I. OVERVIEW

The Charges

[1] Mr. Di Luciano caused a motor vehicle collision at an intersection in Vaughan, Ontario on Christmas night 2019. He was travelling roughly twice the posted speed limit, ran a red light and “T-boned” another vehicle waiting to make a left turn in the intersection.

[2] Mr. Di Luciano was arrested at the scene for impaired operation of a motor vehicle. He was subsequently charged with additional counts and was scheduled to go to trial on November 14, 2023 on a nine-count indictment. Specifically: one count of dangerous operation causing death and two counts of dangerous operation causing bodily harm; one count of impaired operation causing death and two counts of impaired operation causing bodily harm; and one count of refusing to provide a breath sample causing death and two counts of refusing to provide a breath sample causing bodily harm.

The Omnibus Pre-Trial Motion

[3] A month prior to the commencement of the trial, I heard and determined a number of Charter applications brought by the defence. Mr. Di Luciano sought, through those applications, orders excluding certain evidence from his trial. He sought to exclude any utterances he made in response to demands for samples of his breath. Three demands were made. The first, by the arresting officer, at the roadside at the time of his arrest. The second, again by the arresting officer, during the booking process. The third, by a breath technician following Mr. Di Luciano’s consultation with counsel. He refused each time. Mr. Di Luciano also sought to exclude the data downloaded from the Airbag Control Module (“ACM”) of his vehicle, which was seized by the police pursuant to an authorized search warrant. That data included, amongst other things, information about the speed of his vehicle in the seconds immediately before impact.

[4] In a ruling released on November 9, 2023 and reported as 2023 ONSC 6219, I found that a number of Mr. Di Luciano’s Charter-protected interests were infringed during the police investigation on December 25-26, 2019. Those infringements included: a breach of his s. 8 right to be free from unreasonable search and seizure, arising from an unlawful roadside breath demand; a breach of his s. 9 right not to be arbitrarily detained, arising from what I found to be an unduly prolonged detention following his arrest; and a breach of his s. 10(b) right to counsel, arising from the failure of the police to hold off eliciting evidence from him prior to his consultation with counsel.

[5] One of the asserted Charter breaches advanced by the defence was an alleged infringement of Mr. Di Luciano’s s. 10(a) right to be promptly informed of the reason for his arrest. At the time he was given the opportunity to consult with counsel, Mr. Di Luciano was under arrest for impaired operation simpliciter and refusing to provide a breath sample simpliciter. He had not been told that he may face more serious charges for having caused bodily harm.

[6] Mr. Di Luciano argued that, in order to obtain meaningful advice from counsel, he ought to have been told of his potential jeopardy for the causing bodily harm offences.

[7] I found that there was no breach of s. 10(a) in the circumstances. One of the circumstances I relied on in reaching that conclusion was the fact that the police had no information about any injuries suffered by any party involved in the collision until after Mr. Di Luciano had been released from custody. I found that they could only have speculated about whether injuries had been sustained and, if so, what those injuries might have been.

[8] I mention this s. 10(a) aspect of the ruling because my finding about the speculative nature of any injuries that may have been suffered in the collision plays a central role in one aspect of the application that forms the subject-matter of this ruling.

[9] In any event, following an analysis under s. 24(2) of the Charter, I excluded from the trial any evidence relating to Mr. Di Luciano’s refusals to provide a breath sample following the demands made at the roadside and during the booking process. I did not exclude evidence of the subsequent refusal to provide a breath sample following the demand of the breath technician. Moreover, I did not set aside the search warrant with respect to the ACM, nor exclude the data obtained from the ACM.

The Application for Severance and Other Relief

[10] After receiving my ruling on the Charter applications, defence counsel served and filed another application, returnable on the first day of trial. In this second application, the defence applied for directions as to whether the refusal charges (counts 7, 8 and 9) should be quashed, amended or severed.

