ONTARIO COURT OF JUSTICE
DATE: 2025 04 09
COURT FILE No.: Toronto 21-45003981
BETWEEN:
HIS MAJESTY THE KING
— AND —
SILVIA TABOADA
Before Justice Patrice F. Band
Heard: December 9, 10, 2024 and March 3, 2025
Reasons released: April 9, 2025
Ms. M. Kwak ............................................................................................. counsel for the Crown
Mr. P. Dotsikas ........................................................ .…. counsel for the Accused, Ms. Taboada
BAND J.:
I. Background
[1] On the evening of November 6, 2021, the car Ms. Taboada was driving rear-ended another car on Bathurst St. in Toronto. Police were called and attended. The arresting officer (PC Zold) came to believe that Ms. Taboada’s ability to drive was impaired by drug and arrested her for that offence. He brought her to Traffic Services to be evaluated by a Drug Recognition Expert (DRE). The DRE formed his own grounds to believe that Ms. Taboada’s ability to operate a motor vehicle was impaired by alcohol and demanded that she provide samples of her breath into an approved instrument. Those tests showed that Ms. Taboada’s blood alcohol content (BAC) was well over twice the legal limit. She was charged with impaired driving and “Over 80.”
[2] At trial, Mr. Dotsikas alleged that PC Zold violated Ms. Taboada’s s. 8 and 9 Charter rights to be free from unreasonable search and seizure and from arbitrary detention by arresting her without reasonable and probable grounds. The trial and voir-dire proceeded in blended fashion. The Crown called PC Zold, his partner, the DRE and two civilians who had been in the car that Ms. Taboada struck. The Defence called no evidence on the voir-dire or trial proper.
II. The Issues
[3] The central issues at trial related to the s. 8 and 9 Charter application, namely:
- Whether PC Zold had reasonable and probable grounds to arrest Ms. Taboada and demand that she submit to testing; and
- If not, whether the BAC results should be excluded pursuant to s. 24(2) of the Charter.
III. Summary of the Facts
[4] A summary of the facts will place the issues and applicable legal principles in context.
[5] PC Zold is now retired. At the time of this investigation, he had been a police officer for 32-33 years. In that time, he had conducted more than 24 impaired/over 80 investigations.
[6] That evening, he received information from dispatch regarding a personal injury accident involving two motor vehicles and a possible impaired driver. One vehicle had rear-ended the other. The caller thought one of the drivers might be impaired; one of the drivers, a female approximately 45 years of age was non-responsive and thought to be “high.”
[7] When he arrived at the scene, PC Zold interacted with Ms. Taboada once she had been cleared by EMS. He asked her for her driver’s licence, insurance and ownership. She rummaged and fumbled through her car for some time before handing him a green Visa card. She ultimately provided her driver’s license, but she did not provide all the documents he had asked for. According to him, her speech was a bit slurred. Her eyes were not blinking normally; they would stay closed for longer than one would expect and they seemed tired or groggy. He found a bottle of prescription pills containing acetaminophen, codeine and caffeine in the car. He did not smell an odour of alcohol emanating from Ms. Taboada’s breath. In his examination in chief, he testified that it was based on this “constellation” that he formed the belief that Ms. Taboada’s ability to drive was impaired by drug.
[8] In cross-examination, PC Zold agreed with defence counsel that rummaging was a more applicable description of what he observed Ms. Taboada doing in the car than fumbling. For what it is worth, having viewed his BWC footage in court and since, I find that both terms are apt. Her car was very messy, and she spent almost two minutes looking around in various parts of the car for her documents. At one point, she had a hand full of cards and slips of paper and one slid out. That, it seems to me, is the very definition of fumbling. With respect to the Visa card, Mr. Dotsikas put to PC Zold that when he told her “that’s your Visa card” she replied “I know” and that by doing so she could have been demonstrating that she had handed it to him to identify herself. He testified that he knew she had responded but that he had not made a note of it. He did not know why she had handed him her Visa card. That makes sense to me, because in fact, Ms. Taboada did not say “I know.” She said “yeah, I’m gonna go to the other side” as she turned away and reached towards the passenger side of the car.
[9] When asked how the pills had factored into his belief, at first he explained that they had been in the back of his mind, but only “the smallest amount.” This is because he did not know what they were. He believed she was impaired by some sort of medication, but he did not know if it was that one. Later, he explained that they were not a factor because, in the end, the case did not go down the DRE route. While he acknowledged that he had not made notes of the medication, and agreed that he had not told the DRE about them, he had taken a photo of them at the scene. He recalled having a conversation with Ms. Taboada about the medication, but could not recall its contents. He did not tell the DRE about them because he did not know what they were and had some recollection that they were in someone else’s name. For this reason, I do not accept that the medication bottle factored into his grounds.
