Impaired Driving

R v Biagi

Unreported

R. v. Biagi

[2014] Ontario Court of Justice
Ontario Court of Justice — Justice Sheilagh O'Connell | March 27, 2014

Background

On May 22, 2011, Daniele Biagi was driving home from a Niagara Falls casino where he'd been gambling for about 10 hours. Earlier that day, he'd taken oxycodone for chronic back pain and lorazepam to help him sleep. A civilian called 911 reporting erratic driving, and police initiated a rolling block to stop Biagi's vehicle on the Queen Elizabeth Way.

When officers approached, they observed red and glossy eyes and detected an odour of alcohol on Biagi's breath. He admitted to having two beers at the casino. P.C. Bryan arrested him for impaired driving, and he provided breath samples registering 22 and 16 milligrams of alcohol per 100ml of blood — well below the legal limit of 80. The officer then demanded a drug evaluation, which revealed signs of impairment. A search of his vehicle uncovered pills containing oxycodone, lorazepam, and morphine. Urine tests later confirmed these substances in his system.

Issues

1. Did police have reasonable and probable grounds to arrest Biagi and make breath, drug evaluation, and urine demands?
2. Did police comply with Biagi's right to counsel under section 10(b) of the Charter?
3. Should evidence be excluded under section 24(2) of the Charter if rights were breached?
4. Has the Crown proven guilt beyond a reasonable doubt?

The Charter Violations That Killed the Case

Justice O'Connell found that P.C. Bryan lacked reasonable and probable grounds for the arrest. While Bryan observed some signs of impairment (red eyes, alcohol odour), two other officers testified they saw no erratic driving. The officer relied on secondhand reports of erratic driving but never interviewed the civilian witness herself. Most critically, Bryan couldn't use an approved screening device at roadside — had she done so, she would have immediately known Biagi's blood alcohol was below the legal limit.

The court found this violated sections 8 and 9 of the Charter (protection against unreasonable search and seizure, and arbitrary detention). Additionally, while Biagi was given opportunities to speak with counsel before breath samples and drug evaluation, he wasn't offered counsel again before providing urine samples — a separate breach of his section 10(b) rights.

Under section 24(2) of the Charter, the court excluded all evidence obtained through these breaches. The judge emphasized that arresting someone without proper grounds is a serious violation, especially in impaired driving cases where Parliament has given police significant powers that must be exercised properly.

Key Takeaway

Police must have objectively reasonable grounds for arrest — their subjective belief isn't enough, no matter how experienced they are.

This case shows that even when someone actually has drugs in their system, Charter breaches during investigation can result in acquittal. Police shortcuts and procedural violations have real consequences, and courts will exclude evidence obtained through unlawful arrests and searches.

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R v DYMENT

No summary has been written for this decision yet.

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R v EVANS

No summary has been written for this decision yet.

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R v HENRY

[1999] O.J. No. 3344

No summary has been written for this decision yet.

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R v HERUY

[1999] O.J. No. 3344

No summary has been written for this decision yet.

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R. v. Hogan

2006 ONCJ 9

R. v. Hogan

2006 ONCJ 9
Ontario Court of Justice — Justice F.L. Forsyth | January 17, 2006

Background

Ben Hogan was driving his Jaguar home from an Argonauts football game on June 16, 2004, when P.C. Korda spotted him leaving a park after nearly striking a pedestrian. The officer followed Hogan's vehicle, observed him driving at high speed and making a wide turn into his driveway at 1565 Waterdown Road. When Korda approached, he noticed Hogan using his car door for support, walking carefully, and showing signs of alcohol consumption — glossy eyes, alcohol on his breath, and what the officer described as slightly slurred speech.

Hogan admitted he'd consumed "a couple of beers" at the game. At 12:14 a.m., Korda arrested him for impaired driving and read him his Charter rights. When asked about counsel, Hogan clearly stated: "Yes, I'll waive all that." But Korda had already decided he was going to call duty counsel regardless of Hogan's wishes, citing concerns about Hogan's impaired judgment. The breathalyzer tests eventually showed readings of 118 and 115 mg of alcohol per 100ml of blood.

Issues

1. Were the breath tests taken "as soon as practicable" as required by s. 258(1)(c) of the Criminal Code?
2. Did the Crown prove impairment of driving ability beyond a reasonable doubt?

The Unnecessary Delay

Justice Forsyth found that Hogan had provided a "fully informed and categorical waiver" of his right to counsel. Given his previous impaired driving convictions in 2002 and 2004, plus Korda's own admission that he'd dealt with Hogan professionally before, there was no doubt Hogan understood exactly what he was waiving. The officer himself testified that Hogan was coherent and the waiver was "very clear."

Despite this unequivocal waiver, Korda unilaterally decided to call duty counsel anyway — not because of any genuine concern about Hogan's comprehension, but as a policy decision. This created a 38-minute delay while they waited for duty counsel to call back and complete the conversation. The court found this delay "totally and absolutely unnecessary" and unreasonable under the circumstances. Since the Crown couldn't prove the tests were taken as soon as practicable, they lost the benefit of the s. 258(1)(c) presumption that the breath readings reflected Hogan's blood alcohol at the time of driving.

The Impairment Evidence Falls Apart

On the impaired driving charge, Hogan provided credible explanations for every symptom the officers observed. His "unsteady" exit from the vehicle? He suffered from pinched nerves in his leg after hours of sitting, and the Jaguar was a low-slung car requiring him to push off the door. His "careful" walking? He was wearing flip-flops. His "slurred" speech? He demonstrated in court that his broken dental plate moved around in his mouth, affecting his speech patterns.

