ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
KASHISH THREJA
Before Justice F. A. McCracken
Heard on July 10, 11, October 1, 23, 2025
Reasons for Judgment released on December 2, 2025
M. Moser............................................................................................... counsel for the Crown
E. Sinclair ....................................................... counsel for the defendant Kashish Threja
Reasons for Judgment
1This matter arises from a motor vehicle collision on February 8, 2024, which resulted in Mr. Kashish Threja being charged with the offences that were the subject of this trial – impaired operation and Over 80. The defence has advanced a Charter application alleging breaches of Sections 8, 9 and 10(b). The defence concedes that the Over 80 charge rises and falls on this application. The Impaired count does not.
2The Crown called three witnesses on this trial. The first was Danial Danial, a civilian who testified that he was driving his black Honda CR-V through the intersection of Soft Needlewood and Peter Robertson at approximately 12:42AM on February 8, 2024. He stated that the intersection was controlled by an all-way stop. After stopping and proceeding into the intersection, his vehicle was struck on the front passenger side by another vehicle approaching from his right. He described the impact as sudden and forceful, causing both vehicles to move and deploy their airbags. He did not see the other vehicle before the collision and could not estimate its speed other than to say it was “fast.” Following the impact, he remained in his vehicle for about a minute, feeling shocked and disoriented, before exiting and calling a friend. He did not speak to anyone at the scene other than the police, who arrived shortly thereafter. He also testified to injuries to his thumb, neck, shoulders, and ankle, which required hospital treatment and ongoing physiotherapy. Importantly, Mr. Danial’s account was not known to the police at the time that Mr. Threja was arrested and the breath demand was made. I am aware that I cannot rely on it in assessing the officers’ grounds.
3The second witness was Constable Brianna Gilfoy, the arresting officer. She testified that she arrived at the scene at approximately 12:32AM and initially conducted a Highway Traffic Act investigation. She observed two severely damaged vehicles with deployed airbags and was advised by firefighters that the occupants had been medically cleared. Constable Gilfoy identified the accused as one of the drivers and described him as appearing “very disoriented,” with red, glossy, bloodshot eyes. She testified that she detected an odour of alcohol emanating from his breath and observed several empty beer cans in his vehicle. She asked the accused three times for his driver’s license, which he failed to produce. Based on these observations, she formed grounds to arrest him for impaired operation at 12:35AM. Constable Gilfoy acknowledged under cross-examination that her notes were not strictly chronological and that she exaggerated on video about the number of times she requested the license. She also conceded that her demonstration of disorientation was “dramatic,” but maintained that her observations were genuine.
4The third witness was Constable Amanpreet Kandola, who arrived shortly after the arrest and took over custody of the accused when it became apparent that he preferred to receive his rights in Punjabi. Kandola testified that she began reading the accused his rights to counsel in Punjabi at 12:47AM (I note here, that the body-worn camera footage shows this as 12:46AM), followed by the caution at 12:51AM and the breath demand at 12:52AM. She confirmed that the accused asked to speak with his brother during the rights advisory but did not indicate that the purpose was to obtain a lawyer’s contact information. Kandola facilitated contact with duty counsel, who ultimately spoke with the accused in Punjabi before the breath tests were administered.
5On the Charter voir dire, Mr. Threja testified that he asked to speak with his brother because he wanted his brother to provide him with a lawyer’s contact information. He claimed that he repeated this request both at the scene and at the station, but acknowledged that he did not tell the officers the reason for the request. He stated that he felt prevented from making the call because the officers were “yelling” and appeared aggressive, which led him to believe he was not permitted to speak with his brother. He confirmed that he ultimately spoke with duty counsel in Punjabi before providing breath samples, but maintained that this was not the lawyer he wished to consult.
THE ISSUES
6The issues that I need to decide in this case are as follows:
7First, whether the arrest and subsequent breath demand contravened sections 8 and 9 of the Charter. The defence contends that Cst. Gilfoy lacked reasonable and probable grounds to believe the accused’s ability to operate a motor vehicle was impaired by alcohol, rendering the detention arbitrary and the seizure unlawful.
8Second, whether there was an infringement of section 10(b) arising from delay in the provision of the right to counsel “without delay.” The accused was arrested at 12:35AM, yet his rights were not communicated in Punjabi—a language he requested and understood—until 12:46AM The defence submits that this interval constitutes an unjustified suspension of a constitutional guarantee.