[10] It is difficult to understand how to reconcile PC Zold’s testimony that the medication factored into his grounds – even “the smallest amount” – with the fact that he had no idea what it was, particularly when he did not mention it to the DRE. I find that, on a fair reading of his evidence, he kept the medication in the back of his mind (and photographed it) so that it would be known if the DRE concluded that Ms. Taboada’s ability to operate a motor vehicle was impaired by drug. In that case, it may have had evidentiary value.
[11] PC Zold told Ms. Taboada that he thought she was either very tired or on some medication that was affecting her ability to drive. He told her it was drugs or medication or whatever else it might be. He also agreed that he did not know, and was not sure, if she was impaired by a drug. That said, he repeated that he believed that her ability was impaired by a drug or a combination of a drug and fatigue. He said that this was his opinion and his belief, and that he would not have arrested her if he had felt that only fatigue was at play. He also told his partner that he thought she was “high.”
[12] With respect to slurring and unsteadiness, he indicated that neither was significant or egregious. Mr. Dotsikas suggested that he expressed himself in that manner to distance himself from the BWC footage which, he argued, showed neither. That is not how I took his evidence. I must recall that I was not there and that while BWC footage can be extremely helpful, it is no substitute for being present at the scene. Also, Ms. Taboada speaks with a slight accent, which can be mistaken for slur. His reference to unsteadiness related to a time after he placed Ms. Taboada under arrest and is therefore not relevant to his grounds. That said, in the circumstances, I do not find that his testimony is contradicted by the BWC footage.
[13] Similarly, PC Zold agreed that what he had noticed about Ms. Taboada’s eyes was “nothing egregious.” Having reviewed the BWC footage, I too observed that Ms. Taboada’s eyes were blinking slowly, and it seemed as though her eyelids were heavy. PC Zold’s description was fair.
[14] Later, PC Zold was pressed as to whether he had acted on nothing more than a hunch that Ms. Taboada’s ability was impaired by drug. He disagreed with the term “hunch”, responding that he “strongly suspected that’s what it came to after eliminating alcohol.”
[15] Lastly, PC Zold was not trained to perform standard field sobriety tests (SFSTs), which s. 320.27 of the Criminal Code makes available to officers, along with approved screening devices, to assist them in determining whether they have reasonable grounds. He also testified that not all officers were trained on SFSTs and that it was not mandatory when he was still working.
IV. Applicable Legal Principles
[16] Because the arrest and subsequent breath tests were done without a warrant, the Crown bears the burden of demonstrating on a balance of probabilities that they were conducted in compliance with the Charter. In this case, that means demonstrating that PC Zold had reasonable and probable grounds to believe that Ms. Taboada had committed the offence of driving while impaired by drug. As the Supreme Court of Canada explained in R. v. Storrey, [1990] 1 SCR 241 at pp. 250-1:
the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.
[17] In a drinking and driving context, the reasonable and probable grounds standard is not an onerous one: see R. v. Bush, 2010 ONCA 554 at para 46.
[18] In a drinking and driving case, the objective aspect of the reasonable and probable grounds standard requires that the officer’s belief be supported by objective facts such that a reasonable person in the place of the officer would conclude that there were indeed reasonable and probable grounds to believe that the suspect’s ability to drive was even slightly impaired by the consumption of alcohol: ibid, at paras. 38 and 48. The same must be true in cases involving drugs.
[19] In Bush, the Court also explained that:
60 There is no minimum time period nor mandatory questioning that must occur before an officer can objectively have reasonable and probable grounds. There is no requirement that a roadside sample be taken. The ASD provides evidence of the blood alcohol concentration in the suspect’s blood, not evidence of impairment. The trial judge correctly found that if the officer subjectively and objectively had reasonable and probable grounds that withstand judicial scrutiny, the failure to invoke the roadside screening provisions was irrelevant. If the officer’s belief failed to meet the requisite standard, there was a s. 8 Charter violation.
61 A trained police officer is entitled to draw inferences and make deductions drawing on experience. Here, the investigating officer had 18 years’ experience. The trial judge was entitled to take into consideration that experience and training in assessing whether he objectively had reasonable and probable grounds…. In addition, in determining whether reasonable and probable grounds exist, the officer is entitled to rely on hearsay…. (Internal citations omitted.)
