ONTARIO COURT OF JUSTICE
NEWMARKET
BETWEEN:
HIS MAJESTY THE KING
— AND —
TODD TVERBERG
JUDGMENT
Evidence and Submissions Heard: November 24, 2025.
Delivered: November 24, 2025
Ms. Lindsay Young................................................................................. counsel for the Crown
Mr. Jason Rabinovitch .................................................................... counsel for the defendant
KENKEL J.:
Introduction
1Constable Godin was conducting a mobile RIDE at an LCBO store in Vaughan. He saw Mr. Tverberg stumble as he walked to his vehicle carrying a bottle of vodka. The officer stopped Mr. Tverberg to conduct a sobriety check. His observations, including an odour of alcohol from the driver led to an approved screening device (ASD) test. The “Fail” result led to two approved instrument tests at the station showing blood alcohol concentrations of 221 and 219mgs/100ml. Mr. Tverberg was charged with having a blood alcohol concentration in excess of the legal limit within 2 hours of operation (80+) s 320.14(1)(b).
2The final submissions in this case focused solely on the Charter application. The Crown has otherwise proved its case beyond a reasonable doubt. The parties have identified the following Charter issues for decision:
Whether the stop to investigate driver sobriety without prior reasonable grounds to arrest or reasonable suspicion is arbitrary and contrary to s 9 of the Charter?
Whether the Crown has proved that the officer had a reasonable suspicion for the ASD demand?
Whether the Crown has proved that the officer had reasonable grounds for the approved instrument demand?
If the Charter breach(es) are proved, should the breath test evidence be excluded pursuant to s 24(2)?
Arbitrary Stop – Charter s 9
3The defence questioned the officer about his basis for the stop. The Notice of Application submitted that the stop and detention of the accused was arbitrary and a breach of s 9 of the Charter.
4“Driving is a heavily regulated activity. The police are engaged, not so much in after the fact investigations of completed crimes, but in pre-emptive investigations intended to avoid the serious harm caused by those who are involved in dangerous ongoing criminal conduct. The police’s goal is to catch the drinking driver at the roadside and not at the scene of the accident. Drivers expect to be stopped and questioned by the police concerning matters relating to the operation of their vehicles. That expectation is part and parcel of the privilege of operating a motor vehicle.” R v Smith, 1996 CanLII 1074 (ON CA), [1996] OJ No 372 (CA) at para 52.
5Constable Godin had authority at common law and under section 48(1) of the Highway Traffic Act RSO 1990 c H.8, to stop Mr. Tverberg to investigate his sobriety. Such a stop can be random. This stop wasn’t completely random as Constable Godin saw Mr. Tverberg stumble in the LCBO parking lot.
6Arbitrary or random stops of drivers for sobriety checks are authorized by law and are reasonable limits on the mobility rights of drivers in this regulatory context – R v Ladouceur, 1990 CanLII 108 (SCC), [1990] SCJ No 53. The RIDE checkstop program in this province is the best-known example of that authority.
7On the same day they delivered the decision in R v Ladouceur, the Supreme Court also held that the principle was not confined to organized programs. In R v Wilson, 1990 CanLII 109 (SCC), [1990] SCJ No. 54 (SCC) at para 12, the court held that a “floating stopcheck” similar to the “mobile RIDE” in this case was lawful as a reasonable limit on a driver’s Charter rights even if the stop was truly random.
8This stop was lawful and a reasonable limit on the accused’s mobility right in this regulatory context.
Reasonable Suspicion for ASD Demand – Charter s 8
9The officer did not need a reasonable suspicion for his ASD demand (s 320.27(2)) but he had one here. As soon as he stood by the driver’s open window, he smelled an odour of alcohol coming from the vehicle. Constable Godin had made other relevant observations, but even just the odour of alcohol coming from the vehicle provided an objective basis for his immediate demand.
10The Crown has proved the officer had a reasonable suspicion for the ASD demand.
Reasonable Grounds for the Approved Instrument Demand – Charter s 8
11PC Godin explained at trial that he believed the failure of the ASD test provided him with objectively reasonable grounds for the approved instrument (AI) demand. The defence submits that in explaining the failure of that test to Mr. Tverberg the officer used the wrong wording, showing that he did not understand the statutory requirements for the AI demand which is a breach of s 8.
12At the roadside, Mr. Tverberg asked about the ASD alcohol test, “Tell me what I blew”. P.C. Godin told him he blew a “Fail” which indicated that he was over the legal limit of 80. The officer explained to the accused several times that he was arrested for having over 80mgs of alcohol “in his system”.
13At trial P.C. Godin was cross-examined on the ASD settings and he explained that the “Fail” result indicates more than 100mgs of alcohol in 100ml of blood, a “Pass” is less than 49mgs and an “Alert” is less than 100mgs.
14The defence submits that the use of the words “in his system” at the roadside does not repeat the statutory language of s 320.28 which refers to a belief in a s 320.14(1)(b) offence involving a blood alcohol concentration equal to or exceeding 80mgs in 100ml of blood. The use of the phrase “in his system” shows that at the time the officer did not have reasonable grounds for the approved instrument demand. His evidence at trial showed he understands the results of the ASD as expressed in mgs/100ml of blood but that does not correct his misunderstanding at the roadside.
15P.C. Godin knew the Approved Screening Device test would determine whether there were grounds for an approved instrument demand. The failure of that test reasonably provided him with objective grounds for the AI demand he made. His explanation of the Fail result at the request of the accused was in informal terms appropriate to that conversation. Nothing in that conversation reasonably indicated that the officer misunderstood the requirement for the approved instrument demand. The expression “there are no magic words” (R v Grant, 2014 ONSC 1479) also applies in this context. The officer does not have to quote the precise statutory language when explaining the ASD result.
Exclusion of Evidence – s 24(2)
16The defence submitted in strong terms that the breach in this case is a serious one that must result in the exclusion of the breath test evidence.
17There was no s 8 or s 9 breach, but in the alternative if the use of the term “in his system” amounted to a breach, it could not reasonably result in the exclusion of evidence under s 24(2).
18The breach described is a highly technical one. It was not serious as the officer reasonably believed he had reasonable grounds for the approved instrument demand and objectively he did in fact have reasonable grounds based on the ASD failure. There was no impact on the accused when the failure result was explained as over the legal limit for alcohol “in your system” as the essential message was conveyed. It’s not likely that adding the statutory toxicology terms of mgs/100ml of blood would have been meaningful. The exclusion of evidence in this context for a trivial breach would bring the administration of justice into disrepute.
Conclusion
19The Charter applications are dismissed. I find the Crown has proved the charge alleged beyond a reasonable doubt.
20As a postscript, I should add that this case shows precisely why Parliament and the Legislature have given police wide ranging powers to investigate drivers for sobriety. Mr. Tverberg is very lucky the officer stopped him. His statements at the roadside indicated he was on his way to pick up his daughter from school. Mobile driver sobriety investigations like this one carried out by P.C. Godin save lives.
Delivered: November 24, 2025.
Justice Joseph F. Kenkel