9Third, whether the police failed to respect the accused’s right to counsel of choice under section 10(b). While being advised of his rights, the accused asked to speak with his brother. He testified that his purpose was to obtain his brother’s lawyer’s contact information. The defence argues that the officers’ failure to inquire further or facilitate this request amounted to a breach of the Charter.
10Fourth, the determination of the charge of impaired operation, which requires an assessment of whether the evidence establishes beyond a reasonable doubt that the accused’s ability to operate a conveyance was impaired by alcohol.
Issue #1: Grounds for Arrest and Demand
11Mr. Threja asserts that the police violated his right to be free from unreasonable search and seizure – and arbitrary detention – by arresting him and demanding samples of his breath without the requisite grounds. Specifically, he alleges that the police lacked grounds that he was impaired.
12As Mr. Threja’s breath samples were seized without prior judicial authorization, that seizure is presumptively unreasonable. The onus rests on the Crown to justify the demand for samples of his breath.
13Section 320.28 of the Criminal Code authorizes a peace officer to make a breath demand where that officer has reasonable grounds to believe that a person has operated a conveyance while their ability to do so was impaired by alcohol. It is this section of the Criminal Code that the Crown and police rely upon to justify the breath demand in this case.
14Reasonable grounds contemplates a higher standard than ‘reasonable suspicion’ – which is a lower standard that can justify an approved screening device demand. However, it is not the same as a ‘prima facie’ case, nor does it approach ‘proof beyond a reasonable doubt’ required for conviction.
15Reasonable grounds includes both a subjective and objective component. The officer making the demand must subjectively believe that the statutory pre-condition is met – that is that Mr. Threja operated a conveyance while their ability to do so was impaired by alcohol. And, that belief must be supported by grounds that are objectively reasonable. See Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 at paras. 16-17.
16The subjective branch of reasonable grounds to believe only requires that an officer have an honest belief that the person has operated a conveyance while their ability to do so was impaired by alcohol. In the context of this case, as long as I accept Constable Gilfoy’s evidence that she had this subjective belief – which was not seriously contested by defence, and which I do accept – the subjective branch of the test is met. See Rodriguez, [2001] O.J. No. 2592 (S.C.J.) at para. 20 and Tanner, [2025] O.J. No. 3357 (C.J.) at para. 23.
17Parliament did not denote degrees of impairment when setting the standard for either the offence of impaired driving or making a breath demand. Any impairment – even slight impairment due to consumption of alcohol – is sufficient.
18I accept Constable Gilfoy’s evidence that she observed the accused’s eyes to be red, glossy, and bloodshot. I also accept her observation that the accused appeared disoriented. While there are alternative explanations for disorientation, including the fact that the accused had just been involved in a collision, the police are not required to engage in the kind of judicial weighing that a court has the luxury of performing after the fact. I further accept that Constable Gilfoy detected an odour of alcohol emanating from the accused’s breath. She provided an adequate explanation for the sequence of her notes, and as is evident from the body-worn camera footage, her notes were not made contemporaneously with the formation of grounds.
19I also accept that she observed beer cans in the vehicle, albeit in the passenger areas. While one can in the console was a Coke can, the presence of beer cans, taken together with her other observations, is a factor supporting her grounds.
20I do not find that Mr. Threja’s failure to produce a driver’s license after repeated requests meaningfully contributed to the grounds. The body-worn camera footage played during the trial demonstrates that the accused was responsive to the officer’s requests. Constable Gilfoy acknowledged exaggerating the number of times she asked for the license when speaking to Constable Kandola; however, when considered alongside her other observations and my own review of the footage, I do not find that this exaggeration undermines her credibility or reliability.
21The circumstances of the collision do not assist in supporting grounds in this case. Constable Gilfoy testified that she did not consider the collision because its circumstances were not known to her at the time of arrest and demand.
22Each of these grounds, taken individually, may be weak and capable of alternative explanations. However, when considered cumulatively and in light of Parliament’s decision to authorize a demand where impairment by alcohol may range from slight to extreme, I am satisfied that Constable Gilfoy’s grounds were objectively reasonable. The arrest and the subsequent breath demand were authorized by law. There is no breach of sections 8 or 9 of the Charter.