Justice Forsyth noted that both officers provided only conclusory evidence about slurred speech without describing specific words or speech patterns that led to their conclusions. After considering Hogan's explanations, which the court found "totally credible," the Crown was left with only "glassy eyes" as evidence of impairment — insufficient to prove impaired driving ability beyond a reasonable doubt under R. v. Stellato.

Key Takeaway

Police cannot unilaterally override a clear, informed waiver of Charter rights just because they think it's in the accused's best interests.

When an accused person clearly understands and waives their right to counsel, police must respect that decision. Creating unnecessary delays for "policy reasons" can destroy the Crown's case by preventing them from meeting statutory requirements like the "as soon as practicable" standard for breath tests.

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R v Kaczmarek

[1994] O.J. No. 9

No summary has been written for this decision yet.

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R v KOZIOLEK

[1999] O.J. No. 657

No summary has been written for this decision yet.

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R v SHUPARSKI

No summary has been written for this decision yet.

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R v Skinderpal Singh

Unreported (Ont. C.J., January 14, 2000)

R v Skinderpal Singh

Unreported (Ont. C.J., January 14, 2000)
Ontario Court of Justice — Mr. Justice W. J. Blacklock | Brampton, January 14, 2000

Background

Skinderpal Singh was convicted by a justice of the peace under section 9.1 of the Provincial Offences Act after failing to respond to his certificate of offence — the "deemed not to dispute" procedure. The certificate had been certified by the officer, but the date on which it was served on Singh was left blank. On appeal, the question was whether a certificate with that gap could support a conviction entered without any evidence at all.

Issues

1. Does a blank service date make a certificate of offence something other than "complete and regular on its face"?
2. Does s. 124 of the POA, which cures defects in an information or process, bar relief for that defect?
3. Should a defect be treated differently on a failure-to-respond conviction than at a contested trial?

The Court's Decision

Justice Blacklock drew a sharp line between the two situations. He had earlier held in R. v. Regalado that a similar defect was not fatal where the accused appeared and a normal trial took place. Section 9.1 is different — it is an exceptional section that lets a justice of the peace convict without any evidence whatsoever, and invoking that exceptional power requires compliance with its terms. Relying on Drinkwalter and Muir's text on Ontario provincial offences procedure, he noted that failure to include a certificate or affidavit of service is one of the recognised defects that renders a certificate quashable. The certificate here might be regular on its face, but he found it "difficult to characterize" as complete. He also rejected the Crown's reliance on s. 124: the complaint was not about a defect in process but about whether there was any basis to exercise the extraordinary s. 9.1 power at all. Noting consistency with Justice Hawke in R. v. Rodrigues and his own decision in R. v. Rose, he quashed the conviction.

Key Takeaway

The less the court hears from you, the more perfect the paperwork has to be.

A conviction entered because you did not respond rests entirely on the certificate. Courts hold that document to a stricter standard than they would at a trial where evidence was actually called — so defects that would be forgiven at trial, like a missing service date, can be fatal here.

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R v Soto

2009 ONCJ 326

R. v. Soto

2009 ONCJ 326
Ontario Court of Justice — Justice K.N. Barnes | June 29, 2009

Background

At 3:07 a.m. on November 16, 2007, police were called to a single-vehicle collision on the Fred Gardiner Expressway ramp in Toronto. When Constable Saunders arrived four minutes later, he found Francisco Soto's vehicle had crashed into a concrete barrier with substantial damage. Soto was standing ten feet away from the car, and tow trucks were already on scene.

The officer smelled alcohol on Soto's breath, observed red eyes, and learned that Soto had lost control while driving at 100 km/hr. Breathalyzer tests later showed readings of 115 and 108 mg of alcohol in 100 ml of blood — both over the legal limit of 80. Soto was charged with impaired driving and driving over 80, plus driving with an expired licence under the Highway Traffic Act.

Issues

1. Did the officer have reasonable and probable grounds to demand a breath sample under s. 254(3) of the Criminal Code?
2. Was Soto in "care and control" of his vehicle when not found in the driver's seat?

The Breath Demand

The defence argued the officer "jumped the gun" and only had reasonable suspicion, not the higher standard of reasonable and probable grounds required for a breathalyzer demand. They claimed the officer should have used a roadside screening device first under s. 254(2).

Justice Barnes disagreed, finding that the cumulative factors were enough: the accident itself, alcohol odour, red eyes, Soto's admission about losing control at high speed, plus normal road conditions. The court emphasized that you look at the "totality of circumstances" — not each factor in isolation. The defence also tried to argue the officer never explicitly considered whether the offence occurred "within the preceding three hours," but the judge said officers don't need to recite "magic words" — the court can infer they turned their mind to the timing requirement.

Care and Control

This was the critical issue. Since Soto wasn't found in the driver's seat, the usual presumption under s. 258(1)(a) didn't apply. The court had to determine if he had "de facto" care and control using a risk analysis: was there actual or potential conduct by Soto that could create danger?

The judge found two potential risks: First, Soto could have used the tow truck operators to check if his car was driveable, then declined towing and driven off if it worked. Second, with keys still in the ignition and the car on an inclined ramp, he could have caused it to roll downhill. But here's the crucial gap: nobody asked who called the tow trucks. The judge found this was "significant because it helps inform the analysis of whether the risk of the potential conduct by Mr. Soto in relation to his vehicle is a realistic one." Without knowing if Soto called for help, the court couldn't determine his intentions or actions regarding the vehicle.

Key Takeaway

Gaps in the Crown's evidence can create reasonable doubt, even when other elements of the offence seem strong.

The prosecution proved Soto was impaired and had driven the car, but failed to establish the crucial link showing he maintained a realistic risk of danger with the vehicle. Sometimes what the Crown doesn't ask witnesses is just as important as what they do ask.

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