ONTARIO COURT OF JUSTICE DATE: 2022 11 23

COURT FILE No.: Brampton 21-1985

BETWEEN:

HIS MAJESTY THE KING

— and —

MATTHEW SALCICCIA

Before Justice M.M. Rahman

Heard March 31, April 1 and September 12, 2022

Reasons for judgment delivered November 17, 2022.

Amended reasons released November 23, 2022

Brennan Jackson........................................................................ counsel for the Crown

Douglas Lent................................................................. counsel for Matthew Salciccia

RAHMAN, J.:

1. Introduction

[ 1 ] On February 6, 2021, Peel Regional Police Constable Rebecca Gibbons received a call for service at the intersection of Queen and George Streets in Brampton. When the officer arrived she and her colleague, Constable Rebecca Gray, approached the Ford F-150 truck they had received the call about. The truck was stopped, with its engine running, in a live lane of traffic. The two officers approached the driver’s side window. The truck’s driver, the defendant, Matthew Salciccia, was slumped over the steering wheel. He was fast asleep.

[ 2 ] The officers knocked on the window to try to wake him up. When Mr. Salciccia remained unresponsive. Cst. Gray used her baton to knock loudly on the window. This finally roused the sleeping driver. The officers instructed him to roll down his window. Mr. Salciccia had some trouble immediately getting the window down, but was eventually able to. When asked to take off his seatbelt, Mr. Salciccia again took some time but eventually removed it. As Mr. Salciccia stepped out of the truck he stumbled onto the hood of an adjacent police cruiser parked a few steps away from the truck. Cst. Gibbons noted that Mr. Salciccia smelled of alcohol and confirmed that the smell came from his breath. Based on what she saw, Cst. Gibbons arrested Mr. Salciccia for driving while impaired. After being read his rights to counsel at the scene, Mr. Salciccia declined the opportunity to call a lawyer. Nonetheless, once at the police division, Mr. Salciccia was put in touch with duty counsel, although how this call came about is the subject of some dispute. Intoxilyzer tests ultimately revealed that Mr. Salciccia’s blood alcohol content (BAC) was well over the legal limit. Consequently, he was charged with both impaired driving and having excess blood alcohol within two hours of driving.

[ 3 ] Mr. Salciccia challenges the admissibility of the Intoxilyzer results as having been obtained in violation of his Charter rights. He says that Cst. Gibbons did not have sufficient grounds to arrest him for impaired operation at the roadside. He says that she exaggerated her evidence about his motor skill difficulties at the roadside. Mr. Salciccia also contends that the observations the officer did make were equally consistent with him having been roused from a deep sleep as they were with impairment. Mr. Salciccia also argues that the police violated his s. 10(b) right to counsel. While he does not dispute that Cst. Gibbons may have read him his right to counsel at the roadside, he says given his sleepy state, she ought to have taken steps to ensure he understood his rights, or re-advised him of those rights. In any event, he also says that, once the police took steps at the station to put him in contact with counsel, they were obliged to allow him to contact his counsel of choice, and not simply steer him towards duty counsel. On the trial proper, Mr. Salciccia says that there are insufficient grounds for this court to conclude that his ability to drive was impaired.

[ 4 ] The Crown argues that the police did not breach Mr. Salciccia’s rights. Regarding the alleged s. 8 breach, the Crown says that Cst. Gibbons had ample grounds to arrest Mr. Salciccia at the scene. His motor skills at the scene and slow responsiveness, combined with the smell of alcohol, gave Cst. Gibbons reasonable grounds to believe he was impaired. The Crown also disputes that there was any s. 10(b) breach here. Upon being informed of his right to counsel at the scene, Mr. Salciccia declined the opportunity to call a lawyer. The police did not breach s. 10(b) by then putting him in touch with duty counsel, since they did not even have to allow him to call counsel. And in any event, they were not required to offer him the opportunity to call someone to find the number for a lawyer because he did not ask them to. To the extent that the defence argues that Cst. Gibbons should have ensured that Mr. Salciccia understood his right to counsel, given his sleepy state, the Crown argues that the defence raised this issue too late, and Cst. Gibbons was not cross-examined on the existence of any special circumstances. On the trial proper, the Crown argues that there is sufficient evidence that Mr. Salciccia’s ability to operate a vehicle was impaired and that his BAC was over the legal limit.

