ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
HARSHAN DHALIWAL
Before Justice G.P. Renwick
Heard on 25-26 August 2025
Reasons for Judgment released on 26 August 2025
A. De Avila counsel for the Prosecution
T. Hicks counsel for the Defendant Harshan Dhaliwal
RULING ON CHARTER APPLICATION UNDER SS. 8, 9, AND 24(2)
INTRODUCTION
1The Defendant is charged with the single count of having operated his conveyance with an impermissible blood alcohol concentration, contrary to s. 320.14(1)(b) of the Criminal Code. He was observed by police driving his car inside a construction zone around 3:00 a.m. When police spoke with the Defendant, an odour of alcohol was detected, a roadside breath demand was made, a “fail” result was registered, and the Defendant provided samples of his breath that led to the charge before the court.
2This was a very brief and focused trial. Only the arresting officer, who was also the Qualified Technician, and the Defendant testified on the Charter Application (which ran concurrent to the trial evidence).
3The parties conceded that the result on the Application was determinative of the result on the trial: If the court finds a s. 8 or s. 9 Charter violation, the evidential breath sampling results would be inadmissible and an acquittal would result, whereas the admissibility of the breath readings would lead to a conviction.
4These reasons will explain my decision to dismiss the Charter Application and admit the breath testing results.
GOVERNING LEGAL PRINCIPLES
5Though the Defendant generally has the onus to establish violations of the Charter on a balance of probabilities,1 where there is a warrantless search, as in this case, the prosecutor must establish that the search was conducted reasonably and pursuant to some lawful authority.2
6Thus, both parties have an onus of proof on a balance of probabilities: here, the Defendant must prosecute his Charter claim that the police did not have a reasonable grounds to suspect the presence of alcohol in his body to require a roadside breath screening, while the prosecutor has to establish that the seizure of the evidential breath samples followed a lawful breath demand compliant with the statutory regime for warrantless breath testing.
7Generally, reasonable grounds relate to credibly-based probability.3 However, at the stage of demanding a roadside breath screening, all that is required is credibly-based possibility: Is it reasonably possible that the driver has alcohol in her body.
8Subsection 320.27(1) of the Criminal Code makes this plain:
Testing for presence of alcohol or drug
If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug:
(a) to immediately perform the physical coordination tests prescribed by regulation and to accompany the peace officer for that purpose;
(b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose;
9Reasonable grounds to suspect is a lower standard than reasonable and probable grounds to believe because it engages a reasonable possibility, rather than a probability of a state of affairs.
10Given the social value placed on detecting and preventing drunk driving, in the context of roadside breath screening, the reasonable suspicion need not even relate to the possibility of a criminal offence, but simply a reasonable possibility that a motorist has alcohol in her body during or within three hours of driving.
11Because the standard deals with possibilities, there will be cases where the police will erroneously suspect drivers who have no alcohol in their body, but nonetheless require them to perform a roadside breath screening.
12However, the suspicion held by the police cannot be so broad that it descends to the level of generalized or bald suspicion – suspicion that attaches to a particular location or activity, instead of a specific person: R. v. Chehil, 2013 SCC 49, at paras. 26-30.
13Properly articulated, the reasonable suspicion standard prevents the indiscriminate and discriminatory exercise of police power.4
14Again, context is critical; the statute permits this base level of opinion (reasonable suspicion) only at the start of investigations related to a highly regulated, dangerous public activity – driving.
15In summary, reasonable grounds to suspect must be articulable, subjectively held by the officer, and objectively reasonable. An officer is entitled to rely on experience and common sense in formulating the target possibility. Also, the police can be mistaken in the suspicion formed, as long as the suspicion was objectively reasonable given competing inferences or alternative explanations for the information considered.
THE EVIDENCE AND FINDINGS OF FACT
16I have viewed the initial (video only) interaction with the Defendant captured on the officer’s dash camera several times. Within 10 seconds of her approach to speak to the Defendant, the officer stepped back, which apparently aligned with her request to have him follow her for the breath screening procedure.
17Constable Everilda Ratnakumar testified that she first observed the Defendant in a clearly marked construction area as she was stopped waiting to turn and enter the on-ramp to the highway. Given the early hour (just after 3:00 a.m.), she decided to investigate. To her it was obvious that this was a passenger vehicle, not a construction vehicle, in a construction area, late at night, and there was the possibility of criminal activity (theft of construction equipment, for instance).
