Ontario Court of Justice

Date: June 22, 2023 Court File No.: 48109982175004598

BETWEEN:

HIS MAJESTY THE KING

— AND —

GARRETT DEPIPPO

Before: Justice Hafeez S. Amarshi

Written reasons for judgment released on June 22, 2023

Counsel: J. Foreman, counsel for the Crown D. Zekavica, counsel for Garret Depippo

A. Introduction

[1] Garrett Depippo is charged with impaired driving and operating a motor vehicle while his blood alcohol content was over the legal limit.

[2] The primary issue in this case is whether the investigating officer satisfied the forthwith or immediacy requirement for a breath demand, and whether Mr. Depippo had a realistic opportunity to consult counsel at the roadside during the period prior to the arrival of an approved screening device.

[3] The defence argues that the consequences of the investigating officer’s failure to adhere to the requirements of s. 320.27(1) of the Criminal Code was a breach of the defendant’s ss. 8, 9 and 10 rights under the Charter of Rights and Freedoms and the appropriate remedy is the exclusion of the breath sample results.

[4] The defence further argues that the Crown has not proven that Mr. Depippo’s ability to operate or control his motor vehicle was impaired by alcohol, and that this court should dismiss the charge of impaired driving.

B. Relevant Evidence

(i) Early morning observations

[5] Sgt. Antonio Macias is a long-standing police officer with the Toronto Police Service. On September 19, 2021, he was on paid duty, working for a private contractor completing construction work on the nearby Gardiner extension.

[6] During a break while parked at a plaza at Lakeshore Avenue and Leslie Street, he heard the sound of something being dragged. He observed a car, specifically a silver Infiniti, being driven northbound through the parking lot dragging what he believed to be a bumper. There was obvious damage to front driver’s side and the car looked like it had been in a collision.

[7] Officer Macias decided to follow the vehicle and exited the parking lot. In short order he observed the Infiniti stopped in the northbound turning lane to Leslie St. at Lakeshore Ave. He pulled behind the damaged vehicle and activated his emergency lights.

[8] The driver – Garret Depippo was outside of the vehicle. When Sgt. Macias spoke to the defendant, he detected an odour of alcohol coming from Mr. Depippo’s breath. The officer concluded the defendant had been operating his vehicle with alcohol in his system and made an approved screening device (ASD) demand.

[9] The officer did not have the device and he called over dispatch to have one brought to the roadside. The time was 2:08 a.m.

[10] While waiting for the ASD, the officer told Mr. Depippo to sit on the curb at Lakeshore Ave.

[11] PC Rehman arrived with the device at 2:20 a.m. One minute later, Officer Macias tested the ASD and was satisfied it was in proper working order. At 2:24 a.m. Mr. Depippo provided a breath sample and registered a fail. The defendant was arrested, and the investigating officer read a right to counsel caution. Mr. Depippo responded that he understood the caution and advised the officer he wished to speak to legal aid. At 2:28 a.m. Officer Macias made an approved instrument demand.

(ii) Events at the station

[12] Mr. Depippo was transported by Officer Bradley Knopp at 2:42 a.m. from the scene of the arrest. He arrived at 41 Division in Scarborough 20 minutes later.

[13] At the police division the defendant spoke with his mother for 19 minutes. According to PC Knopp, Mr. Depippo did not give him a number for a lawyer. He testified that the defendant told him that because of the late hour his lawyer would not respond. Cst. Knopp subsequently facilitated a call to Duty Counsel.

[14] Once that call is completed, Mr. Depippo is transferred to the custody of a qualified breath technician, and he provides two suitable samples. His breath test readings were 120 and 120 milligrams of alcohol in 100 millilitres of blood at 4:22 a.m. and 4:44 a.m. A Certificate of a Qualified Technician, and a printout of the breathalyzer test results were tendered as exhibits.

(iii) Defence evidence

[15] Garrett Depippo testified in this trial. Mr. Zekavica agreed that the trial would proceed in a blended fashion, specifically the defendant’s voir dire evidence would be applied to the trial proper.