[ 5 ] These reasons explain why I find that there was no breach of Mr. Salciccia’s Charter rights, and why I find him guilty of both counts on which he was arraigned.

2. Charter Application

2.1. Section 8

[ 6 ] There is no dispute that Mr. Salciccia was asleep behind the wheel of his truck when the police arrived. However, Mr. Salciccia takes issue with the police’s evidence about their observations at the scene, and whether those observations would have supported a reasonable belief that he was impaired by alcohol.

[ 7 ] Cst. Gibbons testified that she received a call for service shortly before 8:00 pm on the evening of February 6, 2021. A driver was passed out behind the wheel of a Ford pick-up truck. Cst. Gibbons and Cst. Rebecca Gray arrived at the scene in separate cars a few minutes after receiving the call. The officers saw the black truck in a lane of traffic, facing a green light. It was not moving but its engine and lights were on. They walked up to the driver’s side window of the truck. Mr. Salciccia was in the driver’s seat. He was asleep and slumped over the steering wheel. The officers tried to wake him up by knocking on the window. When that proved unsuccessful, Cst. Gray used her baton to tap on the window. Mr. Salciccia woke up. Cst. Gray said that his truck rolled slightly and the officers had to strike the truck to get him to stop. Mr. Salciccia was asked to roll down his window. He had some difficulty doing so, apparently unable to find the correct button (although he did not roll down any other windows). Once Mr. Salciccia’s driver’s side door was open he had difficulty taking off his seatbelt. He leaned to his right and looked down towards the seatbelt buckle when trying to remove it. The officers could also both smell alcohol from Mr. Salciccia’s breath. Cst. Gibbons described Mr. Salciccia as being “incoherent,” which she explained to mean that he seemed to have difficulty processing information. In cross-examination, Cst. Gibbons estimated that the entire interaction with Mr. Salciccia between the time the officers first approached the car and knocked on the window to the time he stepped out of the car was about two minutes.

[ 8 ] Cst. Gibbons testified that either she or Cst. Gray asked Mr. Salciccia to get out of his truck. She said that she asked him to step out of his truck because she believed that he was impaired by alcohol. As Mr. Salciccia was getting out of his truck, he stumbled and fell into a nearby police cruiser, which was about two or three steps away. Cst. Gibbons testified that, based on her observations, she arrested Mr. Salciccia for impaired operation.

[ 9 ] Cst. Gibbons said that Mr. Salciccia was stumbling and unsteady on his feet and needed help to walk back to her cruiser. She said that Mr. Salciccia was having balance issues because he was swaying back and forth and had difficulty standing on his own. Once at the back of the cruiser she read Mr. Salciccia the Intoxilyzer demand, right to counsel and cautions.

[ 10 ] Mr. Lent argues that Cst. Gibbons’ evidence about how his client behaved at the scene is exaggerated. He also argues that Mr. Salciccia’s behaviour was equally consistent with someone who had just woken up from a deep sleep. There was an insufficient basis to believe that it was the result of being impaired by alcohol.

[ 11 ] First, dealing with Cst. Gibbons’ evidence, I cannot accept the submission that it was exaggerated and unreliable. Mr. Lent did not take serious issue with Cst. Gray’s evidence, and described her as the more reliable of the two officers. Both Cst. Gibbons and Cst. Gray testified that they could not awaken Mr. Salciccia by just knocking on the window. According to both officers, Cst. Gray had to knock on the window with her baton to get his attention. Again, according to both officers, once he woke up, Mr. Salciccia appeared to be confused and not sure what was going on. He was slow responding to their commands. And again, according to both officers, Mr. Salciccia stumbled out of his truck onto a nearby police cruiser parked nearby. Both officers also smelled alcohol on his breath. To the extent that the defence alleges that Cst. Gibbons exaggerated her evidence about Mr. Salciccia at the roadside, I note that much of the foregoing evidence is confirmed by the video from the breath testing room. To put it bluntly, Mr. Salciccia looks drunk on the video. It would be hard to exaggerate Mr. Salciccia’s signs of impairment given how obviously intoxicated he appeared on the video.