[11] The application, as argued, raised four issues for the court’s determination:

(i) Whether counts 7, 8 and 9 should be quashed or amended on the basis that the Crown should be estopped from asserting that Mr. Di Luciano had the requisite mens rea for any of the refusal offences, as charged;

(ii) Whether the Crown should be limited to proceeding with one refusal count, in light of the effect of s. 320.15(4) of the Criminal Code. That section provides that a person convicted of an offence under s. 320.15 (the refusals provision) is not to be convicted of another offence under the same section with respect to the same transaction;

(iii) Whether the refusal counts should be severed from the dangerous operation and impaired operation counts; and,

(iv) Whether the court should revisit its determination that the refusal given in the breath room was not evidence that was obtained in a manner that infringed the Charter. This request arose as a result of a position argued by the Crown during the hearing of the application.

[12] In the interests of expediency, I gave the parties an endorsement, on November 14, 2023, which set out my bottom-line rulings. It provided that:

(i) I was not prepared to quash or amend counts 7, 8 and 9;

(ii) Counts 7, 8 and 9 were, however, severed from the balance of the counts;

(iii) Evidence of the breath demands and refusals was excluded from the trial; and,

(iv) I was not prepared to revisit my ruling on the Charter applications.

[13] I undertook, with the release of the bottom-line ruling, to provide written reasons supporting it. The following reasons explain the ruling and are delivered in satisfaction of my undertaking.

II. DISCUSSION

Issue One: Issue Estoppel

[14] To establish Mr. Di Luciano’s guilt for the offence of refusing to provide a breath sample causing bodily harm or death, (Criminal Code ss. 320.15(2) and (3)), Crown counsel must prove beyond a reasonable doubt that, at the time of the refusal, Mr. Di Luciano knew or was reckless as to whether he was involved in an accident that caused bodily harm or death.

[15] In the course of my ruling on the Charter applications, I found that during the time Mr. Di Luciano was in police custody, whether anyone had been injured in the collision was something that he (and the police) could only speculate about. Defence counsel argue that, as a result of this finding, Crown counsel is estopped from urging the jury to conclude that, at the time of the refusals, Mr. Di Luciano knew or was reckless as to whether the collision caused bodily harm or death.

[16] In the alternative, defence counsel submit that it would be an abuse of process for the Crown to suggest, during the Charter motions, that the police had no obligation to explain to Mr. Di Luciano that he was in jeopardy of being charged with causing bodily harm offences given that the nature of any personal injuries arising from the collision could only be speculated about, then suggest to the jury, at trial, that at the time of the refusals, Mr. Di Luciano knew or was reckless as to whether the collision resulted in bodily harm.

[17] Issue estoppel is a principle against relitigating concluded issues. It serves three purposes, identified by the Supreme Court in R. v. Mahalingan, 2008 SCC 64, at para 38, as follows: (1) fairness to the accused who should not be called upon to answer questions already determined in his or her favour; (2) the integrity and coherence of the criminal law; and (3) the institutional values of judicial finality and economy.

[18] Three requirements must be established to invoke the doctrine of issue estoppel:

(i) The same question has been decided;

(ii) The judicial decision said to create the issue estoppel was final; and,

(iii) The parties to the judicial decision or their privies are the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

See Mahalingan, at para. 341.

[19] In my view, only the third requirement was met in the circumstances of this case.

[20] Significant to the defence position was their interpretation of the “knowledge or recklessness” standard as requiring the Crown to prove beyond a reasonable doubt that Mr. Di Luciano knew “or ought to have known” that the collision had caused bodily harm or death.

[21] In my view, the concept of “recklessness” is not equivalent to an objective standard of knowledge. It is something less stringent.

[22] In Sansegret v. The Queen, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570, at para. 16, the Supreme Court defined “recklessness” as follows:

It is found in the attitude of one who, aware that there is a danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words the conduct of one who sees the risk and who takes the chance.

[23] The Sansegret definition of “recklessness” was reaffirmed in R. v. Briscoe, 2010 SCC 13 at para. 22.

[24] Defence counsel argued that even if ss. 320.15(2) and (3) do not require the Crown to prove that Mr. Di Luciano knew or ought to have known that the collision caused bodily harm, at the time he refused to provide a breath sample, the standard of “recklessness” requires that the risk involved is substantial. In other words, defence counsel submitted that Mr. Di Luciano must, at the very least, be demonstrated to have seen that there was a “substantial” risk that bodily harm was caused and he nevertheless persisted in refusing to provide a breath sample.

