ONTARIO COURT OF JUSTICE
DATE: 2025-04-24
COURT FILE No.: Newmarket 24-91107396
BETWEEN:
HIS MAJESTY THE KING
— AND —
LYDIA HAVASOVA
Before Justice S. Bergman
Heard on April 7 and 8, 2025
Reasons for Judgment released on April 24, 2025
Counsel:
R. Taher — counsel for the Crown
K. Doyle — counsel for the defendant Lydia Havasova
Overview
[1] Lydia Havasova is charged with having a blood alcohol concentration over 80mg/100ml of blood within two hours after operating a conveyance on July 15, 2024, contrary to s. 320.14(1)(b) of the Criminal Code.
[2] The charge stems from a motor vehicle collision that occurred on July 15, 2024 on Highway 404 (northbound lanes) just south of the Highway 407 overpass. At approximately 1:15 a.m., there was a report about a three-car collision. There were a number of people standing on the highway (in live lanes of traffic). Officers attended the scene and it became clear that a white Mercedes had rear-ended another vehicle. At the conclusion of the evidence, there was no dispute that Ms. Havasova was the driver of the white Mercedes and that she had rear-ended the car in front of her that had come to a complete stop due to construction-related congestion.
[3] Prior to arriving at the scene, attending officers received information about the accident, including that the female driving the Mercedes might be impaired. The first officer who attended the scene was PC Gemmiti. He spoke with Ms. Havasova to ask if she was okay. When she responded, the officer immediately smelled an odour of alcohol coming from her breath. The officer then went to check on the other people milling about. There were six or seven people from two other involved vehicles. After confirming the other people were not injured, PC Gemmiti returned to Ms. Havasova and asked her where she was coming from and if she had anything to drink. Ms. Havasova told the officer that she was going home from a friend’s party and that she had consumed some alcohol, but a long time ago.
[4] Based upon the strong odour of alcohol and confirmation that Ms. Havasova had drank alcohol that evening, PC Gemmiti suspected she was impaired and made a roadside screening demand. Ms. Havasova provided a sample of her breath into the ASD device and it registered a fail. She was promptly placed under arrest for “over 80” and advised of her right to counsel, which she acknowledged and affirmed. Ms. Havasova was transported to the Aurora OPP detachment. She spoke with duty counsel and ultimately provided two suitable samples of her breath which were 100mg/100ml of blood and 90mg/100ml of blood. Ms. Havasova was charged with the over 80 offence that is the subject of this trial.
[5] Ms. Havasova pleaded not guilty and a trial was conducted over the course of two days. At the commencement of the trial, Ms. Havasova brought a Charter application seeking the exclusion of her breath readings – which were 100mg/100ml and 90 mg/100ml respectively – under section 24(2) of the Charter. The original Charter motion alleged violations of Ms. Havasova’s s. 7, 8, 9, 10(a) and 10(b) rights. The trial proceeded in a blended manner with the evidence from the trial proper being applied to the Charter motions.
[6] At the completion of the evidence, Ms. Havasova acknowledged that if no Charter violations were found, the Crown would have proven its case beyond a reasonable doubt. In other words, Ms. Havasova admits that the Crown has proven that she was the driver of a motor vehicle on the date, time and place in question and that she was over the legal limit at the time she was operating her motor vehicle.
[7] Crown and defence counsel therefore agree that my determination of the Charter issues will be determinative at this trial. In order to assess the Charter motion, it is necessary to provide a brief summary of the evidence, none of which is in dispute.
Summary of the Evidence
[8] Three witnesses, all for the Crown, testified on the blended voir dire and trial. They were OPP Constables Gemmiti, Calderone and Baksh. The defence did not call any witnesses on the trial proper or the Charter motions.
[9] PC Gemmiti arrived at the scene of the collision at 1:27 a.m. He immediately approached Ms. Havasova because it looked like she had been in a collision and that she was the driver of the Mercedes. He wanted to see if she was okay. PC Gemmiti acknowledged that as he arrived at the scene he had some reason to believe a criminal offence had been committed. He testified that at any motor vehicle collision he considers the possibility of there being an impaired driver.
