COURT FILE NO.: CR-20-10764
DATE: 20231108
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
GIANMARCO DI LUCIANO
Defendant
Philip Hsiung for the Crown
Michael Lacy and Sara Little for Mr. Di Luciano
HEARD: October 3, 4, 5 and 19, 2023
RESTRICTION ON PUBLICATION:
Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
RULING ON PRE-TRIAL APPLICATIONS
c. boswell j.
I. OVERVIEW
[1] A motor vehicle collision occurred on December 25, 2019. It resulted in a number of injuries and one death. Mr. Di Luciano is alleged to have caused it. And he is alleged to have been impaired by alcohol at the time it occurred. He was arrested at the scene for impaired operation of a motor vehicle and operating a motor vehicle with a blood alcohol concentration equal to or greater than 80 mg of alcohol in 100 mL of blood (“Over 80”). Over the course of the next two hours, three demands were made that he provide samples of his breath for testing. He refused to do so each time.
[2] Mr. Di Luciano faces ten criminal charges in relation to the collision and its aftermath, including, amongst others, impaired operation causing death and refusing to provide a breath sample causing death. His trial is scheduled to commence before a jury in Newmarket on November 14, 2023.
[3] Mr. Di Luciano alleges that a number of mistakes were made during the initial stages of the police investigation. Those mistakes, he says, led to a number of breaches of his Charter-protected rights, including the right not to be arbitrarily detained, the right to be secure against unreasonable search and seizure, the right to be promptly informed of the reason for his arrest and detention, and the right to retain and instruct counsel without delay.
[4] In this application, Mr. Di Luciano seeks to exclude certain evidence from his upcoming trial, pursuant to s. 24(2) of the Charter, on the basis that it was obtained in a manner that infringed one or more of his rights. In particular, he wants to exclude any evidence that he refused to provide samples of his breath as well as evidence the police obtained as a result of the seizure of the Airbag Control Module (“ACM”) of his vehicle.
[5] The application requires the court to assess, amongst other things:
(i) Whether Mr. Di Luciano was lawfully arrested;
(ii) Whether his continued detention after his arrest was unconstitutional;
(iii) Whether he was sufficiently informed of his jeopardy at the time of and following his arrest;
(iv) Whether the police failed to hold off questioning him prior to his opportunity to speak to counsel;
(v) Whether the demands that he provide samples of his breath were lawfully made;
(vi) Whether the warrant obtained by the police to search Mr. Di Luciano’s vehicle and seize his ACM should be set aside on the basis of material misrepresentations made by the police; and,
(vii) Whether any of the impugned evidence should be excluded.
[6] I begin with a review of the circumstances surrounding the collision and Mr. Di Luciano’s arrest.
The Collision
[7] Witnesses reported an SUV “all over the road” that ran a red light and “T-boned” another vehicle at the intersection of Major MacKenzie Drive and Fossil Hill Road in Vaughan, Ontario shortly before 11:00 p.m. on Christmas night, 2019.
[8] Police Constable Shannon Richard (now Swiderski) was the first police officer on the scene. She found a badly damaged Hyundai Sante Fe on a concrete median. Two males were sitting beside it on the median, sweating profusely and vomiting intermittently. A female was trapped in the backseat. She was moaning and vomiting.
[9] Paramedics arrived moments later. PC Swiderski turned her attention to the second vehicle involved in the collision – the SUV that had allegedly run the red light. It was stopped on the side of the road roughly 200 metres east of the Sante Fe. As she approached it, she observed a witness walking towards her, supporting a man and helping him walk away from the SUV.
The Arrest
[10] The witness – a man later identified as Michael Bonello – helped the man to sit down on the median. He approached PC Swiderski and told her the man he had helped was the driver of the SUV and that he was impaired. PC Swiderski approached the man, immediately satisfied herself that he appeared impaired and arrested him for impaired operation of a motor vehicle and for Over 80.
The ASD Demand
[11] PC Swiderski read the driver of the SUV – identified as Giancarlo Di Luciano – his rights to counsel and asked if he wished to speak to a lawyer. He said “in due time”. She then cautioned him that he need not say anything to the police but that if he chose to do so, what he said may be used in court against him. She next made a demand that he provide a sample of his breath into an Approved Screening Device (“ASD”)[^1]. After some discussion about the ramifications of refusing, Mr. Di Luciano refused to provide a sample. PC Swiderski charged him with refusing to provide a breath sample and then re-read him his right to counsel and again cautioned him that he did not need to say anything to the police.
The Booking
[12] PC Swiderski then conveyed Mr. Di Luciano to 4 District police station on Rutherford Road. He was booked into the station by Acting Staff Sergeant Cathy Armstrong. S/Sgt. Armstrong advised him of his right to counsel and asked if he wished to speak to a lawyer. He said yes and gave the name of a particular lawyer he wished to speak with.
[13] During the booking process, PC Swiderski asked Mr. Di Luciano for information about a passenger in his vehicle. And she made a second demand for a sample of his breath. He again refused.
[14] Once booked into the station Mr. Di Luciano had an opportunity to have a private consultation with his counsel of choice. That conversation took place at about 12:12 a.m. on December 26, 2019. It lasted about four minutes. When it was complete, he was brought into the breath room.
The Breath Tech Demand
[15] PC Wade Neathercott was the breath technician on duty when Mr. Di Luciano was brought into the station. While Mr. Di Luciano was speaking to counsel, PC Swiderski provided PC Neathercott with the grounds he required to demand a sample of Mr. Di Luciano’s breath. He satisfied himself that he had the lawful authority to make his own demand for samples of Mr. Di Luciano’s breath.
[16] PC Swiderski advised PC Neathercott that she had arrested Mr. Di Luciano for impaired operation and Over 80. He was puzzled about the Over 80 charge given that Mr. Di Luciano had not yet provided samples of his breath. He testified on the voir dire that he asked her about why she charged Mr. Di Luciano with Over 80. He did not make a note of her response. While the interaction during which PC Swiderski provided her grounds to PC Neathercott was video and audio recorded, the recording was not disclosed to the defence and has been destroyed.
[17] PC Swiderski did not advise PC Neathercott that she had arrested Mr. Di Luciano for refusing to provide a breath sample at the roadside. He testified that it is his standard operating procedure to ask officers if they remembered to read the breath demand. If they say they forgot to do so he tells them to immediately go to the cell block and read it. His understanding in this instance was that PC Swiderski had read an approved instrument[^2] demand under s. 320.28(1) of the Criminal Code.
[18] When Mr. Di Luciano was delivered into the breath room, DC Neathercott explained the consequences of not providing a breath sample. He demonstrated how the approved instrument – in this case an Intoxilizer 8000C – worked and he made a demand for a sample of Mr. Di Luciano’s breath. Mr. Di Luciano refused to provide the sample. The time was 12:20 a.m.
[19] Mr. Di Luciano was returned to the custody of PC Swiderski. He was lodged in a cell and, at roughly 4:05 a.m., was released from police custody on an undertaking as well as a summons to appear for the Highway Traffic Act offence of failing to stop at a red light.
The Charges
[20] At the time of his release, Mr. Di Luciano was facing the following criminal charges: impaired operation; refusal to provide a breath sample; and dangerous operation of a motor vehicle.
[21] Sadly, the passenger who had been trapped in the back of the Sante Fe subsequently passed away. Moreover, the injuries to the other two occupants of the Sante Fe became clear. Mr. Di Luciano’s charges were eventually upgraded and now include the following:
• One count of criminal negligence causing death and two counts of criminal negligence causing bodily harm;
• One count of impaired operation causing death and two counts of impaired operation causing bodily harm;
• One count of refusal to provide a breath sample causing death and two counts of refusal to provide a breath sample causing bodily harm; and,
• One count of refusal to provide a breath sample simpliciter.
II. THE LIVE ISSUES
[22] In the context of that brief factual background, Mr. Di Luciano applies for the following relief:
(a) A declaration that his arrest at the roadside for impaired driving violated his right not to be arbitrarily detained as guaranteed by s. 9 of the Charter of Rights and Freedoms;
(b) A declaration that his arrest at the roadside for Over 80 and, subsequently, refusing to give a breath demand, violated his s. 9 right;
(c) A declaration that PC Swiderski lacked the requisite grounds to make a roadside screening device demand and, as such, her demand was contrary to his right under s. 8 of the Charter to be secure against unreasonable search and seizure;
(d) A declaration that PC Swiderski breached his s. 10(a) Charter right to be informed of the reasons for his detention by failing to advise him of his jeopardy for the “causing bodily harm” offences;
(e) A declaration that PC Swiderski breached his s. 10(b) Charter right to retain and instruct counsel without delay by improperly questioning him prior to his opportunity to consult with counsel;
(f) A declaration that his transport to the police station and continued detention violated his s. 9 Charter right;
(g) A declaration that the breath technician’s demand for a breath sample violated his s. 8 Charter right because (1) it was a continuation of an unlawful demand made earlier by PC Swiderski and (2) the breath tech lacked the requisite grounds to make the demand;
(h) An order excluding any of his utterances in response to breath demands as a result of the unconstitutional and unlawful conduct of the police;
(i) An order excluding any of his utterances in response to breath demands on the basis that they have no probative value;
(j) An order setting aside a warrant obtained by the police to seize the data from the ACM of his SUV, on the basis that the police failed to make full, fair and frank disclosure in the Information to Obtain (“ITO”) filed in support of the warrant application; and,
(k) An order excluding the ACM data on the basis that it was obtained in violation of his s. 8 Charter right.
[23] At the same time, the Crown applies for a ruling that Mr. Di Luciano’s utterances to the police on the occasion in issue were made voluntarily and are admissible in evidence against him. For the most part, the Crown is interested in Mr. Di Luciano’s refusals when asked to provide breath samples.
[24] My analysis of the issues raised by the applications will proceed in the following way. First, I will address the s. 9 Charter issues relating to Mr. Di Luciano’s arrest and detention. Next, I will address the s. 8 Charter issues relating to the lawfulness of the breath demands made by the police as well as the validity of the warrant to seize the ACM data. Following that, I will address the s. 10 Charter issues, specifically whether the police sufficiently informed Mr. Di Luciano of his jeopardy and whether they improperly questioned him prior to his opportunity to speak to counsel. I will then consider Mr. Di Luciano’s request to exclude evidence under s. 24(2) of the Charter. Finally, I will briefly address the voluntariness issue.
III. ANALYSIS
CHARTER s. 9
[25] Pursuant to s. 9 of the Charter, everyone has the right not to be arbitrarily detained or imprisoned.
[26] The Supreme Court has identified the purpose of s. 9 as the protection of individual liberty against unjustified state interference. It limits “the state’s ability to impose intimidating and coercive pressure on citizens without adequate justification.” See R. v. Le, 2019 SCC 34 at para. 25.
[27] There is no question that Mr. Di Luciano was detained by PC Swiderski. He was arrested and detained initially for Impaired Operation and Over 80. He was subsequently arrested and detained for refusing to provide a breath sample. The question is whether his arrest and detention were lawful.
The Initial Detention
[28] Section 495(1) (a) of the Criminal Code authorizes a police officer to arrest a person without a warrant where the officer believes, on reasonable grounds, that the person has committed or is about to commit an indictable offence.
[29] “Reasonable grounds to arrest” is a standard that contains both subjective and objective elements. The arresting officer must subjectively believe that the person has or is about to commit an indictable offence and those grounds must be objectively reasonable.
[30] The objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest, as seen from the perspective of a reasonable person with comparable knowledge, training and experience as the arresting officer. See R. v. Tim, 2022 SCC 12 at para. 24. In other words, “a reasonable person, standing in the shoes of the police officer, would be able to see the grounds for arrest.” See R. v. Brown, 2012 ONCA 225 at para. 14.
[31] A lawful detention is not arbitrary within the meaning of s. 9 of the Charter. On the other hand, an arrest and detention without reasonable grounds is arbitrary and violates s. 9. See R. v. Grant, 2009 SCC 32 at para. 54.
The Over 80 Charge
[32] There is no dispute that Officer Swiderski did not have reasonable grounds to believe that Mr. Di Luciano had 80 or more milligrams of alcohol in 100 millilitres of his blood. It is agreed between counsel that she would have needed, at the least, a fail on an ASD before being able to form the grounds needed to arrest Mr. Di Luciano for the offence of Over 80. She could not lawfully have detained him for that offence in the circumstances.
The Refusal Charge
[33] I reach a similar conclusion with respect to the refusal charge. For reasons I will outline shortly, I find that the ASD demand at the roadside was unlawful. Mr. Di Luciano had no obligation to provide a sample of his breath in response to it. Officer Swiderski had no lawful basis to arrest or detain Mr. Di Luciano for the refusal charge.
The Impaired Operation Charge
[34] I reach a different conclusion with respect to the impaired operation charge. I find that PC Swiderski had both subjective and objective grounds to arrest Mr. Di Luciano for impaired operation.
[35] PC Swiderski testified that she formed the subjective grounds to arrest Mr. Di Luciano for impaired operation based on the following factors:
(a) While enroute to the collision scene, she received information from dispatch that a vehicle “was all over the road”, and caused an accident;
(b) When she observed Mr. Di Luciano walking from his vehicle he was being supported by another male and appeared to be staggering;
(c) The male who had been assisting Mr. Di Luciano advised her that he was impaired; and,
(d) When she initially approached Mr. Di Luciano, she observed his eyes to be bloodshot and watery, he had an odour of alcohol on his breath, his reaction times seemed to be delayed, his speech seemed slurred, and he appeared to sway when standing still.
