Reasons for Decision on Summary Conviction Appeal

Court File No.: CR-22-8173-AP
Date: 2025/07/02
Ontario Superior Court of Justice

Between:
His Majesty the King – and – Pablo DeBold (Respondent, Appellant on Cross-Appeal)

Appearances:
J. Daller, for the Crown
E. Granger, for the Respondent

Heard: April 30, 2025

Parfett J.

Introduction

[1] The Respondent, Mr. Pablo DeBold, was charged with impaired operation of a conveyance contrary to s. 320.14(1)(a) of the Criminal Code, dangerous operation of a conveyance contrary to s. 320.13(1) of the Code, and one count of, within two hours of driving, having a blood alcohol concentration that exceeded 80mg of alcohol in 100ml of blood, contrary to s. 320.14(1)(b) of the Code. The Respondent was acquitted after trial of all three counts. However, this appeal relates solely to the acquittal of the charge pursuant to s. 320.14(1)(b) of the Code (the over 80 charge).

Background

[2] On February 13, 2022, the Respondent drove his car into a ditch. He called the Canadian Automobile Association to dispatch a tow truck to get him out of the ditch.

[3] The tow truck driver had some trouble conversing with the Respondent, but ultimately conveyed to the Respondent that he needed him to put his car in neutral and keep his wheels turned to the left to get the car out of the ditch and onto the ramp of the tow truck.

[4] The Respondent failed to follow these instructions. Instead, he put the vehicle in drive and started accelerating. The upshot of this failure was that the Respondent’s car drove off the tow truck bed, falling on its side and deploying the airbag.

[5] The Respondent got out of his car and walked home.

[6] After returning home, the Respondent consumed 7-9 ounces of whiskey and two beers. He testified that he drank all this alcohol within 15 minutes of his return to “calm his nerves”.[^2]

[7] Police arrived on the scene of the accident and once they determined the registered owner’s address, they went to the Respondent’s home. The Respondent’s mother answered the door, and she went to get the Respondent. It was apparent to the officers that the Respondent had been drinking and they read him the approved screening device (ASD) demand.

[8] After waiting some time to clear out any residual mouth alcohol, they administered the ASD, resulting in a fail reading. The Respondent was read his right to counsel pursuant to the Canadian Charter of Rights and Freedoms (“Charter”) and taken to the police station.

[9] One of the officers returned to the scene of the accident and noted there was an open can of Budweiser beer in the back of the Respondent’s car.

[10] At the station, two breathalyser samples were taken and once the statutory readback was applied, the Respondent’s blood alcohol concentration (BAC) would have been 225mg/100ml of blood two hours after driving.[^4]

[11] Based on the Respondent’s testimony concerning his drinking – that he had consumed two beers at dinner, which was around 6:00 pm to 6:30 pm that day – the toxicologist called by defence stated that the Respondent’s BAC would have been between 0 and 35mg/100ml of blood at the time of driving. The high readings were consistent with post-driving alcohol consumption.[^5]

Issues

[12] The Crown submits that the trial judge erred in law in her consideration of the objective element of s. 320.14(5) of the Code and its application to the facts she found. The standard of review in this situation is correctness.[^6] The Crown also argues that the question for the trial judge was whether there was an air of reality to each of the elements of the defence pursuant to s. 320.14(5). Whether a defence has an air of reality is a question of law.[^7]

[13] The Respondent cross-appeals the trial judge’s finding that the Respondent’s mother was not acting as a state agent and in addition, alleges she committed an error of law in her analysis of s. 24(2) of the Charter.

Testimony at Trial

[14] The evidence regarding the defence under s. 320.14(5) came exclusively from the Respondent.