[ 12 ] The police had ample grounds to arrest Mr. Salciccia for impaired operation. He was asleep, behind the wheel of his truck, with the engine running, in a live lane of traffic. He was slow to respond to simple commands. He had trouble rolling down his window. He had trouble taking off his seatbelt (he turned his body to his right to and looked down to his right side to take off his seat belt). He stumbled onto a police cruiser after getting out of his truck. And he smelled of alcohol. The police do not have to be convinced beyond a reasonable doubt, or even on a balance of probabilities that a driver’s ability to operate a conveyance is slightly impaired by alcohol. There is no need for an officer to rule out all other explanations for what they see. The reasonable grounds standard requires an officer to believe that there is a reasonable probability that a driver is impaired. That standard was easily met here.

[ 13 ] The Crown has established that the police had reasonable grounds to arrest Mr. Salciccia. There was no breach of s. 8. This aspect of the Charter application fails.

2.2. Section 10(b)

[ 14 ] In closing submissions, Mr. Lent alleged that the police breached two different aspects of s. 10(b). He argued that the police breached the informational component of s. 10(b) because they did not ensure that he understood his right to counsel. Regarding the implementational component, Mr. Lent says that Cst. Gibbons’ evidence about Mr. Salciccia waiving his right to counsel is unreliable. He contends that the police breached s. 10(b) because the police only put him in touch with duty counsel, and did not allow him to contact counsel of choice, or to contact a family member to get the number of a lawyer.

[ 15 ] Before considering the allegations that s. 10(b) was breached, I will first deal with what the defence alleged in its notice of application, and how that allegation was particularized at the outset of the trial.

2.2.1. What was the informational breach allegation?

[ 16 ] As is common in many drinking and driving trials, the defence in this case filed what can best be described as a boiler-plate Charter application. The application simply asserts at the outset that the applicant is seeking a stay or exclusion of evidence based on a breach of ss. 7, 8, 9 and 10 of the Charter. Under the heading “Grounds to be Argued,” things only get a bit more specific. Regarding s. 10(b), the notice says the following:

It is respectfully submitted that the Arresting Officer and subsequent investigating Officers failed to provide the Accused with proper reasons for his arrest and rights to counsel in accordance with the requirements of Sections 10(a) and 10(b) of the Charter of Rights and Freedoms and failed to properly facilitate the giving of these rights and failed to allow for the proper exercising of these rights.

It is submitted that the Applicant’s right to retain and instruct counsel without delay and to be informed of that right, under s. 10(b) of the Canadian Charter of Rights and Freedoms had [sic] been infringed.

It is submitted that the Applicant’s corollary right to retain and instruct counsel of his choice been infringed [sic]. The right to counsel of choice is a fundamental component of the criminal justice system.

[ 17 ] I pause here to note that, apart from the boiler-plate language in the first paragraph, above, that the police failed to provide Mr. Salciccia his right to counsel, there is no allegation that Mr. Salciccia did not understand his right to counsel, or that any special circumstances existed that should have alerted the officer to the fact that he did not understand is rights. The plain language of the application suggests that the Charter breach involved not informing him of his rights or the reason for his detention. The remainder of the application does not improve much on specifying a failure to comply with the informational component of s. 10(b) [^1].

[ 18 ] After asserting that the right to counsel of choice includes the right to contact a friend or relative to facilitate contact with counsel, the application sets out that the s. 10 (b) privacy requirement extends to any person with whom the detainee wishes to speak in the process of exercising that right. I pause here to note that the alleged breach in this case was that Mr. Salciccia was not given a chance to speak to any such person.

