R. v. Tauriello, 2020 ONCJ 540

CITATION: R. v. Tauriello , 2020 ONCJ 540 DATE: October 23, 2020 Information No. 19-098 19-749 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. VINCENZO TAURIELLO EXCERPT OF PROCEEDINGS AT TRIAL -REASONS FOR JUDGMENT- BEFORE THE HONOURABLE JUSTICE B.E. PUGSLEY on OCTOBER 23, 2020 at ORANGEVILLE, Ontario APPEARANCES : L. Will Counsel for the Crown E. Brownscombe Counsel for Vincenzo Tauriello PUGSLEY J. (Orally): Mr.

Tauriello is charged with a single count under the Criminal Code of refusing to provide a sample into an approved screening device and a provincial offences allegation under the Highway Traffic Act of careless driving, s. 130(1). The evidence here was led by both the Crown and the defence over one-and-a-half consecutive days. As such, the evidence is fresh in my mind and I do not intend to recite it in great detail. On the Highway Traffic Act allegation there is evidence related to the alleged driving of the defendant from three Crown witnesses and from the defendant himself.

The Crown must prove, on the criminal standard of proof beyond a reasonable doubt, that the defendant drove his motor vehicle on a highway without due care and attention or without reasonable consideration for other persons using the highway on the offence date in Caledon. The defendant’s driving was described in evidence by three witnesses for the Crown and, as indicated, the defendant touched on this as well briefly. The defendant has suggested that the driving described by the officer in charge, P.C.

Croll, cannot be adequately linked to the evidence of the subsequent motor vehicle collision investigated by that officer because it was unreasonable that the defendant’s

identity as the driver Croll had seen before the collision was reliable. I do not agree. What Constable Croll saw was a gray Honda Civic driving at speed passing several vehicles in a left turn lane in front of Constable Croll’s police vehicle and then swerving in front of him in the intersection and nearly hitting his police vehicle. His observation is connected to the defendant by the nearly simultaneous collision involving a gray Honda Civic moments later by P.C. Croll’s view of the defendant as the driver and by the evidence of Mr. Cicconi as to the passing behaviour of the defendant before the collision.

It is also supported by the evidence of Mr. Savaglio as to a police car being in the intersection when he went through it just before the accident. In other words, I need not rely only on Constable Croll’s evidence of identity to be satisfied that the gray Honda Civic he saw was indeed the one he saw moments later when he attended at the scene of the motor vehicle collision. Mr. Cicconi’s evidence was of the defendant driving aggressively and erratically, including tailgating his car at speed. Mr.

Cicconi drove ahead of the defendant for several kilometres on Regional Road 50 and that behaviour was consistent, tailgating then dropping back, moving up again, and moving the Honda, on one occasion, one-quarter to half of the vehicle width into oncoming traffic. Mr. Cicconi saw that the actual collision was indeed going to happen behind him just before it did happen. The defendant’s vehicle collided with a pickup truck driven by Mr. Savaglio. The defendant was driving in the left lane and the pickup truck was in the right lane, which was about to end.

The pickup merged left as the Honda moved into the pickup’s space. The passenger side of the Honda hit the left rear of the pickup or was hit by the left rear of the pickup. Either the Honda moved into the way of the pickup and the pickup cut him off or the Honda hit the pickup when trying to pass. Constable Croll considered the statement of the civilian and charged the defendant with careless driving.

Clearly from his later statement to Ms Costa, the defendant’s then-fiancee, the officer also considered the driving behaviour of the defendant at the lights at Regional Road and Old Church Road when he concluded that he had a basis to charge the defendant with careless driving. With regard to the collision itself, other than the fact of the collision I cannot determine who was the last proximate cause of that accident. The fact of the collision is neutral as to the careless driving allegation in my view.

The defendant’s description of his driving was basically a denial of any improper driving behaviour at all without any specificity. I conclude that the s. 130(1) Highway Traffic Act charge is indeed proven by the Crown beyond a reasonable doubt based upon the evidence of Constable Croll as to a high speed multi-car pass within a left turn lane, which I accept nearly resulted in a collision with a police vehicle, plus the independent evidence of Mr. Cicconi as to detailed and persistent careless driving by the defendant before the accident. Mr.

