Court Information
Ontario Court of Justice
Date: September 17, 2025
Between:
His Majesty the King
— and —
Edwin Aguilar
Before: Justice H. Borenstein
Oral Reasons for Judgment released: August 20, 2025
Written Reasons for Judgment released: September 17, 2025
Counsel
Varda Anwar — counsel for the Crown
Edwin Aguilar — on his own behalf
Judgment
BORENSTEIN J.:
Introduction
[1] Edwin Aguilar is charged with operating a motor vehicle while his ability to do so was impaired by alcohol and with an excessive blood alcohol concentration.
[2] There was a collision around 12:40 a.m. on December 24, 2024 at the intersection of Keele and Calvington in Toronto. Police were called and attended. Shortly thereafter, P.C. Singh demanded Aguilar provide a sample of his breath into an approved screening device (ASD). Aguilar failed and was arrested. He was taken to the police station where he spoke to duty counsel for under two minutes and then provided two breath samples into an approved instrument registering truncated breath readings of 190 and 170 mg of alcohol per 100 milliliters of blood.
[3] The Crown, as always, bears the burden of proof on these charges. Aguilar is self-represented and has brought Charter motions arguing his rights under sections 7, 8, 9 and 10(b) were violated. It is his onus on the Charter motions however, given this was a warrantless seizure of his breath, the Crown bears the onus of proving the search was authorized by a reasonable law and the manner in which the search was conducted was reasonable.
[4] I heard from Ms. Galvez who was driving the other car involved in the collision, her husband Mr. Aviso who was her passenger and the two officers who attended on scene. I heard from a friend of the accused who came to the scene after the accident.
The Collision
[5] Ms. Galvez was in her Toyota Highlander travelling northbound on Keele with her husband and others. They were coming from working late at the church setting it up for Christmas. It was snowing. As she went through the intersection, the light turned amber. A vehicle, coming from another direction, came into her lane and hit her car. Ms. Galvez's air bags deployed causing smoke within the car. She and her passengers got out. She did not realize the smoke was likely from the deployed airbag. She feared her car might explode. The accused approached her. She believed he was the other driver. He tried to give her a hug and asked her if she was okay and said accidents happen. He seemed drunk, meaning a little groggy and sleepy. She did not notice slurred speech and would tell the officer that when he arrived on scene. Ms. Galvez was having trouble breathing. She broke a rib in the collision. Her car was damaged beyond repair.
[6] Galvez's husband, Mr. Aviso, testified. He was in the passenger seat. Around 12:40 - 12:45, as they went through the intersection, the light turned from amber to red. A car in front of them turned left and hit them "head on" as it turned. The driver got out, came and said sorry "accidents happen". He identified the accused as the driver. His eyes looked sleepy and he smelled of alcohol. The accused's comment "accidents happen" upset Mr. Aviso. He had just turned into his lane and caused this crash. Aviso did not want to engage with the accused. The Highlander automatically notified 911 upon detecting the crash. The police arrived and eventually arrested the accused.
[7] Officer Singh received a call dispatching him to this collision and was advised the driver was possibly impaired. Singh arrived at 12:52 a.m. and saw Fire and EMS dealing with the occupants of the other car. The accused was outside his car on his cell phone. Singh's interaction is captured on his body worn camera (BWC). Singh believed the accused was on his phone trying to avoid engaging with or making eye contact with him which made him suspicious. He began interacting with the accused at 1:00 a.m. Singh testified the accused's eyes were glossy. He asked the accused for his driver's license and paperwork and walked with the accused to his car. Singh testified that, given how significant the accident was, he wanted to look inside the car to assess the extent of the damage and ensure no one was hurt inside the car. The back windows of the accused's car were tinted, and he could not see through them. The accused opened the front driver's door to get his paperwork. The BWC shows Singh outside the driver's door. Singh testified he looked in but could not see the back seat due to the deployed airbag. Singh told the accused to step aside and opened the back door. He did not enter the car but looked in. There was no one in the car but he saw empty beer cans in the back seat. Singh closed the car door and directed the accused to his cruiser where he read him an ASD demand at 1:02 am. The accused said the other driver ran into him. The Crown seeks to introduce that non-elicited statement made when the accused was detained arguing it was voluntary.
