Court File and Parties

Court File No.: CR-24-10000036-00AP Date: 2025-12-05 Ontario Superior Court of Justice

Between:

HIS MAJESTY THE KING – and – GABRIEL PADOLINA, Appellant

Counsel:

Ms. Andrea McPhedran, for the Crown Mr. Thomas Hicks, for the Appellant

Heard: 15 September 2025

Reasons for Judgment

Justice Peter Bawden

[1] Mr. Padolina appeals his conviction for driving with a blood alcohol concentration over the legal limit. He argues that the trial judge erred in admitting breath sample evidence which was obtained in breach of his rights under sections 8 and 9 of the Charter. I find no error in the trial judge's reasons for admitting the evidence under section 24(2) and dismiss the appeal.

I. THE EVIDENCE

[2] At approximately 2:45 a.m., a two-vehicle collision occurred in the express lanes of Highway 401 near Brimley Road. Police Constable Cho attended the scene and spoke with the appellant who acknowledged responsibility for the accident. He explained that he had attempted to pass another vehicle and had collided with it.

[3] During a brief conversation lasting four to five minutes, P.C. Cho noted that Mr. Padolina appeared tired. His speech was not slurred but it was noticeably slow. When asked about alcohol consumption, Mr. Padolina stated he had consumed two beers "early in the evening". P.C. Cho did not ask the appellant what time he had been drinking.

[4] Based on these observations, P.C. Cho suspected that Mr. Padolina had alcohol in his system and demanded a roadside breath sample. Mr. Padolina complied, and the result was a fail on the approved screening device. P.C. Cho then formed reasonable grounds to arrest Mr. Padolina for operating a motor vehicle with a blood alcohol concentration exceeding the legal limit. Subsequent breath tests revealed a concentration of 140 milligrams of alcohol per 100 millilitres of blood.

II. THE TRIAL JUDGE'S FINDINGS

[5] At trial, the appellant sought to exclude the breath sample readings on the basis of alleged breaches of sections 8 and 9 of the Charter. He argued that P.C. Cho could not have formed reasonable grounds to suspect that he had alcohol in his system. In support of this position, he relied on the following evidence:

• P.C. Cho detected no odour of alcohol when speaking to the appellant
• The appellant did not display any difficulty in maintaining his balance.
• The appellant was not slurring his words.
• P.C. Cho did not turn his mind to the time when Mr. Padolina had been drinking or the possibility that the alcohol which he consumed "early in the evening" could have been eliminated by 2:45 a.m.

[6] The trial judge accepted that the officer subjectively suspected the appellant had alcohol in his system. However, she found that this suspicion was not objectively reasonable. The officer did not take into account the time that had elapsed since the appellant had consumed alcohol and appeared to misunderstand the legal standard when he testified that he made the demand to "rule out" alcohol as a contributing factor.

[7] On this basis, the trial judge concluded that the roadside breath demand violated the appellant's rights under sections 8 and 9 of the Canadian Charter of Rights and Freedoms. Nonetheless, she declined to exclude the breath test results under section 24(2) of the Charter.

[8] The trial judge made several observations regarding the evidence which was relevant to the section 24(2) analysis prior to undertaking the analysis established in R. v. Grant, 2009 SCC 32. Those observations included the following:

• After the accused was taken into custody, the police treated him respectfully.
• P.C. Cho was concerned about the defendant's Charter rights and wanted to make sure that the appellant had a full opportunity to consult with counsel.
• P.C. Cho treated the appellant respectfully at the roadside "(demonstrating) he had good faith when he interacted with the defendant."
• The police investigation was necessitated by a serious accident and the officer had "a good faith basis for attending the scene and making the ASD demand."
• There was no evidence of prior misconduct by P.C. Cho nor any evidence that his misunderstanding of the law was caused by systemic failings.
• Although P.C. Cho misunderstood the legal authority required to make a roadside breath demand, he did hold a genuine belief that the appellant had consumed alcohol.

[9] The trial judge correctly stated the Grant test regarding the admissibility of evidence under section 24(2). The first branch of the test considers the seriousness of the Charter violation. Her Honour concluded that the breaches in this case were at the "low end" of the spectrum because (1) the officer had a good faith basis for attended the scene and making ASD demand; (2) there was no evidence that the officer had made similar errors in the past; and (3) the Charter breach had not arisen from systemic failings.[^1]

[10] The second branch of the Grant test focuses on the impact of the breach on the Charter protected interests of the accused. The trial judge found that (1) the taking of breath samples was minimally intrusive; (2) there was no delay in implementing the demand for a breath sample; and (3) there was no evidence that the process of providing a breath sample had a significant impact on the defendant. Despite these findings, Justice Favret concluded that the second branch of the test favoured exclusion of the evidence because the defendant had been taken into custody and incriminating evidence had been obtained from him.[^2]

[11] The trial judge concluded that the third branch of the Grant test favoured the admission of the evidence because the breath samples were extremely reliable and essential to the prosecution of the case.

[12] After balancing the three factors, Her Honour concluded that the admission of the evidence would not bring the administration of justice into disrepute and dismissed the appellant's application to exclude the evidence.

III. THE GROUNDS OF APPEAL

[13] The grounds of appeal are set out as follows in the appellant's factum:

37. If this Honourable Court finds that the Trial Judge erred:

i. in finding that P.C. Cho had a subjective belief that the Appellant had alcohol in his system; and

ii. in not considering the impact of the section 9 breach;

the Appellants submits that the Trial Judge erred in finding that the seriousness of the Charter infringing state conduct was at the low end of the spectrum. The Appellant submits that on a proper consideration of all of the factors, the first factor of the test set out in R. v. Grant favoured exclusion of the breath readings.