[20] As such, the issue is not whether the officer could have conducted a more thorough investigation. The question is whether when he or she made the breath demand he or she “subjectively and objectively had reasonable and probable grounds to do so”: ibid, at para. 70.
[21] The law does not demand the same of the police officer in an arrest situation as that expected of a justice considering a search warrant. The police officer must make his or her decision in a volatile environment with incomplete information: ibid, at para. 43.
[22] An officer must take into account all the information he or she has and can only disregard unreliable information. In doing so, the officer is entitled to rely on hearsay: ibid, at paras. 48 and 61.
[23] The issue of whether there were reasonable and probable grounds involves an examination of the totality of the circumstances, not a dissection of each one of the individual indicia which may or may not exist; there is no mathematical formula: ibid, at paras. 55-56.
[24] In a case involving a motor vehicle collision, “[t]hat an accident occurred, including the circumstances under which it occurred and the possible effects of it, must be taken into account by the officer along with the other evidence in determining whether there are reasonable and probable grounds to arrest for impaired driving. Consumption plus an unexplained accident may generate reasonable and probable grounds although that may not always be the case”: ibid, at para. 54.
[25] When testifying in court about the reasons for which they take certain steps in an investigation, such as making an ASD demand, an arrest or a breath demand, officers are not required to say magic words.
[26] In R. v. Hall, (1995), 22 O.R. (3d) 289 at para. 36, the Court of Appeal held that a trial judge can infer that an officer had the requisite subjective grounds to arrest based on a fair reading of their evidence. In R. v. Clarke, [2000] O.J. No. 804 at para. 13 (S.C.J.), Justice Durno explained:
There are authorities which support the Crown's contention the officer does not have to say the “magic words.” In some cases this is related to whether the officer had to state the reasonable and probable grounds for a breathalyzer demand ... In all of cases it was determined that a court could infer from circumstantial evidence the officer had the requisite belief without having said the “magic words.” (Internal citations omitted.)
[27] What is more, in relation to the requisite objective grounds, the reviewing court is not limited to what the officer articulated in court; what must be considered is the totality of the circumstances: see R. v. Censoni, [2001] O.J. No. 5189 at paras. 55-56 (SCJ). This includes all facts and circumstances reasonably known to the officer at the time they formed their grounds: see R. v. Yi, [2006] O.J. No. 1315 at para. 20; R. v. Singh, [2006] O.J. No. 5133 at para. 43 (S.C.J.) and R. v. Fyfe 2023 ONCA 715 at paras. 54-63.
V. The Arguments
[28] Mr. Dotsikas argues that, having ultimately testified that he had a “strong suspicion”, PC Zold must be “taken at his word” and, as a result, the arrest and what followed violated Ms. Taboada’s s. 8 and 9 rights. He also argues that PC Zold lacked reasonable grounds because he did not turn his mind, subjectively, to the question of impairment by drug. Rather, he argues, PC Zold defaulted to that because he had ruled out alcohol. This is a problem because it amounts to a process of elimination. Also, fatigue and the effects of the accident were potential factors. In other words, PC Zold only suspected impairment. He decided to arrest Ms. Taboada and find out later whether that impairment was caused by drugs. A situation like this is what SFSTs are for. The fact that neither PC Zold nor his partner knew how to administer SFSTs amounted to a breach and/or aggravated the existing breach. For this, Mr. Dotsikas points to R. v. Au-Yeung, 2010 ONSC 2292, a case in which the arresting officer who administered the ASD did not know how to operate it.
[29] On behalf of the Crown, Ms. Kwak argues that PC Zold had reasonable and probable grounds to arrest Ms. Taboada based on the totality of the circumstances. She also argues that there are no required “magic words” and that it is open to me to consider all facts reasonably known to PC Zold. She suggests that I can take judicial notice of the potential effects of codeine[^1] but even without that, PC Zold’s grounds were sufficient. Also, she maintains that an officer is under no obligation to employ an ASD or SFSTs. The question is whether they have the requisite grounds. For this proposition, she relies on R. v. Marrese, [2009] O.J. No. 4467 at para. 19 (S.C.J.), citing Censoni, supra, at para. 50.
VI. Analysis
A. Reasonable grounds
[30] This case is not, strictly speaking, about whether magic words are required. But it is about a related issue concerning the weight that one dissonant word or phrase should bear when it emerges in the context of a witness’s otherwise consistent testimony. Is Mr. Dotsikas right that I am bound to find that PC Zold only had a “strong suspicion”?