[25] In support of their position, defence counsel relied on the Supreme Court’s decision in R. v. Zora, 2020 SCC 14.

[26] Mr. Zora was charged with two counts of breaching a condition of a recognizance of bail, specifically to present himself at the front door of his residence within five minutes of a peace officer attending to check on his compliance. The live issue for the court’s determination was the mens rea required to make out the offence.

[27] The Supreme Court determined that a subjective mens rea was required: the Crown needed to establish that Mr. Zora committed the offence knowingly or recklessly. At para. 118 of the decision, Martin J. held that because the offence of failing to comply with a condition of a release order may criminalize otherwise lawful day-to-day behaviour, a heightened standard of recklessness was appropriate. She held that “the accused must be aware that their continued conduct creates a substantial and unjustified risk of non-compliance with their bail conditions.”

[28] It is important to recognize, however, that Martin J. generally recognized the definition of recklessness from Sansegret as applicable to most offences. She carved out a special standard for the offence of breaching a condition of bail. In my view, in the context of the offences here, it would not be not necessary for the Crown to establish that there was a substantial and unjustified risk.

[29] In Sansegret, the Supreme Court did not set out the degree of risk required to attract criminal sanction. In the years since it was released, courts have applied varying standards. See R. v. Hamilton, 2005 SCC 47, at para. 32. It is not necessary, for the purposes of this application, that I attempt to define the level of risk in any particular way.

[30] It is enough that I was satisfied, which I was, that despite the fact that the nature and extent of any injuries that may have been caused by the collision were, at all material times, speculative, it remained open to the jury to conclude that Mr. Di Luciano knew there was a risk that someone had been injured and despite that risk he went ahead and refused to comply with a demand for a sample of his breath.

[31] In other words, it would be open to the jury to conclude that, although he could not have known, at all material times, whether anyone was injured in the collision, in light of the seriousness of the collision and the presence of fire and ambulance personnel on the scene, Mr. Di Luciano must have appreciated that there was a risk that someone had been injured when he refused to provide a breath sample.

[32] All of that is to say, I was not satisfied that the defence had established that the same question – recklessness, or more broadly, the mens rea for the refusal offences – had been decided by virtue of any of the findings I made in my ruling on the Charter application.

[33] I was similarly not satisfied that my ruling on the Charter application is properly characterized as a final order. In R. v. Duhamel, 1984 CanLII 126 (SCC), [1984] 2 S.C.R. 555, the Supreme Court held that, in the absence of an autonomous right of appeal for findings on a voir dire held during a trial, the doctrine of issue estoppel does not apply to such findings. Duhamel remains good law.

[34] In the result, I found that the doctrine of issue estoppel did not prevent the Crown from proceeding with the charges of refusal causing death and refusal causing bodily harm.

[35] I reached a similar conclusion with respect to the alternative argument that it would have been an abuse of process to permit the Crown to assert, during the Charter voir dire, that the police could only speculate about the nature and extent of any injuries caused by the collision, during the time Mr. Di Luciano was in custody, and then assert, during the trial, that Mr. Di Luciano was reckless about whether the collision caused bodily harm.

[36] The remedy of abuse of process is a broad and flexible doctrine, arising from the court’s inherent power to prevent misuse of its procedures in a way that would bring the administration of justice into disrepute. See Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, at para. 37.

[37] In Mahalingan, at para. 42, former Chief Justice McLachlin described abuse of process as a “broad, somewhat vague concept”. She noted that it has traditionally “been reserved for obviously egregious abuses of the Crown power”, and only invoked when “a process has been tainted to such a degree that it amounts to one of the clearest cases.”

[38] I found that the nature and extent of any injuries suffered by anyone involved in the collision could only have been speculated about during the time Mr. Di Luciano was in police custody. I have also concluded, however, that this finding did not prevent the Crown from urging the jury to find that Mr. Di Luciano was reckless, when he refused to provide a sample of his breath, about whether the collision had caused injury to anyone.

[39] In light of my findings, this was clearly not a case where the abuse of process doctrine had any application.

[40] In the result, I concluded that there was no basis to quash or amend the refusal counts on the Indictment.