[8] The accused failed the ASD at 1:04 a.m. after a couple of attempts. At 1:05 a.m., he was arrested for impaired operation. The arrest should have been for the blood alcohol concentration (BAC) offence but nothing turns on that in my view in light of the fact that all the same events followed. Singh searched the accused and read him his right to counsel and caution at 1:09 a.m. At 1:10 am, the breath demand was read. The accused initially equivocated about understanding the demand and whether he would give a breath sample. Singh explained he would face a refuse charge if he refused, and the accused agreed. The accused wanted to speak to duty counsel right then on scene, but P.C. Singh said he could not afford him privacy on scene and would put him in touch with counsel at the station. They left the scene at 1:44 a.m. and arrived at traffic services at 2:13 a.m. The accused was paraded and booked at 2:20. The booking ended at 2:33. The accused spoke to duty counsel at 2:38 a.m. and was taken to the breath room at 2:40 a.m. He provided his first sample at 2:54 a.m. which resulted in a truncated breath reading of 190 milligrams of alcohol in 100 milliliters of blood. He was then lodged in the cells and returned to the breath room where he provided his second breath sample at 3:23 a.m. resulting in a truncated breath reading of 170 mg of alcohol per 100 milliliters of blood. He was released from the station at 5:04 a.m.
[9] Singh's partner, P.C. Minhas testified. He was the one who called duty counsel. He did not ask the accused if he received meaningful advice in his call with counsel.
[10] Aguilar's friend John Ttap testified. The two had dinner at Ttap's family's home the night before. They did not drink alcohol. Aguilar then dropped Ttap off at home at 10 p.m. and went to do laundry. Ttap called Aguilar around midnight as Aguilar had not returned home. Aguilar said the laundry was not yet dry. Aguilar then called Ttap again and told him he had been in an accident. Ttap went to the scene and saw Aguilar. His walking speech and eyes all seemed fine, as they were earlier in the evening.
[11] That was the evidence called in this case.
The Issues to be Decided
[12] I am satisfied based on the evidence of both civilians that the accused was indeed the driver involved in the accident. I do not rely on the accused's utterance the Crown seeks to adduce to establish the accused as the driver. It is based on Aviso in particular as well as Galvez. Aguilar was still on scene when the officers arrived. He was the driver.
[13] As to the cause of the collision, the only witnesses who testified with direct knowledge of the collision were Galvez and Aviso. They both had the accused colliding with them in their lane. The accused's statement, which the Crown seeks to adduce, is that the other driver ran into him. There is a discrepancy between Galvez and Aviso as to whether Aguilar caused the accident by hitting their car head on or while turning although I think, based on the vagueness of Ms. Galvez' evidence on this point, it was likely caused by the accused turning and then hitting Galvez in her lane. There is also evidence that Ms. Galvez was going through the intersection when the light was amber and turning red. In the end, while it is most likely Aguilar caused the collision by turning right into Galvez, I am not very confident about the exact circumstances that lead to the collision; meaning; was Aguilar going straight and veered into Galvez' lane or did he turn into the lane and did Galvez go through the intersection as the light turned amber or was it turning from amber to red.
The Impaired Count
[14] I am not satisfied beyond a reasonable doubt that Aguilar's ability to operate a motor vehicle was impaired by alcohol. I am unable to use the readings without expert opinion to assess impairment as opposed to consumption. The accident can be some evidence of impairment but as I just indicated, I am not confident about the cause. There is no evidence of slurred speech or imbalance or problems with dexterity. There is evidence of glossy eyes, apparent fatigue and an odour of alcohol. I do accept the opinion evidence of both Galvez and Aviso that they believed Aguilar was impaired but when I consider the basis for their opinion, it is primarily his eyes. In the end, I am not satisfied beyond a reasonable doubt that his ability to drive was impaired by alcohol. To be clear, he likely was.
Blood Alcohol Concentration Charge, Formerly, "Over 80"
[15] The accused failed the ASD and provided two suitable samples of his breath at the police station both showing a high BAC. That charge been proved beyond a reasonable doubt subject to the Charter applications.
Arbitrary Detention
[16] Aguilar submits he was arbitrarily detained. P.C. Singh attended a significant accident late at night. EMS and Fire were on scene. He began investigating the matter. The accused was detained only once Singh made the ASD demand. The question is whether the demand was lawful. If not, it would be arbitrary and would violate Sections 8 and 9 of the Charter.
[17] P.C. Singh suspected Aguilar had been driving with alcohol in his body and issued an ASD demand. Was his belief objectively reasonable? Considering the collision, the glossy eyes, the odour of alcohol, the suspicion was reasonable. Moreover, Singh's suspicion was heightened by Aguilar remaining on his cell phone which Singh understandably took as Aguilar trying to avoid dealing with the officer on scene. All of those factors in my view render Singh's suspicion that the accused had consumed alcohol objectively reasonable. The empty beer cans certainly increase the suspicion but are not necessary for this finding.