Issue #2: Section 10(b) Delay and Language
23Constable Gilfoy arrested Mr. Threja at 12:35AM. She attempted to inform him of his right to counsel at 12:39PM but aborted that attempt at 12:41AM when it became clear that he did not understand and when he asked to be spoken to in Punjabi. Constable Kandola, the other officer who was on-scene with Constable Gilfoy spoke Punjabi. She began informing Mr. Threja of his right to counsel in Punjabi at 12:46AM.
24On behalf of Mr. Threja, counsel argues that this 11-minute delay amounts to a breach of his Section 10(b) Charter right to be informed of his right to counsel without delay.
25I intend to review the evidence in more detail, but before I do so I will outline the governing principles that apply this issue.
26Section 10(b) of the Charter states that “Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.”
27In Suberu 2009 SCC 33 the Supreme Court of Canada confirmed that “without delay” means “immediately” for the purposes of this right. That immediacy requirement though is subject to concerns for officer safety, or safety of the public, and other such limitations as prescribed by law and justified under Section 1 of the Charter. See Suberu at para. 42.
28As the Court of Appeal held in La 2018 ONCA 830 at para 39, a generalized theoretical concern for officer safety cannot justify a suspension of a detainee’s right to counsel. Rather, the inquiry must be fact and context-specific based on the evidence heard in any particular case.
29Courts have reached different conclusions on whether various delays comply with or breach the immediacy requirement.
30For example, in Davis 2023 ONCA 227, the Court of Appeal agreed with both the trial judge and the summary conviction appeal judge that an 8-minute delay amounted to a breach of the immediacy requirement. Importantly, in that case, the arresting officer could not account satisfactorily of the delay, had no notes of what transpired during the delay, and there was other evidence that contradicted the officer’s testimony on this point.
31By way of contrast, in Pileggi 2021 ONCA 4, the Court of Appeal held that a “brief” 7-minute delay for the police to secure the residence in the context of the execution of a search warrant did not violate the immediacy requirement. Citing Suberu, the Court held that there were legitimate officer safety concerns justifying the delay.
32Similarly, in Haist 2023 ONCA 465, the Court of Appeal found no fault with a 5-minute delay to secure the accused for safety.
33There are countless other cases that find both breach and no breach of the immediacy requirement. But the governing principle remains that a detainee must be informed of his or her right to counsel immediately. That immediacy requirement only yields to case-specific officer or public safety concerns, or other limitations can be justified under s. 1 of the Charter.
34As I have already indicated, Mr. Threja was arrested at 12:35AM. He was handcuffed and escorted through the scene – which was crowded with onlookers – to a police cruiser, arriving about 1-minute later, at 12:36AM. Upon arrival Constable Gilfoy instructs Constable Kandola to get the other driver’s information and says that she will be doing a ‘quick patdown’. While she appears to be putting on disposable gloves, she continues to brief Constable Kandola. Both officers appear to be repeatedly approached by one or more of the onlookers.
35Constable Gilfoy conducts a patdown search of Mr. Threja, finishing it at 12:37, whereupon she secures him in the back of her cruiser.
36Starting at 12:38, Constable Gilfoy gives Constable Kandola further instructions about the investigation, and then interacts briefly with a firefighter who approached her.
37She begins informing Mr. Threja of his right to counsel at 12:39, in English. In response to being informed that he was being “arrested for impaired operation”, Mr. Threja says “[w]hat are you saying?” When pressed by Constable Gilfoy to respond yes or no, Mr. Threja responds “yes” to being asked whether he understands. However, when he is informed that he has the right to retain and instruct counsel without delay he – among other things – complains that he does not understand the language of what Constable Gilfoy is saying. When Constable Gilfoy tells him that he is speaking English to her now, he says he has only limited English.
38At 12:41, When Constable Gilfoy repeats what she told him, he tells her that he does not understand and says “please Punjabi”. At this point, Constable Gilfoy stops, appears to make a note of the response, closes the door to her cruiser, and moves across the scene of the collision to speak with Constable Kandola – who speaks Punjabi. On the way, Constable Gilfoy has to stop an SUV from turning into the scene.
39At 12:42, Constable Gilfoy explains the issue to Constable Kandola and says that she might have to explain it in Punjabi. They discuss the logistics of transferring custody of Mr. Threja from one to the other along with division of responsibilities for the investigation and collision scene.