[16] Mr. Depippo is 25 years old. He lives with his mother. He works fulltime at a Mazda dealership. He also at the time worked at a bar called “Dundas and Carlaw.” That day he was working as a busser – his main task consisted of cleaning dishes. He started work at noon and finished at 10 p.m.

[17] When his shift was done, he stayed at the bar with a friend. They both ordered a pint of beer, specifically Hawaiian Pale Ale. Mr. Depippo agreed that the alcohol content of Hawaiian Pale Ale is 6%. It took the defendant between 30-35 minutes to finish his first beer. He ordered a second drink – the same 16-ounce Ale. It took about 35 minutes for him to drink his second beer.

[18] Mr. Depippo had two more beers at the bar, both Hawaiian Pale Ale. He stopped drinking at 1 a.m. and hung out at the bar for another 30 minutes before leaving.

[19] The defendant drove his 2006 Infiniti G35 from the bar before continuing southbound towards Lakeshore Ave. While on Lakeshore Ave. the defendant made a left-hand turn at Commissioners St. and his vehicle spun out, completing a 360 – degree turn damaging the front end. Specifically, Mr. Depippo described the car as losing its grip while he completed a left-hand turn. He testified that his tires were not the “most amazing tires on the planet,” and there was a lot of debris on the road from trucks and construction in the area.

[20] After the accident the defendant surveyed the damage and concluded he could still drive the car. He continued down Commissioners St. and entered a Canadian Tire parking lot. He drove through the plaza and exited onto Lakeshore Ave. He planned to turn onto Leslie St. and continue northbound.

[21] At that intersection he stopped his car to take another look at the damage while the light was red. He noticed a police car approach from the rear.

[22] He described his interaction with Sgt. Macias. He recalls being advised by the officer that he was suspected of having been drinking alcohol and that a breath test was being ordered. He understood he could not leave until he completed the test.

[23] The defendant was told to sit on the curb. He does not recall Officer Macias telling him he had a right to speak to a lawyer.

[24] Mr. Depippo further testified that had he known he could use his cellphone, he would have contacted his father to get a number for a lawyer.

[25] He recalls blowing into a device and being arrested shortly thereafter. It was only at this point that he says he was advised of his right to speak to a lawyer.

[26] At the police division where he was taken to complete a breathalyzer test, he was no longer in possession of his cellphone and the only number he could remember was his mothers. The defendant did not speak to his father.

[27] Mr. Depippo testified that once he finished speaking to his mother, he was told the next step would be to accept Duty Counsel or accept no counsel at all. He subsequently spoke to a Duty Counsel lawyer.

[28] He says at no time did he feel while at the roadside that he had the opportunity to make a phone call.

C. Issues & Analysis

(i) Applicable legal principles – Immediacy Requirement

[29] Section 320.27 of the Criminal Code authorizes a police officer to require a driver to provide a breath sample for testing on an approved screening device. Where the initial result shows an illegal blood alcohol level, those results can provide grounds for arrest and trigger a further demand for a breathalyzer test which is usually conducted at a police division.

[30] To make a demand pursuant to s. 320.27, an officer must have reasonable suspicion that a person has alcohol in their body while operating or having care and control over a vehicle. The breath demand under this section must be made “immediately,” once the officer forms the requisite legal grounds.

[31] Of note s. 320.27 is a relatively new provision and replaces section 254 of the Criminal Code. The new section replaces the word “forthwith” with “immediately.” The analysis does not change, and the words are meant to be read as having the same meaning. [1]

[32] The “immediately” or “forthwith” requirement is a crucial component of the section because it justifies what would otherwise be sustained as violations of ss. 8, 9 and 10(b) of the Charter. It is clear, as the Supreme Court of Canada noted R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205, at paragraph 15, that without the forthwith requirement the roadside screening demand provisions would not survive constitutional scrutiny. In other words, so long as the investigating officer satisfies the immediacy requirement of s. 320.27 then for Charter purposes there is no unjustified seizure or arbitrary detention or breach of the requirement to advise a detainee of his or her right to counsel. [2]

