ONTARIO COURT OF JUSTICE
DATE: March 8, 2025
COURT FILE No.: Brampton 998 23 31110559
BETWEEN:
HIS MAJESTY THE KING
— AND —
KEITH MAIATO
Before Justice G.P. Renwick
Heard on 04-05 March 2025
Reasons for Judgment released on 08 March 2025
L. Eikelboom ............................................................................. counsel for the Prosecution
R. Sahota ................................................................ counsel for the Defendant Keith Maiato
REASONS FOR JUDGMENT ON THE CHARTER APPLICATIONS AND THE TRIAL
RENWICK J.:
INTRODUCTION
[1] The Defendant is charged with the two standard drink-driving offences.
[2] In advance of the trial, the Defendant brought a Charter Application for alleged violations of his ss. 8 and 9 rights. The parties agreed to proceed with the trial and the Charter Application concurrently. The voluntariness of admissions made by the Defendant to the Qualified Technician was also litigated within this “blended” forensic environment. During final submissions, the Defendant pleaded a s. 10(a) Charter violation. The prosecutor took no issue with the timing of this last-minute argument.
[3] In the following random order, the prosecution called three police witnesses: police constables Obiadullah Said (the arresting officer), Michael Babore (the Qualified Technician), and Bryan Carroll (the first police officer who dealt with the Defendant).
[4] The issues for determination are whether the Defendant’s Charter rights were violated, and if so, what, if any, evidence should be excluded from the Defendant’s trial. On the trial proper, the Defendant’s utterances must be proven voluntary to establish his identity as the possibly impaired driver. Once the entire evidential landscape is cleared, I will determine if the two charges have been proven beyond a reasonable doubt.
APPLICABLE LEGAL PRINCIPLES
[5] Though the Defendant generally has the onus to establish violations of the Charter on a balance of probabilities, [1] where there is a warrantless search, as in this case, the prosecutor must establish that the search was conducted reasonably and pursuant to some lawful authority. [2] Thus, both parties have an onus: the Defendant must prosecute his Charter claims that the police had failed to advise him of the reason for his detention and that he had been arbitrarily detained and/or his arrest was arbitrary; while the prosecutor has to establish that the seizure of the evidential breath samples followed a lawful arrest and breath demand, and otherwise complied with the statutory regime.
[6] Obtaining reasonable grounds to believe that an offence has been committed does not demand perfection or even perfect accuracy. Police officers embarking on an investigation are entitled to be wrong. As long as their grounds are objectively reasonable, rather than based on vague suspicions, intuitions, hunches, or worse, improper motives, they need not be found to be correct.
[7] The standard of reasonable grounds to believe is credibly-based probability. [3] Alternative explanations for observed signs of possible alcohol-related impairment do not undermine reasonable grounds, unless the officer unreasonably discounted information of which she was aware. Reasonable grounds to believe an offence has been committed must be articulable, subjectively held by the officer, and objectively reasonable. [4] An officer is entitled to rely on hearsay, unless there is reason to doubt the information’s truth.
[8] Reasonable grounds are not proof on a balance of probabilities, but they involve being satisfied of the probability of a state of affairs. The officer can be mistaken in the belief, as long as her belief is reasonable and there was no reason for her to doubt the information she believed.
[9] The Ontario Court of Appeal affirmed these principles in R. v. Notaro:
The reasonable and probable grounds test is not about the quality of the investigation or the range of the questions the officer asks herself. It turns on whether an arresting officer's honest, subjective belief that an offence has been committed is supported by the objective facts that the officer was aware of: R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at paras. 71-72. As Durno J. (sitting ad hoc) noted in Bush, at para. 70"the issue is not whether the officer could have conducted a more thorough investigation. The issue is whether, when the officer made the breath demand, he subjectively and objectively had reasonable and probable grounds to do so."