Issue Two: The Effect of s. 320.15(4)

[41] Section 320.15 of the Criminal Code establishes the offences of refusing to provide a breath sample simpliciter (s. 320.15(1)), refusal causing bodily harm (s. 320.15(2)) and refusal causing death (s. 320.15(3)).

[42] Section 320.15(4) goes on to provide as follows:

A person who is convicted of an offence under this section is not to be convicted of another offence under this section with respect to the same transaction.

[43] Recall that Mr. Di Luciano is charged with one count of refusal causing death, pursuant to s. 320.15(3) and two counts of refusal causing bodily harm, pursuant to s. 320.15(2). Defence counsel submitted that because there is only one “transaction” in this case, Mr. Di Luciano cannot be convicted of multiple offences arising from it. In the result, they said, the Crown should be restricted to proceeding on a single refusal count.

[44] Crown counsel asserted that s. 320.15(4) does not prevent multiple convictions for distinct offences relating to multiple victims. He submitted that s. 320.15 is intended to act in a parallel fashion to s. 320.14 (the impaired operation offences). It is settled law, he said, that multiple convictions for impaired operation causing bodily harm can arise from a single incident of impaired operation, where multiple victims have been injured. As a parallel, the same can be said of the refusal offences, where there have been multiple people injured.

[45] I agree with the Crown.

[46] Prior to 2008, s. 254(5) of the Criminal Code set out the offence of refusing, without reasonable excuse, to comply with a demand for a breath sample. It provided for a maximum penalty of 5 years imprisonment. The Code did not, at that time, recognize the offences of refusal causing bodily harm or refusal causing death. These latter two offences were added to the Code in 2008.

[47] As Crown counsel noted in his factum, at the time when Bill C-32, An Act to amend the Criminal Code (impaired driving) and to make consequential amendments to other Acts, was read for the second time in the House of Commons on January 30, 2007, the Parliamentary Secretary to the Minister of Justice made the following comments about the intent behind the Bill:

The Criminal Code currently provides for higher maximum penalties for impaired driving causing death and impaired driving causing bodily harm. These higher penalties do not apply to refusal in over-80 offences, so unless there is also a conviction for causing bodily harm or death arising from the incident, a lower maximum penalty applies.

While evidence of BAC is not a prerequisite in order to prove the charge of impaired driving causing death or bodily harm, it is admissible in court. There is, therefore, an incentive for the accused to refuse to provide a sample in a case involving injury or death, because the maximum penalty for a refusal is five years.

We propose to eliminate this incentive to refuse by making a person who is over 80 and is the cause of a collision resulting in death or bodily harm, or who refuses to provide a breath sample knowing of the death or bodily harm, subject to the same penalties as the driver who, while impaired by alcohol or a drug, caused a death or bodily harm.[^1]

[48] It is readily apparent that the intent was to ensure that the offences of refusal, refusal causing bodily harm and refusal causing death mirrored those of impaired operation, impaired operation causing bodily harm and impaired operation causing death, with similar penalties applicable in the event of conviction.

[49] It is well-settled law that the rule against multiple convictions does not apply when the convictions relate to different victims. See R. v. Prince, 1986 CanLII 40 (SCC), [1986] 2 S.C.R. 480 at paras. 47-48. There was no assertion by the defence that there is any rule of law that prevented Mr. Di Luciano from being convicted of multiple counts of impaired operation causing bodily harm and/or impaired operation causing death where there are multiple victims. In my view, the same reasoning applies to multiple counts of refusing to provide a breath sample, where there are multiple victims.

[50] What then, is the intent of s. 320.15(4)? In my view, it prevents multiple convictions for refusals where, for instance, an accused has refused to provide a sample into an Approved Screening Device (“ASD”) and subsequently refused to provide a sample into an Approved Instrument. Similarly, it prevents multiple convictions where an accused refuses to provide a breath sample after a demand is made and also refuses to perform physical co-ordination tests after a demand is made.

[51] In the result, I found that the Crown was not limited to proceeding with one refusal count.