[10] When PC Gemmiti spoke with Ms. Havasova he asked if she was okay. She responded and he immediately smelled alcohol coming from her breath. There were three vehicles in live lanes of traffic on a major 400 series highway and he wanted to ensure everyone was safe. He left Ms. Havasova to check on the other people on the highway.
[11] While he was speaking with the driver of the vehicle that was rear-ended, PC Gemmiti also had the opportunity to observe Ms. Havasova walking around. She did not seem to exhibit any other signs of impairment. When he went back to Ms. Havasova, he asked where she had been coming from and if she had consumed alcohol. She said she was returning from a party and acknowledged consuming alcohol that evening but a long time ago.
[12] At 1:32 a.m., still while in the middle of Highway 404 in live lanes of traffic, PC Gemmiti made the demand for Ms. Havasova to provide a sample of her breath in the roadside device that he had with him at the scene. PC Gemmiti testified that his grounds for the demand came from the smell of alcohol coming from Ms. Havasova’s breath as well as her responses to questions. According to PC Gemmiti, the fact that Ms. Havasova had consumed alcohol at the party added to his grounds to make the roadside demand. He agreed that what she told him formed part of his grounds. What solidified his grounds was the fact that when he was standing close to her he smelled a strong odour of alcohol.
[13] PC Gemmiti was cross-examined about the fact that he was not conducting a motor vehicle collision investigation when he was speaking with Ms. Havasova. He testified that what happened was relevant to both criminal and motor vehicle collision investigations. He testified that he also asked questions about, and noted things like Ms. Havasova’s insurer as well as the make and model of her vehicle.
[14] Ms. Havasova failed the roadside screening test at 1:34 a.m. and was arrested. Her rights to counsel were provided at 1:36 a.m. She was read the breath demand at 1:37 a.m.
[15] PC Calderone attended at the scene of the accident as well. He did not interact with Ms. Havasova. He completed the motor vehicle collision report and took statements from others at the scene.
[16] PC Baksh also attended the scene. He is a qualified breath technician. At 1:41 a.m., PC Baksh was advised that he would have to set up the breath test room at the OPP detachment. He returned to the detachment at 1:58 a.m. At 3:05 a.m., PC Gemmiti relayed the grounds for making the breath demand to PC Baksh. PC Baksh took custody of Ms. Havasova at 3:09 a.m. She was read the breath demand by PC Baksh at 3:10 a.m. Ms. Havasova’s first breath sample was taken at 3:14 a.m. The second sample was taken at 3:36 a.m. The results came back at 100mg/100ml and 90mg/100ml respectively.
Charter Issues
(1) Defence Argument
[17] Ms. Havasova initially alleged an infringement of her sections 7, 8, 9, 10(a) and 10(b) Charter rights. Ms. Havasova argues that PC Gemmiti was conducting a de facto criminal investigation when he arrived at the scene. She further argues that when PC Gemmiti asked Ms. Havasova about where she was coming from and if she had consumed alcohol, Ms. Havasova was detained within the meaning of the Charter, her s. 10(a) and 10(b) rights to counsel were immediately engaged, and she ought to have been advised of the reasons for her detention and her right to counsel.
[18] Ms. Havasova argues that the breach of her s. 10 rights resulted in her being arbitrarily detained in contravention of her s. 9 Charter rights. She further argues that this arbitrary detention continued through to the point where her breath samples were provided at the detachment and that the samples themselves were taken without lawful authority and in violation of her s. 8 Charter rights. As a result of these cascading breaches, Ms. Havasova argues that her breath readings ought to be excluded from this trial pursuant to s. 24(2) of the Charter.
[19] Ms. Havasova initially took the position that her breath samples were not taken “as soon as practicable” and this was fatal to the Crown’s case. Upon further reflection, counsel for Ms. Havasova acknowledged that the “as soon as practicable” requirement from the former Criminal Code provisions had been replaced with the current s. 320.28(1). On this basis, counsel argued that failure to obtain the samples “as soon as practicable” constitutes a violation of s. 8 of the Charter.