This is not to say that the quality of the investigation will have no practical bearing on whether the arresting officer has reasonable and probable grounds. After all, the nature and quality of the investigation will affect the information that the officer has, and can therefore indirectly influence the sufficiency of the officer's grounds. The point is that the material focus in a reasonable and probable grounds analysis is not on the extent of the investigation that an officer goes through in forming her belief. The material focus is on what the information known to the officer would mean to a reasonable person. [5]
[10] Relatedly, our Court of Appeal considered the standard for a warrantless arrest in R. v. Carelse-Brown, [2016] O.J. No. 6564. At paragraph 28 of Carelse-Brown, the Court quoted from its decision in R. v. Golub:
In determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered. The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant. [6]
[11] The law respecting the obligation of the police to inform individuals of the reason for their detention is well settled. Ordinarily, the start of an investigative detention engages an individual’s s. 10(a) Charter right to know the reason for the state’s interference with one’s autonomy or liberty. Information about the reason for one’s detention permits detainees the opportunity to choose whether or not to submit to a detention or arrest. [7]
[12] Breaches of s. 10(a) can be "temporal" or "informational". A temporal breach occurs if a detained person is not promptly informed of the reason for their detention. An "informational" breach arises if the reason for detention is not adequately communicated. [8]
[13] By way of a roadmap, it will be helpful to outline the Charter arguments at play, the evidence and my findings, how the law intersects with the facts, and my conclusions on the Charter Applications, the voluntariness voir dire, and the trial proper.
POSITIONS OF THE PARTIES ON THE CHARTER APPLICATIONS
[14] The Defendant alleged that several Charter violations occurred during the investigation of the Defendant leading to his arrest and a demand for evidential breath sampling. The ss. 8 and 9 Charter arguments were framed in the GROUNDS section of the Application as follows:
The Applicant submits P.C. Said did not have reasonable grounds to arrest the Applicant for impaired operation. There were insufficient indicia of impairment to support the low threshold of reasonable and probable grounds. Therefore, the Applicant was unlawfully and arbitrarily arrested contrary to sections 8 and 9 of the Charter;
P.C. Said observed no prior driving behaviour and the second-hand hearsay information he received from the police dispatch was insufficient to arrest for impaired operation;
P.C. Said’s purportedly observed indicia of impairment included unsteadiness of the Applicant’s feet. The Applicant respectfully disagrees with that characterization.
The Applicant further submits that P.C. Said demanded samples of the Applicant’s breath after the Applicant had been arbitrarily detained.
The search and seizure was conducted in an unreasonable manner as no police officer ever cautioned the Applicant or his mother that he was under investigation for impaired operation or cautioned them that their statements could be used against them.
The decision to arrest the Applicant was arbitrary and without legal justification in violation of the Applicant’s section 8 and 9 Charter rights against unreasonable search and seizure and arbitrary detention.
P.C. Said conducted an impermissible shortcut in arresting the Applicant instead of opting to conduct a roadside sobriety test.
[15] Orally, the Defendant submitted that the police breached s.10(a) of the Charter when they attended his residence and failed to immediately advise the Defendant of the reason for their presence and the Defendant’s possible jeopardy (a criminal investigation related to drinking and driving).
[16] The prosecutor responded that there would have been no doubt in the Defendant’s mind why the police were present once they asked him if he had been drinking and if he had been driven his mother’s car.
[17] Also, there were ample reasonable grounds to believe that the Defendant had been involved in a drink-driving offence as the police were armed with a complaint of poor driving, the Defendant’s (and his mother’s) information that he had been the driver observed, the Defendant’s admission of recent alcohol consumption, coupled with the officer’s personal observations of the Defendant’s lack of sobriety.
THE EVIDENCE AND FINDINGS
The Testimony of P.C. Obiadullah Said
[18] Constable Said was a candid, reliable witness. Almost all of his testimony is supported by the body-worn camera (“BWC”) footage (both his and P.C. Carroll’s – exhibits 3 and 5, respectively), the testimony of the Qualified Technician (P.C. Babore), and the breath room video (exhibit #4).
[19] At 9:40 p.m. on the night in question, P.C. Said received the radio call of a “possibly” impaired driver. He was told of a particular vehicle and license plate that was “swerving” and “hitting the curb.” Along with other officers, and relying on the license plate information, he attended the registered owner’s address, which was the Defendant’s mother’s home. Already on scene when he arrived were P.C. Carroll and Sergeant Robinson. The sound for his BWC (which has a 30 second delay from the start of the recording) activated just prior to the Defendant’s arrival (from inside) to the front door of the residence. The Defendant first stood about two steps away from the open door. Over the next almost two minutes, the following exchange took place:
P.C. Carroll: Hey man, how you doin’? Come out and chat with us for a second please. How you feelin’ tonight?