Issue Three: Severance

[52] Mr. Di Luciano asked that I sever the refusal counts (7, 8 and 9) and that they proceed by way of a separate Indictment. He proposed that they proceed as a judge-alone trial, following his jury trial on the balance of the counts. Further, that the evidence adduced by the Crown in the trial of the impaired operation and dangerous operation counts be deemed to be evidence in the trial of the refusal counts.

[53] The request for a severance was grounded principally in two related factors.

[54] First, Mr. Di Luciano submitted that he may wish to testify on the refusal counts but not on the dangerous operation or dangerous driving counts. He asserted that the sequence of events from the unlawful roadside demand to the demand in the breath room may inform the reason why he refused to provide a breath sample to the breath tech (the one demand I found to have been lawfully made). He said he may wish to testify about his state of mind at the time of that refusal and, further, he may wish to adduce evidence from the lawyer who provided him with advice prior to the time when he entered the breath room.

[55] The evidence that he may wish to tender on the refusal counts may, he contended, provide a reasonable explanation for why he refused to provide a breath sample to the breath tech. Alternatively, it may at least provide a basis upon which the jury might reject the drawing of an adverse inference against him as a result of his refusal to provide a breath sample. Such a negative inference may be compelling evidence against him on the impaired operation and dangerous operation counts.

[56] Second, Mr. Di Luciano submitted that in testifying about his state of mind at the time he refused to provide a breath sample to the breath tech, he may wish to adduce evidence of the unlawful demand at the roadside (which I found breached his s. 8 Charter right) and the demand made in the booking area (which I found to have breached his s. 10(b) Charter right). I have excluded both of these demands from the evidence at trial under s. 24(2) of the Charter.

[57] In the result, it may be necessary, the defence said, to adduce evidence I have ruled inadmissible. Significant difficulties may arise regarding: (1) the prejudice to Mr. Di Luciano arising from having to adduce otherwise inadmissible evidence; (2) how the jury should be instructed in terms of the limited use they could make of the otherwise inadmissible evidence; and (3) any limitations on the Crown’s right to cross-examine Mr. Di Luciano on the evidence of demands I otherwise ruled inadmissible.

[58] The Crown opposed the severance. Crown counsel submitted that the interests of justice weigh against severance. There is, he said, a strong legal and factual nexus between the counts. There is no realistic prospect of inconsistent verdicts. And there is a strong legal presumption in favour of the joinder of counts, grounded in concerns about judicial economy and efficiency.

[59] Section 591(3)(a) of the Criminal Code provides that the court may order severance of counts on an Indictment where it is satisfied that the interests of justice require it.

[60] The onus is on the party requesting a severance to satisfy the court that the interests of justice require it. See R. v. Jeanvenne, 2010 ONCA 706, at para. 26.

[61] The leading case on severance is R. v. Last, 2009 SCC 45. There, the Supreme Court held that the interests of justice test provides trial judges with a broad discretion in deciding whether to grant severance. Deschamps J. observed, at para. 16, that “[t]he interests of justice encompass the accused’s right to be tried on the evidence admissible against him, as well as society's interest in seeing that justice is done in a reasonably efficient and cost-effective manner.” In other words, the court must strike a reasonable balance between the risk of prejudice to the accused and the public interest in a single trial.

[62] In the more recent case of R. v. Cowan, 2021 SCC 45, at para. 63, the Supreme Court defined the concept of the “interests of justice”, as “encompassing the interests of the accused, the interests of the Crown, broad-based societal concerns, and the integrity of the criminal process.”

[63] In Last, Deschamps J. provided a non-exhaustive list of factors that courts have identified as pertinent to the interests of justice inquiry. Those factors were repeated and enlarged by the Court of Appeal for Ontario in R. v. R.C., 2020 ONCA 159, at para. 34, where Jamal J.A. (as he then was), identified them as follows:

(i) general prejudice to the accused as a result of the influence of the volume of evidence adduced and the effect of verdicts across counts;

(ii) the legal and factual nexus between or among counts;

(iii) the complexity of the evidence;

(iv) the desire of the accused to testify on one or more counts but not on another or others;

(v) the possibility of inconsistent verdicts;

(vi) the desire to avoid a multiplicity of proceedings;

(vii) the use of evidence of similar acts;

(viii) the length of trial;

(ix) prejudice to the accused's right to be tried within a reasonable time; and,

(x) the existence or likelihood of antagonistic defences.