[31] Whether an officer had reasonable grounds or merely a reasonable suspicion is an important issue in many cases because it is a pivotal inflection point that determines how an investigation can and should proceed. And of course, the entire aim of a cross-examination can be centered on that distinction. But that does not mean that after testifying repeatedly about their belief and opinion, anchored in certain objective facts, an officer’s single mention of something less than reasonable grounds must automatically dismantle the body of testimony that preceded it. In some cases, doing so could risk giving one phrase magic power. It could also run contrary to the principles above, indicating that a judge can infer whether an officer had the requisite subjective reasonable grounds based on a fair reading of their testimony.
[32] In my view, based on a fair reading of PC Zold’s testimony, he had subjective reasonable grounds to believe that Ms. Taboada’s ability to operate a motor vehicle was impaired by drug, notwithstanding his assertion, late in the cross-examination, that he had a “strong suspicion.” I say this because PC Zold is a very experienced officer who testified numerous times that he had a belief and an opinion about that issue, which was based on the grounds that he articulated and which I have listed at para. 7 above (less the medication bottle). As I have found, those factors were objectively justifiable.
[33] In addition, what PC Zold was told over the police radio were other circumstances reasonably known to but not articulated by him, namely: the existence of an unexplained rear-end accident at a traffic light, that the female driver was not responsive and was believed to be impaired and “high.” So, too, the fact that Ms. Taboada had told him that she was fine regarding any effects of the accident; also, she had been released by EMS.
[34] I find that viewed in combination, these facts and circumstances, which were known or reasonably known to PC Zold, easily meet the objective reasonable grounds threshold. This is not a case in which an officer faced with an unexplained accident and no smell of alcohol defaulted to a subjective belief about impairment by drug. PC Zold’s belief that a drug was at play in this case was reasonable.
[35] I do not find that PC Zold’s inability to perform SFSTs, or the fact that training was not mandatory, constituted breaches of s. 8 or could aggravate such a breach. The provisions of s. 320.27 are not mandatory in this regard. I also note that the facts in Au-Yeung were very different: there, the officer had administered an ASD test despite not knowing how to do so.
[36] As such, I find that Ms. Taboada’s s. 8 and 9 rights were not violated, and would dismiss her application.
[37] If I am wrong about that, and if PC Zold’s subjective grounds missed the mark, it was by a hair. As a result, out of an abundance of caution, I will undertake a section 24(2) analysis.
B. Section 24(2)
[38] If PC Zold violated Ms. Taboada’s s. 8 and 9 rights, there can be no question but that the evidence that was later gathered was obtained in a manner that violated her rights.
[39] Section 24(2) of the Charter allows a court to exclude evidence where admitting it would bring the administration of justice into disrepute. In R. v. Grant, 2009 SCC 32, at paras. 68-70, the Supreme Court explained this concept.
The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.
Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.
Finally, s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.
[40] I must consider three factors: (1) the seriousness of the violation; (2) the impact of the violation on the accused's Charter-protected interests; and (3) society’s interest in the adjudication of the case on its merits (ibid, at para. 71). The focus must be on the long-term and prospective effect of a remedy or lack of remedy. The Supreme Court of Canada’s decision in R. v. Le, 2019 SCC 34 also provides important guidance. At para. 141, the majority provided the following explanation of the interplay between the Grant factors:
While the first two lines of inquiry typically work in tandem in the sense that both pull towards exclusion of the evidence, they need not pull with identical degrees of force in order to compel exclusion. More particularly, it is not necessary that both of these first two lines of inquiry support exclusion in order for a court to determine that admission would bring the administration of justice into disrepute. Of course, the more serious the infringing conduct and the greater the impact on the Charter-protected interests, the stronger the case for exclusion (R. v. McGuffie, 2016 ONCA 36, at para. 62). But it is also possible that serious Charter-infringing conduct, even when coupled with a weak impact on the Charter-protected interest, will on its own support a finding that admission of tainted evidence would bring the administration of justice into disrepute. It is the sum, and not the average, of those first two lines of inquiry that determines the pull towards exclusion.
Seriousness of the Charter-infringing conduct
[41] This stage is focused on whether the Court must dissociate itself from the police conduct in order to “preserve public confidence in the rule of law and its processes” (Grant, at para. 73). To determine this, I must locate the police conduct on a spectrum of seriousness.
[42] In R. v. James, 2025 ONCA 213 the Ontario Court of Appeal recently explained that, while the Supreme Court of Canada in R. v. Zacharias, 2023 SCC 30 was divided on the impact of consequential breaches on the first Grant factor, the majority agreed that a pattern of Charter breaches can increase the seriousness of the Charter-infringing conduct. Here, even though a s. 8 breach carries with it a s. 9 breach, no pattern emerges.