[36] The Crown asserts that her subjective grounds were objectively reasonable in all the circumstances.
[37] The consideration of whether PC Swiderski had subjective grounds to arrest and detain Mr. Di Luciano for the offence of impaired operation requires the court to assess the credibility and reliability of her testimony.
[38] Defence counsel submit that PC Swiderski was not a credible and reliable witness. They say she did not have an honest belief that she had reasonable grounds to arrest Mr. Di Luciano for impaired operation.
[39] The defence contends that the court should have reason to question the credibility of PC Swiderski given a number of factors which include the following:
(a) There is evidence that after the witness, Mr. Bonello, advised PC Swiderski that the driver of the SUV was “impaired”, she immediately went up to him and put handcuffs on him. Mr. Bonello agreed, in cross-examination, that he had made a statement to that effect to the police on January 11, 2020, and he agreed that he would not have said it if it was not true;
(b) PC Swiderski made an Approved Screening Device demand, which supports the conclusion that she only suspected he may have consumed alcohol;
(c) No other officer who dealt with Mr. Di Luciano noted any signs of impairment; and,
(d) Her testimony is inconsistent with the video record. There is video-recorded evidence from the booking area and the breath room, as well as, to a more limited extent, from the dashcam in PC Swiderski’s vehicle. Mr. Di Luciano, his counsel say, did not exhibit on video the indicia of impairment that PC Swiderski claimed she observed.
[40] The defence also asserts that the loss of the video and audio recording from the breath room, when PC Swiderski gave her grounds for arresting Mr. Di Luciano to PC Neathercott, was the result of unacceptable negligence on the part of the police. They say it should give rise to an adverse inference against the Crown, specifically that PC Swiderski lacked the reasonable grounds to arrest and detain Mr. Di Luciano for impaired driving. In turn, PC Neathercott similarly lacked reasonable grounds to make a breath demand.
[41] Crown counsel submits that any consideration of PC Swiderski’s subjective and objective grounds must take into account that the offence of impaired operation does not require the accused person to have been in an extreme state of intoxication. Any degree of impairment will do. See R. v. Stellato, [1993] O.J. No. 18 (C.A.), aff’d [1994] S.C.J. No. 51. PC Swiderski, therefore, needed only to have grounds to believe that Mr. Di Luciano’s ability to operate a motor vehicle was impaired by any degree. The Crown asserts that the circumstances here amply support PC Swiderski’s subjective grounds. Moreover, they were, in all the circumstances, objectively reasonable.
[42] The Crown contends that there is no basis to question the credibility or reliability of PC Swiderski’s stated grounds. They are corroborated in a number of important ways, including:
(a) The evidence of witnesses who called 911 and reported that that the Di Luciano vehicle was “all over the road”;
(b) The fact that an accident was caused and that it appeared to have been caused by Mr. Di Luciano’s vehicle;
(c) Mr. Bonello’s observations that Mr. Di Luciano was impaired; and,
(d) The limited observations of S/Sgt. Armstrong and PC Deol consistent with some of the indicia identified by PC Swiderski.
[43] I am satisfied that PC Swiderski made a number of mistakes during the course of the early stages of her investigation, including the arrest and detention of Mr. Di Luciano. I am not, however, persuaded that she did not have an honest, subjective belief that Mr. Di Luciano’s ability to operate a motor vehicle was impaired by alcohol.
[44] Importantly, her observations about the odour of alcohol on Mr. Di Luciano’s breath and his unsteadiness on his feet were corroborated by Mr. Bonello’s evidence. He too came to the compendious conclusion that Mr. Di Luciano was impaired, which is an opinion he was competent to reach. See Graat v. The Queen, [1982] 2 S.C.R. 819.
[45] I understand the defence argument to include the suggestion that PC Swiderski rushed to judgment and immediately handcuffed Mr. Di Luciano as soon as she approached him, without taking the time to properly consider whether she actually had reasonable grounds to do so. That suggestion is based largely on Mr. Bonello’s statement to the police about how quickly PC Swiderski handcuffed Mr. Di Luciano. But Mr. Bonello explained during his voir dire testimony that what he meant was that once he had spoken to PC Swiderski she immediately approached Mr. Di Luciano and took control of the situation.
[46] In my view, it would not have taken long for PC Swiderski to form her subjective grounds to arrest Mr. Di Luciano for impaired driving. She already had information about the nature of his driving, she had Mr. Bonello’s opinion that he was impaired, and she could assess, in moments, that his eyes were red, he was slurring his words and that his breath had an odour of alcohol.
[47] I accept that some of the indicia identified by PC Swiderski – the unsteadiness and slowed reaction time for instance – may be equally explained by the fact that Mr. Di Luciano had just been in a serious motor vehicle collision. And I accept that an odour of alcohol is evidence of consumption, but on its own not necessarily evidence of impairment. But the law is clear that indicia of impairment are not to be viewed in isolation. It is the totality of circumstances that is important. See R. v. Bush, 2010 ONCA 554, at paras. 54-57.
[48] The totality of the circumstances here includes the fact that the collision occurred and that witnesses were reporting that Mr. Di Luciano’s vehicle was all over the road before it occurred. See Bush, at para. 57.
[49] I am not satisfied that PC Swiderski’s credibility or reliability are undermined by the evidence of other officers or by the available video evidence.
[50] I appreciate that other officers made limited notes and had limited recollections about any indicia of impairment.
[51] S/Sgt. Armstrong, for instance, testified that as she spoke to Mr. Di Luciano during the booking process, she noticed that his eyes were red, that he was slurring a little and speaking slowly. She formed the opinion that he may have been consuming alcohol earlier in the evening. She observed that he had trouble spelling his lawyer’s name (Mr. Van Moorlehan), but to be fair, it is not an easy name to spell. She did not observe Mr. Di Luciano to be exhibiting any balance issues.
[52] PC Deol conducted a pat down search of Mr. Di Luciano during the booking process. He noted only that he detected an odour of alcohol on Mr. Di Luciano’s breath.
[53] PC Neathercott made no notes about any indicia of impairment. Instead, he relied entirely on PC Swiderski’s grounds to demand a breath sample. He testified that he was distracted by the fact that two officers – Swiderski and Deol – were standing just outside the open door to the breath tech room while he was interacting with Mr. Di Luciano. He explained that he normally writes down the indicia of impairment between the first and second breath samples but Mr. Di Luciano refused to provide a sample.
[54] The other officers’ notes and recollections provide some, but not strong, support for PC Swiderski’s observations of impairment. That said, I do not consider them to significantly undermine PC Swiderski’s evidence. None of the other officers were the arresting officer. None had the duty to consider and establish whether there were reasonable grounds for the arrest. S/Sgt. Armstrong’s focus was on the booking. PC Deol was present largely to observe, given that he was a new officer. PC Neathercott did not note any indicia of impairment but offered an explanation as to why he may not have done so.
[55] Similarly, I do not believe that the lost evidence undermines PC Swiderski’s credibility in any meaningful way.
[56] The defence brought a formal “lost evidence” application under s. 7 of the Charter. The nuts and bolts of it are as follows. An accused person is entitled to full disclosure of the Crown’s case against him. That right of disclosure gives rise to a corresponding duty on the part of the state to preserve relevant evidence. See R. v. La, [1997] 2 S.C.R. 680 at para. 17. The evidence from the breath room, where PC Swiderski provided her grounds to PC Neathercott, is relevant evidence. In the circumstances, unless the Crown can establish that the evidence was not destroyed or lost due to unacceptable negligence, then a breach of Mr. Di Luciano’s s. 7 right – which includes the right to make full answer and defence – will be established.
[57] It is not necessary for me to engage in a fulsome analysis of the lost evidence argument. I say that because even if I were to find a s. 7 breach, I am not prepared to draw the adverse inference urged upon me by the defence. There are two reasons why.
[58] First, I am satisfied, on the basis of the evidence I have just reviewed, that PC Swiderski did have subjective grounds to arrest Mr. Di Luciano for impaired driving and I am satisfied that those grounds were objectively reasonable.
[59] Second, I am satisfied that PC Swiderski relayed her grounds to PC Neathercott. He described those grounds in detail. I found him to be a tremendously forthright witness. I have every confidence that his accounting of the grounds provided to him was credible and reliable.
[60] The loss of the recording is unfortunate but, in my view, not terribly significant.
[61] It is important to recognize that the reasonable grounds test does not import the reasonable doubt standard applicable to establishing the Crown’s case at trial. Indeed, it is not an onerous test. See Bush, para. 46. The court is not called upon, at this stage, to determine if the Crown is able to establish that Mr. Di Luciano was impaired. The limited question is whether PC Swiderski had sufficient grounds to arrest and detain Mr. Di Luciano for impaired operation.
[62] In my view, considering the totality of the circumstances, she did.
[63] In the result, I conclude that the initial detention of Mr. Di Luciano was lawful.
The Continued Detention
[64] Even if Mr. Di Luciano’s arrest and detention were lawful initially, one must consider the whole of the period of his detention in order to determine if it evolved from lawful to arbitrary.
[65] Section 493.1 of the Criminal Code imposes a requirement upon the police when making decisions about arrest and detention, to give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances.
[66] Section 498(1) of the Criminal Code provides that if a person has been arrested without a warrant and has not been taken before a justice, the police shall, as soon as practicable, release the person if the police intend to release that person by way of an appearance notice or undertaking, or if they intend to compel the person’s appearance by summons. Recall that Mr. Di Luciano was released on an undertaking.
[67] There are certain exceptions to s. 498(1) which are listed in s. 498(1.1). In particular, continued detention may be justified if there is a concern that the person will fail to attend court if released, or where it is in the public interest having regard to the need to:
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence,
(iii) prevent the continuation or repetition of the offence or the commission of another offence, or
(iv) ensure the safety and security of any victim of or witness to the offence.
[68] Section 498(1) requires an individualized assessment. See R. v. Polusmiak, 2022 PECA 8, at para. 73. In R. v. Price, 2010 ONSC 1898, at para. 93, Durno J. offered a list of factors to be considered by the officer-in-charge in the course of that assessment. They include:
…the accused’s blood alcohol level, whether the accused was charged with impaired operation, his or her level of comprehension, that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension), that the accused’s vehicle would have been impounded, whether there was a responsible person available to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would be bound, whether the accused had a criminal record and if so, its contents, whether the accused had outstanding charges, his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment.
[69] Mr. Di Luciano was arrested at 10:56 p.m. He was paraded before S/Sgt. Armstrong at roughly 11:45 p.m. He was subsequently put into contact with his lawyer of choice, then escorted to the breath room. He was finished in the breath room by about 12:20 a.m. He was released on an undertaking at roughly 4:05 a.m. His brother attended at the station to pick him up.
[70] The defence takes the position that Mr. Di Luciano should have been released at the roadside. PC Swiderski had already made the decision to charge him with impaired operation and Over 80. She had made a breath demand which was refused and she advised Mr. Di Luciano that he was being charged with refusing to provide a sample. Essentially her investigation was complete.
[71] The defence position is supported by the testimony of PC Neathercott who said, under cross-examination, that the whole purpose of going to the station is to do a breath sample. If the person has refused at the roadside, they can be released on an undertaking or appearance notice. He said it is “straightforward” that you’re not going to detain someone further by transporting them to the station, booking them in and placing them in a cell.
[72] Defence counsel further submit that even if there was a justification to transport Mr. Di Luciano to the station, the fact that he was kept there for more than 4 hours, including 3 ½ hours after the investigation concluded, amounted to arbitrary detention.
[73] The Crown argues that the police investigation was not complete at the roadside. Crown counsel submits that the police were duty bound to secure breath samples from Mr. Di Luciano after his arrest, which was the principal reason he was conveyed to the station. Moreover, transporting Mr. Di Luciano to the police station enabled the police to facilitate his communication with counsel of choice. It was reasonable to believe that Mr. Di Luciano may be persuaded to provide a breath sample following consultation with counsel. See R. v. Mandryk, 2012 ONSC 3964, particularly at para. 48.
[74] Indeed, says the Crown, since Mr. Di Luciano sought the opportunity to speak to counsel, his initial refusal to provide a breath sample must be treated as provisional only. Again, see R. v. Mandryk, particularly at para. 65. See also R. v. Doobay, 2019 ONSC 7272 at paras. 58-59.
[75] In my view, the police were justified in transporting Mr. Di Luciano to the police station. PC Swiderski had lawfully arrested him for impaired driving. She was justified in transporting him to the station on a number of grounds, including, as identified by Code J. in Mandryk, to prevent repetition of the offence (though that was unlikely given the state of his vehicle) and to facilitate consultation with counsel of choice.
[76] As I will address in a moment, PC Swiderski clearly read the wrong breath demand to Mr. Swiderski at the roadside. Nevertheless, he was clear that he wished to exercise his 10(b) right to consult with counsel. He also appeared to be somewhat unclear about his legal rights in terms of compliance with the breath demand. It was appropriate to facilitate his access to counsel and that the demand for a breath sample be repeated once he had an opportunity to consult with counsel.
[77] Once Mr. Di Luciano arrived at the station, the booking process was completed in a reasonably efficient manner. Mr. Di Luciano asked to speak with specific counsel and that consultation was arranged within a reasonable period of time, particularly in light of the time of night in which it occurred. Once that consultation was complete, Mr. Di Luciano was taken to the breath room without delay and PC Neathercott processed him efficiently.
[78] In all the circumstances, I find no breach of Mr. Di Luciano’s s. 9 right up to the point where he was finished in the breath room.