38. In the alternative, if this Honourable Court agrees that the Trial Judge was correct in finding that P.C. Cho had a subjective belief that the Appellant had alcohol in his system, the Appellant submits that the Trial Judge still erred in finding that the seriousness of the Charter-infringing state conduct was at the low end of the spectrum. P.C. Cho observed no indices of impairment and he was careful to clarify that the observations he did make of the Appellant were consistent with being tired. P.C. Cho observed no indices of recent consumption, such as the smell of alcohol on the breath of the Appellant.

[14] In oral submissions, the appellant abandoned his challenge to the trial judge's finding that P.C. Cho had a subjective suspicion that he had consumed alcohol and made no submissions regarding the impact of the section 9 breach. Accordingly, the sole issue on appeal is whether the trial judge erred in finding that the first stage of the Grant test favoured the admission of the evidence. The standard for review of a trial judge's section 24(2) findings is set out in R. v. McGuffie, 2016 ONCA 365 at para. 64:

[64] The three inquiries identified in Grant require both fact-finding and the weighing of various, often competing interests. Appellate review of either task on a correctness standard is neither practical, nor beneficial to the overall administration of justice. A trial judge's decision to admit or exclude evidence under s. 24(2) is entitled to deference on appeal, absent an error in principle, palpable and overriding factual error, or an unreasonable determination: see Grant, at paras. 86, 127;

IV. ANALYSIS

[15] Mr. Hicks focused his oral submissions on the issue of good faith. He argued that the trial judge erred in finding the Charter breach to be at the low end of the spectrum because P.C. Cho was acting in good faith. In his submission, an officer's failure to apply the correct legal test when making a breath demand cannot amount to good faith. He contends that this error in principle led the trial judge to conclude that the first branch of the Grant test favoured admission of the evidence. The appellant argues that, had the officer's misunderstanding of his authority been properly characterized, the trial judge would have found that the first branch favoured exclusion. In that case, the balancing of interests would have resulted in the evidence being excluded.

[16] I accept the appellant's submission that an officer's ignorance of the lawful scope of his authority cannot be characterized as good faith. Police officers are expected to know the legal limits governing their actions, and a failure to inform oneself cannot amount to good faith. This principle was confirmed by the Supreme Court of Canada in R. v. Tim, 2022 SCC 12 at para. 85:

[85] Nevertheless, I agree with the appellant, and with the conclusion of the dissenting judge (at para. 84), that even though the officer's mistake was not made in bad faith, this alone does not make the Charter breach in "good faith" (see Le, at para. 147). Good faith on the part of the police, if present, would reduce the need for the court to dissociate itself from the police conduct (see Grant, at para. 75; Paterson, at para. 44). Good faith cannot be claimed if the Charter breach arises from a police officer's negligence, unreasonable error, ignorance as to the scope of their authority, or ignorance of Charter standards (see Grant, at para. 75; Buhay, at para. 59; Le, at para. 147; Paterson, at para. 44). I also accept that "[e]ven where the Charter infringement is not deliberate or the product of systemic or institutional abuse, exclusion has been found to be warranted for clear violations of well-established rules governing state conduct" (Paterson, at para. 44; see also Harrison, at paras. 24-25). Even so, in my view, the officer's mistake and the ensuing Charter breaches remain honest and inadvertent, rather than wilful or reckless.

[Underlining Added]

[17] The decision in Tim also makes clear that good faith must be assessed on the totality of the evidence, not solely on the error that caused the Charter breach. A trial judge must consider whether the breach was deliberate, whether systemic factors contributed to it, and whether the officers' overall conduct required the court to distance itself from that conduct. If an officer breaches a suspect's Charter rights through error or ignorance, it cannot be said that the officer acted in good faith. However, other aspects of the police conduct may offset the error, allowing the court to conclude that the police acted in good faith overall.

[18] The appellant submits that the following passage from the Reasons for Judgment demonstrates that the trial judge improperly diminished the significance of P.C. Cho's error on the basis that the officer was acting in good faith:

Looking at the seriousness of the Charter infringing state conduct, the officer, I find, had a good faith basis for attending the scene and making the ASD demand. There is some concern that I have that he failed to have an understanding of the importance of assessing the presence of alcohol in the defendant's body at the time of the driving. There is no indication that there has been any prior circumstance like this involving this officer and/or that this is an indication of a systemic problem. On this first prong, therefore, I find that the conduct was at the low end of the spectrum.

[19] With respect, I do not accept that this passage supports the appellant's submission. The trial judge did not excuse the officer's error regarding his lawful authority on the basis of good faith. Rather, the passage reflects her conclusion that the officer was not acting unreasonably or in an abusive manner when the error occurred. Read in context, the impugned passage shows that the trial judge found no evidence that P.C. Cho acted in bad faith.

[20] This conclusion is reinforced by a review of the reasons as a whole. The trial judge identified numerous examples of Charter-compliant conduct by the investigating officers, including P.C. Cho's respectful treatment of the appellant, his diligence in facilitating the appellant's section 10(b) rights, and the absence of delay in obtaining breath samples. These were all relevant considerations in determining whether, on balance, the police acted in good faith notwithstanding the arresting officer's misunderstanding of his lawful authority. In addressing the first prong of the Grant analysis, the trial judge was required to weigh all the evidence, and her reasons demonstrate that she did so.

V. Conclusion

[21] I find no error in principle. The trial judge correctly stated the Grant test for excluding evidence and carefully considered the relevant evidence. Her findings were reasonable and well supported. The conclusion that the first branch of the Grant test favoured admission is entitled to deference. No other aspect of the judgment is challenged, and the appeal is therefore dismissed.

Justice Peter Bawden

Released: 5 December 2025

[^1]: Transcript of March 15, 2024 at page 39 [^2]: Transcript of March 15, 2024 at pages 39-40.