[ 19 ] The only other information in the written application about the alleged s. 10(b) breach is set out under the heading “Detailed Statement of the Specific Factual Basis for the Application.” After asserting that the “allegations of the events” are set out in an attached police synopsis, the application says the following about s. 10 (b):

The Accused was detained by Investigating Officers and questioned at 7:57 pm. He was arrested at 8:00 pm. The Accused was provided with legal advice from Duty Counsel, whom police contacted, at 8:57 pm. The Accused was not given the opportunity to speak with a friend or family member to get the name of a lawyer of choice. He was not given the opportunity to look through a phone book/the internet to select a lawyer of his choosing to receive legal advice.

[ 20 ] Again, nothing in the written notice of application alleges that Mr. Salciccia did not understand his rights because he was too tired. Nothing suggests that the police breached his rights through any deficiencies in informing him of his right to counsel. The written application has no allegation that special circumstances exited and that the police were required to provide a more careful explanation of his rights.

[ 21 ] Because of the vague nature of the written application, and to avoid the Charter application turning into a Charter exploration, [^2] I asked Mr. Lent at the outset of the trial to specify exactly what aspects of s. 10 (b) he was alleging had been breached (I asked the same about his s. 8 application, which was similarly vague). The following exchange occurred:

THE COURT: Okay. Can I just get some particulars from you, Mr. Lent, about the Charter? So I know there is a 10(b) counsel of choice issue.

MR. LENT: Yes, Your Honour. I don’t think – well, I shouldn’t give up on the informational component as to whether it was properly given to the accused party, but [the] definitely facilitation component I’ll be concerned about.

THE COURT: So, you are alleging that the informational component is deficient?

MR. LENT: I don’t have enough instructions to concede that is what I’m saying to the court.

[ 22 ] Up to this point, it is still unclear what exactly the breach is that Mr. Salciccia is alleging. It is also entirely unclear to me why a client had to provide instructions to “concede” a Charter issue on which he has the onus. A s. 10(b) breach requires a positive showing that the police somehow fell short of their constitutional obligations.

[ 23 ] Because counsel’s lack of specificity, the discussion continued:

THE COURT: Okay. Well it is your application though, so I need to know what the deficiency is that is being alleged.

MR. LENT: Well, I’ll say to Your Honour, at this point, we’re taking the position that the informational component was not given.

THE COURT: In what respect though? It was not given at all you are saying…

MR. LENT: Yeah

THE COURT:… or in a timely way.

MR. LENT: Correct

[ 24 ] The foregoing discussion is as specific as counsel was willing to get regarding the informational aspect of the s. 10(b) breach. He said nothing more about s. 10 (b) and the discussion moved on to having him specify the nature of the s. 8 breach. A fair and generous reading of the above colloquy does not suggest that the defence would be alleging that the police informed Mr. Salciccia of his right to counsel and that he did not understand what he was told. When asked for specifics, all the court was told was that the informational component was “not given at all” or not given “in a timely way.” There was no mention of special circumstances. There was no suggestion that the police failed to comply with s. 10 (b) because they did not make sure Mr. Salciccia understood his rights.

[ 25 ] After having Mr. Lent explain the nature of the s. 8 breach he was alleging, and confirming what the issues were, he added the following qualification:

MR. LENT: That’s all I can see from the disclosure that I have and if, by chance, during the course of the trial the evidence reveals something else, I’ll quickly ask the court to consider whatever other legal issue might – might exist.

[ 26 ] No such request to consider any other legal issues was made during the trial.

[ 27 ] I also note that during cross-examination of Cst. Gibbons, Mr. Lent asked no questions about whether she believed that Mr. Salciccia understood his s. 10 (b) rights. Similarly, Crown counsel did not ask Mr. Salciccia any questions about this area.

