr. Palumbo amounted to serious state misconduct; the impact of the Charter breach upon Mr. Palumbo was minimal since he had already had an opportunity to speak with duty counsel, and apparently did speak to them for about 8 minutes; and society's interest in an adjudication on the merits favours admission of the evidence. Balancing all the factors, I do not find that admission of the evidence would bring the administration of justice into disrepute.

Was There a Breach of s. 9 by Overholding?

[54] Mr. Palumbo's second breath test was conducted at 3:42 a.m. After that Constable Rao testified that Mr. Palumbo remained in the report room with him while he prepared the paperwork. While that was going on, Constable Garbutt was tasked by Detective-Constable Taborski at 2:39 a.m. to try and obtain witness statements from Mr. Watson and Mr. Haywood. Constable Garbutt went to their residence at 3:36 a.m., but no one responded so she went back to the station, arriving at 4:06 a.m. She then assisted Constable Rao with paperwork and serving of documents, consulting with D.C. Taborski to be sure it was complete. There were a number of documents in this case, the last one of which was served at 5:13 a.m. According to Constable Garbutt, it was then D.C. Taborski's responsibility to prepare the release documents as the officer-in-charge of the case. D.C. Taborski was not called as a witness, but it appears Mr. Palumbo was released at 6:06 a.m.

[55] Constable Garbutt testified that in her experience, the preparation and service of paperwork usually takes a minimum of 1½ hours, but can be much longer. In her opinion, 1½ hours is fast.

[56] In this case, it appears that it took about 1½ hours to prepare and serve all the paperwork after the second breath test, (3:42 – 5:13 a.m.). The release documents were prepared and served within 53 minutes after the completion of the investigation, (5:13 – 6:06 a.m.).

[57] In R. v. Ruscica, 2019 ONSC 2442, the Summary Conviction Appeal Judge noted at para. 48:

The obligation to release a person from custody is set out in ss. 497 and 498 of the Criminal Code. Section 498 requires the officer in charge to release a person in custody as soon as practicable except in accordance with s. 498(1.1) which provides as follows:

(1.1) The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officer believes, on reasonable grounds,

(a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to

(i) establish the identity of the person,

(ii) secure or preserve evidence of or relating to the offence,

(iii) prevent the continuation or repetition of the offence or the commission of another offence, or

(iv) ensure the safety and security of any victim of or witness to the offence; or

(b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law. (emphasis added)

[58] Justice McKelvey agreed with the trial judge that while the appellant bears the legal burden of establishing an alleged s. 9 breach on a balance of probabilities, where an accused presents a prima facie case of arbitrary detention and the Crown seeks to justify it, an evidential burden may arise requiring the Crown to explain the reasons for the detention. The evidential burden arises because it is the police officers who have exclusive knowledge of the reasons for the detention.

[59] In Ruscica, the accused was returned to the cells after his last breath test at 3:49 a.m. The accused was served with the certificate of analysis and other documents at 5:05 a.m. Just prior, there was a shift change at 5:00 a.m., and another Staff Sergeant became responsible for his release. The accused was not released until 8:16 a.m., and the officer who released him did not testify.

[60] Justice McKelvey held that the accused had not presented a prima facie case of arbitrary detention in Ruscica. He held at para. 54:

In my view, the case law supports the trial judge's conclusion that a delay of just over three hours in releasing the appellant following the completion of the investigation did not constitute a prima facie case of arbitrary detention which required the Crown to justify the detention. (emphasis added)

[61] Here, the time from completion of the investigation, (service of the last document) at 5:13 a.m., to Mr. Palumbo's release at 6:06 a.m. was 53 minutes - far less than the 3 hour delay in Ruscica. Indeed, the entire time after Mr. Palumbo's second breath test until his release was less than the 3 hour delay in Ruscica. Here, Mr. Palumbo was not held in a cell, and here, there was no suggestion that he might have been ignored over a shift change, or was otherwise treated arbitrarily.

[62] In the circumstances, I do not find that there is a prima facie case of arbitrary detention here. The Defence application based on alleged overholding is dismissed.

Summary

[63] The Charter applications are dismissed and the truncated breath readings of 140 mg of alcohol in 100 ml of blood taken at 3:04 a.m. and 3:42 a.m. are admissible.

[64] With respect to the trial issues, I am satisfied that Mr. Palumbo was the driver of the vehicle, and that his readings were over the legal limit. Accordingly, there will be a finding of guilt on Count 1.

[65] I am not satisfied that the Crown has proved Mr. Palumbo's ability to drive was impaired by alcohol beyond a reasonable doubt. There will be a finding of not guilty on Count 2.

Date: September 14, 2020

Justice Leslie Pringle