[15] The Respondent testified concerning how his car ended up on its side, confirming the tow truck driver’s evidence that he had failed to follow the instructions given to him. He indicated that his decision to accelerate and turn his wheels appropriately was an “instinctual” reaction to the situation.[^8]

[16] Initially, the Respondent described the incident as a “little” incident, a non-urgent insurance matter and stated that he left the scene “calmly” and did not expect the police to attend in response.[^9]

[17] Later, he testified that the incident left him “in shock”, “frazzled” and “flabbergasted”. The Respondent agreed on cross-examination the accident was “serious” and “significant”. This was why he needed to drink to calm his nerves.[^10]

[18] According to the Crown, the Respondent’s testimony in relation to his expectations after the accident shifted. Initially, he testified he did not expect police to attend. He then acknowledged the possibility police could attend. He agreed with his earlier voir dire testimony where he “would have assumed [police] would have been at the scene”, and he agreed that it “would be reasonable to think that the police would come to your house”.[^11]

[19] During the Respondent’s re-examination, the following exchange occurred:

Q. And more specifically, you okay acknowledged at the voir dire you had said "one would assume" that police or emergency ambulance might come on scene; correct?
A. Correct.
Q. Is that what you assumed or are you speaking more generally.
A. Generally.
Q. Okay. Did you assume in your own head that that -- that the police were going to come?
A. No.[^12]

Trial Judge’s Reasons for Judgment

[20] The trial judge largely accepted the Respondent’s evidence.

[21] Specifically, on the issue of the requirements of s. 320.14(5) she found the following:

• The Respondent consumed two cans of beer, 355ml and 5% alcohol each, with a full dinner, between 6:00 and 6:30 pm;[^13]
• Based on that consumption, his BAC at the time of driving would have been between 0 and 35mg/100ml of blood;[^14]
• That very low blood alcohol proportion informed the Respondent’s expectation regarding whether he would be required to provide a breath sample;[^15]
• The Respondent consumed alcohol in his home after the accident;[^16]
• The Respondent believed that he did not need to immediately report the accident because it was primarily an insurance matter;[^17]
• The police went to the Respondent’s residence because the accident was serious, and they wanted to ensure the Respondent was alright;[^18]
• The Respondent believed that he would not be required to provide a breath sample given his stated alcohol consumption at dinner.[^19]

[22] With respect to subsection (b) of s. 320.14(5), the trial judge found,

I entertain a lingering question in my mind, whether Mr. DeBold might not have thought he’d be required to provide a sample of his breath upon returning home. However, when I consider again the testimony of Mr. Turner, which was ultimately unclear whether he had truly detected signs of impairment, as he told the court, I find it doubtful, considered in the context of the whole of the evidence. I find there was an air of reality to Mr. DeBold’s assertion to his having no reasonable expectation that he would be required to provide a breath sample, when he set about drinking to dispel the anxiety caused by the snowy ordeal he’d just suffered.[^20]

[23] In the circumstances, the trial judge acquitted the Respondent of the over 80 charge.

Positions of the Parties

[24] The only issue raised by the Crown is whether the trial judge committed an error of law in her analysis of s. 320.14(5)(b).

[25] The Crown contends that the trial judge failed to assess the objective reasonableness of the expectation to provide a sample. Additionally, she erred in focusing exclusively on the Respondent’s BAC at the time of driving when subsection (b) criminalizes the obstructive mischief of post-incident drinking. In doing so, the Crown alleges that the trial judge conflated subsections (b) and (c) of s. 320.14(5).

[26] The Crown points to R. v. Bell, 2023 ONSC 2952 as binding authority in relation to this defence and indicates that the trial judge failed to consider this decision.

[27] The Respondent argues that the trial judge correctly applied the test and that she was, in the circumstances of this case, entitled to use the Respondent’s pre-driving drinking pattern and immediate post-driving state of sobriety in determining the objective reasonableness of the Respondent’s belief he would not be required to provide a breath sample.

[28] Furthermore, the Respondent states that the trial judge “by necessary implication” turned her mind to what a reasonable person in the Respondent’s shoes would expect.

[29] The Respondent concedes that if Bell stands for the proposition that the Crown suggests it does, then it was binding on the trial judge and her failure to follow that decision would constitute an error in law.

[30] In Bell, the accused drove aggressively, lost control of his car and struck both a median driving wall and a truck. He had three passengers who he abandoned on the side of the road before driving home and consuming alcohol. The police arrived and administered an ASD. The accused failed and was arrested. His subsequent breathalyser results were over the legal limit. He was acquitted at trial on the basis that he met the criteria in s. 320.14(5).

[31] On appeal, the Crown argued that the trial judge had erred in his analysis of the criteria of s. 320.14(5).