Search by Opening the Back Door of the Car – Waterfield Test
[18] Opening the back door and looking inside to assess the extent of the damage and look for anyone who may have been injured, even briefly, is a search.
[19] Aguilar submits it was an illegal search contrary to s. 8 of the Charter and the results of that search, and ensuing ASD and breath demands, should be excluded. The Crown submits this conduct was a legitimate exercise of power associated with the police duty to ensure public safety as per the test first articulated in Waterfield.
[20] Before turning to the Waterfield test, in my view, Singh's suspicion Aguilar had consumed alcohol having driven would be objectively reasonable even without the observations of the empty beer cans in the back seat of his car. Nonetheless, opening the back door in these circumstances was lawful under the ancillary police powers doctrine as described in Waterfield.
[21] Under the Waterfield test, the Court must determine whether the police conduct in question falls within the general scope of duties imposed on the officer by statute or common law. If so, did that particular conduct involve a justifiable use of powers associated with the duty.
[22] Here, the conduct in issue was opening the back door of the car to look inside to assess the extent of the damage and to ensure no one was injured and needed assistance.
[23] Peace officers have a duty to respond to calls, ensure public safety, investigate offences and render assistance if needed. Singh testified he wanted to assess the extent of the damage given the severity of the accident and the need to report same. More importantly, there is a duty on officers to ensure public safety and render assistance where needed. In those circumstances, looking in the back seat to ensure no one was injured and briefly assessing the extent of the damage fall within the general scope of police duties.
[24] Turning to whether opening the back door and briefly looking inside was a justifiable use of the powers. The 2014 SCC decision in MacDonald, 2014 SCC 3, (a case involving police powers to search where they had safety concerns), summarized the Waterfield test as follows: (at paras 35-37):
[35] At the first stage of the Waterfield test, the court must ask whether the action falls within the general scope of a police duty imposed by statute or recognized at common law. For safety searches, the requirement at this first stage of the analysis is easily satisfied….
[36] At the second stage, if the answer at the first is affirmative, as it is in this case, the court must inquire into whether the action constitutes a justifiable exercise of powers associated with the duty. As this Court held in Dedman,
[t]he interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference. [Emphasis added; p. 35.]
Thus, for the infringement to be justified, the police action must be reasonably necessary for the carrying out of the particular duty in light of all the circumstances (Mann, at para. 39; Clayton, at paras. 21 and 29).
[37] To determine whether a safety search is reasonably necessary, and therefore justifiable, a number of factors must be weighed to balance the police duty against the liberty interest in question. These factors include:
the importance of the performance of the duty to the public good (Mann, at para. 39);
the necessity of the interference with individual liberty for the performance of the duty (Dedman, at p. 35; Clayton, at paras. 21, 26 and 31); and
the extent of the interference with individual liberty (Dedman, at p. 35).
If these three factors, weighed together, lead to the conclusion that the police action was reasonably necessary, then the action in question will not constitute an "unjustifiable use" of police powers (Dedman, at p. 36). If the requirements of both stages of the Waterfield test are satisfied, the court will then be able to conclude that the search in question was authorized by law.
[25] The Court held that, in determining if a police action was reasonably necessary to carry out their particular duty, and therefore not an unjustifiable use of power, the Court must assess:
The importance of the duty to the public good;
The necessity of some interference with a subject's liberty for the performance of that duty; and
The extent of that interference.
[26] Looking in the car to ensure no one else was injured was an important duty performed by P.C. Singh upon coming on an accident like this. One could imagine the circumstances had he not looked and there was someone injured. This was a significant accident, late at night. Air bags had been deployed in both cars. There were injuries. The accused was outside his car acting in a manner P.C. Singh reasonably took as evasive. I say reasonably because I had a similar impression when watching the body worn camera. It seemed odd that Aguilar was so focused on his private call in the circumstance. Ensuring no one was injured is an important duty. Had the back windows not been heavily tinted, P.C. Singh would have been able to fulfill this duty by looking through the window without opening the door. He could not. In those circumstances, opening the door to determine if anyone was injured in particular was necessary. Finally, opening the back door of a car that had been in this kind of collision was a minor interference with the accused's reasonable expectation of privacy and I note his expectation of privacy in his vehicle on a public road is a diminished one. In my view, this act was not an unjustifiable use of police powers and was therefore authorized by law as an ancillary power of the police duty. I disagree with Mr. Aguilar's submission that this was merely an exploratory search by Singh who was just curious. I accept he wanted to ensure no one was injured in the car which was lawful. I note that, had I found that search to not be authorized by law and in violation of section 8, I would find it to not be a serious infringement at all.