[20] I inquired about the current state of jurisprudence on this issue and asked counsel if I was bound by the summary conviction appeal decisions in R. v. Ridley, 2023 ONSC 5967 and R. v. Ridge, 2024 ONSC 2231. In Ridley, at paragraph 38, Justice Akhtar held that failure to obtain samples as soon as practicable does not constitute a s. 8 breach:
Having found that s. 320.28 of the Criminal Code does not impose a requirement that the police are required to take breath samples as soon as practicable or that failure to do constitutes a Charter breach, I would allow the appeal and order a new trial on this ground alone.
[21] Justice De Sa in Ridge followed the Ridley finding. Ms. Havasova ultimately abandoned this s. 8 Charter argument, conceding that I am bound to follow the Ridley / Ridge line of authority. As such, there is no s. 8 Charter breach with respect to the timing of when the breath samples were taken.
[22] Counsel for Ms. Havasova also did not pursue any s. 7 Charter arguments in submissions and as such, effectively abandoned any such ground.
[23] It became clear during submissions that the primary issue to be determined is whether Ms. Havasova’s s. 10 Charter rights were engaged prior to PC Gemmiti making the ASD demand in the middle of highway.
[24] Ms. Havasova argues that PC Gemmiti was conducting a criminal investigation when he arrived on scene. She argues that when PC Gemmiti was asking about the consumption of alcohol, she was detained within the meaning of the Charter. Ms. Havasova relies upon the decision in R. v. Hogervorst, [2017] OJ No 6121 where the Court found that the Applicant was not a “driver” within the meaning of the Highway Traffic Act. Section 1 of the HTA defines driver as “a person who drives a vehicle on a highway.” In Hogervorst, the arresting officer did not see the Applicant getting out of the car. The Court found that the Applicant was not a “driver” at the time the officer detained him. Although she had a suspicion that he was a driver, she detained him, in part, for the purpose of ascertaining if he was the person she suspected of driving while disqualified.
[25] Hogervorst was a situation in which a person was being investigated for the offence of drive while disqualified. Other than the accused’s statements to the investigating officer, the trial judge was unable to conclude that the accused before the court was the driver of the vehicle in question. The officer testified that she was conducting a Criminal Code investigation into driving while disqualified. There was no Highway Traffic Act investigation. In that case, the trial judge found that the accused had been detained and his s. 10 rights were triggered. As a result, anything he said afterward, particularly his admission as to being the driver, was excluded from the trial. Absent this admission, there was no evidence that Mr. Hogervorst was the driver and he was acquitted.
[26] The Crown correctly points out that the Hogervorst case is entirely distinguishable from Ms. Havasova’s circumstances. Ms. Havasova was involved in a motor vehicle collision. She was not being investigated for drive while disqualified. There does not appear to have been any significant issue or concern about her being the driver of the Mercedes. In other words, the issues that were at play in Hogervorst are not relevant to the investigation involving Ms. Havasova.
(2) Crown’s Argument
[27] The Crown takes the position that there was no s. 10(a) or s. 10(b) Charter breach. Officer Gemmiti was engaged in a motor vehicle collision investigation alongside a criminal investigation. The Crown argues that prior to the breath demand being made, Ms. Havasova was not detained within the meaning of the Charter and her s. 10 Charter rights were not engaged. As a result, there was no s. 10 breach, nor were there any s. 9 or s. 8 violations.
Analysis
[28] PC Gemmiti was dispatched to a motor vehicle collision that occurred at 1:15 a.m. on Highway 404. There were cars in live lanes of traffic. There were six or seven people out of their cars on the highway. It was evident that the driver of the white Mercedes rear-ended the car in front. It was acknowledged that Ms. Havasova was the driver of the Mercedes. At the scene, PC Gemmiti confirmed that the registered owner of the white Mercedes matched the name on Ms. Havasova’s driver’s licence. The officer had ample grounds to believe that Ms. Havasova was the driver of the white Mercedes.