[64] As I noted, the defence relied on factors (iii) and (iv) in support of its severance application.

[65] The assertion by an accused of a desire to testify on some but not all counts is generally accorded substantial weight, so long as there is an objective reality to the assertion and it is grounded in the evidence reasonably anticipated at trial. See R. v. Moore, 2020 ONCA 827 at para. 15, leave to appeal refused: [2022] S.C.C.A. No. 504.

[66] I was satisfied that Mr. Di Luciano articulated a reasonable basis upon which he may wish to testify on the refusal counts but not on the balance of the counts before the court. Mr. Di Luciano ultimately did choose to testify at trial. But at the time of the argument of the severance application, the landscape appeared to be different. The evidence of impairment in this case was modest. Mr. Di Luciano may not have wanted to be cross-examined about what, if any, alcohol he consumed prior to driving on the occasion in issue. And he might not have wanted to be cross-examined about the nature of his driving. At the same time, I accepted that there may have been value to him in testifying about his state of mind when he refused the breath tech’s demand.

[67] Crown counsel argued that there was realistically nothing Mr. Di Luciano could say about his state of mind that would afford him a defence to the charge of refusing to comply with the breath tech’s demand. That may be accurate. But at the same time, the potential evidence Mr. Di Luciano identified may persuade the jury not to draw a negative inference against him from his refusal, specifically, that he refused to provide a breath sample because he knew it would incriminate him. That inference, if drawn, would be circumstantial evidence of his guilt on the impaired operation and dangerous operation charges.

[68] I appreciate that severing the refusal counts from the balance of the counts removed the possibility of that negative inference being drawn. It meant one less arrow in the Crown’s quiver with respect to the impaired operation and dangerous operation offences. That said, the negative inference is discretionary. Moreover, even if it was drawn, it would have been just one piece of circumstantial evidence for the jury to consider. The prejudice to the Crown in losing the potential negative inference was, in my view, minimal and was exceeded by the prejudice that may have inured to Mr. Di Luciano in having to testify in an effort to persuade the jury to exercise their discretion in his favour and not draw a negative inference from his refusal.

[69] I would have been prepared to grant the severance on the sole basis of Mr. Di Luciano’s desire to testify on some but not all counts. My inclination to do so was reinforced, however, by the quagmire that may well have been created in relation to the introduction of evidence of the roadside and booking room breath demands, which I have otherwise ruled inadmissible as part of the Crown’s case.

[70] I understand why Mr. Di Luciano may have wanted to tender evidence of those demands and his responses, along with, perhaps, evidence of any legal advice he received prior to the breath tech’s demand. But of course, he would want to limit the use the jury may make of that evidence. And he may have wanted to limit the extent to which the Crown may cross-examine him on that evidence.

[71] While I expect that a clear jury instruction could have been fashioned as to the limited use the jury could make of the evidence, I believe it may have remained a confusing aspect of the case and it may have resulted in some prejudice to Mr. Di Luciano.

[72] Balanced against concerns about prejudice to Mr. Di Luciano was, of course, the pubic interest in a single trial. Concerns about efficiency and avoiding a multiplicity of proceedings were, however, largely attenuated in this instance. Mr. Di Luciano was prepared to re-elect to have a trial of the refusal counts before me, sitting without a jury. And he was prepared to have the Crown’s evidence in the main trial apply to the trial of the refusals counts. The refusal counts are capable of being tried in relatively short order and I expect the trial will be focused and efficient.

[73] In the result, on balance, I was satisfied that the interests of justice favoured a severing of the refusal counts.

[74] To be clear, with those counts severed, there was to be no mention of the breath demands or the refusals in evidence at the trial of the dangerous operation and impaired operation counts, given the obvious prejudice that would have inured to Mr. Di Luciano should that evidence have been offered before the jury.

[75] I turn now to the last of the issues raised in argument, specifically the defence request that I revisit my ruling on the Charter applications.

Issue Four: The Request to Revisit the Charter Ruling

[76] This final issue arose in an unusual way. An understanding of it will require a little more context.