Defendant: Not bad, you?
P.C. Carroll: I’m alright. Anything to drink tonight?
Defendant: A bit.
P.C. Carroll: Ya? Were you driving that car right there [looking in the direction of the suspect vehicle]?
Defendant: Ya.
P.C. Carroll: Okay. Great. Come out and ah, just throw some shoes on for me, buddy, let’s have a chat out here. Please and thanks.
[The Defendant walks inside. He opens the hall closet and closes it.]
Defendant’s Mother: …put your boots on.
[Defendant declines inaudibly and makes a hand gesture. He walks back outside and attempts to close the front door.]
Defendant’s Mother: No, no, I’m gonna listen to this.
P.C. Said: You wanna come over here, so you don’t fall?
[The Defendant walks down the front steps toward P.C. Said.]
P.C. Said: So what’s going on today?
Defendant: Nothin’, just at home [unintelligible].
P.C. Said: You said you had a couple drinks?
Defendant: A couple drinks, ya.
P.C. Said: Ya, when was your last drink?
Defendant: What was the last drink?
P.C. Said: When was your last drink?
Defendant: Ah, about an hour ago.
P.C. Said: About an hour ago?
Defendant: Ya.
P.C. Said: Were you driving that car right there?
Defendant: Ya.
P.C. Said: That one right there?
Defendant: Ya.
P.C. Said: The Hyundai?
Defendant: Ya.
P.C. Said: Okay. You don’t seem like you’re too steady on your feet right now, brother.
Defendant: No.
P.C. Said: You were kinda swaying over there, too.
Defendant: Why? What’s the problem.
P.C. Said: The problem is, we’ve got multiple…complaints. You were driving, you were hitting the curbs as well. We have reason to believe that you may be impaired while you were driving that vehicle.
Defendant: Okay.
P.C. Said: From what I’m seeing, right now, you’re not giving me too much confidence that you’re not impaired.
Defendant: [unintelligible]
P.C. Said: So you’re telling me you had one drink?
Defendant: I had a couple.
P.C. Said: You had a couple?
Defendant: Ya.
P.C. Said: Okay, listen. Put your hands behind your back. [The Defendant turns around.] Come on. Right now you’re under arrest for driving a motor vehicle impaired. Okay? You don’t have to say anything to me right now. Anything that you do say can be used as evidence. And you do have a right to a lawyer, okay? Just come with me.
[20] Constable Said testified that he smelled alcohol on the Defendant’s breath when they briefly spoke. He also observed that the Defendant’s eyes were glossy and the Defendant was not standing still. It appeared that the Defendant had “no strong sense of balance.” His speech was also slurred. At 9:57 p.m., Constable Said arrested the Defendant as he had formed the opinion that when the Defendant drove his mom’s car his ability to drive was impaired by alcohol. The officer testified that he usually provides arrestees with an informal caution and information about their rights to counsel because “most people” do not know their rights and they “may say something” they would not if they are made aware of their rights.
[21] I find that P.C. Said was very credible and reliable as a witness. Almost all of what he told the court was confirmed when watching the BWC and breath room videos. It is also notable that this witness testified that he had not seen his BWC video prior to testifying. Overall, his memory was very good.
[22] There was really only one apparent contradiction with the officer’s testimony and the BWC video. Constable Said did not believe that the fourth officer, P.C. Jameel Brown, had any interaction with the Defendant. The BWC video showed this officer assisted with the pat-down search of the Defendant and he helped the Defendant to put on his boots before entering the police car.
[23] I find that P.C. Said was at all times professional and respectful in his interactions with the Defendant. There is no doubt that he was also casual and informal. He referred to the Defendant as “brother,” but this was likely done to build rapport or to empathize with the Defendant who was very cooperative and candid with the police. When discussing the Defendant’s apparent remorse in the breath room, P.C. Said testified in chief, “To be honest, I felt bad for him as well.”