[29] When he spoke with Ms. Havasova initially, he was trying to assess if there were any injured parties. While he clearly had some information that a female at the scene might be impaired, PC Gemmiti was conducting motor vehicle collision and criminal investigations at the same time. When he spoke to Ms. Havasova to see if she was injured, he immediately smelled alcohol. However, he left her to check on other parties, to continue his collision investigation. Ms. Havasova was walking around freely. There were no physical or psychological restrictions on her liberty.
[30] When PC Gemmiti returned to speak with Ms. Havasova, he asked if she had been drinking, she told him she had. Prior to asking that question, PC Gemmiti never told Ms. Havasova she was detained. He did not take any steps to physically impede or restrain Ms. Havasova. There is nothing in the record before me to conclude that Ms. Havasova was facing any significant physical or psychological restraint prior to the breath demand being made.
[31] In R. v. Guenter, 2016 ONCA 57, the Court of Appeal addressed a situation in which police arrived at the scene of an accident and the accused made spontaneous utterances about his consumption of alcohol and marijuana. The Court found that the statements were made at a time when he was not detained. At paragraphs 40 and following, the Court of Appeal reiterated the following principles emanating from R. v. Grant, 2009 SCC 32 and R. v. Suberu, 2009 SCC 33:
40 Not every interaction between the police and members of the public, even for investigative purposes, constitutes a detention within the meaning of the Charter: Suberu, at para. 3. Even when an encounter clearly results in a detention, such as when a person ultimately is arrested and taken into police custody, it cannot simply be assumed that there was a detention from the beginning of the interaction: Suberu, at para. 5. Deference is owed to the trial judge's finding as to whether an accused was detained: Grant, at para. 43.
41 In the present case, the encounter between the appellant and the police took place during the initial stages of an accident investigation by officers who had just arrived on the scene and were trying to sort things out. In Grant, the court observed, at para. 38:
In the context of investigating an accident or a crime, the police, unbeknownst to them at that point in time, may find themselves asking questions of a person who is implicated in the occurrence and, consequently, is at risk of self-incrimination. This does not preclude the police from continuing to question the person in the pursuit of their investigation.
42 The facts in Suberu illustrate how interactions between an individual and the police move along a spectrum before reaching the point of detention. In Suberu, officers had been called to an LCBO to investigate possible credit card fraud. As an officer entered the LCBO, he was passed by Mr. Suberu leaving the store who said words to the effect of"[he] did this, not me, so I guess I can go." The officer followed Mr. Suberu to his van, started some questioning, asked for Mr. Suberu's ID and the van's vehicle documentation and, upon seeing some LCBO bags in the van, arrested Mr. Suberu.…
43 The Supreme Court of Canada held that Mr. Suberu was not detained until the moment of his arrest. The court viewed the encounter with the police officer prior to Mr. Suberu's arrest as "of a preliminary or exploratory nature" where the officer was attempting "to orient himself to the situation [that] was unfolding in front of him" was in the "process of sorting out the situation" and was "engaged in a general inquiry and had not yet zeroed in on the individual as someone whose movements must be controlled" (Suberu, at paras. 31-32).
[32] There is no basis to find that Ms. Havasova was detained within the meaning of s. 10 of the Charter. Officer Gemmiti was engaged in an investigation at a very dynamic and potentially dangerous motor vehicle collision scene. The evidence is that Ms. Havasova was walking around freely and there is no indication that she ever felt restrained in any manner. As a result, I find that Ms. Havasova was not detained within the meaning of the Charter and her s. 10 rights were not engaged at the time PC Gemmiti asked her questions about alcohol consumption.
[33] Even if I am wrong and Ms. Havasova was detained within the meaning of the Charter, the Crown argues that rulings in R. v. Orbanski, 2005 SCC 37, R. v. Milne, and R. v. Coutts, para 17 apply insofar as Ms. Havasova’s statements about drinking are admissible, not for proving the offence at trial, but simply for the grounds relied upon to make the roadside demand.
[34] In Coutts, Justice Moldaver (as he then was) stated that:
“Crown counsel points to where motorists are compelled to submit to sobriety and roadside testing without being advised of their s.10(b) Charter rights, the Crown cannot use the test results at trial to incriminate the motorist on a charge of impaired driving or driving over 80": Coutts, at para. 17.