[79] What is more problematic, from the perspective of s. 9 of the Charter, is the period between about 12:20 a.m. and 4:05 a.m.
[80] The police investigation was complete by roughly 12:20 a.m. At that point there did not appear to be any reason to continue to detain Mr. Di Luciano. If he was impaired, there was no indication that he was so impaired as to make him a risk to himself or others. This is not a case like R. v. Sapusak, [1998] O.J. No. 4148 (C.A.) where there was evidence to support the conclusion that the police were justified in holding the detainee for his own protection, given his level of intoxication. Moreover, based on the videos from the booking room and the breath room, he appeared capable, at 12:20 a.m., of understanding his release conditions.
[81] S/Sgt. Armstrong testified that she understood that the length of time a person is held on an impaired charge should not be unreasonable. She said she made her decision to release Mr. Di Luciano based on the fact that he was able to understand his conditions of release, he had safe transport home (his brother), and she was not worried about the offence continuing. What she did not explain, however, is why it took 3 ½ hours to release Mr. Di Luciano after the investigation was complete. She said only that he was not the only person in custody that night.
[82] The Crown referred the court to the decision of Cunningham J., as he then was, in R. v. Burns, [2000] O.J. No. 1743 (SCJ), which is a ruling on a summary conviction appeal. There, the accused was held in a cell for 5 hours after providing breath samples of 118 mg and 116 mg of alcohol in 100 mL of blood. The officers who testified confirmed there was no reason to fear for his safety or that of the public.
[83] The trial judge found that Mr. Burns’ s. 9 right was not infringed. Cunningham J. agreed, finding, at para. 13, that there was no evidence that the accused was detained for an improper purpose.
[84] With respect, I do not believe Burns is a correct interpretation of the law. It is not necessary for the accused to demonstrate that his detention was “for an improper purpose” in order to make out a breach of s. 9. There was, in Burns, a complete absence of evidence that might justify the continued detention of the accused after the breath samples were taken. None of the officers could explain why it was in the public interest to continue his detention beyond that point.
[85] A detention that does not comply with the provisions of the Criminal Code offends s. 9. Where, like here, the evidence reflects that none of the concerns identified in s. 498(1.1) are present, and where, like here, there is no evidence that the accused presents a risk of harm to himself or others, a failure to release the accused as soon as practicable establishes a prima facie breach.
[86] I appreciate that delays may arise, as a practical matter, where there are a number of accused to be processed at any given point in time. The “as soon as practicable” standard takes account of that reality. Here, however, apart from S/Sgt. Armstrong’s indication that Mr. Di Luciano was not the only person in custody on the night in question, there is no evidence to support a conclusion that the practical realities on the night delayed his release.
[87] It is Mr. Di Luciano’s onus to establish a Charter breach on a balance of probabilities. In my view he has made out a prima facie breach of his s. 9 right, in view of the overholding between 12:20 a.m. and 4:05 a.m. There is little, if any, evidence that the police turned their minds to s. 498(1) of the Criminal Code. That is not to say that they did not do so; there is simply no evidence of it on this application. The overholding called for some answer by the Crown. None was offered.
[88] In the result, I find that the delay of 3 ½ hours in releasing Mr. Di Luciano after the police investigation had concluded infringed his s. 9 right.
CHARTER s. 8
[89] Section 8 of the Charter guarantees everyone the right to be free from unreasonable search and seizure.
[90] In this case a number of demands were made for Mr. Di Luciano to provide samples of his breath. On each occasion a demand was made, he refused. In the result, the police never did obtain a sample of his breath.
[91] There may have been, at one time, a debate about whether the demand itself constitutes a search or whether the search only occurs at the point when the police actually obtain breath samples. That debate was settled by the Court of Appeal in R. v. S.S., 2023 ONCA 130. Paciocco J. held, at para. 58:
In my view, where a legally enforceable demand for breath samples has been made pursuant to s. 320.28(1) of the Criminal Code compelling a subject to yield a sample of their breath, a state examination process that intrudes upon a reasonable expectation of privacy has been triggered and a search is underway.
[92] Although Paciocco J. referenced s. 320.28(1), his comments seem to me to be equally applicable to a demand for a breath sample made under s. 320.27(1)
[93] A demand for a breath sample is a warrantless search. Warrantless searches are presumptively unreasonable. In order to establish compliance with s. 8, the Crown must demonstrate that the search was authorized by law, the law itself is reasonable and the search was carried out in a reasonable manner. See R. v. Caslake, [1998] 1 S.C.R. 51, at paras. 11-12.
[94] Mr. Di Luciano asserts that the demands for samples of his breath were unreasonable because they were not authorized by law.
[95] There is no dispute that breath demands are authorized by law, in certain circumstances. And there is no dispute, in this case at least, that the law authorizing demands for breath samples in certain circumstances is reasonable. The issue here is whether the search (the demand) was carried out in accordance with the procedural and substantive requirements the law provides. A failure in that regard will constitute a breach of s. 8. See Caslake, para. 12.
[96] The provisions of the Criminal Code that authorize the making of a demand for a breath sample are found at sections 320.27 and 320.28. They provide as follows:
320.27 (1) If a peace officer has reasonable grounds to suspect that a person has alcohol…in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b)…:
(a) to immediately perform the physical coordination tests prescribed by regulation and to accompany the peace officer for that purpose;
(b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose…
320.28 (1) If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it was impaired to any degree by alcohol or has committed an offence under paragraph 320.14(1)(b), the peace officer may, by demand made as soon as practicable,
(a) require the person to provide, as soon as practicable,
(i) the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of an approved instrument, or
(ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to take one, the samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to enable a proper analysis to be made to determine the person’s blood alcohol concentration; and
(b) require the person to accompany the peace officer for the purpose of taking samples of that person’s breath or blood.
[97] Pursuant to s. 320.15(1) a person commits an offence where, knowing that a demand for a breath sample has been made, refuses, without reasonable excuse, to comply.
[98] For ease of reference, I will refer to a demand made under s. 320.27(1)(b) as an “ASD demand” and a demand made under s. 320.28(1)(a)(i) as an “approved instrument demand”.
The Roadside Breath Demand
[99] PC Swiderski made a roadside demand for a sample of Mr. Di Luciano’s breath. There is, in my view, little doubt that she was authorized to make such a demand in the sense that she had the lawful grounds to do so. The problem in this case is not, however, with authorization. It is with the execution of the demand.
[100] Quite simply, PC Swiderski read the wrong demand. She made an ASD demand even though she had no ASD in her possession. In her testimony on the voir dire, she confirmed that she had made the wrong demand. She said she had intended to make an approved instrument demand but in the dynamic and chaotic circumstances at the collision scene, she inadvertently read the wrong demand.
[101] At the outset of argument on the applications, Crown counsel indicated that the Crown will not be relying on PC Swiderski’s ASD demand in connection with the “refuse” charges on the indictment. Crown counsel agreed that the ASD demand was unlawful.
[102] The Crown’s concession appeared to be fair and in keeping with the law. In the recent decision of R. v. Breault, 2023 SCC 9, the Supreme Court concluded that an ASD demand is not lawful if the officer making it does not actually have an ASD. This result flows from the language of s. 327(1)(b) which requires the party upon whom the demand is made to immediately provide a sample of his or her breath. Unless the officer making the demand actually has an ASD, it will be impossible for the demand to be complied with. See Breault, para. 63.
[103] Later in argument, however, Crown counsel appeared to take a somewhat different position, specifically that the roadside demand was, in fact, a lawful demand. I understand this argument to be grounded in the assertion that although she used the wrong wording, PC Swiderski’s intent was never to actually administer an ASD test. It was always to convey Mr. Di Luciano to the police station to have him provide a sample of his breath to a qualified breath technician. In Crown counsel’s submission, the fact that PC Swiderski never attempted to source out an ASD corroborates her stated intention.
[104] In other words, the Crown’s position is that, notwithstanding the specific words used, the court should take a flexible and functional approach and interpret the roadside demand as an approved instrument demand under s. 320.28(1)(a)(i). In support of this position, the Crown relies on the decision of Hill J. in R. v. Ghebretatiyos, [2000] O.J. No. 4982.
[105] Mr. Ghebretatiyos was charged with failing to provide a breath sample on demand. He was tried and convicted of the offence in the Ontario Court of Justice. He appealed to the Superior Court, arguing that the trial judge had erred in finding that a lawful demand had been made for a breath sample using an ASD in circumstances where the officer was unable, during his trial testimony, to recall the precise words he used when making the demand.
[106] Hill J. held that no particular words are necessary to make a breath sample demand. What is important is whether, in all the circumstances, the driver understood that he or she was required to give a sample of breath. See also R. v. Torsney, 2007 ONCA 67, [2007] O.J. No. 355 (C.A.) at para. 6.
[107] One can readily understand the result in Ghebratatiyos when all of the prevailing circumstances are taken into account. There the arresting officer made a demand for a breath sample and produced the ASD and demonstrated its use. Mr. Ghebretatiyos could have been under no misapprehension about what the demand required of him.
[108] In my view, however, it is too much of a stretch to conclude that a flexible and functional approach is capable of converting a clear and unequivocal ASD demand into an approved instrument demand. See R. v. Egbeobawaye, 2018 ONCJ 297. I accept that producing an ASD and demonstrating its use to a driver, while demanding that the driver provide a breath sample, is sufficient to constitute a lawful ASD demand. I do not accept that making an ASD demand and not producing an ASD is the functional equivalent of making an approved instrument demand.
[109] In the circumstances here, I am satisfied that PC Swiderski made a breath demand and that Mr. Di Luciano understood he was being asked to provide a sample of his breath. Nevertheless, he was explicitly read an ASD demand in circumstances where the arresting officer did not have an ASD. As Breault makes clear, the demand was, in those circumstances, unlawful.
[110] In the result, I find that the unlawful ASD demand was an unreasonable search, contrary to s. 8 of the Charter.
The Booking Room Demand
[111] While S/Sgt. Armstrong was completing paperwork in the booking room, PC Swiderski said the following to Mr. Di Luciano:
You know when I talked to you about it in the car, you kind of had some trouble understanding the whole refusing versus not refusing the breath sample thing. So I'm just going to, like, bring it up again, give you another chance to provide a sample, okay? So like I said in the car, not providing a sample doesn't get rid of the impaired charge. So you still have the same charges as before. We just add a charge for refusing to provide a sample. Okay? So it is your option, if - the guy’s here - so I will demand again that you provide a sample. If you're willing to we'll go ahead and do that. If you are not, we'll leave the refusal charge on there as well. I just don't want you to make a decision without the information, right?
[112] The position of the defence is that, apart from being a breach of Mr. Di Luciano’s s. 10(b) right to consult with counsel before being questioned, this so-called demand was merely a repetition of the unlawful ASD demand made at the roadside. Moreover, it could not be a lawful demand within the meaning of s. 320.28 because it was not made by PC Swiderski “as soon as practicable” after she formed the grounds to make the demand.
[113] I will defer discussion of the alleged 10(b) breach to my analysis of the issues raised by defence counsel under that provision of the Charter and will focus, for now, on the lawfulness of the demand when assessed in relation to s. 8 jurisprudence.
[114] Defence counsel characterize the booking room demand as a mere continuation of the ASD demand unlawfully made at the roadside. I have no evidence before me as to whether an ASD was immediately available to PC Swiderski at the station. While I suspect it likely was, I will not speculate about that. As such, if I conclude that the booking room demand was just a continuation or repetition of the roadside demand, it would be unlawful for the same reason that the roadside demand was unlawful.
[115] There is a certain attractiveness to the defence argument. On the face of it, it does appear that PC Swiderski was merely offering Mr. Di Luciano another chance to comply with the roadside demand. But, in my view, a closer examination of the circumstances reveals that something different was going on.
[116] I find that PC Swiderski’s ASD demand was inadvertent. She intended to read the approved instrument demand. I accept that the circumstances at the scene of the collision and arrest were chaotic and she was distracted. I also note that the wording of the ASD demand and the approved instrument demand are quite similar. I find that PC Swiderski was not alive to the fact that she had read the wrong demand at the roadside. In fact, it appears that she first realized she made the wrong demand when she was preparing to testify on the voir dire in relation to the defence applications. It follows that when she made the demand in the booking area, she subjectively believed that she was giving Mr. Di Luciano another chance to comply with an approved instrument demand.
[117] The language used by PC Swiderski differed in the booking room from the language she used when making the roadside demand. In the booking room she did not refer to an ASD. Instead, she obliquely referenced an approved instrument device, saying, “the guy’s here”. By that I understand her to have meant the breath tech was there.
[118] In assessing the booking room demand, the flexible and functional approach may be brought to bear. Although PC Swiderski referenced the earlier demand, she did not repeat it. Instead, she told Mr. Di Luciano that he had an obligation to give a breath sample. She said “the guy is here” which would have alerted Mr. Di Luciano that another person was going to actually take the sample. And she advised him that if he refused, he would be charged with refusal.
[119] If what is crucial is that the words used by PC Swiderski conveyed to Mr. Di Luciano the nature of the demand and his obligation to comply with it, then I am satisfied that the words used in the booking room did so.
[120] In the result, I would not find that the booking room demand was unlawful based on the language used to convey it.
[121] That said, there is a live issue regarding whether the booking room demand complies with the requirement that the demand be made as soon as practicable after PC Swiderski formed the grounds to make it. Recall that those grounds were formed at the time of the arrest at 10:55 p.m. It was roughly 11:45 p.m. when the demand was made in the booking room.
