ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
JUSTIN HENDERSON
Before Justice R. S. Gee
Heard on September 11, 2025, October 15 and 24, 2025
Reasons for Judgment released on November 25, 2025
C. Torr and J. Mociak........................................................................ counsel for the Crown
S. Price and M. Pei……………………………………………………………for the accused
Gee J.:
Introduction
1At approximately 12:09 am on August 17, 2024, OPP Constable Theodore Nicholson saw the accused swerving in his vehicle while driving on Indian Road in Brant County. Officer Nicholson pulled the accused over to investigate and ultimately arrested him for impaired operation and made a breath demand.
2The accused was transported to the OPP detachment where he provided two samples of his breath which when analyzed, registered 270 and 250 mg of alcohol in 100 ml of blood. A charge of excessive blood alcohol concentration, or 80 plus, was laid based on these readings. Additionally, given the high readings, a further charge of dangerous operation was also laid against the accused.
3The trial on these three charges, and three provincial offences for not surrendering his licence, proof of ownership and insurance, commenced on September 11, 2025. At the conclusion of the trial, the Crown indicated it would not be seeking convictions on the provincial offences and as such, those charges will be dismissed.
4The accused has alleged his Charter rights were breached in three ways, any of which should lead to the exclusion of the breath results. First, he alleges his s. 8 and 9 rights were breached because Officer Nicholson did not have grounds to arrest him for impaired and demand samples of his breath. Second, he alleges his 10(b) right to counsel was breached because the police were not diligent enough in locating his cell phone so he could access counsel of choice. Then third, he alleges his 10(b) right was breached when he told Officer DeJong that duty counsel, who he did speak to, had hung up on him and Officer DeJong did not offer to reconnect him with duty counsel or ask if he was satisfied with the advice he received.
5On the impaired and dangerous operation charges, the accused’s position is the Crown has failed to prove either beyond a reasonable doubt.
6I disagree with the accused on two of his three alleged Charter breaches but do agree with him on one. I find that Officer Nicholson had more than sufficient grounds to arrest the accused for impaired operation and to make a demand for samples of his breath. I also find the accused has not demonstrated a lack of diligence by the police in locating his cell phone so he could call counsel of choice. I do agree with the accused though, that when he told Officer DeJong duty counsel had hung up on him, and officer DeJong neither offered to call duty counsel back for him or at least inquire if he was satisfied with the advice he did get, that this was a breach of the accused’s right to counsel. This breach I also find is sufficiently serious to warrant an exclusion of the accused’s breath results.
7The accused may ultimately view this as a pyrrhic victory though, because I have found the Crown has proven the impaired charge beyond a reasonable doubt. On the dangerous, the Crown did not make submissions to support a conviction, wisely so in my view, as the evidence I find is not capable of supporting a conviction on this charge either.
8The balance of these reasons will explain why I have come to the conclusions I have.
Analysis
9The trial proceeded in a blended fashion with the evidence on the trial and Charter application all heard together. Only Officer Nicholson testified for the Crown. The accused and his wife, Katrina Leng both testified with their evidence applying to the trial and the Charter application.
10Before delving into the issues concerning the alleged Charter breaches, or the evidence on the trial itself, some comments on the credibility of the witnesses is warranted. I’ll address first, the evidence of Officer Theodore Nicholson. I found him to be an excellent and compelling witness. His evidence was very detailed and thorough. Much of his testimony was consistent with the body worn cameras of the various officers, or the in-car camera in his cruiser. His answers in both direct and cross examination, were clear and responsive to the questions asked. Where there were gaps in his memory or notes, he admitted it.
11He was subject to a lengthy and very thorough cross examination by experienced and skilled counsel. Notwithstanding, his testimony was unshaken. His testimony was challenged by the accused in several aspects which the accused argues should lead to a finding his evidence is not worthy of belief or is unreliable. For instance, when Officer Nicholson observed the beer can being thrown from the accused’s vehicle was argued to be unclear. As well, his claim that the accused’s vehicle was constantly swerving was challenged. In this regard the in-car camera of Officer Nicholson was shown, and the accused’s vehicle swerves to where the left side tires are over the centre line of the road. It then swerves back over, and its right-side tires come into contact with the fog line. Then it continues straight for a period until it moves slightly again when Officer Nicholson pulls along side him to observe the driver at which point it again drifts away some. When Officer Nicholson then pulls back in behind the accused and activates his roof lights to pull the accused over, the accused continues straight until he pulls off to the right side of the road.