[33] In cases involving an approved screening device, where the test can proceed forthwith the s. 10(b) Charter breach is a reasonable limit. However, where the device is not immediately available, then the courts will look to see whether consultation with counsel was possible in all of the circumstances prior to the arrival of the device. [3]

(ii) Principles applied

(a) Immediacy requirement satisfied

[34] I find no breach of the applicant’s Charter rights in this case. Sgt. Macias testified that he formed his grounds to demand a roadside breath sample shortly after he first spoke to the defendant outside of his vehicle on Lakeshore Ave. This happens at 2:08 a.m. He makes a formal breath demand. This in my view satisfies the immediacy requirement of s. 320.27 as the officer promptly makes a roadside screening test demand as he is required to do upon forming the requisite legal grounds. Sgt. Macias is then in contact with police dispatch and requests an approved screening device be brought to the scene. A device arrives with Officer Rehman at 2:20 a.m.

[35] In this case the 12-minute delay in the arrival of the screening device at the roadside is not unreasonable and does not undermine the immediacy requirement of s. 320.27. Given that Officer Macias was on paid duty, there would have been a limited expectation that he would have been involved in an impaired investigation and I did not find it to be unusual that he did not have the device in his vehicle. He did, however, given the nature of his observations and obvious road safety concerns have a duty to investigate.

[36] Officer Rehman received the assistance call at 2:08 a.m. and traveled directly to the scene with the ASD, making no additional stops along the way. [4] Toronto is a relatively large jurisdiction and the time period for the device to arrive at the intersection is not unreasonable. I may have come to a different conclusion if the duration was longer, or PC Rehman delayed his response.

[37] Mr. Depippo is arrested at 2:25 a.m. The investigation, roadside breath test, and arrest all occur within 17 minutes of Officer Macias’ first encounter with the defendant. It is a focused and efficient police investigation.

(a) No realistic opportunity to obtain legal advice

[38] Although I have concluded that the investigating officer satisfied the immediacy or forthwith requirement of s. 320.27, I will address Mr. Zekavica’s argument that the period prior to the arrival of the ASD was of a sufficient duration for Sgt. Macias facilitate a call to a lawyer at the roadside.

[39] The analysis of this issue is set out in R. v. Torsney, 2007 ONCA 67, where the Court of Appeal concludes that a chance to make a phone call is not the same as a realistic opportunity to consult with counsel. At paragraph 13 the Court states:

“We consider it important to draw a distinction between a detainee having "a chance to call counsel" and a detainee being able to "consult with" counsel. The trial judge was under the impression that in deciding whether, in the circumstances, there was a realistic opportunity for the appellant to consult counsel, all that was required was that he be able to "call" counsel in the few minutes it took for the ASD to arrive and be readied for use. With respect, we think that the trial judge erred in that regard. The question he should have asked is whether, in all the circumstances, there was a realistic opportunity for the appellant, in the space of six or seven minutes, to contact, seek and receive advice from counsel. Had the trial judge framed the issue that way, he would, in our view, have decided the s. 10(b) issue differently.

[40] In this case, there was no realistic opportunity in the 12 minutes prior to the arrival of the screening device at the scene for Mr. Depippo to reasonably contact and receive advice from a lawyer. The difficulty in this case is the lack of privacy that could be afforded to the defendant to meaningfully speak to a lawyer at the roadside.

[41] Officer Macias readily conceded Mr. Depippo was detained at the roadside. He testified that although he was aware the defendant had a cellphone, he couldn’t allow Mr. Depippo to walk away and make a call in private because he would no longer have control over him. It was an active criminal investigation and the officer’s position was reasonable in the circumstances, not only from an officer safety perspective but also to protect the integrity of the investigation and to maintain Mr. Depippo’s detention. The defendant’s safety is another factor, that he stay within close proximity to the investigating officer given the detention was near a roadway with multiple lanes of traffic.

[42] Neither was it practical that the defendant be put in his vehicle to make a call. Mr. Depippo was still in possession of his car keys and given Sgt. Macias’ suspicion that the defendant had been drinking it would have been an intolerable risk to allow him access to his vehicle.