[24] Counsel for the Defendant suggested that the BWC footage contradicts several of the officer’s observations that formed the basis for his opinion. Issue was taken with the following observations: the lack of balance, swaying, glossy eyes, and slurred speech. Respectfully, counsel is mistaken. In watching both BWC videos, it is obvious that the Defendant was walking very intentionally and slowly. He was touching the door frame when entering the house and the pillar when descending the front steps. The cadence of his movements was irregular. I find on the basis of the videos that P.C. Said’s observations and testimony are reasonable interpretations of the Defendant’s physical demeanor and behaviour. I accept that watching these videos is less than ideal and not the same as seeing the Defendant in person. For these reasons, I accept P.C. Said’s testimony respecting his observations of the Defendant.
[25] At one point, P.C. Brown indirectly illuminated the Defendant’s face with his flashlight. This is seconds before the Defendant’s arrest. This also confirmed that the Defendant’s eyes were “glossy” or watery. As for slurred speech, the Defendant’s answer to P.C. Said’s first question, “So what’s going on today?” was almost completely unintelligible because of the Defendant’s slurred speech. That is why I am unable to detect (and transcribe) the Defendant’s complete response. There were other examples where the Defendant’s speech seemed slurred, as well.
[26] Cross-examination also focussed on whether the Defendant was detained. P.C. Said was candid, “I hadn’t made up my mind at the time. I hadn’t made that decision” (that the Defendant was under an investigative detention) before the arrest. He testified that this lack of certainty (at the time) explained why he provided no caution or rights to counsel before the Defendant’s arrest. Cross-examination also revealed that P.C. Said was an inexperienced officer at that time. Even so, his knowledge of the difference between reasonable suspicion and reasonable grounds to believe an offence had taken place was satisfactory.
[27] The cross-examination ended with P.C. Said admitting that he had made a mistake by not cautioning the Defendant when he first spoke with him. While this evidence was generous and gratuitous it is not dispositive of the s. 10(a) issue. Rather, I see this as another indicator that this officer was conscientious and he wanted to give every benefit afforded by our constitution to his detainees.
The Testimony of Qualified Technician, D.C. Michael Babore
[28] This witness was credible and reliable at all times. His evidence corroborated some of the physical observations of the Defendant provided by P.C. Said (strong odour of alcohol on his breath, watery eyes, his coordination was off, he was walking slowly, trying not to fall, and he had slightly slurred speech), which in turn corroborated this witness’ observations. All of his testimony was corroborated by his certificate, the test record card for the approved instrument, the testimony of P.C. Said, and the breath room video.
[29] The breath room video became exhibit #4. The video depicted that Detective Constable Babore introduced himself to the Defendant and advised he could call him “Mike” and asked how the Defendant wished to be addressed. He then explained that the room was audio and video recorded (“No secrets here.”). D.C. Babore then confirmed that the Defendant did not have a lawyer of his own, but he had spoken with duty counsel. He also confirmed, without getting into a discussion of privileged discussions, that the Defendant understood what was said by duty counsel. Next, D.C. Babore cautioned the Defendant in respect of the two charges he may be facing and that he was not obliged to say anything in answer to the charges and anything he said may be given in evidence. He also read the Defendant a secondary caution (anything said to the Defendant by any other person in authority should not influence the Defendant to make a statement). Then the breath demand was given during the following exchange:
D.C. Babore: So, next. Ah, so, I’m demanding you provide samples of your breath that in a qualified technician’s opinion will enable a proper analysis to be made by this approved instrument and you accompany me now for this purpose.
Defendant: Yes sir.
D.C. Babore: Do you understand that?
Defendant: Yep.
D.C. Babore: Okay. So I just wanna make it clear what I read right there, that’s a lawful demand. So, like in the eyes of the court, what it means is that if that if you fail or refuse to take part in any part of this evaluation, you could be charged with an additional charge or refusal. So it’s an additional criminal charge to refuse or fail this. Do you understand that?
Defendant: Yes sir.
[30] The Qualified Technician was cross-examined about this. He was asked if a detainee has to answer his questions. The Qualified Technician correctly answered that a breath sampling subject is under no obligation to answer questions during the breath testing procedure. He was further questioned about the word choice, “this evaluation.” The witness answered the evaluation includes “all of it.”
[31] When asked if D.C. Babore asked questions about driving that night in order to elicit evidence, he testified that the purpose was “to get the truth out.”