12The accused argues to describe this driving as constant swerving is inaccurate and an embellishment from what the video evidence displays. I find that the way Officer Nicholson describes the accused’s driving, does not detract from either his credibility or reliability. It seems to me it is more of a matter of semantics. What he also testified to was he observed the accused swerving prior to activating his in-car camera so in addition to the swerving that was observed on video, he saw other incidents of it that were not captured. If over a short distance a person is observed swerving several times like was seen on the in-car camera, this is a pattern of poor driving that someone might understandably describe as constant swerving, given how it deviates from expected normal driving behaviour. It does not have to be like a race car driver, swerving back and forth aggressively behind the safety car or pace car while warming their tires before the race commences to be described in this manner.
13Overall, I found Officer Nicholson to be a very fair, careful, and honest witness. I did not detect anything in his testimony that would make me find he was either embellishing or careless with the truth. Any alleged discrepancies or inconsistencies in his evidence as alleged by the accused are more apparent than real.
14The testimony of the accused on the other hand, was quite the opposite. After a careful assessment of his evidence, I find I am not able to believe any of it, nor does it leave me in a state of doubt. There are several reasons why I have come to this conclusion. At times during his cross examination, I found the accused to be argumentative. His testimony was also inconsistent between his direct examination and his cross examination. He also refused to admit things even when they were clearly shown to be otherwise on the videos. Other parts of his testimony were inherently implausible.
15Some examples of these flaws in his testimony are as follows. When it was pointed out to him by the Crown he was smiling and giggling at times while at the police station, he denied this was the case. He became argumentative on the point and refused to admit it even when pointed out to him on the videos. An example where he was inconsistent came from the issue of his gait that night. In chief, he testified he was walking normally. When the crown played the in-car camera and showed him where he appeared to be walking with a sway or wobble, he stated he was never told to walk straight and that he has a knee issue from his work as an arborist, so he always walks with this so-called wobble.
16There were several aspects of his testimony that were rife with implausibilities. One such implausibility concerns what and how much he drank. He testified he went to a friend’s in St. George after work, had been there for approximately 6 hours or so and drank while there. When asked in cross examination how much he drank, he said he couldn't remember. When asked what he was drinking, he again said he couldn't remember, but it was probably beer. I don’t believe either of these answers were truthful. If you spend the night drinking at a friend’s house, and not long after leaving get pulled over and charged with drinking and driving and other offences, the events of that night are going to be of significance to you. My impression was the accused at least would have a general sense of how much he had drunk and would most certainly remember what he drank. This lack of memory he now claims I find, was feigned because the accused knew to testify truthfully about these issues would undermine his case.
17He also testified that Officer Nicholson was unpleasant with him and appeared irritated in his dealing with him. This claim though is inconsistent with the video evidence that captured significant portions of the events. Throughout it all, Officer Nicholson was the opposite. He was very patient, professional and respectful in his dealings with the accused. In fact, it seemed to me he went over and above what was required of him and what many officers would do in the circumstances.
18An example of this is after the conclusion of the investigation when the accused was released from the station, Officer Nicholson offered to drive the accused where he wished to go as it was late at night and his vehicle had been impounded. This was something Officer Nicholson was not obligated to do and was done as an act of kindness and as a courtesy to the accused.
19The accused though has tried to flip this act of kindness on its head and characterize it as a dangerous and vindictive act by Officer Nicholson. The accused testified that on this ride, Officer Nicholson was angry and upset that the accused was keeping him from being able to see his girlfriend. He stated during the drive, Officer Nicholson was driving in an extremely dangerous manner and at one point saw the speed display in the cruiser hit 183 kmh. He stated when they approached red lights, he would make a quick turn to the right then quickly back to the left to avoid having to stop for the light. I don’t believe this. It was inconsistent with the respectful, professional manner Officer Nicholson was behaving that night as seen on the videos, it was inconsistent with his calm, professional demeanour in court and would be wholly inconsistent with his duties and training.
20On top of this, the accused claimed he asked the police to transport him to his home in Waterford, but Officer Nicholson, for reasons only known to himself, drove him instead in the opposite direction to St. George. The accused testified he never asked him to, nor did he tell him any address or anything that would connect him to St. George. Even the address on his driver's licence was for his home in Waterford so why Officer Nicholson took him to St. George was unknown to him.
