COURT FILE NO.: CR-20-10764 DATE: 20240617 CORRECTED DATE: 20240618 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – GIANMARCO DI LUCIANO Defendant

Counsel: Philip Hsiung for the Crown Michael Lacy and Marcela Ahumada for Mr. Di Luciano

HEARD: April 25, 2024

Corrected Judgment: The text of the original Judgment was corrected on June 18, 2024 and the description of the correction is appended.

Reasons for Judgment

C. Boswell J.

[1] Mr. Di Luciano caused a motor vehicle collision at an intersection in Vaughan on Christmas night 2019. Driving at a speed almost twice the posted limit of 60 km/hr, he ran a red light and “T-boned” another vehicle waiting to turn left in the intersection. The vehicle he hit had three occupants, one of whom, it is agreed, suffered bodily harm as a result of the collision.

[2] Mr. Di Luciano was arrested at the scene and charged with impaired operation of a motor vehicle and driving with a blood-alcohol content over 80 mg of alcohol in 100 mL of blood. Over the next 90 minutes or so, three demands were made of Mr. Di Luciano for samples of his breath. Each time he refused to provide a sample.

[3] The charges against Mr. Di Luciano evolved over time. In November 2023 he went to trial before a jury on six counts, which I will outline in a moment. Prior to the commencement of the jury trial, I severed off three counts, all relating to refusals to provide a breath sample. It was agreed that the refusals counts would proceed before me as a judge alone trial, following the completion of the jury trial on the remaining counts.

[4] Following the jury trial, the refusals counts were pared down to just one: a refusal causing bodily harm. It proceeded to trial on April 25, 2024 and was put over to today for judgment. Based on the evidentiary record and the positions taken by the parties at trial, the court is called upon to determine the following three principal issues:

(i) What is the requisite state of mind for a refusal offence?

(ii) Did Mr. Di Luciano have the requisite state of mind for refusal simpliciter?

(iii) Did Mr. Di Luciano have the requisite state of mind for refusal causing bodily harm?

[5] A brief overview will be helpful to understand the chronology of the case and how the refusal trial fits into it.

1. Overview

1.1 The Charges

[6] Mr. Di Luciano was initially arrested just minutes after the collision on Christmas night 2019. He was charged at the roadside with impaired operation and Over 80.

[7] The Over 80 charge was subsequently dropped but other charges were added. By the time his trial before a jury approached, Mr. Di Luciano faced nine charges: impaired driving causing death, impaired driving causing bodily harm (x2), dangerous driving causing death, dangerous driving causing bodily harm (x2), refusing to provide a breath sample causing death, and refusing to provide a breath sample causing bodily harm (x2).

[8] As I noted, I severed the three refusal counts at the request of the defence. A jury trial proceeded on the balance of the counts between November 15 and 24, 2023. The jury acquitted Mr. Di Luciano of each of the impaired operation counts. They convicted him of one count of dangerous driving causing bodily harm and two counts of dangerous driving simpliciter. The latter two convictions were subsequently stayed by the court on the basis of the principles enunciated in Kienapple v. The Queen, [1975] 1 S.C.R. 729. Sentencing submissions are otherwise scheduled to proceed on June 26, 2024.

[9] As a result of the jury’s verdicts on the impaired operation and dangerous driving counts, the Crown made the decision to pare down the refusals counts to just one: refusal causing bodily harm.

[10] Moving forward, I will focus on that one refusal count. To understand the positions of the parties, however, it is necessary to understand the chronology of the breath demands and Mr. Di Luciano’s responses to them.

1.2 The Demands and Refusals

[11] Mr. Di Luciano was arrested by Police Constable Shannon Swiderski at roughly 10:55 p.m. Immediately following the arrest, PC Swiderski made a roadside demand for a sample of Mr. Di Luciano’s breath. More specifically, she made what is conventionally known as an approved screening device (or “ASD”) demand. Mr. Di Luciano refused to provide a sample.

[12] PC Swiderski subsequently conveyed Mr. Di Luciano to a local police detachment. As he was being booked into the station, she made a second demand for a sample of his breath. This time she made what I have previously found to have been the functional equivalent of an approved instrument demand.

[13] For the purposes of this ruling, it is unnecessary to expound on the differences between ASD demands and approved instrument demands. The most salient difference, in the circumstances of this case, is the immediacy requirement of an ASD demand. An ASD demand cannot lawfully be made if the officer making the demand is not in possession of an ASD at the time the demand is made. See R. v. Breault, 2023 SCC 9. PC Swiderski was not in possession of an ASD when she made the roadside demand.