[122] Whether a demand was made as soon as practicable is a question of fact to be determined by the trial judge on a consideration of the whole of the circumstances. The phrase “as soon as practicable” means nothing more than reasonably promptly in the circumstances. The touchstone is whether the police acted reasonably. See R. v. Vanderbruggen, [2006] O.J. No. at para. 12.
[123] Counsel made very limited arguments on whether the booking demand was made as soon as practicable. I can say only that the position of the defence is that the booking room demand was not made as soon as practicable and the Crown’s position is the opposite.
[124] This issue is a difficult call, but on balance, I am satisfied that, in all the circumstances, the demand was made as soon as practicable. Had there been no roadside demand, I may well have taken the view that a 45-minute delay in making the initial demand for a breath sample was not reasonably prompt. But it is important to take into account the whole chain of events from the time PC Swiderski formed the grounds to make the demand.
[125] Mr. Di Luciano was arrested at 10:55 p.m. He was read his right to counsel and cautioned and a breath demand was made. No one could reasonably argue that the initial breath demand was not made as soon as practicable. That it was the wrong breath demand and not legally operative was not known to either PC Swiderski or Mr. Di Luciano. That was a matter for lawyers and judges to ponder at a much later date.
[126] Mr. Di Luciano indicated a refusal to provide breath samples. He was conveyed directly to the police station and booked in. During the booking process, he was given a second demand for a breath sample; a second chance to comply, triggered by the earlier refusal.
[127] It is important, in my view, to keep in mind the purpose of the “as soon as practicable” requirement found in s. 320.28(1). It is different than the immediacy requirement found in s. 320.27(1). The immediacy requirement is imposed because of the fact that the detainee’s rights under ss. 8, 9 and 10(b) of the Charter are implicated at the time the person is detained and the breath demand made.
[128] The “as soon as practicable” requirement, on the other hand, supports the integrity of the presumption of identity – in other words, the presumption that the breath test results identify the accused’s blood-alcohol concentration at the time of the alleged offence.
[129] In this case, the police got the ball rolling on obtaining breath samples almost immediately after the arrest of Mr. Di Luciano. He knew, from the get-go, that the police were looking to obtain samples of his breath. And they persisted in their efforts to do so from the time of arrest to the time that Mr. Di Luciano was excused from the breath room.
[130] In any event, the timing of the booking room demand had no impact on the timing at which the approved instrument samples would have been taken. Mr. Di Luciano was arrested and almost immediately conveyed to the station. He was booked in, given an opportunity to speak to counsel and then taken into the breath room. Nothing in the process – certainly not the timing of the booking room demand – delayed the time at which Mr. Di Luciano was conveyed to the breath room to (ideally) provide samples of his breath.
[131] In all the circumstances, and applying a purposive approach, I am satisfied that the booking room demand met the “as soon as practicable” standard.
The Breath Room Demand
[132] At 11:56 p.m. on December 25, 2019, PC Swiderski attended at the breath tech room and gave PC Neathercott the grounds for making a breath demand. Those grounds included:
• There had been a call to the police about a vehicle travelling quickly, failing to maintain its lane, going through a red light and striking another vehicle;
• Mr. Di Luciano was observed being propped up by another person, appearing unable to prop himself up;
• The arresting officer could immediately smell alcohol; and,
• Mr. Di Luciano had red eyes and was swaying.
[133] PC Neathercott believed, on the basis of the information provided to him by PC Swiderski, that he had sufficient grounds to make his own demand and to take a sample of Mr. Di Luciano’s breath.
[134] Mr. Di Luciano was directed into the breath room shortly before 12:20 a.m. on December 26, 2019. PC Neathercott introduced himself. He confirmed that Mr. Di Luciano had taken the opportunity to consult with counsel. He then proceeded to make a breath demand in the following language:
So, I know the arresting officer, she told me that she read you a breath demand. I'm going to read - read you the same breath demand. Okay? And I’m going to read it word for word right off of this report. So, Gianmarco, I demand that you provide samples of your breath, that in a qualified technician's opinion, will enable a proper analysis to be made by an approved instrument and that you accompany me now for this purpose. Do you understand?
[135] Mr. Di Luciano confirmed that he understood.
[136] PC Neathercott then read Mr. Di Luciano a secondary caution, advising him that if he had spoken to any other officer he did not want that to influence him in any way in answering PC Neathercott’s questions. Mr. Di Luciano confirmed that he understood the secondary caution.
[137] PC Neathercott then demonstrated how the Intoxilizer 8000 worked. He then re-read the breath demand he had made earlier. Mr. Di Luciano then advised that he was refusing to provide a sample.
[138] There ensued a little back and forth about the refusal, then PC Neathercott read the following to Mr. Di Luciano from a refusal statement form:
On your failure or refusal to comply with this demand made upon you by myself, a peace officer … so they're talking about the breath demand that I read you, which is the same demand that the female officer out in the hallway read you, okay? ... you will be charged under the Criminal Code of Canada. If found guilty of this offence, the punishment imposed may be identical to the penalty of having more than the legally permissible amount of alcohol in your blood. That is, you could be fined or imprisoned or both; your driver’s license will be suspended for a minimum of one year; and you may be prohibited from operating a motor vehicle anywhere in Canada for the same period. Do you understand?
[139] Mr. Di Luciano again confirmed that he understood and that he was continuing to refuse. When asked why he was refusing, he said, “no comment”.
[140] Defence counsel submit that PC Neathercott’s breath demand was merely a continuation of the ASD demand made by PC Swiderski at the roadside. They point to the two times that PC Neathercott said as much. The demand was unlawful, they say, when it was first made and continued to be unlawful.
[141] In the alternative, and in any event, defence counsel assert that PC Neathercott had no lawful basis to make a second demand in light of the fact that Mr. Di Luciano had already been charged with a refuse offence.
[142] Finally, the defence contend that even if PC Neathercott’s demand was a lawful demand, Mr. Di Luciano’s response should be excluded from evidence on the basis that the response was obtained in a manner that violated the Charter. More particularly, they assert that PC Neathercott’s demand could only be a lawful and operative demand if it represented a fresh start, untethered to the earlier unlawful demand of PC Swiderski. Given the fact that PC Neathercott relied entirely on PC Swiderski’s grounds to make his demand and the fact that he twice referenced making the same demand as PC Swiderski, PC Neathercott’s demand remained tethered to the unlawful demand made by PC Swiderski and thus Mr. Di Luciano’s refusal was obtained in a manner that breached the Charter.
[143] The Crown urges the court to conclude that the demand of PC Neathercott was an independent approved instrument demand, made as soon as practicable following the formation of grounds to make the demand by PC Neathercott. In other words, the Crown urges the court to reject the assertion that PC Neathercott’s demand was a mere continuation of the unlawful demand made by PC Swiderski at the roadside.
[144] I am satisfied that PC Neathercott formed the grounds to make a breath demand based on the information provided to him by PC Swiderski.
[145] I am also satisfied that PC Neathercott made an approved instrument demand under s. 320.28(1) of the Criminal Code. His demand, from a pre-printed form, tracks the language of that section.
[146] PC Neathercott made his demand twice. And twice he mistakenly advised Mr. Di Luciano that he was making the same demand made by PC Swiderski. He was clearly under the impression that she made an approved instrument demand, rather than an ASD demand.
[147] In my view, the lawfulness of PC Neathercott’s demand was not undermined by his reference to the earlier demand. He clearly conveyed to Mr. Di Luciano that he was making a demand for a sample of his breath. He demonstrated how the Intoxilizer 8000 works. He made it clear that if Mr. Di Luciano did not provide a sample he would be charged with the offence of refusing to do so. And he explained what the consequences of a conviction for refusing might involve. Mr. Di Luciano could have been under no misapprehension of what was being asked of him.
[148] In R. v. Guenter, 2016 ONCA 572, leave to appeal refused, [2016] S.C.C.A. No. 433, the Court of Appeal faced the following question: where a breath demand was not made by the arresting officer as soon as practicable, can a separate demand by a breath tech satisfy the requirements of s. 320.28(1) that the demand be made as soon as practicable? In other words, in the face of an earlier, unlawful demand, can a fresh demand by a breath tech satisfy the requirements of s. 320.28(1)? The Court of Appeal answered the question in the positive: provided the breath tech forms reasonable grounds to make a demand under that section and then does so promptly, he or she will have made a lawful demand. See Guenter, paras. 85 - 93.
[149] I am satisfied, in all the circumstances, that despite referencing the earlier demand made by PC Swiderski, PC Neathercott in fact made a different demand – one that complied with the requirements of s. 320.28(1). He did so promptly after forming the grounds to do so. His was, in my view, a lawful demand.
[150] It remains to consider whether Mr. Di Luciano’s response to PC Neathercott’s lawful demand should nevertheless be excluded from evidence on the basis that it was obtained in a manner that infringed one or more of Mr. Di Luciano’s Charter rights. I will defer my discussion of this issue to my analysis under s. 24(2) of the Charter.
The Warrant
[151] On January 23, 2020, the police obtained a warrant, under s. 487(1) of the Criminal Code, to seize and search Mr. Di Luciano’s SUV, including the ACM contained within it. The ACM provided the police with data including the speed the vehicle was travelling prior to and at the time of impact and the timing of the application of the vehicle’s braking system.
[152] Before a warrant may be granted under s. 487(1), the issuing justice must be satisfied that there are reasonable grounds to believe that an offence has been committed and that evidence of that offence is to be found in the place to be searched. These requirements are the minimum standard for compliance with s. 8 of the Charter. See R. v. Morelli, 2010 SCC 8, at para. 39.
[153] The warrant was obtained on the application of PC Swiderski. In support of her application she filed a sworn ITO. This was the first time in her career that she had written a warrant application.
[154] PC Swiderski identified the alleged offences as dangerous operation causing bodily harm, impaired operation causing bodily harm, refuse breath sample causing bodily harm and failing to stop at a red light.
[155] Beginning at para. 13 of the ITO, PC Swiderski set out her grounds to believe that the alleged offences had been committed. At para. 17 she said that she arrived on scene at approximately 10:51 p.m. and observed, amongst other things, that:
(b) …the rear driver’s side passenger seat was occupied by Clair Abdulla and she was unable to get out of the vehicle due to the severity of her injuries;
(l) I had reasonable grounds to believe on scene that Gianmarco Di Luciano was impaired by alcohol based on a strong smell of alcohol emanating from his breath, red/watery eyes, delayed responses and slurred speech as well as my observations that Di Luciano was unable to stand still without swaying from side to side and then losing his balance; and,
(m) Di Luciano was arrested on scene for impaired operation of a conveyance contrary to subsection 320.14(1)(a) of the Criminal Code. Di Luciano subsequently refused to provide a sample of breath to a qualified technician and was charged with refuse breath sample contrary to section 320.15(1) of the Criminal Code.
[156] Defence counsel take the position that the information provided by DC Swiderski to the issuing justice – including the details I set out in the preceding paragraph – misled the court in material ways. They ask that the warrant be set aside.
[157] A judicially authorized warrant is presumptively valid. A reviewing court is restricted in its ability to interfere with a presumptively valid search warrant. The determinative question is whether, on the basis of the sworn evidence filed, the issuing judge could (not should) have granted the warrant. See R. v. Garofoli, [1990] 2 S.C.R. 1421, at para. 56, where Sopinka J. outlined the test as follows:
The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere.
[158] The onus is on the applicant to demonstrate that there was no basis upon which the issuing justice could have granted the authorization in issue. To discharge that onus, the applicant must generally attack the preconditions to the authorization. In other words, the applicant must undermine the existence of reasonable grounds. If the applicant fails to undermine those grounds, a conclusion will usually follow that the issuing justice could have authorized the warrant or production order, as the case may be.
[159] That said, as Justice Doherty observed in R. v. Sivrattan, 2017 ONCA 23, at para. 26, “counsel may also argue that the augmented record placed before the reviewing judge demonstrates that the affiant deliberately, or at least recklessly, misled the issuing judge, rendering the entire ITO unreliable as a basis on which to issue the warrant.”
[160] It must be kept in mind, of course, that given the ex parte nature of a warrant application, affiants of ITOs in support of those applications have a duty of candour and utmost good faith. “The evidence must be complete and thorough and no relevant information adverse to the interest of [the applicant] may be withheld”: Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37, at para. 101, citing Ruby v. Canada (Solicitor General), 2002 SCC 75, at para. 27.
[161] The reviewing judge does not necessarily limit his or her consideration to the ITO that was before the issuing justice. Erroneous or unconstitutionally obtained evidence must be excised from the original ITO. See R. v. Mahmood, 2011 ONCA 693 at para. 116.
[162] The standard against which alleged errors or omissions in the ITO are tested, however, is the affiant's reasonable belief at the time the ITO was composed, not the ultimate truth of the facts stated: World Bank Group v. Wallace, 2016 SCC 15, at para. 122.
[163] The analytical approach a reviewing judge should take to the sufficiency of an ITO was described by Fairburn J.A., as she then was, in R. v. Herta, 2018 ONCA 927, at para. 21. She instructed that the reviewing judge must take a common sense and holistic approach and added that the ultimate question is whether the issuing justice could have found that the ITO, in its redacted form, and the reasonable inferences that could be taken from it, gave rise to a credibly based probability that an offence had occurred and that evidence of it could be found at the place to be searched.
[164] As Watt J.A. summed it up in R. v. Paryniuk, 2017 ONCA 87 at para. 67, “[w]hen the dust settles after excision and amplification…there must be a residuum of reliable evidence which might reasonably be believed on the basis of which the search authority could have been issued.”