21This again is something I simply do not believe and something I find the accused has made up to try to bolster his allegations about the mistreatment he says he received at the hands of Officer Nicholson. Given what I saw of Officer Nicholson on the videos and how he displayed himself in court I wouldn't believe this allegation for those reasons alone, but the most glaring reason why this claim by the accused is untrue is something else. Notwithstanding, he never asked to be driven to St. George, never told Officer Nicholson he wanted to go there and there was nothing to indicate Officer Nicholson knew of any connection he had to St. George, of all the places he could drop him off in St. George, apparently Office Nicholson randomly and coincidentally chose to drop the accused off at what turned out to be his parent’s house. The chance of Officer Nicholson without any prior knowledge or direction from the accused, choosing to drive him in the opposite direction from where he wanted to go, to a town some significant distance away and choosing to drop him off at some random house that turns out to be the house of the accused’s parent’s is so astronomically small as to be completely unbelievable.
22It is for all these reasons I find I cannot believe any aspect of the testimony of the accused. As well, given how he appears to be careless with the truth and willing to invent aspects of his testimony that are easily disproven, his testimony also does not leave me in any state of doubt.
23Katrina Leng, the accused’s partner also testified. She testified primarily about the accused’s speech, his knee issues, and the fact his phone was in his vehicle when they went to retrieve it in the days following the incident. I don’t put much weight in her testimony. She confirmed his claim that he has knee pain at times due to his work. That may be the case, but I would note that even though the accused testified he can get knee pain form his job, he never actually claimed to be suffering from knee pain on the night of his arrest. As well, she testified he is prone to mumbling whether drinking or not, especially when he’s nervous or excited. However, he seemed to have some ability to control that, at least when sober as he stated he was nervous testifying in court but did not display signs of mumbling then.
24Turning to the alleged Charter breaches, the accused claims his s. 8 and 9 Charter rights were breached because Officer Nicholson lacked grounds to make the breath demand which resulted in an unlawful seizure of his breath samples and an arbitrary detention.
25The onus lies on the accused to demonstrate this on a balance of probabilities, and I find they have failed to do so. To make a demand, an officer must believe the accused’s ability to operate their motor vehicle was impaired, even to a slight degree, by alcohol. There is no requirement that the accused be in an extreme state of intoxication. The officer’s belief in this regard must be objectively reasonable. See: R. v. Bush, 2010 ONCA 554 at paragraphs 47-48.
26In this case, Officer Nicholson stated his belief the accused was impaired was based on several observations. His attention was first drawn to the accused because he observed his vehicle swerving on the roadway. He also observed the accused throw a beer can from the vehicle before it was stopped. When he did stop the accused, he spoke to him while he was still seated in the driver’s seat and detected an odour of alcohol coming from his breath and his speech was slurred.
27At this point he felt there were grounds for an ASD demand, so he asked the accused to step out of his vehicle. He did, and as he walked to the cruiser, Officer Nicholson stated he also saw the accused swaying and not able to walk in a straight line. After seeing this, he concluded he had more than a suspicion the accused had alcohol in his system and was of the opinion he was impaired. So based on all these observations he arrested the accused for impaired and made the breath demand.
28The accused challenges the sufficiency of these grounds and argues at best, there were grounds for an ASD demand as Officer Nicholson initially turned his mind to. Other non alcohol related explanations exist for some of the observations such as the accused’s speech and gait as discussed earlier.
29These arguments do not help the accused nor detract from the officer’s grounds. What was known to the officer at the time is what is to be assessed. Here, Officer Nicholson said he saw the accused vehicle swerving several times and a beer can being thrown from the window. He then activated his dash cam which captured more incidents of this swerving. He spoke to the accused who had an odour of alcohol coming from his breath, his speech was slurred, and he was unsteady on his feet.
30When the totality of these circumstances is considered, Officer Nicholson’s belief the accused was impaired by alcohol is objectively reasonable. There is no scorecard or minimum number of indicia that need be present. Nor is the fact that other non-alcohol related explanations might be available for some of the observation mean the officer is not permitted to consider them in coming to his or her opinion. It is the totality of the circumstances presented to the officer at the time that should be considered. See Bush, paragraphs 54-57. I find, in this case, given the observations of the accused Officer Nicholson made, he had grounds for the arrest of the accused and for the demand for samples of his breath. This alleged Charter breach therefore fails.
31The next alleged Charter breach concerns the accused’s 10(b) right to counsel. The accused alleges this right was breached in two ways. First, the police were not diligent enough in assisting him to get his cell phone so he could access his contacts and call his counsel of choice and second, when he told Officer DeJong duty counsel had hung up on him, the police ought to have taken further steps to confirm with the accused he was satisfied with the advice he did get or to reconnect him with duty counsel so he could continue their conversation. Since the police did neither, this was a breach of the accused’s right.