[14] In any event, Mr. Di Luciano refused to provide a sample of his breath in response to the demand made in the booking room.

[15] After Mr. Di Luciano was booked into the station, he was afforded an opportunity to speak with counsel of his choice, Mr. William Van Moorlehem. When that call was completed, he was directed to what is conventionally known as the “breath tech” room, where a breath technician, PC Wade Neathercott, was awaiting him. PC Neathercott sat at a small table on which there was situated an Intoxilizer 8000C, which is an approved instrument for taking and analyzing breath samples.

[16] PC Neathercott demonstrated how the machine worked and he made a demand for a sample of Mr. Di Luciano’s breath. Again, this was an approved instrument demand. Mr. Di Luciano refused to provide a sample. The time was now roughly 12:40 a.m. on December 26, 2019.

[17] Prior to the commencement of the jury trial (and prior to the severance application), Mr. Di Luciano brought an application to exclude evidence of any of the three breath demands and his responses to them. A more thorough review of the evidence surrounding the demands and refusals, the positions of the parties with respect to the impugned evidence, and my decisions regarding the admissibility of the evidence are found in my ruling on the defence application released November 8, 2023 as 2023 ONSC 6219. In summary, I reached the following conclusions:

(a) The roadside ASD demand was unlawful because PC Swiderski did not have an ASD in her possession at the time she made the demand. In the circumstances, that demand breached of Mr. Di Luciano’s s. 8 Charter right to be free from unreasonable search and seizure. I excluded the roadside demand and Mr. Di Luciano’s response to it from evidence at his trial;

(b) Though I found the booking room demand to have been the functional equivalent of an approved instrument demand, I nevertheless concluded that Mr. Di Luciano’s response to it was evidence obtained in a manner that infringed Mr. Di Luciano’s s. 8 right given its close causal, temporal and contextual connection to the roadside demand. Moreover, the demand, which elicited the refusal, breached the duty on the police to hold off eliciting evidence until after Mr. Di Luciano had exercised his right to counsel and thus breached Mr. Di Luciano’s s. 10(b) Charter right. I excluded evidence of the booking room demand and Mr. Di Luciano’s refusal in response to it from evidence at his trial; and

(c) The demand made in the breath tech room was lawfully made. I did not exclude evidence of the demand or Mr. Di Luciano’s refusal in response to it.

[18] In the result, the focus of the refusal trial was on the demand made by PC Neathercott.

1.3 The Evidentiary Record

[19] Crown and defence counsel agreed, at the time of the severance application, that the evidence tendered on the pre-trial application and the evidence tendered at the jury trial would form part of the Crown’s case on the trial of the refusal count. The one exception was Mr. Di Luciano’s testimony at the jury trial. It would generally not form part of the Crown’s case against him on the refusal count, though counsel did agree that the court could rely on any background or chronology evidence given by Mr. Di Luciano at his jury trial.

[20] A number of police officers testified at both the pre-trial application and the trial. They included, amongst others: the arresting officer, PC Swiderski; Acting Staff Sergeant Cathy Armstrong, who booked Mr. Di Luciano into the station; PC Sahilpreet Deol, who assisted with the booking and implementation of Mr. Di Luciano’s right to counsel; and PC Neathercott, the breath technician.

[21] The Crown also adduced evidence on the pre-trial application from PC Alexandru Lisnic who was assigned the task of attending at MacKenzie Hospital roughly 35 minutes after the collision, for the purpose of checking on any injuries to the parties in the vehicle struck by Mr. Di Luciano. He testified that he attended at the hospital at about 11:20 p.m. He said he identified the involved parties. Everyone was shaken up, he said, but he did not see any visible injuries at the time. He was unable to obtain any further information about injuries and was told to come back at 6:00 a.m., when CT scan results would be available. He relayed that information to a senior officer and was instructed to clear the hospital.

[22] The Crown called numerous civilian witnesses at the jury trial to testify about the manner of Mr. Di Luciano’s driving. They also called two of the three occupants of the vehicle struck by Mr. Di Luciano, who testified about the collision and its impact on them and the third occupant of the vehicle who subsequently passed away.

[23] Finally, the Crown called evidence at the jury trial from a pathologist, Dr. Christopher Milroy, who provided evidence about injuries suffered to the third occupant of the struck vehicle and opined about her cause of death.

[24] The Crown did not tender any further evidence at the refusals trial. The defence called two witnesses: Mr. Van Moorlehem and Mr. Di Luciano.