[32] The appeal court noted in the decision that the accused had an evidential burden to provide an air of reality to the defence in that section and that the trial judge then needed to decide whether the evidence, at a minimum, raised a reasonable doubt.[^22]

[33] The court went on to say,

The exception with which we are concerned here, on its face, plainly applies only when all three elements have been established (or at least when they are not disproven beyond a reasonable doubt by the Crown). Accordingly, an air of reality will exist only when there is an air of reality to each of these three elements.[^23]

[34] With respect to the second element of the defence, the court stated,

The second element of the statutory exception required the court to consider whether there was an air of reality to the suggestion that the respondent had no reasonable expectation that he would be required to provide a sample of his breath or blood after ceasing driving (s. 320.124(5)(b)). … Parliament’s use of the words “no reasonable expectation” means that this element has both subjective and objective elements and is properly evaluated using the “modified objective test”. … This standard requires the trial judge to assess the reasonableness of the accused’s conduct by placing the reasonable person in the circumstances which the accused faced.[^24]

[35] In the present case, the trial judge correctly took into consideration the Respondent’s view of the matter – that the accident was minor and primarily an insurance matter. However, she failed entirely to assess the evidence from an objective perspective. She did not ask herself whether someone in the Respondent’s situation – having consumed alcohol, having an open can of beer in his car, being in two separate accidents, one of which deployed the airbags – would have understood that he might be asked to provide a breath sample.

[36] The trial judge asked herself whether the Respondent might not have thought he would be asked to provide a breath sample. The answer in part was in his evidence. However, the Respondent also testified that he assumed the police would be called given the nature of the accident. The trial judge did not consider this evidence, nor the evidence that the Respondent gave suggesting that he understood the accident to have been serious, so much so, that he needed to consume copious amounts of alcohol to calm his nerves.

[37] Further, I agree that the trial judge conflated subsections (b) and (c) of s. 320.14(5). The trial judge found that the Respondent had consumed two cans of beer at dinner and in that case, his BAC would have been between 0 and 35mg/100ml of blood. She also rejected the tow truck driver’s evidence that the Respondent had displayed signs of impairment. The trial judge then used that evidence (and lack of evidence) to support her conclusion that there was an air of reality to the Respondent’s belief that he would not be required to provide a breath sample.[^25]

[38] As noted in Bell, it is not necessary for the Crown to lead evidence that the accused was under the influence of alcohol at the time of driving. Such evidence or the lack thereof is not dispositive of the issue of whether the accused’s belief, that he would not be required to provide a breath sample, was reasonable in the circumstances.[^26]

[39] Consequently, the trial judge erred in law in her analysis of the defence set out in s. 320.14(5) of the Code.

[40] In my view, on this ground the appeal is granted and the matter must be referred back to the Ontario Court of Justice for a new trial.

Cross-Appeal

[41] The Respondent argues that if this court is persuaded by the Crown’s appeal, then the court needs to examine the trial judge’s decision on the Charter application.

[42] Specifically, the Respondent asserts that the trial judge erred in law by:

• Applying the wrong test to the question of whether the Respondent’s mother was acting as a “state agent”; and
• On the s. 24(2) analysis, the trial judge failed to consider the cumulative effect of the breaches in determining that the evidence should not be excluded.

[43] The Respondent left the scene of the accident and returned home. Shortly after, two police officers arrived at his door. The Respondent’s mother, Mrs. DeBold, answered the door. The police advised her they were there because of the accident and needed to ensure that the Respondent was not injured. Mrs. DeBold advised that her son was fine, but the police told her they still needed to speak with him because he had left the scene of an accident. Mrs. DeBold then went to tell her son to come to the door to speak with police.

Decision Relating to the State Agent Issue

[44] The trial judge found that Mrs. DeBold had not been “conscripted or enlisted or … in any way was attempting to further the ends of the police”.[^27] In fact, the trial judge noted that Mrs. DeBold repeatedly told her son that he was not to go with the police.[^28] Additionally, the trial judge stated that “while [Mrs. DeBold’s] conduct with police was not obstructive, she did not show undue emotion or any evidence of being a collaborator in a police purpose.”[^29] Finally, the trial judge indicated that she rejected the contention that “Mrs. DeBold acted as a state agent.”[^30]

[45] As part of her analysis of whether Mrs. DeBold acted as a stateagent when she went to get her son, the trial judge appended a lengthy segment from the British Columbia Supreme Court decision of R. v. Elite Farm Services Ltd., 2021 BCSC 2061. As noted by the trial judge, that decision contains a helpful summary of the caselaw on the issue of when private citizens become state agents. Within that decision are quoted the two cases the Respondent relies on in this appeal – R. v. Broyles and R. v. M.R.M..