The use of the test results is limited to justifying a demand for a breath sample.
[35] At paragraph 50 of Guenter, the Court of Appeal characterized the Supreme Court’s decision in Orbanski as follows:
In Orbanski, the Supreme Court of Canada upheld, under s. 1 of the Charter, the limitations on a person's s. 10(b) right to counsel resulting from the use of roadside sobriety screening measures. The court held the evidence obtained as a result of the motorist's participation in the screening measures without access to counsel could only be used as an investigative tool to confirm or reject the officer's suspicion that the driver might be impaired; it could not be used as direct evidence to incriminate the driver: at paras. 58-60. The court described the evidence subject to such limited use at para. 58 of its reasons: "As stated in Milne, this limitation applies only to evidence obtained from the compelled direct participation by the motorist in roadside tests and, in our case, police questioning about alcohol consumption" (emphasis added).
[36] Following the Orbanski, Milne and Guenter line of decisions, if Ms. Havasova was detained prior to the roadside breath demand, her answers emanating from police questions about alcohol consumption are admissible only for the purpose of establishing the grounds for the demand and not as direct evidence to incriminate Ms. Havasova at trial. If there was any s. 10(a) or 10(b) breach in the circumstances, it is justified by s. 1 and her statements about consumption are admissible only for the purpose of establishing the grounds for PC Gemmiti’s roadside demand.
[37] Having found that the roadside demand was lawful, there were grounds to arrest Ms. Havasova for the offence of “over 80.” Given the very fair concession that everything that occurred after Ms. Havasova’s arrest at the roadside was otherwise Charter compliant, including the manner in which Ms. Havasova’s breath readings at the detachment were obtained, the Crown has proven its case beyond a reasonable doubt.
S. 24(2) Assessment
[38] However, in the event that I am incorrect and there was a breach of Ms. Havasova’s s. 10 rights prior to the roadside demand being made, I would not exclude her breath readings from trial under s. 24(2) of the Charter. Any such breach would have been momentary. As counsel for Ms. Havasova acknowledged, the situation was extremely dynamic and the attending officers would not have been required to afford Ms. Havasova a call to counsel while standing in live lanes of traffic on Highway 404.
[39] The starting point for any s. 24(2) analysis is the analysis set out in R. v. Grant, 2009 SCC 32. It has been clearly established that I must weigh three separate issues in accordance with Grant.
[40] A s. 24(2) inquiry examines the impact of admitting evidence obtained in breach of the Charter on public confidence in the justice system over the long term, based on:
- the seriousness of the Charter-infringing state conduct;
- the impact of the breach on the accused's Charter-protected interests; and
- society's interest in the adjudication of the case on the merits.
[41] The court's task is to balance the assessments under these three inquiries "to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute": R. v. Grant, at para. 71; R. v. Le, 2019 SCC 32 at paras. 139-141; and McSweeney, ONCA 349 at para. 76.
[42] The evidence can be excluded even if the first two inquiries do not both support exclusion, such as in a case of a serious Charter breach coupled with a weak impact on a Charter-protected interest (Le at para. 141). The third inquiry, while not a rubber stamp deeming all evidence reliable, typically points to admission. When, however, the first two inquiries taken together make a strong case for exclusion, the third inquiry "will seldom if ever tip the balance in favour of admissibility": R. v. Thompson, 2020 ONCA 264, [2020] O.J. No. 1757; R. v. Le, at para. 142.
(1) Seriousness of the Charter Infringing Conduct
[43] Ms. Havasova argues that the purported s. 10(a) and 10(b) violations prior to the roadside breath demand are serious given the virtual absence of impaired driving investigation training undertaken by PC Gemmiti. This is a point of concern that ought to be noted. PC Gemmiti is a relatively new OPP frontline officer. As such, he and many others like him, are responsible for patrolling the 400 series highways in the GTA region.