[165] Defence counsel submit that PC Swiderski failed in her obligation to make full, fair and frank disclosure to the issuing justice by (1) failing to advise the issuing justice that she had unlawfully arrested Mr. Di Luciano for Over 80 at the roadside; (2) failing to advise the issuing justice that she had administered an unlawful ASD demand at the roadside and that she had charged Mr. Di Luciano for refusing to provide a breath sample even before she transported him to the station; (3) failing to advise the issuing justice that she had breached Mr. Di Luciano’s s. 10(b) rights during the course of the arrest; and (4) advising the issuing justice that she observed on the scene that Ms. Abdulla was suffering from severe injuries.
[166] Defence counsel also submit that PC Swiderski’s grounds for arresting Mr. Di Luciano are not credible. They contend, as I referred to earlier, that the arrest for impaired operation was unlawful. Moreover, that all of the breath demands were unlawful and the refusals unconstitutionally obtained.
[167] In the result, defence counsel ask that significant excisions be made to the ITO. They say that when the dust settles here, there is an insufficient basis upon which the warrant to search the SUV and seize the ACM could have issued.
[168] The Crown’s position, firstly, is that the arrest of Mr. Di Luciano for impaired driving was lawful and in compliance with s. 9 of the Charter. Any references in the ITO to that arrest were entirely appropriate. Moreover, that PC Swiderski’s grounds for having arrested Mr. Di Luciano and having made a breath demand are credible and reliable.
[169] The Crown agrees that an affiant must make full, fair and frank disclosure of all material facts in an ITO. Where the Crown disagrees with the defence position is about whether the omitted facts, as impugned by the defence, were material. The Crown says they were not and therefore need not have been mentioned.
[170] At any rate, the Crown urges the court to conclude that, even on an excised or amplified record, there were ample grounds upon which the warrant could have issued.
[171] It is always important not to lose sight of the forest while staring intently at the trees. To their credit, defence counsel have done a remarkably thorough job in examining the specifics of this case and scrutinizing state conduct through each stage of the police investigation. Their scrutiny has resulted in a fairly lengthy list of areas where they say the police fell short in terms of meeting their legal obligations to Mr. Di Luciano and to the court. It is necessary that each of the concerns raised by the defence be carefully examined individually and their impact assessed both individually and collectively.
[172] At the same time, it must be observed that the circumstances giving rise to the charges against Mr. Di Luciano are, by and large, relatively straightforward.
[173] Mr. Di Luciano is alleged to have been driving while his ability to do so was impaired by alcohol. In that state he is alleged to have sped through a red light, struck another vehicle and injured its occupants. He was arrested at the scene for impaired operation on the basis of what I have found to have been reasonable grounds.
[174] Unsurprisingly, the police wanted to examine his vehicle to rule out any mechanical issue that might have contributed to the collision. And they wanted the ACM data because it might tell them something about the speed of the vehicle in the moments prior to the collision.
[175] The arresting officer unlawfully arrested Mr. Di Luciano for Over 80. She did not have reasonable grounds to lay that charge. By the time the warrant application was filed, Mr. Di Luciano was not facing a charge of Over 80. In my view, it was immaterial to the warrant application. The same can be said of her unlawful breath demand. In my view, it would have no bearing on the decision of the issuing justice as to whether to authorize the warrant.
[176] In terms of the alleged s. 10(b) breach, I am unable to see how the affiant could be expected to advise the issuing justice that she breached Mr. Di Luciano’s s. 10(b) right when she had no appreciation at the time of the ITO that she had done so. Indeed, the Crown’s position on this application is that there was no s. 10(b) breach. In my view, there was no breach of her duty to be fair and frank in not indicating that there had been a s. 10(b) breach. Moreover, even if the issuing justice had the information regarding the alleged s. 10(b) breach, I do not believe it would have impacted at all on the decision to grant or not grant the warrant.
[177] I agree that the affiant erred when she told the issuing justice that she observed, when she arrived on scene, that Ms. Abdulla was suffering from severe injuries. PC Swiderski did not know the extent of Ms. Abdulla’s injuries while she was on scene. Indeed, the extent of those injuries was not known for some time afterwards. I will excise her reference to Ms. Abdulla’s injuries from para. 17(c).
[178] In terms of the issues surrounding the constitutionality of the breath demands, I have found that the demand made by PC Neathercott was lawful. I have yet to determine whether it was, nevertheless, obtained in a manner that infringed the Charter. For the sake of argument, I will excise any reference in the ITO to the refuse count.
[179] What is left, in my view, is more than sufficient to support the authorization of the warrant.
[180] There may have been some minor mistakes in the ITO. But I am not satisfied that PC Swiderski failed in her duty to be full, frank and fair. If there were problems in the investigation that she was aware of, which might impact on the issuing justice’s decision, then she had an obligation to bring those to the court’s attention. But she did not have an obligation to attempt to anticipate what arguments an industrious defence counsel might advance and to lay those out for the issuing justice.
[181] I am certainly not satisfied that the circumstances of the investigation were so materially misrepresented that the ITO on the whole was no longer reliable. To the contrary, it fairly presented to the issuing justice that this case involves a motor vehicle collision, alleged to have been caused by Mr. Di Luciano at a time when he was driving erratically, while impaired. The ACM may contain data relevant to his manner of driving. There was, in my view, an ample basis upon which the issuing justice could conclude that there were reasonable grounds to believe that an offence had been committed and that a search of the vehicle and the ACM would provide evidence relevant to the offence.
CHARTER s. 10
The Alleged 10(a) Breach
[182] Section 10(a) of the Charter provides that everyone has the right, on arrest or detention, to be informed promptly of the reasons therefore.
[183] The right to be informed of the reason for one’s arrest is based on the common law principle that a person is not required to submit to an arrest unless he or she is aware of the reasons for it. See R. v. Evans, [1991] 1 SCR 869. In this case, Mr. Di Luciano knew he was arrested for impaired operation. He had no basis to refuse to submit to his arrest on the basis of a lack of information.
[184] That said, s. 10(a) also works in conjunction with s. 10(b) which provides that everyone has the right, on arrest or detention, to retain and instruct counsel without delay and to be informed of that right. A detainee can only meaningfully exercise his right to counsel if he knows the extent of his jeopardy. See R. v. Nguyen, 2008 ONCA 49 at para. 20. Meaningfully exercising one’s right to counsel involves the initial determination about whether the detainee will consult with counsel but also engages the ability to receive meaningful and informed advice relative to the jeopardy one faces.
[185] The defence position is that Mr. Di Luciano was never advised of the full extent of his jeopardy. In particular, he was never advised that he may face “cause bodily harm” offences. In the result, he was unable to make a fully informed decision about whether he should provide a breath sample. Moreover, he was unable to obtain proper legal advice about whether he should provide a breath sample because his lawyer was never advised of the extent of his jeopardy.
[186] The Crown once again demurs. Crown counsel’s position is that Mr. Di Luciano had all the information he reasonably needed to understand his jeopardy. He knew he was charged with the offence of impaired operation. He knew the collision was serious. He could not have known the particulars or extent of any injuries suffered. But he was aware of the presence of EMS and Fire personnel on the scene. He would have, in the circumstances, been able to make a meaningful decision to speak to counsel – which he did do – and he would have been able to obtain informed and meaningful advice about whether he should provide breath samples.
[187] In Evans, McLachlan J., as she then was, instructed that what is important for s. 10(a) purposes is what the accused can reasonably be supposed to have understood about his or her jeopardy, in all the circumstances, rather than the precise words that may have been used. “The question”, she said, “is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under. s. 10(b).”
[188] Justice McLachlan’s instructions in Evans echo the views she expressed in R. v. Smith, [1991] 1 S.C.R. 714. In Smith, the accused shot and killed an erstwhile friend in the course of an argument. He was unaware, however, that the friend had died at the time he was arrested. When the police came to collect him, he was advised that he was under arrest “for a shooting incident at the residence” of his friend. He was read his right to counsel and cautioned. He waived his right to counsel and made a statement.
[189] A central question at trial and on appeal was whether his waiver of the right to counsel should be vitiated on the basis that his s. 10(a) right to be informed of his jeopardy was breached. In exploring that question, Justice McLachlan instructed that the police need not precisely identify the charge faced in the words of the Criminal Code. The police, after all, may not initially know precisely what offence the accused will be charged with. Nor must the accused be aware of all of the factual details of the case. What is required is that the accused has sufficient information to allow making an informed and appropriate decision as to whether to consult with counsel.
[190] In my view, there was no breach of Mr. Di Luciano’s s. 10(a) right in all the circumstances of this case. I reach that conclusion for two principal reasons.
[191] First, I am satisfied that, throughout their dealings with Mr. Di Luciano from roughly 10:55 p.m. on December 25, 2019 to 4:05 a.m. on December 26, 2019, the police did not have any information about any injuries suffered by any of the occupants of the Sante Fe. They could only speculate about what those injuries might have been. Realistically, then, all they could have told Mr. Di Luciano, above what they did tell him, was that he faced the potential of an upgraded charge if it turned out that someone in the Sante Fe had suffered bodily harm. That, in my view, is a possibility that would not be lost on any reasonable defence counsel consulted with.
[192] PC Swiderski testified that when she arrived on the scene, she observed two males sitting outside of the Sante Fe. They were sweating and vomiting but otherwise did not appear to have any observable injuries. She also observed a female trapped in the rear of the Sante Fe. The female was moaning and also vomiting, but again she did not exhibit any observable injuries.
[193] PC Swiderski received no further information about the state of the occupants of the Sante Fe before she departed the scene.
[194] I note that PC Swiderski testified that she understood that the injuries suffered needed to be life threatening or life altering – “grievous” in her words – before an upgraded charge of impaired operation causing bodily harm could be laid. Her understanding was, of course, mistaken. “Bodily harm” is defined by s. 2 of the Criminal Code as “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.” She agreed, under cross-examination, that her view of the threshold for a causing bodily harm offence informed her decision not to tell Mr. Di Luciano about his jeopardy for the offense of impaired operation causing bodily harm.
[195] While it appears at first blush that PC Swiderski’s misunderstanding of the threshold for a causing bodily harm offence played a material part in the information provided to Mr. Di Luciano about his jeopardy, closer consideration reveals that it realistically played no part. The fact is, she had no information at all about possible injuries. She testified that she would not caution an accused person about offences she did not have evidence to support. She did not want to caution him about offences he may never be charged with. Even if she appreciated the correct definition of “bodily harm” she still would not have cautioned him about his potential jeopardy for what, at the relevant times, was a speculative charge.
[196] Alexandru Lisnic is a York Region police officer. He was on uniformed patrol on the night of December 25, 2019. He responded to the collision scene and was assigned the task of attending MacKenzie Hospital to check any injuries to the passengers of the Sante Fe.
[197] PC Lisnic testified that he attended at the hospital at 11:20 p.m. He was able to identify the involved parties. He said they appeared shaken up but no one had any visible injuries. No one was able to tell him anything about any injuries. He was advised to return to the hospital at 6:00 a.m. when CT scans were expected to be available. He received direction from a superior officer to clear the scene, which he did.
[198] PC Swiderski testified, in cross-examination, that sometime after 12:37 a.m. she received information from PC Lisnic to the effect that there was no update about possible injuries.
[199] S/Sgt. Armstrong agreed, under cross-examination, that if there is a risk a detainee may be charged with a causing bodily harm offence, they should be told of their jeopardy. In this instance, however, she said she was aware it was a serious motor vehicle collision but did not know anything about any injuries.
[200] At the time Mr. Di Luciano was connected with his counsel of choice, he was charged with impaired operation of a motor vehicle. He was aware of the severity of the crash. He was aware that EMS and Fire had attended the scene. He, like everyone else, was not aware of whether there were any injuries or, if so, the extent of those injuries. Whether he might be in jeopardy of an upgraded charge is something he, his counsel and the police could only speculate about. Those were the conditions existing at the time he spoke to counsel. The advice he would have received would have been informed by those conditions.
[201] Defence counsel referred me to the recent decision of Dawe J., as he then was, in R. v. Coates, 2022 ONSC 3262, to support the argument that Mr. Di Luciano ought not to have been expected to figure out the extent of his jeopardy on his own.
[202] Mr. Coates struck a motorcyclist while he was driving in an impaired condition. He was charged with impaired operation simpliciter at the scene. Dawe J. held that he may not have turned his mind to the probable consequences of the collision, or he might have reasoned that because he was only charged with impaired operation simpliciter that the motorcyclist had escaped serious injury.
[203] Like the case at bar, the police in Coates did not initially appreciate the seriousness of the injuries suffered by the motorcyclist. Unlike the case at bar, however, the police learned of the seriousness of the motorcyclist’s injuries (he needed a foot amputated) prior to Mr. Coates’ consultation with counsel and prior to making a demand for – and obtaining – samples of his breath.
[204] Dawe J. held, and I agree, that once the police learned of the injuries and made the decision to significantly upgrade the charges against Mr. Coates, they had a duty to ensure that Mr. Coates was aware of this increased jeopardy without delay.
[205] The facts in Coates are distinguishable from the circumstances here, where the police did not have any information about injuries until well after Mr. Di Luciano was released.
[206] Second, I consider the circumstances here sufficiently similarly to those in R. v. Li, 2022 ONCA 523 that I am compelled to follow the conclusion of the Court of Appeal in that case.