40At 12:43, Constable Gilfoy shares her grounds for arrest with Constable Kandola.
41At 12:44, she intervenes when a tow truck enters the collision scene to instruct it not to hook up the vehicles. Shortly after, within the minute, yet another onlooker approaches Constable Gilfoy expressing concern about someone else who was involved in the collision, apparently as an occupant rather than driver.
42At 12:46, Constable Gilfoy finishes briefing Constable Kandola. She tells Mr. Threja that he is going to a different cruiser. Constable Kandola takes over physical custody of Mr. Threja, and on the walk to her cruiser begins informing him of his right to counsel in a language that he requested and understands – Punjabi.
43Constable Gilfoy testified about the reason for various periods of delay. Constable Gilfoy testified that while she understood a detainee must be informed of their right to counsel immediately, she was concerned about officer safety given that there were “a tonne of pedestrians” and that she felt that if she had people approaching her and she had her back to them reading RTCs, she would be in a vulnerable position. She highlighted that there was a lot going on and the number of people approaching her – a firefighter, numerous onlookers – and the need to direct traffic – for example, as highlighted in the body-worn camera footage, an SUV apparently about to turn into the scene of the collision, and a tow truck driver. These concerns about the other individuals present and the need to manage the scene were corroborated by the body-worn camera footage filed on this trial.
44I accept Constable Gilfoy’s evidence about the justification for the delay in informing Mr. Threja of his right to counsel in a language that he understands, despite the presence of Constable Kandola, who speaks Punjabi.
45While the totality of the delay was 11-minutes, that number does not tell the whole story.
46For the first four minutes of that delay, Constable Gilfoy was engaging in tasks that are well-established to justify a brief delay in right to counsel – handcuffing the accused, escorting him to a secure location, and then conducting a brief patdown search.
47She then attempted to inform of his right to counsel. Within 2-minutes she determines that Mr. Threja does not understand, and in the next minute seeks Constable Kandola’s assistance. The time is now 12:42AM. Within about 4-minutes – at 12:46 – Constable Kandola begins explaining Mr. Threja’s rights to him in Punjabi. During that intervening 4-minutes – while speaking with the only other officer on-scene – Constable Gilfoy was approached by an onlooker who had some apparent concerns, had to direct a tow-truck driver not to hook up the vehicles involved in the collision, and – as she pointed out – was surrounded by a ‘tonne’ of pedestrians.
48In short, I find that the delay was justified both by (i) the initial officer safety-focused tasks of securing and searching Mr. Threja, (ii) the initial and very brief attempt by Constable Gilfoy to inform him of his right to counsel, and (iii) timely interventions to maintain and manage the scene of a collision as one of only two officers present.
49I also do not accept the defence argument that the failure to have Constable Kandola inform the accused initially of his right to counsel – being the Punjabi-speaking officer on-scene – amounted to a violation of the accused’s s. 10(b) Charter rights. Mr. Threja was initially conversing with the officers in English. And, when Constable Gilfoy became aware – within minutes of his arrest – of the presence of special circumstances grounding Mr. Threja’s lack of understanding of his right to counsel, she approached Constable Kandola.
50In short, I find that the 11-minute delay in informing Mr. Threja of his right to counsel in Punjabi does not violate the immediacy requirement of s. 10(b) of the Charter.
51Even if I am wrong, I would not have excluded the breath samples under s. 24(2) of the Charter.
52Here, I am mindful in assessing compliance with the immediacy requirement not to confuse the analysis of whether the right was breached with the analysis of the impact of that infringement under s. 24(2) – see Ahmed 2022 ONCA 640 at para. 36.
53It is important not to lose sight of what happened in this case. The accused was a driver involved in a serious collision with another member of our community – Danial Danial. On Mr. Danial’s evidence, which I accept, Mr. Threja was at fault for the collision, having run a stop sign. The defence seeks to exclude highly-reliable breath samples that would otherwise all-but establish his guilt of the excess blood alcohol charge. On this alleged breach, that exclusion would be grounded in an 11-minute roadside delay after which the accused was informed of his right to counsel – at the roadside – in his first language.