[25] Mr. Van Moorlehem testified that he received a phone call from York Region Police in the early morning hours of Christmas Day 2019. He said the call was at 1:00 a.m. It is clear to me that he actually received the call on December 26, 2019. An officer told him that they had Mr. Di Luciano in custody and that he had been charged with impaired operation and failing to provide a breath sample. He was invited to speak with Mr. Di Luciano.

[26] Mr. Van Moorlehem said he first asked Mr. Di Luciano if he was okay physically. Mr. Di Luciano said he was not injured but did report that an ambulance had been called. He then confirmed the charges – impaired operation and refusal. He asked Mr. Di Luciano if he had indeed refused to provide a breath sample. Mr. Di Luciano said yes. He then told Mr. Di Luciano, “Okay, what’s done is done. Get yourself processed and call me in the morning.” He did not ask why Mr. Di Luciano had refused. The call lasted five minutes or less.

[27] Mr. Van Moorlehem was not advised by the police, he said, that there would be another breath demand made.

[28] Mr. Di Luciano testified about the chronology of events between the collision and his refusal to PC Neathercott’s demand. He testified that he pulled his car over after the impact. The airbags in his vehicle had deployed. He was not injured, nor was his girlfriend who was with him. He called 911 and reported the accident and said they needed assistance. He was helped out of his vehicle by a civilian named Michael Bonello. Shortly thereafter he was arrested by a police officer. She did not immediately tell him why. She took him to her police vehicle and advised him he was under arrest for impaired operation and “Over 80”.

[29] Mr. Di Luciano said his arrest did not make sense to him. His “gut feeling”, he said, was that something was wrong.

[30] The arresting officer, PC Swiderski, demanded that he provide a sample of his breath. He did not know whether the demand was made lawfully. He refused to provide a sample of his breath because, he said, “everything felt wrong”. Under cross-examination he said he did not provide a sample because he was already charged. It didn’t make sense to him to blow into the machine after he was charged. Moreover, he did not agree with the arrest. That disagreement played some role in his decision to refuse to provide a breath sample.

[31] Mr. Di Luciano was aware that an ambulance attended the scene. He could not recall if there was more than one ambulance. The arresting officer, PC Swiderski, did not tell him whether anyone was injured. He believed the possibility of an injury existed given the extent of the impact and the damage to his own car.

[32] He was advised of his right to consult with counsel both at the roadside and at the time of booking. He advised the booking officer that he wished to call Mr. Van Moorlehem. He understood that he was going to get a call with counsel, then continue to be processed and released.

[33] While in the booking area, PC Swiderski made another demand for a breath sample. He again refused. He said he understood that he had already been charged. The request was a repeat of a demand he had already answered. He confirmed in cross-examination that his reasons for refusing the second time were the same as the reasons he refused the first time.

[34] During his call with Mr. Van Moorlehem, he received advice that “what’s done is done” and that he should just finish getting processed and call Mr. Van Moorlehem in the morning. He did not understand during or after that call that he would be given another demand for a breath sample or another opportunity to comply.

[35] Following his call with counsel, he thought he was going to be released. Instead, he was brought into the breath tech room. Another demand was made. He said he thought it was just a continuation of the same demand. He did not believe it was a new demand. He again refused. He again confirmed that his reasons for refusing remained the same as they were at the time of the first and second demands.

[36] At the time he refused PC Neathercott’s demand, he had not heard that anyone was injured in the collision. He said he was not advised of any injuries suffered by anyone involved in the collision at any time either prior to or while at the police station. In his mind, “no news was good news”. He did not, at that time, believe that anyone was injured.

[37] Under cross-examination he agreed that the collision was not a “fender bender”. It was a very serious collision; one that occurred at high speed and resulted in substantial damage to both vehicles. He accepted that it was “possible” that someone was injured.

2. Fundamental Principles

[38] Before I consider the issues raised by the evidentiary record and the positions of counsel, I will comment briefly on some of the fundamental legal principles that apply to my consideration of the evidence.

2.1 The Presumption of Innocence and Burden of Proof

[39] Mr. Di Luciano is presumed to be innocent of the charged offence. The presumption is only displaced if I am satisfied that the Crown has proven each of the essential elements of the offence to the reasonable doubt standard. The Crown solely bears the burden of proving Mr. Di Luciano’s guilt to that standard.

2.2 The Reasonable Doubt Standard

[40] The concept of proof beyond a reasonable doubt is of fundamental importance in the Canadian criminal justice system. It imposes a high standard. A reasonable doubt is not an imaginary, far-fetched, or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the absence of evidence.