[207] In Li, the accused took a friend out for a spin in his new McLaren sportscar. The accused was, unfortunately, impaired by alcohol and crashed a short distance from his house. He was arrested on scene where paramedics attended to both him and his friend, who was laying on the ground.
[208] Mr. Li was initially charged with impaired operation simpliciter. A breath sample was demanded and he provided samples, after having consulted with duty counsel, that reflected a blood-alcohol content more than twice the legal limit. Roughly 90 minutes later, the police learned that the passenger’s injuries were serious. Mr. Li’s charges were upgraded to impaired operation causing bodily harm. He then had a second consultation with duty counsel.
[209] The trial judge rejected an argument that the police had breached Mr. Li’s s. 10(a) right by failing to advise him of his jeopardy for a causing bodily harm offence prior to his first consultation with counsel and the provision of breath samples. The trial judge found that Mr. Li knew he had been involved in a serious collision at the time of his first arrest. He could have discussed this with duty counsel, who could have discussed his potential jeopardy with him.
[210] The Court of Appeal agreed. They found, specifically, at para. 32:
…[W]hile the appellant’s jeopardy increased with the charge of impaired driving causing bodily harm, the nature of the jeopardy was similar. Both charges centred on impaired driving in the course of which a serious car crash took place which required medical assistance. This is not a case such as Evans where police initially detained the accused on marijuana charges but, in the course of the investigation, the police came to believe that he had committed a murder which they were investigating at the time. In this case, the appellant spoke to duty counsel before the first breathalyzer tests were administered, and one would reasonably expect the potential jeopardy arising from the crash to have been discussed in the course of the call, particularly given the nature of the accident and the fact that both the passenger and the appellant had been taken to the hospital.
[211] The injuries to Mr. Li’s passenger may have been more apparent to him than any potential injuries to the Sante Fe passengers were to Mr. Di Luciano. But Mr. Di Luciano knew he was charged with impaired operation. He knew it was a serious collision. He would have been able to see the activity of emergency crews attempting to extricate one of the occupants from the Sante Fe. And he knew there were emergency personnel – including EMS – on scene. I expect that this was more than sufficient information to enable an informed discussion with his lawyer about his potential jeopardy.
[212] In the result, I conclude that there was no breach of Mr. Di Luciano’s s. 10(a) right.
The Alleged 10(b) Breach
[213] I reach a different conclusion about at least some of the alleged breaches of Mr. Di Luciano’s s. 10(b) right.
[214] It is well-settled that s. 10(b) imposes three distinct duties on the police when they arrest or detain a person:
(i) To inform the person of his or her right to retain and instruct counsel without delay (the informational duty);
(ii) To provide the person with a reasonable opportunity to speak to counsel, should he or she indicate a desire to do so (the implementational duty); and,
(iii) To refrain from eliciting evidence from the person until he or she has had the reasonable opportunity to speak to counsel (the duty to hold off).
See R. v. Bartle, [1994] 3 S.C.R. 173 at para. 17.
[215] Defence counsel assert that breaches occurred with respect to both the implementational duty and the duty to hold off. In particular:
(a) PC Swiderski provided Mr. Di Luciano with inaccurate legal advice about the consequences of providing breath samples that undermined his counsel’s advice;
(b) PC Swiderski failed to hold off after Mr. Di Luciano signalled an intention to speak to counsel and (i) questioned him about his passenger; and (ii) made a further demand for a breath sample, arguably eliciting an incriminatory refusal; and,
(c) The police failed to afford Mr. Di Luciano a further opportunity to consult with counsel after a lawful breath demand was made by PC Neathercott under s. 320.28(1) of the Criminal Code.
[216] I will address each of the alleged breaches in turn.
The Bad Legal Advice
[217] As I have established, PC Swiderski made an ASD demand at the roadside. Mr. Di Luciano signalled an intention to refuse. A discussion ensued, in the course of which PC Swiderski offered the following advice:
If you say yes and provide the sample to us, as required of you, and your breath shows that you’re not drunk, then you’re not charged. Right?
[218] Wrong.
[219] Obviously, if Mr. Di Luciano blew under .08, the charge of Over 80 might be problematic. But imagine for a moment that he blew .06. Not enough for an Over 80 charge, but consistent with impairment which toxicologists routinely testify is evident at a blood-alcohol content of .05. Moreover, the presence of alcohol in Mr. Di Luciano’s system, even under a concentration of .08, may provide evidence in support of a charge of criminal negligence.
[220] Office Swiderski was not trying to mislead Mr. Di Luciano. But she did.
[221] That said, this is not a situation where Mr. Di Luciano received legal advice and the police sought to impugn that advice or the advice-giver. Nor is it a situation where he received advice and the police undermined that advice with their own take on the law.
[222] The facts are these: PC Swiderski made a demand. Mr. Di Luciano refused. PC Swiderski offered some misleading advice. Mr. Di Luciano continued to refuse. Mr. Di Luciano subsequently obtained advice from his counsel of choice. The police subsequently did nothing to undermine that advice.
[223] In my view, in all the circumstances, the poor advice from PC Swiderski, while ill-advised, did not undermine Mr. Di Luciano’s s. 10(b) right.
The Failure to Hold Off
[224] PC Swiderski breached Mr. Di Luciano’s s. 10(b) right when she failed to hold off questioning him during the booking process, after he advised that he wished to speak to counsel.
[225] For starters, she asked him about his passenger, his girlfriend at the time. She asked about her name, her birthday and her phone number. PC Swiderski testified that she asked out of a concern for the well-being of the passenger. I reject this explanation.
[226] The girlfriend’s date of birth could not possibly be connected in any way to her well-being. More compelling, however, is the fact that precisely zero follow-up occurred after PC Swiderski obtained the information about the girlfriend. She did not seek to contact the witness, nor did she convey her contact information to any other officer to follow up.
[227] I conclude that the reason PC Swiderski asked about the passenger was to identify a potential witness and contact information for that witness. Questioning Mr. Di Luciano for that purpose was a clear breach of the duty to hold off.
[228] PC Swiderski similarly breached Mr. Di Luciano’s s. 10(b) right when she asked him a second time to provide a sample of his breath. The Crown holds out the booking room demand as an approved instrument demand. I have found that, considering it from a flexible and functional perspective, it was just that.
[229] Section 10(b) rights are suspended when ASD demands are made. They are not suspended when approved instrument demands are made. Nevertheless, PC Swiderski made the demand and compelled an (arguably) inculpatory response. This was a second breach of the duty to hold off.
The Failure to Facilitate a Further Consultation with Counsel
[230] The purpose of s. 10(b) is clear. Its overarching goal is to ensure fair treatment of detainees and to level the playing field between the state and the detainee. It facilitates the provision of information to the detainee about his rights (particularly the right to remain silent) and his obligations under the law, and it gives the detainee an opportunity to obtain advice about how to implement those rights. See R. v. Sinclair, 2010 SCC 34, at paras. 24-26.
[231] There is no doubt that the police implemented Mr. Di Luciano’s s. 10(b) right when they connected him to his lawyer of choice. Generally, a single consultation with counsel is sufficient to satisfy the requirements of s. 10(b). The police are, however, required to provide a detainee with an opportunity to consult with counsel again if a change in circumstances makes a further consultation necessary to fulfill s. 10(b)’s purpose. See R. v. Lafrance, 2022 SCC 32 at para. 72.
[232] The Supreme Court has identified three “changed circumstances” which can renew a detainee’s right to consult with counsel:
(i) Where the police invite the detainee to take part in non-routine procedures that counsel would not have considered at the time of the initial consultation;
(ii) Where there has been a change in the jeopardy facing the detainee that could affect the adequacy of the advice received during the initial consultation; and,
(iii) Where there is reason to question the detainee’s understanding of his rights.
See R. v. Lafrance, at para. 72. See also R. v. Dussault, 2022 SCC 16, at para. 34.
[233] The primary defence position is that none of the breath sample demands made of Mr. Di Luciano were lawfully made. But in the event the court concludes, as I have, that PC Neathercott’s demand was lawfully made, the assertion is that the lawful demand was a significant change in circumstances from the prior, unlawful demands; one that changed Mr. Di Luciano’s jeopardy and warranted a further consultation with counsel.
[234] As the argument goes, Mr. Di Luciano’s counsel would have been able to advise him that the roadside ASD demand was unlawful and that he need not provide a breath sample on the basis of an unlawful demand. On the other hand, if the breath tech’s demand was lawful he was compelled by law to provide a sample of his breath. Counsel would have then been in a position to advise Mr. Di Luciano of the pros and cons of not complying with the demand.
[235] The Crown’s position is that no re-consultation was warranted in the circumstances. Crown counsel asserts that an approved instrument demand would have been within the contemplation of counsel during the initial consultation. Moreover, there was no change in jeopardy. The approved instrument demand was, the Crown says, a foreseeable step in the course of the investigation.
[236] In my view, a second consultation with counsel was not required in this case. I reach this conclusion for a number of reasons which include:
(a) I can only speculate about what discussions Mr. Di Luciano had with his counsel. In my view, there is no profit in attempting to assess whether the instructions he received were adequate in the circumstances. This is not a case where there is reason to question Mr. Di Luciano’s understanding of his rights;
(b) Realistically, there is zero chance that Mr. Di Luciano explained to his counsel that he had been read an ASD demand at the roadside, in circumstances where the arresting officer did not actually have an ASD in her possession. Neither Mr. Di Luciano nor his counsel would have known that PC Swiderski did not actually have an ASD. It is fanciful to believe that Mr. Di Luciano and his counsel engaged in a discussion about the unlawfulness of the demand that had been made of him;
(c) In the result, assuming that Mr. Di Luciano received competent advice, he would have been advised of his obligation to provide breath samples and he would have been able to weigh the pros and cons of doing so. The reality is, it was made perfectly clear to Mr. Di Luciano by the police that he had two choices: provide a breath sample or be charged with not providing a breath sample. It was made perfectly clear to him by the police that failing to provide a breath sample would have consequences equivalent to providing a sample that demonstrated he had a blood-alcohol content over the legal limit. He had no intention of providing a sample either before or after consultation with counsel.
[237] It is common practice that a demand for a breath sample into an approved instrument is made, then a consultation with counsel is arranged before the sample is taken. I am satisfied that Mr. Di Luciano’s consultation with counsel would have included a discussion about the obligation to provide a breath sample and the consequences associated with refusing to do so.
[238] In a perfect world, the police would have explained to Mr. Di Luciano’s counsel that they had made an unlawful demand at the roadside, but that they intended to make a further demand following the consultation. But the world is far from perfect. It doesn’t need to be perfect to comply with s. 10(b). It merely needs to meet the purposes that 10(b) is designed to meet.
[239] In the circumstances here, Mr. Di Luciano knew that he had been involved in a serious motor vehicle collision, that he had been charged with impaired operation, that he had been asked twice to provide a breath sample and that he had refused twice. Assuming he conveyed that information to his counsel of choice, there was, in my view, an ample informational basis for counsel to provide meaningful advice.
[240] In my view, circumstances did not change significantly enough, following Mr. Di Luciano’s initial consultation with counsel, to require a second consultation. The so-called “failure” to provide a second consultation was not, in my view, a breach of Mr. Di Luciano’s s. 10(b) Charter right.
CHARTER s. 24(2)
[241] Before I delve into the s. 24(2) analysis, it may be worthwhile to summarize the Charter breaches I have found. They are:
(a) A breach of Mr. Di Luciano’s s. 8 right to be free from unreasonable search and seizure arising from the unlawful demand for a sample of his breath made at the roadside;
(b) A breach of Mr. Di Luciano’s s. 9 right not to be arbitrarily detained arising from his continued detention for 3 ½ hours after he refused the breath tech’s demand for breath samples; and,
(c) A breach of Mr. Di Luciano’s s. 10(b) right arising from PC Swiderski’s failure to hold off eliciting evidence from him prior to his consultation with counsel.
[242] Section 24(2) of the Charter provides as follows:
Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[243] Based on these identified Charter breaches, the defence seeks to exclude the roadside refusal, the booking room refusal and the breath room refusal, all of which they say constitute evidence obtained in a manner that infringed Mr. Di Luciano’s Charter rights.
[244] As I noted, defence counsel also sought to exclude the ACM data seized from Mr. Di Luciano’s SUV. I have declined counsel’s invitation to set aside the warrant that led to the ACM seizure. There was, in my view, no Charter breach associated with the seizure of that data. In the result there is no need to consider the application of s. 24(2) with respect to it.
[245] In any event, as Jamal J. observed, in R. v. Beaver, 2022 SCC 54, at para. 94, there are two components to determining whether evidence must be excluded under s. 24(2) of the Charter. First, there is the threshold requirement that the impugned evidence must have been obtained in a manner that infringed or denied guaranteed rights or freedoms. If that threshold is established, the court will engage in an evaluative analysis to determine if admitting the evidence will bring the administration of justice into disrepute.
The Threshold – “Obtained in a Manner”
[246] Whether evidence was obtained in a manner that infringed the Charter rights of an accused person depends on the nature of the connection between the breach and the impugned evidence. See R. v. Lafrance, at para. 189 and R. v. Beaver, at para. 95.
[247] It is settled law that there need not be a causal connection between the breach and the impugned evidence to meet the “obtained in a manner threshold”. In R. v. Pino, 2016 ONCA 389, at para. 72, Laskin J.A. instructed that the following factors should guide the court’s consideration of the threshold:
• the approach should be generous, consistent with the purpose of s. 24(2);
• the court should consider the entire "chain of events" between the accused and the police;
• the requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct;
• the connection between the evidence and the breach may be causal, temporal or contextual, or any combination of these three connections;
• but the connection cannot be either too tenuous or too remote.