[32] Detective Constable Babore did not believe that the Defendant would be confused into answering his questions as part of the required “evaluation,” because the Defendant answered that he understood, “right away” and if he was confused he would have asked for clarification.
The Testimony of P.C. Bryan Carroll
[33] Like the other witnesses, I had no concerns about the credibility or reliability of this witness. He is an experienced police officer and he seemed fairly relaxed while testifying.
[34] During cross-examination, P.C. Carroll was quick to note that this investigation was not necessarily about an impaired driver, because there could be other explanations for the driving that was reported to the police.
[35] This witness was clear during cross-examination that he did not consider the Defendant to be detained when they spoke. He testified that after he had asked about drinking and whether the Defendant had been driving “that car,” he had asked the Defendant to step outside and the Defendant then went down the steps and dealt with P.C. Said.
[36] Constable Carroll was specifically asked if he would have stopped the Defendant if he had simply walked back inside the home. He answered, “No. I don’t think so. It was very calm” and in his view everyone was cooperating and compliant.
ANALYSIS
There Was No Breach of S. 10(a) of the Charter
[37] Section 10(a) of the Charter requires the state to “promptly” notify individuals when they are arrested or detained and the reason(s) for same. This permits an individual to make an informed decision whether or not to submit to the arrest or detention. It is also important information in the context of exercising the concomitant right to counsel.
[38] Obviously, the pre-condition for provision of the informational component of the s. 10 right is a detention or arrest.
[39] In R. v. Suberu, the Supreme Court discussed the threshold issue (was there a detention):
In Grant, we adopted a purposive approach to the definition of "detention" and held that a "detention" for the purposes of the Charter refers to a suspension of an individual's liberty interest by virtue of a significant physical or psychological restraint at the hands of the state. The recognition that detention can manifest in both physical and psychological form is consistent with our acceptance that police actions short of holding an individual behind bars or in handcuffs can be coercive enough to engage the rights protected by ss. 9 and 10 of the Charter.
While a detention is clearly indicated by the existence of physical restraint or a legal obligation to comply with a police demand, a detention can also be grounded when police conduct would cause a reasonable person to conclude that he or she no longer had the freedom to choose whether or not to cooperate with the police. As discussed more fully in Grant, this is an objective determination, made in light of the circumstances of an encounter as a whole. [9]
[40] The court in Suberu also relied upon a portion of its earlier decision in R. v. Mann:
"Detention" has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so, the police cannot be said to "detain", within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be "detained" in the sense of "delayed", or "kept waiting". But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint. [original emphasis] [10]
[41] The Defendant submits that there was a detention when he was questioned about alcohol consumption and driving, in the two minutes prior to his arrest. Respectfully, I disagree.
[42] The only evidence before the court came from the two of the four police officers who were present who actually interacted with the Defendant. While it is not dispositive, it is instructive that both P.C.’s Carroll and Said testified that they did not consider that the Defendant was detained when they were asking him questions at his home. Several facts support their evidence:
i. The Defendant was politely asked to come outside to speak with the police (“Hey man, how you doin’? Come out and chat with us for a second please.”);
ii. The Defendant was first asked how he was “feeling tonight;”
iii. The Defendant was then asked if he had consumed any alcohol;
iv. The Defendant was then asked if he had driven the car that had been observed and reported to police;
v. The Defendant was then told, “Come out and ah, just throw some shoes on for me, buddy, let’s have a chat out here. Please and thanks;”
vi. The Defendant then left the front porch and went inside his house, very briefly. He opened the front closet. He then dismissed his mother’s request to wear the boots visible just inside the front door, then he returned to the front porch after deciding not to put on any footwear. As he exited, he began to close the front door behind him, but his mother prevented that from happening;
vii. The Defendant was then asked by P.C. Said, “So, you wanna come over here so you don’t fall” […off the porch, which was raised but which had no guardrails];
viii. After the Defendant descended the steps and approached P.C. Said, he was again asked, “So what’s going on today;” and
ix. Just prior to his arrest, the Defendant was asked to confirm that he had said that he had consumed alcohol, he was asked when his last drink was, and he was asked to confirm that he had been driving the reported vehicle.
[43] The first four points above are clearly exploratory in nature. Constable Carroll needed to ascertain, as his evidence suggested, whether the Defendant was the driver of the vehicle that was reported to police and whether there was some explanation for the poor driving.