32Section 10(b) requires the police on arrest or detention to advise the accused they have the right to counsel. If the accused then wishes to speak to counsel, the police are obligate to hold off questioning the accused further and are obligated to take reasonable steps to assist the accused in implementing this right. When a detainee indicates they want to speak to counsel, there is a corresponding duty on them to be diligent in the exercise of that right. See: R. v. Willier, 2010 SCC 37 at paragraphs 30-35. In this matter, it is alleged the police failed in their implementational duties by not making a concerted enough effort to assist him in locating and accessing his phone so he could find the name and number of his counsel of choice.
33Starting with the first alleged 10(b) breach, I would begin with the observation that I found Officer Nicholson to have a well-honed understanding of both the accused’s rights provided by s. 10(b) and the obligations placed on police in assisting an accused in implementing their access to counsel.
34In the cruiser, Officer Nicholson advised the accused of his right to counsel and when the accused indicated a desire to speak to counsel, he moved the conversation toward determining if the accused had a counsel of choice. Much of this conversation was captured on the audio of the in-car camera of Officer Nicholson.
35He advised the accused he could call his own lawyer if he had one, so he asked him if he had a lawyer. His response was “nah”. Officer Nicholson then asked if he had one in his phone. He did not get a clear response to that, so he asked further if he had his phone and the response was “I don’t have it on me”. The accused was then asked by Officer Nicholson if it was in the car. Even though we heard it several times during the trial, and I have listened to it several times since, I am not able to make out what the accused’s response was. The accused argued he advised Officer Nicholson it was in the car, but even if I find that was not the case, the police should have looked for the phone in the car in any event.
36The accused’s argument is that Office Nicholson and the police in general should have done more. When at the station and he was been turned over to the breath technician, Office Nicholson told him the accused didn’t have his contacts on him to call a counsel of choice so the accused was asked if he would like to speak to duty counsel and he agreed. The accused position is that Officer Nicholson should have searched the accused’s vehicle for the phone or even later, radioed to the officer involved with the tow to search the vehicle to see if they could locate the accused’s phone. In failing to take any of these steps, it is argued the accused’s 10(b) right was violated.
37I disagree. As the Supreme Court found in Willier as noted above, there is an obligation on the accused to be diligent when wishing to speak to counsel of choice. In this matter, throughout the investigation, the accused was asked several times if he had his own lawyer and whether he had his phone available to access his contacts. I find, after reviewing the audio of the in-car camera, watching the videos and based on the testimony of Officer Nicholson, at no time did the accused ever give a clear response to any of these inquiries by the police. At no time did he ever indicate the name of a lawyer, nor did he ever clearly articulate the whereabouts of his phone. His responses in the cruiser were, I find either incoherent, non-responsive to the questions asked by Officer Nicholson or unclear. Officer Nicholson, I find was very diligent throughout the entirety of the investigation in his attempts to assist the accused in this regard.
38As noted, the accused has an obligation to be diligent and I find here he was not being so. There is no obligation, when faced with a situation like this where the accused is unresponsive, or incoherent or unable to articulate where his phone may be, for the police to embark upon a kind of scavenger hunt to locate the accused’s phone. The police made more than sufficient efforts to help the accused access counsel of choice and when the accused was not able to help himself and assist in this regard, his choice to speak to duty counsel did not result in a breach of his 10(b) rights. This alleged Charter breach fails as well.
39The next alleged breach relates to the accused’s call with duty counsel. The body camera of Officer DeJong was played. He goes to get the accused after his call from duty counsel. He opens the door to the phone room and asks the accused if his call is finished. The first part of the accused’s response is unclear, but the next part was not, he clearly said that duty counsel had hung up on him. At this point Officer DeJong didn’t ask the accused if he would like to call duty counsel back or if he was satisfied with the advice he did receive, he just confirmed he did speak to them and then proceeds to take him from the phone room for the breath tests.
40This I find is a violation of the accused’s 10(b) right. At this point, the ability to access counsel is under the control of the police. The accused did not have the ability to call back when duty counsel hung up. The accused clearly made police aware that the call with duty counsel ended prematurely. At the very least, when told this by the accused, Officer DeJong should have asked if he wanted to call back or if he was satisfied with the advice he got. He did neither. He simply confirmed he talked to duty counsel and then took him for the breath tests. This breach allegation is well founded.