[ 28 ] This case highlights the often-overlooked need for Charter claimants to be specific when they allege Charter breaches. I appreciate that this requirement for specificity may seem inconvenient. It is certainly treated as such by many counsel. Some counsel even claim that being specific in a Charter application forces them to disclose their defence, even though a Charter application does not involve a defence on the merits of a charge. There is a very clear requirement in the Rules of the Ontario Court of Justice to set out the particular facts underlying the alleged breach. Sub-rule 2.1(2) requires “a detailed statement of the factual basis for the application specific to the individual proceeding.” Simply attaching a copy of the synopsis is not sufficient (indeed, it usually undermines any claim of a Charter violation, since it contains the police’s version of events). Moreover, filing a boiler-plate application does not automatically entitle a Charter claimant to a voir dire where any potential Charter breaches may be explored. [^3] If the notice of application does not demonstrate that the application has a prospect of success it may be summarily dismissed, without an evidentiary hearing. [^4]

[ 29 ] Where, as here, a written notice of application does not adequately specify the nature of the Charter breach, a court may require counsel to do so orally. The purpose of notice is not just to alert the court to the nature of the breach being alleged. Notice also alerts the Crown to the specific nature of the breach being alleged so that it can properly respond to the application during the trial. [^5] Closing submissions are an inconvenient and inopportune time to raise Charter issues for the first time. I emphasize that these notice requirements are hardly new. [^6]

[ 30 ] This is not a case where there was a miscommunication between counsel and the court. The discussion between counsel and the court, excerpted above, shows quite clearly that all parties addressed what was in issue respecting the alleged breach of s. 10 (b). The Crown was not put on notice that Mr. Salciccia would be alleging that he did not understand his rights because he was tired. Had the Crown known that the defence was alleging that special circumstances existed, it could have covered that issue in its examination of Cst. Gibbons and could have cross-examined Mr. Salciccia on his comprehension of his rights. Whether Mr. Salciccia understood his right to counsel was a factual issue uniquely within his knowledge. He chose not to raise it when he should have. He is not entitled to raise it now.

[ 31 ] In any event, even if I was to consider this late-breaking Charter issue, I reject the allegation that Mr. Salciccia has shown special circumstances here. First, Mr. Salciccia did not dispute that Cst. Gibbons read him his right to counsel in the police cruiser, nor did he dispute that he told her he understood what she was reading him. Mr. Salciccia simply testified that he had no memory of their conversation in the police cruiser. He did not testify that he did not understand what Cst. Gibbons said to him. More importantly, Mr. Salciccia’s responses to the various elements of the right to counsel recitation were responsive. He answered some variation of “okay, yup, yeah, or no.” There is, of course, evidence that Mr. Salciccia had some difficulty understanding what the police officers were saying to him at certain points that evening, including at the roadside. However, what is also clear is that when the officers noticed him having difficulty understanding something, they made an effort to patiently repeat their explanation until they were satisfied that he did understand. Unfortunately, Cst. Gibbons was never asked about whether she noticed that Mr. Salciccia did not seem to understand his rights when she read them at the roadside. But based on Cst. Gibbons’ behaviour throughout her interaction with Mr. Salciccia on the breath room video, I am satisfied that if she believed he had difficulty understanding her, she would have ensured that he did understand.

[ 32 ] Mr. Salciccia has failed to establish that Cst. Gibbons breached the s. 10 (b) informational component. I will next deal with whether the police breached the informational component of s. 10 (b).

2.2.2. The implementational breach allegation

[ 33 ] The police are only required to put a detained person in touch with a lawyer if that person asks to speak to a lawyer. Mr. Lent alleges that his client did not actually waive his right to counsel and that the police did not properly facilitate his client contacting counsel.

[ 34 ] I can deal briefly with Mr. Lent’s allegation that his client did not waive his right to counsel at the roadside. He did. I accept Cst. Gibbons’ evidence of the exchange that took place in the police cruiser as being reliable. Cst. Gibbons testified that she took notes of Mr. Salciccia’s responses as he was making them. Unlike her evidence about what happened at the division, which I will discuss below, I find that her evidence about what happened at the roadside to be very reliable. She testified that the notes she was taking at the roadside about Mr. Salciccia’s responses were truly contemporaneous. She was recording them, at the time, in her so-called “yellow notes” which she described as containing her “immediate notes.” I have no hesitation finding that Mr. Salciccia waived his right to counsel.