[248] With this context in mind, I will consider the evidence of refusals given at the roadside, in the booking area and, most significantly, in the breath room.
The Roadside Refusal
[249] There is no doubt that the roadside refusal was obtained in a manner that infringed Mr. Di Luciano’s s. 8 right. The refusal would not have happened save for the unlawful breath demand.
The Booking Area Refusal
[250] Similarly, there can be little doubt, in my view, that the booking area refusal was obtained in a manner that infringed Mr. Di Luciano’s s. 8 right, given its close connection to the roadside demand. I find that connection to have been causal, temporal and contextual.
[251] Although I have found that a flexible and functional interpretation of the booking area demand supports the conclusion that it was an approved instrument demand, rather than a pure repetition of the roadside demand, it remains closely tethered to that roadside demand.
[252] PC Swiderski referenced her roadside demand in the booking area and explained that she was going to give Mr. Di Luciano another chance to comply with it since he seemed a little confused about the nature of the demand and the consequences of refusal.
[253] There is a close temporal connection. Immediately after the roadside refusal, Mr. Di Luciano was conveyed to the police station. The second demand was made minutes after he arrived and while he was being booked into the station. He had not yet had the opportunity to speak with counsel.
[254] There is arguably a causal connection. Mr. Di Luciano’s refusal to the unlawful roadside demand caused PC Swiderski to make a second demand which, in turn, elicited the second refusal.
[255] There is also a contextual connection, which I think is obvious.
[256] In the result, I find that the booking area refusal was obtained in a manner that infringed Mr. Di Luciano’s Charter-protected rights.
The Breath Room Refusal
[257] Probably the most significant issue raised on this application is whether the breath room refusal was obtained in a manner that infringed Mr. Di Luciano’s Charter-protected interests.
[258] The Crown argues that regardless of the status of PC Swiderski’s demands and the refusals that followed, PC Neathercott made his own distinct, lawful demand which was untethered to PC Swiderski’s demands.
[259] Crown counsel argues that PC Neathercott’s demand represented a fresh start – a break in the chain of events between PC Swiderski’s initial unlawful demand and the final refusal offered by Mr. Di Luciano.
[260] Paciocco J. explained the fresh start doctrine in R. v. S.S., where he said, at para. 74:
The fresh start doctrine holds that “evidence will not be ‘obtained in a manner’ that breached the Charter when the police made a ‘fresh start’ from an earlier Charter breach by severing any temporal, contextual, or causal connection between the Charter breach and the evidence obtained or by rendering any such connection remote or tenuous.”
[261] The “fresh start” doctrine must be carefully applied. As Jamal J. cautioned in Beaver, at para. 99, in some cases evidence will remain tainted by a Charter breach despite subsequent Charter compliance. It is important that the court take a holistic approach and examine all of the relevant circumstances to determine if any temporal, contextual or causal connection between an earlier breach and the gathering of the impugned evidence has been severed.
[262] Jamal J. suggested that the following factors may potentially be illustrative of a fresh start:
(a) Whether the police inform the accused of the Charter breach and dispel its effect with appropriate language;
(b) Whether the police caution the accused after the Charter breach but before the impugned evidence is obtained;
(c) Whether the accused had a chance to consult with counsel after the Charter breach but before the impugned evidence was obtained;
(d) Whether the accused gave informed consent to the taking of the impugned evidence after the Charter breach;
(e) Whether and how different police officers interacted with the accused after the Charter breach but before the impugned evidence was obtained; and,
(f) Whether the accused was released from detention after the Charter breach but before the impugned evidence was obtained.
[263] Crown counsel points to the following factors in an effort to establish that PC Neathercott’s demand represented a fresh start:
(a) PC Neathercott formed his own grounds to make a breath demand, based on information provided to him by PC Swiderski. Unlike in the arresting officer in R. v. S.S., PC Swiderski did not provide false and misleading information to the breath tech;
(b) PC Neathercott made an approved instrument demand, which is fundamentally different than the ASD demand made at the roadside; and,
(c) There is no causal nexus between the breath demand made by PC Swiderski and the breath demand made by PC Neathercott.
[264] Defence counsel, on the other hand, point to the following factors they say support the conclusion that there was no “fresh start” sufficient to sever the causal, temporal or contextual connection between the breach and the refusal provided to the breath tech by Mr. Di Luciano:
(a) Mr. Di Luciano was unlawfully under arrest at the time of the breath room demand;
(b) Mr. Di Luciano was unlawfully detained at the time of the breath room demand;
(c) Mr. Di Luciano was already subject to an unlawful demand, which continued to the time when Mr. Di Luciano was directed into the breath room; and,
(d) Mr. Di Luciano was only in the presence of the breath tech because of the unconstitutional conduct of the police up to that point. In other words, the initial unlawful demand triggered a chain of events that brought Mr. Di Luciano before the breath tech.
[265] To be clear, I have identified the following breaches that occurred before the demand made in the breath room: (1) the s. 8 breach arising from the unlawful ASD demand at the roadside; and (2) the s. 10(b) breach arising from the failure of PC Swiderski to hold off from eliciting evidence from Mr. Di Luciano before the implementation of his consultation with counsel.
[266] I have not found that Mr. Di Luciano was unlawfully arrested, nor have I found that he was unlawfully detained at the time he was directed into the breath room. The s. 9 breach I have identified played no role in the refusals.
[267] The question is whether the events occurring between the breaches and the ultimate refusal to the breath tech had the legal effect of severing any causal, temporal or contextual connection between the breaches and the refusal.
[268] This case is a close call. After anxious consideration, I have concluded that the demand in the breath room constituted a fresh start, such that Mr. Di Luciano’s refusal to the breath tech was not evidence obtained in a manner that infringed Mr. Di Luciano’s Charter rights.
[269] I appreciate that reasonable people may differ in this result. I accept that there are arguably temporal and contextual connections between PC Swiderski’s breaches and PC Neathercott’s demand, which led to the breath room refusal.
[270] That said, I have reached the conclusion that PC Neathercott’s demand was sufficiently detached from the earlier Charter breaches, so as to constitute a fresh start, based on the following factors:
(a) There were no independent Charter breaches in the context of PC Neathercott’s dealings with Mr. Di Luciano;
(b) The roadside s. 8 breach was extremely minor. I am confident, based on my consideration of the interactions Mr. Di Luciano had with the police, that he would not have appreciated the difference between an ASD demand and an approved instrument demand. Thus the unlawfulness of the roadside demand would not have in any way tainted his refusal to the lawful breath room demand;
(c) PC Neathercott read Mr. Di Luciano a secondary caution – specifically advising him that he did not want anything said to him by another officer to influence him;
(d) PC Neathercott made his own independent approved instrument demand. I appreciate that it was based on the grounds provided to him by PC Swiderski. But there is nothing unusual or unlawful about that fact. As I noted, this case is distinguishable from the facts in R. v. S.S. There, the trial judge found that the arresting officer did not have reasonable grounds to arrest the accused for impaired driving. The arresting officer then conveyed false and misleading grounds to the breath tech, who relied on those insufficient grounds to make his own demand. In this case, I have found that PC Swiderski did have reasonable grounds to arrest Mr. Di Luciano. She had the grounds to make a breath demand – she simply read the wrong demand. PC Neathercott also had the grounds to make a breath demand. But he read the correct demand;
(e) Mr. Di Luciano had an opportunity to consult with counsel before being directed into the breath room. I appreciate that no one told him or his lawyer that he was going to be subjected to a further breath demand. Again, I am not going to speculate about what discussions he had with his lawyer. But I am satisfied that in circumstances where he refused to provide a breath sample at the roadside and was transported to the station so that he could communicate with counsel, it would have been foreseeable to counsel that a breath demand would subsequently be made by a breath tech; and,
(f) PC Neathercott explained how the Intoxilizer 8000 worked and he explained the consequences of refusing to provide a breath sample. Mr. Di Luciano, in my view, was able to make an informed choice about whether he would provide a sample and he understood the consequences of not doing so.
[271] Again, I appreciate that reasonable people may differ about whether there was a fresh start in the breath room. But, as I will explain momentarily, even if I am wrong about the “obtained in a manner” issue in terms of the breath room refusal, I would not exclude the evidence of the refusal in any event.
The Evaluative Analysis
[272] The evaluative analysis engages the court in a consideration of whether the impugned evidence should be excluded, on the basis that its admission would bring the administration of justice into disrepute.
[273] As a preliminary matter, before I consider whether the evidence should be excluded it is necessary for me to address the question of whether, as a matter of law, it might be excluded.
[274] This preliminary issue arises because the evidence the defence seeks to exclude – the refusal utterances – constitutes the actus reus of the refusal offences.
[275] In R. v. Hanneson, (1989) 49 C.C.C. (3d) 467, the Court of Appeal held that a breach of s. 10(b) of the Charter cannot insulate an accused person from prosecution for crimes committed after the breach. For instance, one cannot commit theft, assault someone, threaten death, or offer a bribe, following a s. 10(b) breach and then seek to exclude the evidence of the offence because of the prior breach. In other words, s. 10(b) “has as its object the provision of counsel to those under investigation for crimes already committed.” It does not relate to crimes yet to come.
[276] Hanneson has not sat comfortably within the jurisprudence relating to refusal offences. Indeed, its continuing authority was brought into question just five years after it was issued, as a result of the Supreme Court’s ruling in R. v. Cobham, [1994] 3 S.C.R. 360.
[277] Mr. Cobham was stopped by an Edmonton City police officer who, believing Mr. Cobham had consumed alcohol, made an ASD demand. Mr. Cobham complied, but failed the test. The officer then arrested Mr. Cobham for impaired driving and read him his right to counsel. He failed, however, to advise Mr. Cobham of the availability of free and immediate duty counsel advice. Mr. Cobham refused to provide breath samples into an approved instrument and was charged with refusal.
[278] The Supreme Court concluded that there was a s. 10(b) breach and proceeded to exclude the refusal evidence under s. 24(2) of the Charter. Former Chief Justice Lamer held, at para. 18,
In my view, this is a clear case in which admission of the evidence would negatively affect the fairness of the trial. The appellant's refusal is self-incriminating evidence of a particularly serious nature in that it is evidence which itself constitutes the crime. That is, unlike a confession which may only be some evidence upon which a conviction is based, a refusal to blow is itself commission of the offence of refusing to "blow" under s. 254(3)(a) of the Code. The direct connection between the incriminating refusal evidence and the offence creates a strong presumption that its admission would render the trial unfair. This is because the appellant may not have refused to take the breathalyser test if he had been properly advised under s. 10(b) of his right to duty counsel.
[279] No mention was made in Cobham of the decision in Hanneson and the principle that evidence may not be excluded under s. 24(2) if it constitutes the actus reus of the offence.
[280] Subsequent to Cobham, however, the Court of Appeal for Ontario has confirmed its ruling in Hanneson on a number of occasions including in R. v. Ha, 2010 ONCA 433 and R. v. Rivera, 2011 ONCA 225.
[281] In Ha, for instance, the accused was charged with production of marijuana. After her arrest she attempted to bribe the arresting officer. Notwithstanding that there were established breaches under s. 9 and 10 of the Charter, the Court of Appeal held that the bribery utterances could not be excluded under s. 24(2) of the Charter because they constituted the gravamen of the bribery offence. The statements did not, they observed, flow causally from the Charter breaches.
[282] It is, frankly, difficult to reconcile the Hanneson line of authority with the Supreme Court’s decision in Cobham. Stribopoulous J. attempted to do so in R. v. Soomal, 2014 ONCJ 220 where he held that the actus reus exception does not apply to refusal offences. He essentially limited Hanneson to its facts, and to the other limited examples cited therein by the Court of Appeal. He noted that there are certain offences where it is clear that a Charter breach could not possibly excuse the commission of a new criminal offence following the breach. In contrast, he noted that it is relatively easy to imagine circumstances where one might legitimately refuse to provide a breath sample following a breach, particularly since the definition of the offence contemplates that possibility by including the “without reasonable excuse” language.
[283] In any event, Stribopoulous J. held that he was bound by the Supreme Court’s decision in Cobham, saying, at para. 82:
I appreciate that the criteria governing the application of s. 24(2) have evolved since Cobham was decided. The significance of the decision for the purpose of Ms. Soomal’s case is primarily that the Court does not suggest that evidence of the refusal to provide a breath sample is incapable of being excluded because it constitutes the actus reus of a crime. To the contrary, in Cobham the Court emphasized that because evidence of the refusal was conclusive of guilt trial fairness strongly favoured exclusion. In my view, this unquestionably establishes that, in light of the Charter violations, I am obliged to consider whether or not the admission of evidence regarding Ms. Soomal’s refusal to provide a breath sample would bring the administration of justice into disrepute. To the extent that Hanneson might be read to suggest otherwise, I believe the Supreme Court’s decision in Cobham takes precedence and binds me.
[284] Soomal has been accepted and applied by a number of judges of this court. Schreck J. identified a number of those cases in R. v. Kerr, 2023 ONSC 3638 at para. 101. They include: R. v. Kraus, 2015 ONSC 2769 at paras. 57-65; R. v. O’Shea, 2019 ONSC 1514, at paras. 49-51; R. v. Odemi, 2022 ONSC 2292, at paras. 28-30; and R. v. Doobay, 2019 ONSC 7272, at para. 61.