[44] Given the overwhelming amount of impaired and over 80 charges that are dealt with in the Newmarket courthouse alone, it is inconceivable that new OPP recruits in the region do not receive targeted, detailed and ongoing training with respect to the conduct of drinking and driving investigations. The legal issues surrounding these investigations are complex and numerous. The Charter issues arising from these investigations frequently risk having factually guilty individuals acquitted when evidence is excluded as a result of constitutional infringements.
[45] Indeed, when one considers the various amendments to the Criminal Code over the last decade, it is clear that most legal defences to impaired or over 80 charges focus solely on alleged Charter breaches and arguments surrounding the exclusion of breath readings. In other words, if officers conducting these investigations are comprehensively trained in Charter compliant conduct, their investigations and the reliable evidence flowing from those investigations would not be at risk of exclusion at trial.
[46] Had I found there to be a s. 10 breach of Ms. Havasova’s Charter rights, I would have found it to be quite serious given the absence of training provided to PC Gemmiti by the OPP. This is not a criticism of PC Gemmiti or anything he did during his investigation. In fact, his investigation was remarkably professional and entirely proper, despite his relative lack of targeted training.
[47] He testified that he may have received “some” training during his basic training at police college. He did not recall anything that was targeted specifically toward drinking and driving investigations. Nor had he received any specific drinking and driving training since graduating from police college. This is particularly concerning in light of the fact that the primary function of most OPP officers in the GTA would be the patrol and enforcement of the 400 series highways in the region. General police duties in the region fall squarely within the jurisdiction of the regional police forces.
(2) Impact of the Breach on Ms. Havasova’s Charter Protected Interests
[48] Any breach of Ms. Havasova’s s. 10 Charter rights would have been momentary and, with respect, inconsequential. Whether she had been advised of her right to counsel at the roadside or not, the observations of PC Gemmiti nevertheless would have provided him with the necessary grounds to make a roadside demand. She would not have had the right to contact a lawyer prior to the roadside sample being provided. Nor would she have had the right to refuse to provide the sample.
[49] In the circumstances, even if there had been a s. 10 breach, I would not have found that Ms. Havasova was arbitrarily detained. Moreover, I would not have found that there was no basis for her arrest after the failed roadside test. The breath demand and her rights to counsel after arrest were not the subject of any purportedly independent Charter offending conduct. The argument from counsel for Ms. Havasova was that the initial s. 10 breaches prior to the roadside test resulted in “cascading” breaches. I disagree.
[50] If there were s. 10(a) and (b) breaches, they had minimal impact on Ms. Havasova’s Charter protected interests and the second line of the Grant inquiry pulls strongly in favour of inclusion.
(3) Society’s Interest in Adjudication on the Merits
[51] The last line of inquiry considers factors such as the reliability of the evidence and its importance to the Crown's case. It typically supports finding that admission of the evidence would not bring the administration of justice into disrepute: Grant, at paras. 79-84; Harrison, at para. 33; and Le, at para. 142.
[52] Had I found there to be the minimally intrusive s. 10(a) and 10(b) breaches prior to the failed roadside demand, I would nevertheless still find the evidence of the breath samples to be highly reliable and crucial to the Crown’s case. The third Grant line of inquiry pulls strongly in favour of admission.
(4) Balancing
[53] On balance, had there been the purported s. 10 breaches prior to the roadside breath demand, inclusion of the breath samples at trial would not have brought the administration of justice into disrepute. Despite the purported breach falling on the more serious end of the spectrum due to inadequate officer training, the infringements themselves had little, if any, impact upon the Charter protected interests of Ms. Havasova, and the breath samples are highly reliable and essential evidence at trial. Even if the purported breaches had been found, the breath samples would still be admissible at trial.
Conclusion
[54] Having found there to be no s. 10(a) or 10(b) breach, and there being no dispute that the demand itself and everything flowing from the demand thereafter was otherwise Charter compliant, the evidence of the breath tests is admissible at trial. As a result, with the breath test results being 100mg/100ml and 90mg/100ml respectively, the Crown has proven Ms. Havasova guilty of the over 80 offence beyond a reasonable doubt.
[55] A finding of guilt will be entered.
Released: April 24, 2025
Signed: Justice S Bergman