[ 35 ] Because I find that Cst. Gibbons properly informed Mr. Salciccia of his right to counsel, and he did not ask to call a lawyer, Mr. Salciccia did not trigger the police’s obligation to provide him with a reasonable opportunity to consult counsel. I will, however, address the possibility that Mr. Salciccia asked to speak to duty counsel once he reached the division. To be clear, it was Mr. Salciccia’s evidence, and his position, that he did not make such a request. However, because Cst. Gibbons testified that he made such a request of her or one of her colleagues, I will address this issue.

[ 36 ] Cst. Gibbons testified that, once they reached the division, Mr. Salciccia asked to speak to duty counsel. She testified that she asked Mr. Salciccia if he wanted to speak to a lawyer and that he asked to speak to duty counsel while he was being processed. In cross-examination, when shown the booking video, it became apparent that Cst. Gibbons’ memory about Mr. Salciccia’s request to call duty counsel was inaccurate. The footage from the booking area revealed that Mr. Salciccia did not speak to Cst. Gibbons about getting a lawyer during the booking process. When confronted with the video, Cst. Gibbons surmised that Mr. Salciccia may have asked one of her colleagues during the booking process. She also said she may have asked him at a different point when they arrived at the division. Mr. Salciccia testified that nobody asked him if he wanted to call a lawyer once at the division. He said he was sitting in the booking area and Cst. Gibbons came back in and took him to a room to speak to duty counsel. He testified that he did not know who duty counsel was. Mr. Salciccia said if he had been presented with options to call someone to find out the name of a lawyer, he would have called his father to get the name of one.

[ 37 ] I agree that the video evidence establishes that Cst. Gibbons did not ask Mr. Salciccia if he wanted to speak to duty counsel. Rather, it seems more likely that she simply called duty counsel for him. There is no evidence that anyone else asked him if he wanted to speak to a lawyer. Indeed, Mr. Salciccia testified that no other police officer talked to him about calling a lawyer. In short, I find that it is more likely that Mr. Salciccia had no discussions at the police division with any officers about calling a lawyer. He was not asked if he wanted to call a lawyer, nor did he ask to call one.

[ 38 ] Mr. Lent contends that, even if Mr. Salciccia waived his right to counsel at the roadside, the police breached the implementational component of s. 10 (b). He submits that once the police take it upon themselves to facilitate the right to counsel, they must do it properly.

[ 39 ] I cannot find that the police had any such obligation. Nor was I provided any authority for that proposition. Mr. Salciccia waived his right to counsel at the roadside. The police were under no obligation to provide him with a reasonable opportunity to consult any lawyer, let alone a lawyer of his choice. It would be ironic if the police, by doing nothing, would not have breached the implementational component of s. 10 (b), but by doing something may have breached it.

[ 40 ] Cst. Gibbons considered the right to speak to a lawyer to be important, so she put Mr. Salciccia in touch with duty counsel. What Cst. Gibbons did was provide Mr. Salciccia with the chance to speak to a lawyer even though he was not constitutionally entitled. The fact that she did not ask him carries no Charter consequences. There was no breach of s. 10(b) of the Charter.

[ 41 ] The application to exclude evidence for breaches of ss. 8 and 10(b) of the Charter is dismissed.

3. The Merits of the Charges

3.1. The Impaired Operation Charge

[ 42 ] There is overwhelming evidence that Mr. Salciccia’s ability to drive was impaired by alcohol.