41Turning to whether the breath results should be excluded pursuant to s. 24(2) I find they should be for the following reasons. Applying the framework in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, three factors guide the analysis. First, the seriousness of the Charter-infringing conduct is in this is case significant. While not deliberate, the failure to act after an explicit indication of incomplete legal advice reflects neglect of constitutional obligations. This factor would favour exclusion. Second, the impact on the accused was substantial. He was denied informed legal guidance when he needed it most. This factor also favours exclusion. Third, society has an interest in adjudicating impaired driving offences. The carnage caused on our roads by impaired drivers is well known and difficult to understate. The exclusion of the breath results here will be fatal to the Crown’s case on the 80 plus charge. This factor favours inclusion of the results.
42In balancing these factors I find, exclusion is warranted. The breath readings, though probative, were obtained after a clear s. 10(b) violation. The right to counsel and timely legal advice upon arrest is a cornerstone to our justice system. Admission would signal tolerance for constitutional breaches, eroding the integrity of the justice system. Accordingly, the evidence is excluded pursuant to s. 24(2) of the Charter. As such the 80 plus charge will be dismissed.
43Focussing on the impaired operation charge, I find that Crown has proven this charge beyond a reasonable doubt. The evidence presented by the Crown on this charge I find is substantial. As noted, Officer Nicholson observed the accused swerving over the centre line of the roadway several times and throwing a beer can from his vehicle. After observing this, he activated his in-car camera which again captured the accused drifting over the centre line then back to where his right-side wheels touched the fog line. When he was pulled over, the odour of alcohol was on his breath, and his speech was slurred. When he exited from his vehicle, he was unsteady on his feet.
44Much of these observations were captured on the video and audio of the in-car camera. The unsteadiness by the accused was clearly visible when he walked from his car to the cruiser. It was captured again when he went to walk back toward his car before being called back to the cruiser. Inside the cruiser, at times his speech was slurred to the point of incoherence. His laughing and giggling at the station was, given the situation he was in, I find, due to his impaired state. Added to this is his admission he had been consuming alcohol for the better part of the evening and alcohol was in his vehicle when stopped.
45The accused has argued there are explanations of these signs that ought to leave me with a doubt. First, he points to the knee issues mentioned earlier for his swaying, and the mumbling while nervous explanation for his speech. Neither of these leave me with any doubt. As noted, although he said at times his knees hurt, he did not actually claim to have knee pain on this occasion. His speech too, I find was not because of nervousness. He didn’t mumble in court and wasn’t mumbling at other times on the videos. His slurring and incoherence in the cruiser I find were because of alcohol.
46The accused also points out that the signs of impairment were not constant. There were periods while driving that he was staying within his lane, and he pulled over appropriately when requested to do so. Also, there were periods at the station where the unsteadiness on his feet was not apparent and the slurring not present.
47I do not find these facts detract from my conclusion he was impaired. To ground a conviction, the Crown only need prove any level of impairment from slight to great (see: R. v. Stellato, (1993) 1993 CanLII 3375 (ON CA), 12 O.R. (3d) 90). As well, signs of impairment in cases such as this are not static. The initial observations were made shortly after midnight while the observations at the station were an hour or more later. Signs of impairment can vary from time to time and do not necessarily remain static or constant (see: R. v. Grant, 2014 ONSC 1479, [2014] O.J. No. 1143 at paragraph 53).
48When the circumstances are looked at in their totality, I am satisfied beyond a reasonable doubt that the accused was impaired by alcohol while operating his vehicle. His difficulty maintaining his vehicle in its lane, his difficulty walking, and his speech slurred to the point of incoherence, lead to the inescapable conclusion the alcohol he admitted to drinking that night had significantly impaired his ability to operate his motor vehicle. As such a finding of guilt will be made on this charge.
49This just leaves the dangerous operation. This charge was not laid until after the accused’s breath readings were obtained and the police decision to lay it seemed related to that. Now that the breath readings have been excluded, that evidence is not available. The Crown did not make submissions supporting a conviction on this charge and I find that was the right thing to do. Although anyone who drives drunk is dangerous, the actual driving observed here I find did not rise to the level dangerousness that this offence calls for and as such this charge will be dismissed.
Conclusion
50Given these findings, the exclusion of the breath results means the 80 plus charge is dismissed, as is the charge of dangerous operation. However, the Crown has proven the impaired operation beyond a reasonable doubt and as such a finding of guilt will be made on that charge.
Released: November 25, 2025
Signed: Justice Robert S. Gee