Cicconi was obviously unsurprised that an accident eventually took place and had earlier moved his vehicle aside to try and put distance between himself and the defendant for the purpose, as he described, of self-preservation. The defendant’s driving before the accident meets the standard of proof for careless driving and he is found guilty on that charge. In my view, however, I cannot come to the same conclusion on the charge of refuse approved screening device. In this regard I am guided by the considerations set out by Justice Durno sitting as a

summary conviction court justice in R. v. Grant , cited at 2014 ONSC 1479 . In my view, Constable Croll was driven by an unnecessary and ultimately fatal desire to conclude his engagement with the defendant as quickly as possible. When he testified as to why he did not immediately pursue and stop the defendant after the near collision at the traffic lights Constable Croll testified that he could not turn around easily and that he knew it would be hard to catch the defendant, plus his shift was nearly over. So it was the defendant’s “lucky day” at that time on the careless driving.

When he found, within minutes, that there had been a motor vehicle collision and that indeed it was the same vehicle that had nearly clipped his police car I conclude he was already predisposed against the defendant. Someone said they thought the defendant was drunk, so he attended upon Mr. Tauriello with that in mind. He entered into a drunk driving investigation because he detected, as he said, a whiff of alcohol on the defendant’s breath. He made a demand for an A.S.D. sample. The defendant agreed.

Another officer brought a device to the scene and Constable Croll approached the defendant as he was being seen to by paramedics.

The defendant did not acquit himself well after the accident. He was very rude and profane in general to persons nearby including the officer. He was aggressive towards some from the pickup truck and some from that truck were aggressive to him as well. Although the defendant was being attended to by the paramedics after they convinced him that he should be looked at, the officer was completely dismissive of any injury to the defendant based on what he himself had seen. Paramedic Carson also testified that he did not see any signs of trouble breathing or vomiting at that time.

Constable Croll concluded that the defendant was faking and this conclusion informed how Constable Croll interacted with the defendant when the approved screening device was presented to him. Interestingly, Constable Brady who transported the approved screening device to the scene and delivered it to Constable Croll testified in chief that he saw the defendant dry heaving and also bent over at the side of the road, which coincided with the evidence of both defence witnesses. Constable Croll and Constable Brady both agreed that the defendant said he had nausea and that he was having trouble breathing.

Constable Croll did not believe him. In part, this was informed by the vocal nature of the defendant’s demeanour. I find that because he thought that the defendant was being theatrical and because the defendant was indeed rude and very profane, Constable Croll was impatient with the defendant. He moved too quickly to conclude that the defendant’s rude words of refusal were unequivocal. When Ms Costa, soon after the arrest, conveyed the defendant’s desire to do the test Constable Croll declined. Basically the defendant had had his chance.

Medical records filed on consent diagnosed that the defendant had had a concussion from hitting his head in the accident. He reported prior concussions. He was taken to the hospital by ambulance where he had a C.T. scan of his head. He asked for a blood test there regarding alcohol and some alcohol, 9.2 millimole per litre, was detected on the hospital tests. No evidence was led as to the equivalent blood-alcohol concentration in milligrams of alcohol per 100 millilitres of blood. The hospital records were obtained by Constable Croll after the investigation by way of a production order.

No attempt, however, was made to lay any other charges when the police obtained the medical records, from which I conclude there was no evidence sufficient to lay a charge of 80 or over. I find it of assistance to use the factors set out by Justice Durno in R. v. Grant at paragraphs 81 and following when assessing each allegation of refusal. Everyone agrees that each case is decided on the facts of that case, but it is helpful to consider the factors set out in paragraph 82 when determining if the Crown has established the requisite mens rea of the refusal alleged on the required criminal standard.

Paraphrased, factor one, the words and actions of the defendant in refusing the sample. Constable Croll was first told by the defendant that he would do the test. If the officer then concluded that the defendant was refusing, in my view that earlier agreement to do the test should have led the officer to take extra care and be extra patient when approaching this serious criminal charge. The first time the approved screening device was held up to the defendant the defendant said he was having trouble breathing and to give him a minute.

Constable Croll appears to have taken this literally as “One minute” rather than more generally such as, “Give me a moment” or, “I need some time.” Indeed, Constable Croll was anxious to tell the court that rather than only the minute the defendant had asked for he gave him double that time, two minutes. As noted, this was informed by Constable Croll’s express evidence that he did not believe the defendant was injured at all.

In other words, he humoured the defendant, my words, not his, for a couple of moments before presenting the defendant with a caution regarding failure to provide a sample, what the defendant ultimately referred to in his evidence as some legal stuff that he did not really understand. I note that Constable Croll should have considered that the defendant had just been in a serious motor vehicle collision, had crawled out of his car through the window and was being seen by paramedics.

Paramedic Carson’s evidence is not of great help on the refusal since he and his partner were focused on their job and Constable Croll’s role was different. He agreed that the defendant was rude, uncooperative and at times aggressive. On the other hand, Mr. Carson could not have known that the defendant would be diagnosed by a doctor as concussive when he got to the hospital. Mr. Carson did record that on route to the hospital the defendant told him he had been concussed before. Further, Constable Brady saw the defendant at the roadside dry heaving.