[285] In Kerr, Schreck J. carefully and thoroughly reviewed all of the applicable jurisprudence from Hanneson forward and concluded that the following principles arise from the caselaw:
(a) The actus reus exception applies to an otherwise unconstitutionally obtained statement if the statement is the “gravamen or foundation” of the offence;
(b) The applicability of the exception must be determined by the trial judge, having regard to the nature of the evidence, including whether there is other evidence of the actus reus aside from the statement;
(c) The exception only applies to the offence whose actus reus it is and not to other offences on the same indictment; and,
(d) The exception does not apply where there is a causal connection between the statement and the Charter breach.
[286] I agree with my colleagues who have concluded that there is no absolute actus reus exception that prevents the exclusion of refusal evidence in appropriate circumstances. Cobham, quite simply, makes that point. Crown counsel did not argue otherwise.
[287] Having concluded that evidence of Mr. Di Luciano’s refusals may, as a matter of law, be excluded under s. 24(2) notwithstanding the fact that they constitute the actus reus of the offence, it remains necessary to determine if they should, in fact, be excluded.
[288] The test to be applied under the evaluative stage of the s. 24(2) analysis was established by the Supreme Court in R. v. Grant. Almost 15 years on, it is well-known, though jurists regularly differ about its application in individual cases.
[289] Jamal J. recently summarized the test in Beaver, at paras. 116-117, observing that the substance of the analysis is the assessment of the impact that admission of the impugned evidence would have on the long-term reputation of the administration of justice. Three lines of inquiry guide that assessment: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the accused’s Charter-protected interests; and (3) society’s interest in the adjudication of the case on its merits.
[290] I will consider these lines of inquiry in turn.
(i) The Seriousness of the Breach
[291] This first line of inquiry engages the court in a consideration of the need to distance itself from the Charter-infringing conduct of the police. Obviously, the more egregious the breach, the greater the need for the court to disassociate itself from it.
[292] The court must situate the offending conduct of the police on a scale of seriousness. At the lower end are the less serious cases involving inadvertent, technical or minor breaches, or those that reflect an understandable mistake. At the higher end are instances of police misconduct that constitute wilful or reckless disregard for Charter rights, a systemic pattern of infringing conduct, or a major departure from Charter standards. See Beaver, para. 120.
[293] Again, I have found multiple breaches of Mr. Di Luciano’s rights.
[294] I will address them in the order in which they occurred.
The Roadside Breath Demand
[295] First, PC Swiderski breached Mr. Di Luciano’s s. 8 right by unlawfully demanding a sample of his breath. This was not a serious breach. I have found that PC Swiderski had the lawful grounds to make a breath demand. She simply read the wrong demand. She was a reasonably inexperienced police officer, first on the scene of a major collision. The scene was chaotic and she was distracted and she made a simple, technical mistake. This is a classic example of a breach falling at the low end of the spectrum.
[296] Because the roadside demand was unlawful, Mr. Di Luciano’s response to it is not evidence of a crime. At least not a crime at the roadside. It may, however, be circumstantial evidence of his intention to refuse the demand by the breath tech. Allow me to explain. The refusal offence requires the Crown to establish that there was a lawful demand, a refusal, and an intention to refuse. See R. v. Egbeobawaye, at para. 1. Evidence of Mr. Di Luciano’s repeated refusals throughout the night may be relevant as circumstantial evidence of his state of mind when he refused PC Neathercott’s demand in the breath room. It is therefore necessary to continue with the s. 24(2) analysis with respect to the roadside refusal.
The Failure to Hold Off
[297] Second, PC Swiderski breached Mr. Di Luciano’s s. 10(b) right by eliciting evidence from him before implementing his consultation with counsel, after he had signalled a desire to speak to counsel. This is a more serious breach, particularly with respect to the breath demand, given that she elicited self-incriminating evidence. Notwithstanding that she was a relatively inexperienced officer at the time, she ought to have known the relatively straightforward demands of the right to counsel. Moreover, she breached Mr. Di Luciano’s s. 10(b) right in the presence of a much more experienced and senior officer, who did nothing to stop her. I accept S/Sgt. Armstrong’s evidence that she was distracted while filling in Mr. Di Luciano’s booking paperwork, but would suggest that, as the officer in charge of the station, she needed to be more aware of what the officers around her were doing, particularly when she knew or ought to have known that both PC Swiderski and PC Deol were inexperienced officers.
The Overholding
[298] Finally, there is the s. 9 breach, which resulted from what I have found to have been an unnecessarily lengthy detention. In my view, any breach that results in an unwarranted deprivation of an accused person’s liberty is serious. That said, I do not know all of the circumstances going on in the police station that night, in terms of how busy they were and how many other detainees needed to be processed. Nor do I have any evidence about when someone was available to provide a ride home for Mr. Di Luciano. In all the circumstances, I would consider the breach serious, but not acutely so, given the relatively limited overholding.
[299] The s. 9 breach did not play any role in the gathering of evidence by the police. Its significance is that it adds to the overall seriousness of the breaches committed by the police on the occasion in issue.
[300] Looking at the circumstances on the whole, though there were multiple breaches (which may tend to heighten their seriousness) I find that those breaches are generally the result of sloppiness, inexperience and inadvertence.
[301] I would not situate the seriousness of the breaches anywhere near the high end of the scale. That said, and particularly because of the 10(b) breach, they do not fall at the lowest end of the scale either. In my view, they point moderately towards the exclusion of the impugned evidence.
(ii) The Impact of the Breaches on the Charter-Protected Interests of the Accused
[302] The second Grant line of inquiry focuses on the impact of the breaches on the Charter-protected interests of the accused. Again, the court is called upon to situate the impact on a spectrum ranging from “fleeting and technical” to profoundly intrusive”. The greater the impact on an accused person’s protected interests, the greater the risk that admitting the evidence will signal to the public that Charter rights are of little actual value, thus breeding cynicism. See Beaver, at para. 123.
[303] I will again start with the s. 8 breach at the roadside. One might argue that this breach had a significant impact on Mr. Di Luciano’s Charter-protected right not to be subject to an unreasonable search on the basis that it compelled him to self-incriminate. That said, as the Supreme Court held in R. v. Alex, 2017 SCC 37 at para. 48, “Disobedience with unlawful compulsion is simply not criminal.” There was, in fact, no self-incrimination at the roadside.
[304] I find that the roadside breach had minimal, if any, impact on Mr. Di Luciano’s Charter-protected rights.
[305] The s. 10(b) breach at the booking area had a more significant impact on Mr. Di Luciano’s rights. As I noted, it resulted in the commission of the actus reus of the offence of refusal before Mr. Di Luciano had had the opportunity to speak to counsel. In hindsight, one could argue that the consultation with counsel would have made no difference because Mr. Di Luciano refused even after he spoke to counsel. But at the time the breach occurred, it had a significant impact on Mr. Di Luciano’s Charter-protected right.
[306] Finally, the s. 9 breach significantly impacted Mr. Di Luciano’s liberty, but only for a relatively short period. Section 9 protects vitally important interests – the liberty of the citizen and the right to be left alone by the state. Just about any breach of s. 9 necessarily seriously impacts on the Charter-protected interests of the accused. That said, Mr. Di Luciano was lawfully in police custody. He could not reasonably have expected to have been “left alone”.
[307] I have found that he should have been released earlier. How much earlier is impossible to say because I do not know what all of the practical realities were at the station on the night in question.
[308] Again, the impugned evidence was not obtained as a result of the s. 9 breach. Its significance is a function of the manner in which it may aggravate the impact of the other breaches.
[309] I would again find that, on balance, the impact of the breaches moderately points towards exclusion of the impugned evidence.
(iii) Society’s Interest in the Adjudication of the Case on Its Merits
[310] The third line of the Grant inquiry focuses on societal concerns and asks whether the truth-seeking function of the criminal trial process would be better served by the admission or the exclusion of the evidence. The court is directed to look at factors such as the reliability of the evidence, its importance to the prosecution’s case, and the seriousness of the offence at issue. See Beaver, at para. 129.
[311] None of the refusals is unreliable evidence. Each refusal was recorded and there is no dispute about the fact that refusals were made.
[312] That said, the Crown’s position is that the operative breath demand in this case is the one made by the breath tech. In the result, the refusals made at the roadside and in the booking area are not particularly important to the Crown’s case. Indeed, they are, as I indicated, merely circumstantial evidence that tends to support the conclusion that when Mr. Di Luciano refused to provide a breath sample in the breath room, he did so intentionally.
[313] Having said that, the breath room video on its own provides strong evidence that Mr. Di Luciano’s refusal was intentional.
[314] In the result, I find that the third line of inquiry provides weak support for the admission of either the roadside or the booking area refusals.
[315] On the other hand, it provides strong support, in my view, for the admission of the breath room refusal. To be clear, I have found that the breath room demand was a fresh start and as such the breath room refusal was not evidence obtained in a manner that breached the Charter. The comments that follow are offered merely to illustrate that even if I had found that the initial threshold test under s. 24(2) was met with respect to the breath room refusal, I would not exclude it under the evaluative prong of s. 24(2).
[316] Again, the breath room refusal is reliable evidence. It followed a consultation with counsel. It is clear from the breath room recording that Mr. Di Luciano understood the process and what was being asked of him.
[317] The evidence is also significantly important to the prosecution of the Crown’s case in two distinct ways.
[318] First, absent this evidence, the Crown has no case on the refusal counts at all. Second, the refusal provides important circumstantial evidence in support of the impaired operation and criminal negligence counts by reason of s. 320.31(10) of the Criminal Code. That section provides that the court may draw an adverse inference from the fact that the accused refused to comply with a demand made under s. 320.27 or 320.28.
[319] Finally, the charged offences are very serious. There is a compelling public interest in prosecuting impaired driving cases, particularly where they result in injury or death.
(iv) The Balancing
[320] The final step in the s. 24(2) analysis engages the court in a weighing of the results of the three lines of inquiry. The goal is not a retrospective punishing of the police for misfeasance but rather “to address systemic concerns involving the broad impact of admitting the evidence on the long-term repute of the justice system.” See Beaver, para. 133.
[321] As Jamal J. instructed in Beaver, at para. 134, it is the cumulative weight of the first two lines of inquiry that must be balanced against the third line of inquiry. Where those first two inquiries point strongly towards exclusion, the third inquiry will seldom tip the scale towards admissibility. See Lafrance, at para. 90. See also R. v. McGuffie, 2016 ONCA 365 at paras. 62-63.
[322] I have concluded that the seriousness of the identified breaches, considered cumulatively, provides modest support for the exclusion of the impugned evidence. I have similarly found that the impact of the breaches, again considered cumulatively, provides modest support for the exclusion of the impugned evidence.
[323] At the same time, I have found that the third line of inquiry – society’s interest in a trial on the merits – provides weak support for the inclusion of the roadside and booking area refusals but strong support for the inclusion of the breath room refusal.
[324] On balance, I would exclude evidence of the refusals at the roadside and the booking area. I would not exclude evidence of the refusal in the breath room.
The Probative Value of the Refusals
[325] An alternative argument raised by the defence is that the evidence of Mr. Di Luciano’s refusals has no probative value and ought to be excluded on the basis of the court’s residual discretion to exclude evidence where the prejudice likely to be caused by the introduction of the evidence exceeds its probative value.
[326] Since I have excluded the evidence of the refusals at the roadside and in the booking area, I need only consider the refusal in the breath room. That refusal has substantial probative value, given that it constitutes the actus reus of the refusal offences. While the introduction of that evidence is undoubtedly unfortunate from Mr. Di Luciano’s point of view, I am not persuaded that it will work unfairly. I would not, in the circumstances, exclude it on the basis of a balancing of probity and prejudice.
VOLUNTARINESS
[327] I have excluded the roadside refusal and the booking area refusal from evidence under s. 24(2) of the Charter. I need only address the voluntariness of the balance of utterances Mr. Di Luciano made to the police.
[328] The most significant utterance of course was Mr. Di Luciano’s refusal to provide a breath sample to the breath tech. That utterance constitutes the gravamen of the refusal offences on the Indicment. In the circumstances, the Crown need not establish its voluntariness on a voir dire. See R. v. Hanneson.
[329] There is no dispute that the admissibility of Mr. Di Luciano’s utterances is otherwise governed by the principles set out in R. v. Oickle, 2000 SCC 38. None of the issues identified by the Supreme Court in that case – the presence of threats or promises; oppressive circumstances; the absence of an operating mind; or police trickery – are engaged in this case. The defence, in fact, does not take issue with the voluntariness of Mr. Luciano’s utterances.
[330] I am satisfied, beyond a reasonable doubt, that Mr. Di Luciano’s utterances to the police were voluntary.
CONCLUSION
[331] In summary, the refusals at the roadside and the booking area are excluded. The refusal in the breath room is not excluded, nor is the ACM data. Mr. Di Luciano’s utterances in his interactions with the police – save for the excluded utterances – are voluntary and admissible.
C. Boswell J.
Released: November 8, 2023
[^1]: An approved screening device (“ASD”) is a device designed to ascertain the presence of alcohol in a person’s blood, that is approved by the Attorney General of Canada under s. 320.39(a) of the Criminal Code of Canada.
[^2]: An “approved instrument” is defined by s. 320.11 of the Criminal Code as an instrument designed to receive and make an analysis of a person’s breath to determine their blood alcohol concentration and that has been approved by the Attorney General of Canada under s. 320.39(c). Approved instruments include the Intoxilizer 8000 C, which PC Neathercott was operating on the occasion in issue and which he was qualified to use.