[43] The other option as suggested by the defence to enable contact with a lawyer was not feasible either in the circumstances. During the investigation Officer Macias’s in-car-camera (ICC) was recording. It was picking up both video and audio of the interaction between the investigating officer and the defendant both outside and inside the police vehicle. [5] I accepted the Crown's argument that turning off the ICC to facilitate a counsel call in a police vehicle would have been problematic. It is sound policy that police interactions with citizens facing legal jeopardy be recorded in their entirety.

[44] I note further that Mr. Depippo had not identified a specific lawyer he sought to speak with but had to contact his father in order to obtain a phone number.

[45] Even in situations where there is some delay in the arrival of the ASD, the fact that the defendant has access to a cell phone is of reduced significance where privacy cannot be adequately provided at the roadside as was the circumstances in this case. [6]

[46] Given this Court’s conclusion that Sgt. Macias provided a valid demand, specifically that the immediacy requirement of s. 320.27 was satisfied and that a breath sample was provided forthwith, before there was any realistic opportunity for Mr. Depippo to seek advice from a lawyer, the defendant’s Charter application is dismissed. [7]

[47] A conviction is entered on the on excess blood alcohol count.

(iii) Impaired operation

[48] The relevant principle to guide this court’s analysis is outlined in R. v. Stellato, [1993] O.J. No. 18 (OCA), at para. 14, affirmed, 1994 94 (SCC), [1994] SCJ No. 51:

In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.

[49] In R. v. Andrews, 1996 ABCA 23, [1996] A.J. No. 8 (CA), at para. 17, the Alberta Court of Appeal cautioned that in consideration of whether the person’s ability to drive is impaired to any degree by alcohol, judges must be careful not to assume that where a motorist’s “functional ability is affected in some respects by consumption of alcohol, his or her ability to drive is also automatically impaired.”

[50] In assessing whether the Crown has met their onus, the court must consider the cumulative effect of all of the indicia. [8]

[51] Having reviewed the totality of the evidence, I am satisfied that the Crown has met their onus in this case.

[52] In coming to this conclusion, I have relied on the following evidence – that Sgt. Macias detected an odour of alcohol on the defendant’s breath. He again noted the odour when Mr. Depippo was seated on the curb.

[53] Further, the defendant demonstrated poor judgment. He continued to drive his vehicle after an accident. The impact of the collision was clearly significant. Indeed, the photos adduced at trial show extensive front-end damage to the vehicle, such that the front hood is pushed up partially obstructing the driver’s view. It is somewhat surprising that the Infiniti could still be operated given the state of the damage. He drove the car with the bumper dislodged dragging it along the ground.

[54] The fact that Mr. Depippo exercised poor judgement in driving what was clearly an unsafe vehicle is not by itself evidence of impairment but a circumstance I have taken into account. I further note the collision was a single car accident where the defendant lost control over his vehicle while making a left-hand turn.

[55] The most compelling evidence of the defendant’s impairment however is Mr. Depippo’s own testimony. He testified to having consumed four pints, specifically he consumed 64 ounces of beer over what he described was approximately a four-hour period. The alcohol percentage was slightly higher than average – 6%. I appreciate that blood alcohol levels decline over time, but the amount of alcohol consumed was not insignificant.

[56] I further note the difficulty in accurately gauging alcohol consumption over time during social interactions. I did not conclude the defendant was downplaying the amount of alcohol he consumed that night, but I treat with some caution Mr. Depippo’s timeline of consumption given some of my concerns over the reliability of the defendant’s evidence, which I will address shortly.

[57] Mr. Depippo frankly acknowledged that he was feeling some of the effects of the alcohol he had been consuming, although he disagreed his reaction times were slower. He further stated that it would be naïve to think that consuming alcohol had zero effect on his driving, but he was steadfast that he did not believe he was impaired, and that alcohol had an impact on his driving abilities. The defendant further disagreed that alcohol played a role in his accident.

(iv) Credibility analysis

[58] The framework in R. v. W.(D.), [1991] 1 S.C.R. 742, applies in this case and requires me to find Mr. Depippo not guilty if I accept or I am left with a reasonable doubt by his evidence or any evidence inconsistent with his guilt. In other words, I need not believe the defendant to find him not guilty. Further, even if this court rejects such exculpatory evidence, I must still be satisfied beyond a reasonable doubt by the Crown's evidence that I do accept that the defendant is guilty.