54It is noteworthy that Peel Police were able to provide rights in the accused’s first language within minutes of arrest. Especially when viewed in light of the Supreme Court’s comments at paragraph 111 of Grant with respect to breath samples, I would not have excluded them. Even had I found a violation of Mr. Threja’s right to counsel – which often is viewed as quite serious – I would find that the balancing of the seriousness, impact, and society’s interests in an adjudication of the trial on its merits did not favour exclusion.
Issue #3: Third-Party Contact and Right to Counsel
55Mr. Threja also urges me to find that the police violated his right to counsel of choice. While being informed of his right to counsel, he told Constable Kandola that he wanted to speak with his brother. He testified that he repeated that request both at the scene and the police station. He claims that the reason he wanted to speak with his brother was to be put in contact with counsel of choice. Accordingly, he argues that the failure to put him in contact with his brother – or for the police to contact his brother – prevented him from exercising his Charter right to counsel of choice.
56Where a detainee does not tell police the reason why he wants to speak with a third party, there is no obligation on the police to determine why such a request was made. See Al Hayawi 2023 ONSC 2578, Cheema 2018 ONSC 229 at para. 31, "when a detainee does not tell the police the reason why he or she wishes to speak to a third party, there is no obligation on the police to determine why the police made such a request", and Mumtaz 2019 ONSC 468 at para. 25. I note that the latter two decisions – Cheema and Mumtaz are summary conviction appeal decisions, by which I am bound.
57In this case, Mr. Threja did not tell the police that he wanted to speak to his brother in order to be put in contact with counsel of choice. He gave evidence that he did not do so because the officers were yelling at him and being aggressive. I reject that explanation. Mr. Threja had no problem asserting that he wanted to speak with his brother. If the true reason why he wanted to speak with his brother was to be put in contact with counsel there is nothing on the evidence that I have heard or the behaviour of the officers that I have watched on the body-worn camera that prevented him from doing so. I reject Mr. Threja’s evidence on this point.
58That is a full answer to this portion of the Charter application. There was no breach of his right to counsel of choice by the police’s failure to accede to his request to speak with his brother, or to make further inquiries of Mr. Threja on this point.
59I note also that Constable Kandola testified – and I accept – that Mr. Threja did not express any dissatisfaction with his call to duty counsel.
60There was no infringement of Mr. Threja’s s. 10(b) Charter right to counsel of choice.
61To summarize, I find no violation of Mr. Threja’s section 8, 9, or 10 Charter rights. The defence application to exclude the breath samples is dismissed.
62Defence counsel properly conceded during submissions that the Over 80 count rises and falls on the Charter application. In other words, the defence concedes – in my view, properly – that with the admission of the breath samples, the evidence establishes Mr. Threja’s guilt on that count beyond a reasonable doubt. I agree, and a finding of guilt will be entered on Count 2.
Issue #4: The Impaired Count
63I am also satisfied beyond a reasonable doubt that Mr. Threja operated a conveyance while his ability to do so was impaired by alcohol.
64I have already reviewed Constable Gilfoy’s evidence in my analysis of the Section 8 and 9 Charter application. I am mindful though that a finding of guilt for impaired driving requires far more exacting proof than reasonable grounds. I must be satisfied that the only reasonable inference from the evidence called in this case is that Mr. Threja operated the conveyance while impaired by alcohol. I must also consider presence of evidence supporting a finding that Mr. Threja was not impaired – or the absence of evidence on this issue.
65Importantly, the Crown called evidence that was not available to Constable Gilfoy at the time. Mr. Danial testified about the circumstances of the collision that I conclude was caused by Mr. Threja running an all-way stop. I accept Mr. Danial’s evidence.
66The unexplained collision – again, caused by Mr. Threja – combined with the evidence of impairment that I have already outlined – in particular, red glossy eyes, disorientation, the odour of alcohol on Mr. Threja’s breath – satisfies me beyond a reasonable doubt that his ability to operate his vehicle was impaired by alcohol. The absence of other indicia – such as stumbling, which was not observed by Constable Gilfoy, or slurring of speech – does not leave me in a reasonable doubt.
67Given my ruling on his statement, as well as the defence concession on the Over 80, there is no issue that Mr. Threja was the driver. I conclude beyond a reasonable doubt that he was impaired by alcohol at the time.
68There will be a finding of guilt on the charge of impaired operation – Count 1.
Released: December 2, 2025
Signed: Justice F. A. McCracken