[43] There is no argument that PC Zold was acting in bad faith, and I have found that he did not try to distance himself from the BWC footage. Based on his testimony and experience, PC Zold is not an officer who failed to understand basic and well-entrenched Charter principles, or was careless about them. Missing the reasonable grounds mark by a tiny margin in a drunk driving case is a far cry from serious police misconduct. As such, if this factor favours exclusion at all, it does so with minimal force.
Impact of the breach on Ms. Taboada’s Charter-protected interests
[44] In R. v. Tim, 2022 SCC 12, at para. 90, the Supreme Court of Canada wrote that this line of inquiry considers the impact of the breach(es) on the accused's Charter-protected interests and asks whether the breach “actually undermined the interests protected by the right infringed.” I must identify “the interests protected by the relevant Charter rights” and evaluate “how seriously the breaches affected those interests.” As with the first line of inquiry, I must then “situate the impact on the accused’s Charter-protected interests on a spectrum, ranging from impacts that are fleeting, technical, transient, or trivial, to those that are profoundly intrusive or that seriously compromise the interests underlying the rights infringed.” As the Court explained,
[t]he greater the impact on Charter-protected interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute. This is because “admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.”
[45] Ms. Taboada was arrested (albeit not handcuffed), placed in the rear of a police car, taken to a police station, and subjected to breath testing. This had an obvious and significant impact on her liberty and privacy rights. This factor pulls in favour of exclusion relatively strongly.
Society’s interest in adjudication on the merits
[46] This line of inquiry is concerned with the reliability of the evidence and its importance to the Crown’s case. The question is “whether the truth-seeking function of the criminal process would be better served by admission of the evidence, or by its exclusion” (Grant, at para. 79). Reliable and critical evidence generally pulls toward inclusion. That said, this factor cuts both ways and ought not be permitted to overwhelm the analysis (R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 34; Grant, at para. 84; and R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202 at para. 55). As the Court stated in Grant, “while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious … it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high” (ibid).
[47] Here, the breath testing results are highly reliable evidence without which the Crown’s case on the Over 80 count would be gutted. Drunk driving is a serious and all too common offence in our society. The public has a strong interest in the prosecution of such cases on their merits, particularly when they involve high BAC and an accident.
[48] This factor clearly and strongly favours admission of the evidence.
Balancing
[49] The balancing exercise does not lend itself to mathematical precision. The question is whether, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute. I find that the admission of the evidence in this case would not have a significant or lasting impact on the repute of, and the public’s confidence in, the administration of justice. In fact, I believe that exclusion of the evidence in this case would have those effects.
[50] The Charter-infringing conduct postulated in this case was not deliberate or serious. The Court is not required to dissociate itself from PC Zold’s conduct.
[51] Even though the components of the second line of inquiry pull relatively strongly in favour of exclusion, I find that, on balance, the sum of the first and second factors is clearly outweighed by society's interest in the truth-seeking function of a trial on the merits.
[52] For these reasons, the breath test results are admissible against Ms. Taboada.
VII. Conclusion as to the Over 80 Count
[53] All other evidence related to this count having been admitted, the Crown has proved beyond a reasonable doubt that Ms. Taboada is guilty of the offence of driving with excess alcohol.
VIII. Conclusion as to the Impaired Driving Count
[54] The evidence of the two civilians, a husband and wife whose vehicle was struck by Ms. Taboada’s was not challenged. In the aggregate, their testimony demonstrated the following:
- when seen at a prior light, Ms. Taboada seemed to be asleep behind the wheel;
- one or two lights down the road, her car rear-ended theirs at least twice;
- she kept her foot on the gas and her car in gear, such that her car was pushing against theirs;
- when she was approached, she opened her door and appeared to be falling out of her car;
- twice she was told to stop the engine, to no avail;
- she seemed intoxicated; and
- her speech was difficult to understand.
[55] Based on that testimony, combined with the other evidence in this case, the Crown has proved beyond a reasonable doubt that Ms. Taboada is guilty of operating her car while her ability to do so was impaired by alcohol.
Released: April 9, 2025
Justice Patrice F. Band
[^1]: While it may be open to me to take judicial notice of the fact that codeine is an opioid that can cause sleepiness, among other things, I would not count that among the things that PC Zold knew or “reasonably knew” because he made it clear that he did not know what codeine is.