[59] I appreciate Mr. Depippo’s view was that alcohol did not impair his ability to drive, however that conclusion is contradicted by other evidence in this case including the nature of the accident, his poor judgement in continuing to drive post-collision, his admitted quantity of alcohol consumption and the fact that the investigating officer was able to detect an odour of alcohol. The defendant conceded he was feeling some of the effects of alcohol that night.

[60] I had some concerns with the reliability of Mr. Depippo’s evidence, and it impacted the weight I attached to his evidence. For example, at the roadside the defendant told police he had collided with a pole. At trial he stated he did not remember what he hit but didn't believe it was a pole. He is sure, however, he hit a curb.

[61] Although no expert evidence was adduced, it was not required. It is highly unlikely that the damage to the vehicle in the scene of accident photographs was caused solely by a collision with a curb. [9] It just doesn’t make sense given the nature of the damage evident in the photographs, which shows front-end damage above the wheel well. The hood is pushed upwards.

[62] The fact that Mr. Depippo could not remember at trial whether he collided with a pole despite telling police at the scene that was the case, impacted the weight I attached to his recollection of events from that night, for example, his timeline of alcohol consumption at the bar. I appreciate the defendant testified he was nervous when he made that utterance, but it is hard to account for this discrepancy, especially in light of the photographic evidence.

[63] I have considered Sgt. Macias’ evidence that he did not observe the car to be weaving. The officer did not identify any indicia of impairment outside of the odour of alcohol from the defendant’s breath and the fact the vehicle had been in collision.

C. Conclusion

[64] In the end sum, when the evidence is taken as a whole, it is the constellation of factors including the defendant's own admission that supports only one reasonable conclusion. The evidence need only establish a slight degree impairment to ground criminal liability.

[65] I find beyond a reasonable doubt that the defendant was impaired while driving his vehicle.

H.S. Amarshi J.

Addendum to Judgment

[1] After findings of guilt were made in this case and prior to the release of written reasons, the Supreme Court of Canada released R. v. Breault, 2023 SCC 9, where the Court concluded that a breath demand made in the absence of an approved screening device is not presumed to be valid. That conclusion has a direct bearing on this case.

[2] As a result, I sought further input from the parties. The Crown conceded that R. v. Breault overruled the law as it was in Ontario, although Mr. Foreman was of the view that the investigating officer was acting in compliance with the law as it was at the time and therefore there would be no support for exclusion of the breath samples under s. 24(2). [10]

[3] In the circumstances the Crown agreed the excess blood alcohol count be stayed pursuant to the Kienapple principle and the sentencing proceed on the charge of impaired operation.

Footnotes

[1] See R. v. Yamka, 2011 ONSC 405. [2] R. v. Quansah, 2012 ONCA 123, at para. 22. [3] See R. v. Torsney, 2007 ONCA 67. The immediacy requirement must take into account all of the circumstances. These may include a reasonably necessary delay where the breath tests cannot be immediately performed because an approved screening device is not immediately available – R. v. Quansah, 2012 ONCA 123, at para 48. [4] As per an Agreed Statement of Fact which was tendered in this trial encompassing PC Rehman’s evidence. [5] At the time audio was being picked up via a microphone on the officer’s body. [6] See discussion in R. v. Devji, 2008 ONCJ 240. [7] I did consider Mr. Depippo’s evidence at the voir dire. Of note, the usual standard to assess credibility as enunciated in W.D. does not apply to Charter issues where the standard of proof is on a balance of probabilities (see discussion in R. v. Khan, 2012 ONCJ 170). Mr. Depippo’s evidence which largely provided additional context to his roadside interaction with Officer Macias did not impact my conclusion that the Charter application be dismissed. [8] R. v. Andrews, 1996 ABCA 23, [1996] A.J. No. 8 (CA), at para. 28. [9] To be clear, I accept it is possible that the defendant also struck a curb. [10] E-mail dated May 19, 2023.