[ 43 ] I begin with the evidence at the roadside. As discussed above when reviewing the grounds the police had to arrest Mr. Salciccia, there are several pieces of evidence showing that he was impaired. I accept Cst. Gibbons’ and Cst. Gray’s evidence about the way Mr. Salciccia appeared at the scene. For ease of reference, I review them again. Mr. Salciccia was slumped over the steering wheel of his truck, in a live lane of traffic, with the engine running. The officers had troubling waking him from his slumber and had to use a baton on the window to get his attention. He had delayed responses to officers’ simple command to roll down his window. He had trouble with the simple tasks of unbuckling his seatbelt. When he got out of his truck, he stumbled onto the trunk of a nearby police cruiser. And he smelled of alcohol. The evidence at the roadside alone would be sufficient to find Mr. Salciccia guilty of impaired operation. But there is more. Evidence from the police division adds to the conclusion that Mr. Salciccia was impaired when behind the wheel of his truck.

[ 44 ] Mr. Salciccia’s demeanour in the breath testing room confirms what the police saw of Mr. Salciccia’s behaviour at the roadside. Mr. Salciccia had difficulty answering some questions that the police asked him. The officers repeated themselves to ensure that he understood what they were asking him, and what they were telling him. The Intoxilyzer test confirmed that he had alcohol in his system. It is therefore clear, beyond any doubt, that Mr. Salciccia was impaired by alcohol.

[ 45 ] I cannot accept Mr. Lent’s submission that there is nothing on the breath room video supporting a conclusion that his client was impaired. With respect, Mr. Salciccia appears so obviously drunk on the video that only a person who had never seen a drunk person before could conclude that his behaviour was the result of fatigue. Mr. Lent’s argument proceeds on the false premise that a video must show motor movement difficulties, and an inability to answer any questions, before one may conclude that a person is impaired. What the video shows is Mr. Salciccia answering easy questions without difficulty (whether he is right or left handed, where he works, his marital status), but having difficulty understanding a conversation that introduces any unfamiliar information. And the video captures conduct that occurred well beyond the time that Mr. Salciccia was awoken from the deep sleep that he claimed affected his behaviour at the roadside. The video very vividly confirms Cst. Gibbons’ observations of Mr. Salciccia at the scene. It especially confirms her description of him being slow in processing and responding to questions.

[ 46 ] There is only one reasonable inference that can be drawn from the evidence. Mr. Salciccia’s ability to drive was impaired by alcohol.

3.2. The Excess BAC Charge

[ 47 ] Mr. Lent did not take issue with the merits of the excess BAC charge. Mr. Salciccia’s Intoxilyzer readings were well over 80 mg of alcohol in 100 ml of blood. Those tests were taken within two hours of the police finding Mr. Salciccia in care and control of his truck. Mr. Salciccia is guilty of having excess blood alcohol within two hours of operating a conveyance.

4. Conclusion

[ 48 ] I find beyond a reasonable doubt that Mr. Salciccia was impaired by alcohol while operating his truck, and that his BAC exceeded 80 mg of alcohol in 100 ml of blood within two hours of operating his truck. He is guilty of both charges.

Released: November 23, 2022 Justice M.M. Rahman

Corrected decision: The original judgment’s style of cause was corrected on November 23, 2022 to reflect the correct Sovereign.

Footnotes

[^1]: I also note that, despite mentioning s. 10(a), no breach of that provision was ever alleged. [^2]: R. v. Greer, 2020 ONCA 795 at para. 121 (“a trial provides an opportunity to bring Charter challenges, not an opportunity to explore whether there may have been Charter breaches.”) [^3]: See Greer, supra, footnote 2, supra. [^4]: R. v. Cody, 2017 SCC 31 at para. 38; R. v. Pires; R. v. Lising, 2005 SCC 66 at para. 35; R. v. Evans, 2019 ONCA 715 at para. 148 (“The form of voir dire is determined by the trial judge on the basis of the issues involved and the nature of the case being tried. There is no requirement that the inquiry must proceed on the basis of viva voce testimony.”) [^5]: Greer, supra, at para. 104 [^6]: See R. v. Kutynec (1992), 70 C.C.C. (3d) 289 (Ont. C.A.).