[44] The fifth and sixth observations above support the credibility finding that P.C.’s Carroll and Said had not intended to detain the Defendant when they initially questioned him. Not only was he free to walk away, (which he did when invited to get his shoes), I find that the Defendant did not have to come outside or even speak with the police at all. Throughout their brief interaction before his arrest, I find that the Defendant was free to walk back into his house and close the door.
[45] Items vii., viii., and ix. above mirror points i. through iv., for P.C. Said. I have no difficulty with him repeating the questions and ascertaining that he had properly understood the Defendant’s answers. This was especially important because he took over the investigation and he formed the opinion which generated the Defendant’s arrest.
[46] I find that until P.C. Said remarked, “Okay. You don’t seem like you’re too steady on your feet right now, brother,” which is approximately one minute and a few seconds after the Defendant first attended the front door, the Defendant was not detained. The police were exploring who had been driving and whether there were explanations besides alcohol impairment that could account for the call to police.
[47] At this point, I find that P.C. Said made it clear what they were investigating and why there was concern with the Defendant:
P.C. Said: Okay. You don’t seem like you’re too steady on your feet right now, brother.
Defendant: No.
P.C. Said: You were kinda swaying over there, too.
Defendant: Why? What’s the problem.
P.C. Said: The problem is, we’ve got multiple…complaints. You were driving, you were hitting the curbs as well. We have reason to believe that you may be impaired while you were driving that vehicle.
Defendant: Okay.
[48] For these reasons, there was no initial detention and no need for the police to inform the Defendant why they had questions of him. Once the detention had crystallized, P.C. Said promptly informed the Defendant of his concerns and the reason for their interaction. This fulfilled the informational component of s. 10(a) and it was delivered promptly once the Defendant’s detention began.
[49] There was no evidence that before this point the Defendant was psychologically detained or that a reasonable person in his circumstances would have felt compelled to participate in the police investigation.
[50] I agree with the submissions that there were no less than four uniformed police officers present, however, the initial interactions with the police were cordial and generalized and it is obvious from the BWC videos that the Defendant made several choices about where to stand, where he wanted to go, how to answer, and the level of cooperation he wanted to exhibit. He may have had tactical reasons for his apparent cooperation (perhaps there was an expectation of leniency). Regardless, I am unable to conclude that there was a detention prior to the comment about the Defendant’s balance.
[51] As a result, I am not satisfied that it is proven on a balance of probabilities that s. 10(a) of the Charter was violated.
There Was No Breach of S. 9 of the Charter
[52] There was much discussion between the court and the Defendant’s counsel during the submissions about the nature of reasonable grounds to believe that an offence had been committed by the Defendant.
[53] I agree with the Defendant that without the Defendant’s admission that he had driven the Hyundai vehicle, P.C. Said did not personally have reasonable grounds to arrest the Defendant. Constable Said was not present when the Defendant’s mother had told P.C. Carroll that her son had been out with her vehicle since that morning. This supports my view that it was appropriate for the arresting officer to ascertain whether the Defendant, who was obviously showing signs of alcohol intoxication, had been driving his mother’s car.
[54] I find that P.C. Said had the following pieces of information, which gave him the necessary grounds to arrest the Defendant for impaired driving and to make a valid breath sample demand:
i. The hood of the car which was reported to have been driving poorly and hitting curbs was warm to P.C. Said’s touch, which to him signified recent use, when he arrived at the registered owner’s address, some 14 minutes after first receiving the report of a possibly impaired driver;
ii. The Defendant admitted having driven the vehicle;
iii. The Defendant admitted having consumed alcohol;
iv. The Defendant had an odour of alcohol on his breath;
v. The Defendant appeared to be unsteady on his feet;
vi. The Defendant appeared to require the front door jamb and the porch pillar to maintain his balance while walking; and
vii. The Defendant slurred his words while speaking.
[55] I accept that P.C. Said held a subjective opinion that the Defendant was impaired by alcohol while driving his mother’s vehicle. I find that it was objectively reasonable to come to this conclusion based on all of the circumstances known and considered by P.C. Said at the time he formed his opinion. Until he confirmed who had driven the vehicle, I agree with the Defendant’s submission that it would not have been appropriate to arrest anyone, let alone the Defendant, for the alleged offence.