[77] As I have noted, three demands for samples of Mr. Di Luciano’s breath were made between about 11:00 p.m. on December 25, 2019 and 12:20 a.m. on December 26, 2019.

[78] The first was an ASD demand at the roadside, which Mr. Di Luciano refused to comply with. I found it was an unlawful demand because the arresting officer did not have an ASD in her possession.

[79] The second was a further demand made by the arresting officer at the time of booking. I concluded that, applying a flexible and functional approach to the assessment of the second demand, it was properly characterized as an approved instrument demand. It would have been a lawful demand, but for the fact that it was made after Mr. Di Luciano advised that he wished to consult with counsel and before that consultation had taken place. The second demand, which elicited a second refusal, was made in breach of the duty of the police to hold off soliciting evidence until Mr. Di Luciano’s right to counsel, guaranteed by s. 10(b) of the Charter, had been implemented.

[80] The third demand was made by the breath tech, after Mr. Di Luciano’s consultation with counsel. I found that it was a lawful demand. Mr. Di Luciano refused to comply with it.

[81] Defence counsel argued that all three refusals should be excluded from evidence under s. 24(2) of the Charter. A threshold requirement under s. 24(2) is that the impugned evidence must have been obtained in a manner that infringed a Charter-protected right. The defence argued that the breath room demand was sufficiently factually, temporally and contextually related to the earlier demands that I should conclude that all three demands were tainted by Charter breaches. In other words, that all three refusals were obtained in a manner that infringed Mr. Di Luciano’s Charter-protected interests.

[82] I disagreed with the defence position and found that the demand of the breath tech was a “fresh start” which severed any connection to any earlier breaches. I ultimately excluded evidence of the roadside and booking room refusals, but did not exclude the refusal in the breath room.

[83] During the argument of the severance application, Crown counsel advised the court that, notwithstanding my ruling on the Charter motions, he may wish to tender evidence at trial about the booking room demand. On his reading of my ruling, I had excluded the booking room refusal but not the booking room demand.

[84] When pressed about the relevance of the booking room demand, the Crown took the position that it was a continuing demand, relying on the decision of the Court of Appeal for Ontario in R v. Guenter, 2016 ONCA 572, particularly at para. 89. He submitted that should the jury conclude that the breath tech’s demand was unlawful because it was not made “as soon as practicable”, he could still rely on the booking room demand as continuing into the breath room.

[85] Defence counsel pounced on this submission and asserted that it demonstrated that the breath tech’s demand could not have been a fresh start. The Crown, they submitted, had just connected the dots between the booking room demand and the breath room demand, proving that the breath room refusal was indeed obtained in a manner that breached Mr. Di Luciano’s Charter rights.

[86] In my view, there were at least two fundamental problems with the Crown’s submission.

[87] First, I ruled that the booking room demand was made unlawfully because it was made in breach of Mr. Di Luciano’s s. 10(b) right. If my earlier ruling was not clear, the Crown was not able to rely, in Mr. Di Luciano’s trial, on a breath demand that was made unlawfully.

[88] Second, the determination of whether the breath tech’s demand was lawfully made – including whether it was made as soon as practicable, as the Criminal Code requires – is a question of law. And I had already answered it in a positive way. The jury would not be asked to determine, as a factual matter, whether the demand was made lawfully.

[89] In my view, given my conclusion that the Crown’s “connecting of the dots” between the booking room demand and the breath room refusal was fundamentally flawed, I found that there was no basis to revisit my finding that the breath tech’s demand constituted a fresh start.

C. Boswell J.

Released: December 7, 2023

[^1]: Canada, Parliament, House of Commons Debates (Hansard), 39th Parl., 1st Sess., No. 99 (30 January 2007), at p. 6187 (Mr. Rob Moore, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada).

R. v. Di Luciano, 2023 ONSC 6866

Case Summary

I. OVERVIEW

The Charges

The Omnibus Pre-Trial Motion

The Application for Severance and Other Relief

II. DISCUSSION

Issue One: Issue Estoppel

Issue Two: The Effect of s. 320.15(4)

Issue Three: Severance

Issue Four: The Request to Revisit the Charter Ruling

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 5

Legal Tests 3

Legislation 3