Right to Counsel
[27] Aguilar submits his right to counsel was violated by the officer not advising him of his right to counsel prior to making the ASD demand or administering the test. Singh was not required to advise him of his right to counsel as Aguilar was not detained until the demand. There was about two minutes between the demand and the test. The law permits a brief suspension of the right to counsel between the demand and the test if done quickly.
[28] Aguilar's argument is premised on the demand being unlawful and it was not.
Delay in Implementation of Right to Counsel Until the Station
[29] Aguilar submits the delay in implementing his consultation with counsel until he arrived at the station violated his right to counsel. He was arrested, searched, read his right to counsel and issued a breath demand by 1:10 a.m. Thereafter, there was a conversation between Aguilar and Singh where Aguilar was uncertain about his obligation or whether he would comply and the officer explained and cautioned him with respect to a refuse charge. Aguilar agreed to comply and wanted to speak to duty counsel on scene but Singh advised he could not afford him privacy and would do so at the station. They left the scene at 1:44 a.m., roughly 30 minutes after the breath demand and discussion about refusing. They arrived at the station at 2:20, booking was complete at 2:33 and Aguilar spoke to counsel at 2:38 a.m. The delay was at the scene. There was no evidence or suggestion officers were not being diligent and they were dealing with a serious accident. Two cars were heavily damaged, the driver was injured, fire and EMS were on scene. The police did not question or attempt to elicit evidence from Aguilar. They were concerned with ensuring he could consult with counsel in private which is their obligation. There is no evidence that the 30-minute delay in leaving the scene was avoidable or unreasonable given what was going on. Officers are not to be expected to drop everything leaving the other driver and witnesses on their own immediately upon the arrest and right to counsel.
Short Call to Counsel
[30] Aguilar submits the short phone call he had with counsel ought to have caused the officer to make inquiries about whether he was satisfied with his call. His call was certainly short but there is no suggestion the police or anyone else cut the call short. There is no evidence from Aguilar that he told the officer he was dissatisfied with the call and no evidence at trial that he was dissatisfied. There is no basis to find the police breached his right to counsel in this call.
Voluntariness
[31] The Crown seeks to adduce Aguilar's statement to the police that the other driver turned into him. The statement was being adduced to assist in proving Aguilar was the driver. As already noted, I found he was the driver based on the civilians' evidence and Aguilar's utterance played no part in that finding. I also considered that utterance in finding that I was not confident as to the cause of the collision and therefore did not rely on Aguilar causing the collision (which I find to be likely) as part of my determination whether the Crown proved impairment beyond a reasonable doubt. Given those two issues, it is my view that the probative value of Aguilar's utterance, for the Crown or defence, is spent. Nonetheless, I do find the statement, which was not elicited in any way, to have been voluntarily given.
Mouth Alcohol
[32] Aguilar submits there is no evidence officers watched him between the two breath tests. He submits this evidence is necessary to ensure there was no mouth alcohol present during the second test. This argument also fails. The spectre of mouth alcohol has often been litigated in Over 80 cases. In this case, that is not a realistic possibility given the accused was in custody from 1:02 a.m. and the tests were conducted around 3:00 a.m. The accused was placed in a cell between the two tests. There is no realistic possibility he consumed alcohol. As for belching in between and producing mouth alcohol, that is pure speculation.
Section 7 – Due to "Threatening" Other Charges
[33] Although Aguilar did not testify, he continually submitted he suffers from anxiety and argued Singh exacerbated his anxiety by threatening further charges. Aguilar was referring to Singh telling him he would face refuse charges if he did not accompany him to the police station for the breath test and that "threat" violated his right to security of the person. There was no such violation. Aguilar was less than clear or responsive to the breath demand. It was reasonable for Singh to advise him of the consequences of refusal.
Conclusion
[34] In my view, despite Mr. Aguilar's impressive skills in Court, his Charter and other arguments do not succeed. The Crown has proved its case beyond a reasonable doubt on one of the two counts. He will be found guilty of operating his vehicle with an illegal amount of alcohol in his blood and not guilty of impaired operation.
Oral Reasons released: August 20, 2025
Written Reasons released: September 17, 2025
Signed: Justice H. Borenstein