2.3 The Assessment of Evidence and the W.D. Framework

[41] The evidence of each witness who testified must be considered from a common sense perspective, with an open mind and without sympathy, prejudice or bias. As the trier of fact, I may choose to believe and rely upon some, all, or none of any witness’ testimony.

[42] Mr. Di Luciano elected to testify in his own defence. His explanation about why he refused PC Neathercott’s demand has an exculpatory character to it. His lawyers argue that one of the essential elements of the refusal offence, specifically the mens rea element, is an intention to refuse a lawful demand. Mr. Di Luciano’s position is that when he refused PC Neathercott’s demand, he was mistaken about the nature of that demand. He says he thought it was just a repetition of the unlawful roadside demand. He did not appreciate that it was a different demand. In other words, his intention was to refuse to comply with a demand I ultimately concluded was unlawful. He argues that his mistake of fact undermined the state of mind required for a conviction.

[43] Whether defence counsel have accurately defined the mens rea of the refusal offence and whether Mr. Di Luciano’s evidence is legally capable of constituting a defence are live issues in this case. Accepting, for the time being, that defence counsel have accurately described the requisite mens rea and that Mr. Di Luciano’s mistake of fact defence is legally viable, the court will necessarily have to make an assessment of Mr. Di Luciano’s testimony regarding his state of mind at the time he refused PC Neathercott’s demand.

[44] I must approach my assessment of Mr. Di Luciano’s arguably exculpatory evidence relating to his state of mind with the reasonable doubt standard in mind. In doing so, I will adhere to the useful framework articulated by the Supreme Court in R. v. W.D., [1991] 1 S.C.R. 742.

[45] Having referenced the evidentiary record and the fundamental principles that apply to my assessment of that evidence, I will turn now to the live issues raised by the evidence and the positions taken by the parties.

3. The Live Issues

3.1 What is the Requisite State of Mind for a Refusal Office?

The Essential Elements

[46] Mr. Di Luciano is charged with failing or refusing to comply with a demand for a sample of his breath, knowing or being reckless as to whether he was involved in an accident that resulted in bodily harm to another person. The section of the Criminal Code alleged to have been contravened by Mr. Di Luciano is s. 320.15(2). It is necessary, however, to consider both subsections (1) and (2) of s. 320.15.

[47] Section 320.15(1) defines the offence of refusal simpliciter, in the following terms:

320.15 (1) Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under section 320.27 or 320.28.

[48] Section 320.15(2) defines an aggravated form of refusal – refusal causing bodily harm – as follows:

320.15 (2) Everyone commits an offence who commits an offence under subsection (1) and who, at the time of the failure or refusal, knows that, or is reckless as to whether, they were involved in an accident that resulted in bodily harm to another person.

[49] Refusal simpliciter is a lesser and included offence to the charge of refusal causing bodily harm. Therefore, when considering Mr. Di Luciano’s culpability for the charged offence, I must necessarily consider his culpability for the included offence of refusal simpliciter.

[50] For all intents and purposes, criminal offences in Canada always include a conduct element and a fault element. In other words, to make out a criminal charge, the Crown must prove, to the reasonable doubt standard, that the accused carried out a prohibited act and, at the time he or she did so, he or she had the necessary state of mind to establish fault. These dual elements are considered to be “a fundamental concept of our criminal law”. See R. v. Daviault, [1994] 3 S.C.R. 63, at para. 11. They are grounded in the notion that the morally innocent should not be convicted. See R. v. Theroux, [1993] 2 S.C.R. 5, at para. 20.

[51] The conduct element of a criminal offence is often referred to as its actus reus. The fault element is often referred to as the mens rea of the offence.

[52] The actus reus of refusals offences – whether refusal simpliciter or a more aggravated form such as refusal causing bodily harm – is not contentious. It consists of two parts:

(i) A valid and proper demand; and

(ii) A refusal or failure to comply with that demand.

[53] The requisite mens rea has, however, been the subject of a good deal of controversy. Some jurists have held that the Crown needs to establish only that the accused knew, or was aware of, the demand having been made. See, for instance, R. v. Porter, 2012 ONSC 3504, at para. 37; R. v. Pletsas, 2014 ONSC 1568, at para. 67; and R. v. Li, [2021] O.J. No. 7337, at para. 46.