[46] In Broyles, the Supreme Court of Canada set out the test as follows: “would the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents?”[^34] The Respondent has described this test as a “but for” test. However, the test must be applied contextually. In R. v. Buhay, 2003 SCC 30, the Supreme Court of Canada observed that,

Volunteer participation in the detection of crime by private actors, or general encouragements by the police authorities to citizens to participate in the detection of crime, will not usually be sufficient direction by the police to trigger the application of the Charter. Rather, the intervention of the police must be specific to the case being investigated.[^36]

[47] In Broyles, the Court also noted that the relationship between the police and the informer was relevant to the question of whether the informer was a state agent.[^37]

[48] In the present case, Mrs. DeBold denied the police entry into her home and repeatedly admonished her son not to cooperate with the police. There is nothing in that behaviour to suggest that Mrs. DeBold acted as an agent of the police. The trial judge was correct in her determination that she was not.

[49] This ground of appeal is dismissed.

Decision Regarding s. 24(2) of the Charter

[50] The Respondent argues that the trial judge committed an error in law in her analysis of the impact of the breaches in that she considered each breach independently and failed to consider the cumulative effect of the breaches.[^38]

[51] The bulk of the Respondent’s argument rests on the assumption that this court would agree with his assertion that Mrs. DeBold acted as a state agent. As I did not, the issue becomes whether in the circumstances I should nonetheless re-visit the s. 24(2) analysis.

[52] The Crown contends that if there was an error in law in the Charter analysis, it was with the finding that there had been breaches of ss. 8 and 9 of the Charter. The Crown provided the court with a summary analysis of their assertion that the breaches were in error. However, these issues were not fully canvassed at the appeal hearing.

[53] In my assessment of this ground of appeal, I take into consideration that I have already remitted the matter for a new trial. Consequently, should counsel decide to re-litigate the Charter issues, that is the appropriate place for them to do so.

[54] This ground of appeal is also dismissed.

Conclusion

[55] For the reasons set out above, this matter will return to the Ontario Court of Justice for a new trial.

Parfett J.
Released: July 02, 2025

[^2]: Trial Transcript of January 18, 2024, at pp. 25, 62, and 69-73.
[^4]: Appeal Book, Tabs 15-16.
[^5]: Appeal Book, Tab 20.
[^6]: R. v. Shepherd, 2009 SCC 35, para 20.
[^7]: R. v. Cinous, 2002 SCC 29, para 55.
[^8]: Trial Transcript of January 18, 2024, at pp. 19, 52.
[^9]: Trial Transcript of January 18, 2024, at pp. 27-28, 76, and 81-82.
[^10]: Trial Transcript of January 18, 2024, at pp. 24-26, 61, 75, 79, and 82.
[^11]: Trial Transcript of January 18, 2024, at pp. 76-81.
[^12]: Trial Transcript of January 18, 2024, at p. 94.
[^13]: Reasons for Judgment, at para. 112.
[^14]: Reasons for Judgment, at paras. 116-17.
[^15]: Reasons for Judgment, at para. 118.
[^16]: Reasons for Judgment, at para. 114.
[^17]: Reasons for Judgment, at para. 119.
[^18]: Ibid.
[^19]: Reasons for Judgment, at para. 120.
[^20]: Reasons for Judgment, at para. 121.
[^22]: Bell, at paras. 37-38.
[^23]: Bell, at para. 38.
[^24]: Bell, at para. 41 (citations omitted).
[^25]: Reasons for Judgment, at para. 120.
[^26]: Bell, at paras. 50-51.
[^27]: Reasons on Charter Application, at para. 63.
[^28]: Reasons on Charter Application, at para. 64.
[^29]: Reasons on Charter Application, at para. 65.
[^30]: Reasons on Charter Application, at para. 69.
[^34]: Broyles, at p. 608 (emphasis added).
[^36]: Buhay, at para. 30.
[^37]: Broyles, at p. 608.
[^38]: See R. v. Truong, 2025 ONCA 69, 445 C.C.C. (3d) 141.