[56] Given this finding, I do not accept that it has been proven to any degree that the Defendant’s arrest was improper or arbitrary in any way.
[57] I find that there were ample grounds to arrest the Defendant and make a valid breath sample demand pursuant to s. 320.28(1)(a)(i) of the Criminal Code. This finding is dispositive of the Defendant’s s. 8 Charter Application.
The Defendant’s Utterances Were Not Voluntary
[58] I accept the testimony of P.C.’s Carroll and Said that there were no threats, promises, or inducements made to interfere with the Defendant’s free will and choice to admit to the Qualified Technician that he was the “selfish” driver who was “hitting curbs” due to his excessive alcohol consumption that night.
[59] I am not troubled that the prosecution did not call as witnesses the cells officer or the Staff Sergeant who had assisted with booking the Defendant. From all of the evidence, it is apparent that the police were respectful and at times even friendly with the Defendant. There was no suggestion of an atmosphere of oppression or manipulation caused by the police to get the Defendant to make the damning admissions he did.
[60] However, I have concerns respecting what the Qualified Technician told the Defendant about the significance of the statutory breath demand:
D.C. Babore. Okay. So I just wanna make it clear what I read right there, that’s a lawful demand. So, like in the eyes of the court, what it means is that if that if you fail or refuse to take part in any part of this evaluation, you could be charged with an additional charge or refusal. So it’s additional criminal charge to refuse or fail this. Do you understand that? [emphasis added]
[61] I accept that D.C. Babore did not think that the Defendant was confused by this. Nonetheless, I am left with a reasonable doubt that this explanation may have caused the Defendant to believe that he was required by law to participate in all aspects of the breath sample procedure, including the questions asked by the Qualified Technician.
[62] In my view, this doubt is raised because of the wording of the explanation, “any part of this evaluation,” and its timing. It follows the lawful demand and it precedes the words, “So, it’s an additional criminal charge to refuse or fail this.”
[63] As well, this explanation purports to interpret how the courts view any refusal or failure. Lastly, this caution came from the person who administered the breath sampling procedure, a “Detective Constable” no less, who was identified as a “Qualified Technician.”
[64] I would also note that D.C. Babore began to ask about the Defendant’s driving and his awareness of his impairment during the pause between the first and second breath sampling. The Defendant may well have concluded that the questioning comprised a “part” of the “evaluation” that he was told was required by law. Moreover, the officer never confirmed that the Defendant knew that he could refuse to answer any questioning.
[65] As such, I have a reasonable doubt that the Defendant’s admissions to the Qualified Technician were truly voluntary and the product of the Defendant’s free-will. I cannot admit the Defendant’s utterances on the trial proper.
The Result on the Trial Proper
[66] Although none of the evidence was excluded for any Charter violations, the only evidence of identity (that it was the Defendant who drove the Hyundai in the manner reported) came from the Defendant. Without his utterances to the Qualified Technician, there is no admissible evidence to prove who had driven while possibly impaired by alcohol. Likewise, there is no admissible evidence that the Defendant had an impermissible blood alcohol concentration within two hours of driving.
CONCLUSION
[67] The prosecution has failed to prove either count alleged against Mr. Maiato. Accordingly, Keith Maiato is acquitted of both charges.
Released: 08 March 2025
Justice G. Paul Renwick
[1] R. v. Collins, [1987] S.C.J. No. 15 at para. 21.
[2] Collins, supra, at para. 23.
[3] Canada (Combines Investigation Acts, Director of Investigation and Research) v. Southam Inc., [1984] S.C.J. No. 36.
[4] R. v. Storrey, [1990] S.C.J. No. 12 at para. 17.
[5] R. v. Notaro, [2018] O.J. No. 2537 (C.A.) at paras. 34-35.
[6] R. v. Golub, [1997] O.J. No. 3097, at para. 18.
[7] R. v. Kumarasamy, 2011 ONSC 1385 at para. 42.
[8] R. v. Roberts, 2018 ONCA 411, [2018] O.J. No. 2279 (C.A.) at para. 63.
[9] R. v. Suberu, 2009 SCC 33, [2009] SCJ No 33 at paras. 21-22.
[10] Suberu, supra, at para. 23.