[54] Other jurists have held that the Crown is required to establish a somewhat more demanding state of mind. In particular, an intentional, or wilful, refusal. See, for instance, R. v. Lewko, [2002] SKCA 121 at para. 9; R. v. Soucy, 2014 ONCJ 497; R. v. Mtonga, 2021 ONSC 1482, at para. 41; and R. v. Armstrong, 2022 ONSC 52 at para. 60.

[55] Resolving the requirements of the mens rea element is a central issue in this case.

The Parties’ Positions

[56] The Crown takes the position that the refusals offence is one of general intent. The Crown need show nothing more than that Mr. Di Luciano knew that a demand had been made for a sample of his breath and, armed with that knowledge, he refused to comply.

[57] Crown counsel acknowledges the debate in the jurisprudence but asserts that it has been conclusively settled by amendments made to the Criminal Code in 2018 that included the language of the refusals offence. Prior to 2018, the offence was set out in s. 254(5) of the Code. That section provided as follows:

Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.

[58] For ease of reference, I will repeat the current language of the refusals offence, which is found in s. 320.15(1):

Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply without reasonable excuse, with a demand made under section 320.27 or 320.28. (Emphasis mine).

[59] In the Crown’s submission, Parliament settled the debate surrounding the requisite mens rea for the offence by explicitly referencing knowledge as the requisite state of mind.

[60] Defence counsel take the opposite position and argue that the weight of judicial authority has settled on intention to refuse as the requisite mens rea. They cite the recent cases of Mtonga and Armstrong in support of their position.

Discussion

[61] The Criminal Code often fails to specify the precise fault element applicable to a given offence. In the result, it is frequently left to the courts to determine the mens rea required for a conviction. Former s. 254(5) of the Code did not specify a precise fault element and confusion has ensued. Though it is arguably unnecessary for the disposition of this issue, I will briefly describe the current state of the jurisprudence.

[62] Canadian criminal law recognizes both specific and general intent offences. Jurists and academics frequently struggle with these terms and what they each entail. In R. v. Tatton, 2015 SCC 33, the Supreme Court provided guidance about how to distinguish between specific and general intent offences. Writing for a unanimous court, Moldaver J. instructed that the distinguishing feature is the complexity of thought and reasoning processes that make up the mental element of the offence in issue.

[63] General intent offences require little mental effort. The element of intent in these types of offences is usually inferred from the simple performance of the illegal act. In other words, general intent is typically established by the common sense inference that people generally intend the usual and ordinary consequences of their actions. On the other hand, specific intent offences involve more significant mental activity, such as an ulterior purpose or the intention to bring about certain consequences.

[64] There appears to be little disagreement in the jurisprudence that the refusals offence is one of general intent. That consensus, nevertheless, has not led to an agreement about what the offence demands by way of that general intent.

[65] As I noted, some jurists have argued that the requisite general intent is reflected by the requirement of mere knowledge that a demand has been made. See, for instance, Justice Code’s decision in Porter. Others have argued that the requisite general intent is reflected by the requirement that the refusal be wilful or intentional. See, for instance, Justice Paciocco’s decision in Soucy. One jurist has reasoned that there is no significant difference between the two standards given the availability of the common sense inference that people intend the usual and ordinary consequences of their actions. In other words, if a detainee knows a demand has been made and refuses to comply, there is an available common sense inference that he or she intended not to comply. Similarly, if a detainee knows a demand has been made and fails repeated attempts to comply, there is an available common sense inference that the attempts were feigned and the intent all along was to not comply. See Justice Nordheimer’s decision in R. v. Slater, 2016 ONSC 2161.

[66] All of the cases I just cited, indeed almost all cases cited to me by counsel, involved the application of s. 254(5) of the Criminal Code.

[67] In the face of conflicting jurisprudence, Parliament amended the language of the refusals offence. Crown counsel submits that Parliament’s intent was to clarify that the mens rea for the refusal offence is the Porter standard – knowledge that a demand has been made. He argues that the modern approach to statutory interpretation requires the court to give meaning to each word in the section and to apply a contextual and purposive approach. See Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 at paras. 26-30. Doing so, he says, supports the conclusion that knowledge that a demand has been made is the requisite mens rea for the refusal offence. Such an interpretation is consistent with the “ordinary and grammatical sense” in which the section is drafted.

[68] Crown counsel made similar submissions to the Ontario Court of Justice in Li, which were accepted by Tetley J. I note that Li involved an application of s. 320.15(1) of the Code.

[69] I agree with Tetley J.’s analysis and, like him, conclude that the 2018 amendment had the effect of clarifying the requisite mens rea. Parliament was undoubtedly aware of the conflict in the caselaw and took measures to resolve it by including a specific reference to the requisite state of mind when they introduced s. 320.15(1) to the Code.