Constable Croll concluded the defendant was faking to avoid the test that, moments before, the defendant had expressly agreed to do. Constable Croll, supported by Constable Brady, testified that after P.C. Croll’s two minutes he held up the device in front of the defendant who said to get that expletive thing away from me. Constable Croll took this to be an outright refusal. I disagree on the evidence. At best it was equivocal. Constable Croll explained the consequences of a refusal and then held up the A.S.D. again.

Constable Croll then testified that the defendant said, “Leave me alone” and called him a rude name twice. He said to the defendant, “Are you refusing?” and the defendant said, “Expletive you. I’m not blowing.” Constable Croll immediately then arrested him for the refuse and left to do the papers. He had already concluded that a careless drive was warranted, although he also never asked the defendant what had happened in the collision nor was he required to do so, although it would have been probably helpful and made the defendant feel that the officer was being fair in his dealings.

Constable Croll testified as well in cross-examination that when he said he was not going to blow he did not think that the defendant said, “Right now”, and the defendant never asked for more time. Constable Brady, who was observing this process, stated that the response of the defendant to the first presentation of the device was, “Leave me expletive alone. I’m having trouble breathing.” He agreed with Constable Croll that the defendant, when the device was raised the second time, said rude words and that he was not going to blow, although he did not record verbatim the exact words of refusal.

Constable Brady concluded from what the defendant had said that he was refusing. It was possible, he conceded in cross-examination, that the defendant said he was not going to provide a sample right now, but he did not recall that that was said. Constable Brady’s evidence alone makes the words of refusal equivocal on the criminal standard this second time. Factor two: The Number of opportunities to give a sample. Here I conclude two opportunities only were provided after the two minutes allowed by the officer. As counsel for the defendant observed, in many cases there are multiple chances offered.

Here there was one before with an equivocal refusal and one after the caution with words of refusal. Factor three: What the officer said about the consequences of refusal and was the defendant given one last chance, to use Justice Durno’s words. Constable Croll explained the consequences of the refusal, but at no time told Mr. Tauriello that he had one last chance. Factor four: The defendant’s state of intoxication and his attitude.

There were no signs of impairment by alcohol and in spite of the Crown having medical evidence of the amount of alcohol measured at the hospital no other alcohol-related charge was laid. The defendant’s only criminal charge is the refuse approved screening device. In passing, had he blown it appears that he would have passed. The defendant’s attitude, as he himself admits, was abusive and aggressive to the world in general at first and then to Constable Croll, and indeed to his own fiancée.

This, however, could have led to the police pausing and considering whether that very attitude was also the symptom of an injury such as the defendant was complaining about. Rather, it was used in part as the basis for Constable Croll’s rush to lay the refuse charge. Factor five: The availability of a technician and an intoxilyzer. That is not an issue here. Indeed, Constable Croll himself is a qualified technician. Factor six: The time between when the defendant was told he was being charged with a refuse and his offer of a chance to provide a sample.

Here Constable Croll took roughly 15 to 20 minutes after the arrest to prepare the paperwork. Through Ms Costa the defendant’s offer to do the test was conveyed within that timeframe. Constable Croll was in his SUV mere feet away with an approved screening device. Constable Croll effectively said that it was too late. Constable Brady was asked earlier by Ms Costa if the defendant could give a sample and he directed her to Constable Croll. I do not agree with the Crown that there were two discrete transactions here.

The offer, I find, was a bona fide offer by the defendant after he had been calmed down by Ms Costa, conveyed by her to the officer. I find that Constable Croll believed that there had been a refusal already and that was the end of it. He never put his mind to the cases on point. Justice Durno’s

summary conviction appeal decision had been given five years or more earlier. Considering the evidence here on the framework of Justice Durno’s decision I have a doubt that the defendant’s refusal was a considered refusal, which is required for a conviction here. Constable Croll was nearly over his shift. His police cruiser had nearly been hit by the defendant’s vehicle. The defendant was consistently rude and abusive to him.

He thought, in spite of the obviously serious accident, that the defendant was faking his injuries and he rushed to a conclusion of a refusal, and then rushed to complete the arrest in spite of a timely at scene request to provide a sample. The Crown has not proven the offence of refuse A.S.D. beyond a reasonable doubt and that charge is accordingly dismissed. ...REMAINDER OF PROCEEDINGS NOT REQUESTED FOR TRANSCRIPTION AT THIS TIME ...WHEREUPON THESE PROCEEDINGS WERE ADJOURNED