[70] I conclude that the Crown is required to establish, to the reasonable doubt standard, only that Mr. Di Luciano knew a demand had been made.

3.2 Did Mr. Di Luciano have the requisite state of mind for refusal simpliciter?

[71] In light of my conclusion that the Crown need only establish that Mr. Di Luciano was aware that a demand had been made, the answer to this second question is straightforward.

[72] I am satisfied, beyond a reasonable doubt, that Mr. Di Luciano knew that PC Neathercott had made a demand for a sample of his breath. Mr. Di Luciano does not suggest otherwise. Whether he thought the demand was a repetition of an old demand or thought it was fresh demand is irrelevant. He knew a demand had been made and he refused to comply with it.

[73] Whether there will continue to be debate in the jurisprudence about the requisite mens rea for the refusal offence remains to be seen. Perhaps others will continue to take a different view about it than I have. For that reason, I will take a moment to consider the mistake of fact defence. It is a defence I would reject, even if the mens rea for the offence required an intention to refuse.

[74] I am prepared to accept that Mr. Di Luciano genuinely believed there was one continuous demand; one originally made by PC Swiderski at the roadside, repeated by her in the booking room, and then repeated by PC Neathercott in the breath room.

[75] There is clearly some support for Mr. Di Luciano’s evidence in the transcript of the breath room interaction. PC Neathercott told Mr. Di Luciano,

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?

[76] Later he said, while reading from a pre-printed script:

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…you will be charged under the Criminal Code of Canada.

[77] I have previously found that PC Neathercott’s demand was a fresh, approved instrument demand, untainted by the unlawful ASD demand made earlier in the evening by PC Swiderski. Mr. Di Luciano takes the position, however, as I have said, that he was factually mistaken about the nature of the demand. He thought that PC Neathercott was merely repeating the earlier demands and that he (Mr. Di Luciano) was merely repeating the same refusal.

[78] The defence of mistake of fact applies in relatively narrow circumstances. As Dickson J., as he then was, described the defence in a dissenting opinion in Pappajohn v. The Queen, [1980] 2 S.C.R. at p. 148,

Culpability rests upon commission of the offence with knowledge of the facts and circumstances comprising the crime. If, according to an accused’s belief concerning the facts, his act is criminal, then he intended the offence and can be punished. If, on the other hand, his act would be innocent, according to facts as he believed them to be, he does not have the criminal mind and ought not to be punished for his act.

[79] Mr. Di Luciano posits that if the facts as he understood them to be were true, i.e. that PC Neathercott was merely repeating PC Swiderski’s demand, he could not be found guilty because PC Swiderski’s demand was unlawfully made. He was, he submits, intending to refuse to comply with an unlawful demand.

[80] In my view, the facts Mr. Di Luciano points to as mistaken ignore an important feature. The mistake of fact defence is about an accused person’s state of mind. This is not a case where Mr. Di Luciano had an innocent state of mind, even if the facts he was mistaken about were true.

[81] Mr. Di Luciano did not refuse PC Swiderski’s roadside demand because he understood it to be unlawful. He did not know the difference between an ASD demand and an approved instrument demand. And he did not have any information about whether PC Swiderski had an ASD in her possession at the time the roadside demand was made. He intentionally refused to provide a sample of his breath because he did not agree with his arrest. That is not a basis on which a refusal may lawfully be based.

[82] Mr. Di Luciano continued to refuse to provide a sample when PC Neathercott made his demand for the same reason – because he thought he should not have been arrested and charged. There was, he suggested, “something off with the whole arrest”. Again, this is not a basis upon which a refusal may lawfully be made.

[83] Mr. Di Luciano had a culpable state of mind when he refused at the roadside, when he refused in the booking room, and when he refused in the breath room. His state of mind about PC Neathercott’s demand being linked somehow to PC Swiderski’s demand cannot, in my view, raise a reasonable doubt about his guilt, on the basis that a mistake of fact undermined his mens rea, when he had the requisite mens rea for the offence at the time each of the three demands were made.

[84] In the result, I find that the Crown has established each of the applicable essential elements of the offence of refusal simpliciter to the reasonable doubt standard.

[85] For the sake of completion, I recognize that s. 320.15(1) includes an “out”. An accused may avoid conviction if he or she is able to demonstrate, on a balance of probabilities, that he or she had a reasonable excuse for non-compliance with a demand. This involves an inquiry separate and distinct from the requisite mens rea for the offence. See R. v. Zora, 2020 SCC 14, R. v. Soucy, and R. v. Mtonga.

[86] The term “reasonable excuse” has been limited to situations where compliance with the demand is either extremely difficult or would involve a substantial risk to the health of the person on whom the demand is made. See, for instance, R. v. Nadeau (1974), 19 C.C.C. (2d) 199 (N.B.S.C.-A.D.). Such a situation did not exist here. Indeed, I did not understand defence counsel to be arguing that Mr. Di Luciano had a reasonable excuse for non-compliance. The defence of mistake of fact was instead directed at Mr. Di Luciano’s mens rea.

[87] I am satisfied, in the result, that the Crown has proven Mr. Di Luciano’s guilt for the offence of refusal simpliciter to the reasonable doubt standard. I will go on to consider whether he is guilty of the aggravated offence of refusal causing bodily harm.

3.3 Did Mr. Di Luciano have the requisite state of mind for refusal causing bodily harm?

[88] The central question to be answered with respect to the aggravated offence is whether, at the time he refused PC Neathercott’s demand, Mr. Di Luciano knew or was reckless that he had been involved in an accident that resulted in bodily harm to another person. The Crown can establish this additional element in any one of three ways. In particular, by establishing that:

(i) Mr. Di Luciano actually knew that the collision caused bodily harm to someone;

(ii) The circumstances aroused his suspicion that someone had suffered bodily harm, such that he saw the need to make further inquiries, but he deliberately chose not to make those inquiries. In other words, he was wilfully blind about whether someone had sustained bodily harm. See R. v. Briscoe, 2010 SCC 13, at paras. 21-24; or,

(iii) He was reckless as to whether the collision resulted in bodily harm. In other words, at the time he refused PC Neathercott’s demand for a breath sample, he knew there was a risk that someone had suffered bodily harm as a result of the collision, but nevertheless refused the demand anyways. See R. v. Sansegret, [1985] 1 S.C.R. 570 at para. 16.

[89] I note that “bodily harm” is defined at 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.”

[90] There is no evidence that Mr. Di Luciano actually knew, at the time of the refusal in question, that the collision had caused bodily harm to anyone. Indeed, the evidentiary record supports the opposite conclusion. The Crown asserts, however, that the circumstances of the collision scene were such that Mr. Di Luciano was either wilfully blind to the fact that someone had suffered bodily harm, or he was reckless as to whether he had caused bodily harm to someone in the vehicle he struck.

[91] This was, the Crown says, a very serious collision, which caused significant damage to both vehicles. Police, ambulance, and fire services were all engaged. Mr. Di Luciano acknowledged that, based on the impact, it was possible that someone was hurt. At the very least, he knew that there was a risk that someone had been hurt and accepted that risk when he refused PC Neathercott’s demand for a breath sample.

[92] There is much to be said for the Crown’s argument. That said, I am not persuaded that Mr. Di Luciano was either wilfully blind or reckless in the unique circumstances of this case.

[93] There are two reasons that, in my view, undermine any assertion that Mr. Di Luciano was wilfully blind.

[94] First, as I noted, Briscoe holds that the doctrine of wilful blindness imputes knowledge to an accused person whose suspicion is aroused to the point where he or she sees the need for further inquires but deliberately chooses not to make those inquiries. See also R. v. A.B., 2024 ONCA 446 at para. 34.

[95] I am not satisfied that Mr. Di Luciano’s suspicion was aroused to the point where he saw the need for further inquires. As I will examine further momentarily, Mr. Di Luciano could, at best, only have speculated about whether an injury had been suffered. There was a dearth of information available to him about whether there had been any injuries, and if so, how serious they were. As he noted, “no news was good news”. In these circumstances, one could not be satisfied beyond a reasonable doubt that Mr. Di Luciano suspected someone had suffered bodily harm but he deliberately chose not to make inquiries about it.

[96] Second, even if Mr. Di Luciano had made further inquiries about injuries, he would not have received any information about them prior to the time PC Neathercott made his demand. He was in police custody prior to that time and very limited in terms of his contact with the outside world. In theory, he could have made inquiries of officers at the station about what, if anything, they knew of any injuries, but the simple fact is, they did not know anything.

[97] I turn to the issue of recklessness, which is really at the heart of the Crown’s position.

[98] Knowledge of risk is the key to recklessness. See Zora, at para. 117. To be clear, recklessness is not the same as negligence. The question is not whether Mr. Di Luciano ought to have seen a risk, but whether he subjectively did see a risk that someone involved in the collision suffered bodily harm and he nevertheless refused PC Neathercott’s demand.

[99] A constellation of factors must be considered in assessing whether the Crown has proven to the reasonable doubt standard that Mr. Di Luciano actually saw a risk that someone involved in the collision suffered bodily harm and nevertheless refused to comply with PC Neathercott’s demand for a breath sample. They include:

(a) This was a significant collision. As Mr. Di Luciano recognized, it was more than just a fender bender. His own air bags had gone off and his car was sufficiently damaged that it was undriveable. The vehicle he struck was similarly significantly damaged;

(b) At least one ambulance attended at the scene, along with police and firefighters, in response to one or more 911 calls;

(c) Mr. Di Luciano did not actually see anyone being loaded into an ambulance. He likely would have seen two of the three occupants of the vehicle he struck sitting on the curb outside of the vehicle, which is where they were located when PC Swiderski arrived on scene. They had no obvious signs of injury;

(d) Mr. Di Luciano was not injured himself, nor was his girlfriend, who was his passenger at the time of the collision;

(e) PC Swiderski did not advise Mr. Di Luciano that anyone had been injured;

(f) No other officer advised Mr. Di Luciano that anyone had suffered any injury at any time prior to his release from custody; and

(g) Mr. Di Luciano was charged with impaired operation and Over 80. He was not charged with the aggravated offence of impaired operation causing bodily harm. Mr. Di Luciano was not even advised that he was in jeopardy of being charged with a cause bodily harm offence.

[100] The controlling test for recklessness remains the Supreme Court’s 1985 decision in Sansegret: it is the conduct of one who sees the risk and takes the chance. Sansegret does not, however, describe the degree of risk required to attract criminal sanction.

[101] Over the four decades since Sansegret was released, courts have applied varying standards to the recklessness threshold such as probability, likelihood, and possibility. See R. v. Hamilton, 2005 SCC 47, at para 32. Recently, in Zora, the Supreme Court held that the offence of breaching a bail condition requires a demonstration by the Crown of a subjective mens rea, specifically that the breach is committed knowingly or recklessly. For the purposes of that offence, the court established a particular threshold for recklessness, being persistence in the face of a substantial and unjustified risk. The rationale for a heightened threshold was said to be the fact that the offence of failing to comply with a bail condition may criminalize otherwise lawful day-to-day behaviour. The court otherwise confirmed that the Sansegret definition of recklessness continues to generally apply.

[102] The question remains: what level of risk is required to ground criminality on the basis of recklessness for a refusal offence?

[103] Merriam-Webster defines “risk” as “the possibility of loss or injury” or “someone or something that creates or suggests a hazard”. I am troubled by the notion that criminal culpability may be grounded in recklessness on the basis of a mere possibility of loss or injury. Such a low threshold seems to me to cast the net far too widely.

[104] In a pre-trial ruling, I held that the police did not breach Mr. Di Luciano’s s. 10(a) Charter right to be informed promptly of the reasons for his arrest through a failure to advise him, before he spoke to counsel, of his jeopardy for a cause bodily harm offence. I concluded that, prior to the time that Mr. Di Luciano spoke with counsel from the police station, the police could only speculate about whether anyone had suffered bodily harm as a result of the collision. In the circumstances, they had no obligation to advise him that he was in jeopardy of being charged with a cause bodily harm offence.

[105] I would similarly find that, in all the prevailing circumstances, Mr. Di Luciano could only speculate about whether anyone had been injured in the collision. Indeed, as the night wore on, it seemed increasingly unlikely that anyone had been injured, given the absence of any information to the contrary.

[106] In my view, though Sansagret does not describe the level of risk required to trigger recklessness, given that criminal culpability may flow from a finding of recklessness, the standard must implicitly require that the risk ignored by the accused was a reasonable one. In other words, it was a possibility beyond fanciful, fevered imaginings, or mere speculation. It must rise above the purely theoretical. In my view, in all the circumstances here, the risk did not rise to that level.

[107] In the result, Mr. Di Luciano is acquitted of the offence of refusal causing bodily harm but convicted of the lesser and included offence of refusal.

C. Boswell J.

Released: June 18, 2024.

June 18, 2024 – Correction:

1. Para. 8, second sentence now reads: They convicted him of one count of dangerous driving causing bodily harm and two counts of dangerous driving simpliciter.

[1] This written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If there are any discrepancies between the oral and written versions, it is this official written Ruling that is to be relied upon.