18Once Cst. Ratnakumar approached and spoke with the driver (the Defendant), she claimed to have detected the odour of alcohol coming from his breath. She asked about his presence in that area and he indicated he was following his GPS. She testified that she asked him about alcohol consumption and also where he was coming from before seeking his driver’s license and making her demand for a roadside breath screening.
19The Defendant’s testimony differed. He says that initially, they spoke very little, asking only about his presence in the area before the officer told him to come with her. He testified that once he was outside his car there were questions asked about alcohol consumption and his departure point that night. The Defendant also testified that the officer did not take his driver’s license when he first handed it to her.
20Interestingly, the dash-cam video contradicted both witnesses about the timing of the officer’s reception of the Defendant’s driver’s license. I find that the Defendant offered it through the open driver’s window at the start of their interaction, and the officer took it. As she walked back to the police car, the driver’s license is visible in the officer’s right hand at several points and from different angles.
21I reject the Defendant’s testimony that the breath screening demand was made after only one question was asked. Though it was a brief interaction (10 seconds), I accept as accurate the evidence that the officer asked the Defendant about alcohol consumption and his driving origins before making a roadside breath screening demand. I reject his testimony on this point for the following reasons:
i. I accept as accurate the officer’s evidence respecting the initial conversation;
ii. The Defendant lied to the police when asked about his alcohol consumption;
iii. The Defendant provided no other details for anything else that occurred during the 10 second interaction after his brief answer (he was “following his GPS”);
iv. It is implausible that the officer waited until the Defendant was already complying with her demand to ask about alcohol consumption; and
v. During the Defendant’s four-minute cross-examination, and despite the several times he was asked, he refused to admit the obvious - that it was possible that the officer could smell alcohol on his breath because he had been drinking alcohol that night.
22Though I have concerns that Cst. Ratnakumar was easily perturbed by the Defendant’s questions and she was mistaken about the Defendant’s interruptions as the cause to repeat the rights to counsel, I have no concerns that she was mistaken or otherwise inaccurate concerning their initial interaction.
23More importantly, I accept the officer’s testimony that she perceived the smell of alcohol coming from the Defendant’s breath when she first dealt with him at his car window. The Defendant’s testimony, the cross-examination of the officer, and the submissions did not erase this possibility and I find that Cst. Ratnakumar was credible and sufficiently reliable to accept her evidence on this point.
ANALYSIS
24Reasonable suspicion must be assessed against the totality of circumstances in a given situation. Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors.
25Reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors:
Much as the seven stars that form the Big Dipper have also been interpreted as a bear, a saucepan, and a plough, factors that give rise to a reasonable suspicion may also support completely innocent explanations. This is acceptable, as the reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so.5
26The formation of reasonable suspicion is not necessarily negated by other possible explanations, unless the police unreasonably discount information that calls into question that which gives rise to the target possibility.
27Here, the Defendant denied having consumed alcohol. Arguably, that called into question the officer’s perception that he had alcohol emanating from his breath. I find that the officer was entitled to disregard this information because it was likely tainted because it came from the person under suspicion and it was contradicted by the evidence confronting her (an olfactory sensation, the location of the Defendant’s car, and a poor explanation for the Defendant’s driving conduct – the GPS did not tell the Defendant to drive many metres past the construction pylons, off-road, near mounds of dirt and construction equipment).
28I also accept that there is at least one other explanation for the officer’s perception of the smell of alcohol besides emanation from the Defendant; it could have come from his passenger. But this does not negate the possibility that it could have come from the Defendant.
29Moreover, even if Cst. Ratnakumar is mistaken in her perception that the smell of alcohol came from the Defendant, I am satisfied that her subjective suspicion (alcohol in the Defendant’s body) was objectively reasonable for the following reasons:
i. The Defendant’s car was located many metres into an area restricted by large pylons, off the pavement, near construction equipment, and beyond the clearly visible on-ramp to the highway;
ii. It was late at night, after licensed establishments serving alcohol would be closed;
iii. Suspiciously, perhaps to pre-empt much discussion, the Defendant did not wait to see why the officer was stopping him before holding his driver’s license out the window; and
iv. It is undisputed that there was a smell of alcohol coming from inside the Defendant’s car.
30When I consider all of the available evidence, I am satisfied that it was reasonable for Cst. Ratnakumar to suspect the possibility that the Defendant had alcohol in his body while driving given the circumstances of his location, his behaviour, the time of day, and the smell of alcohol. This is the minimum threshold of opinion that she needed to possess to make a lawful demand under s. 320.27(1).
31Accordingly, the Applicant has failed to satisfy me on a balance of probabilities that the stopping of the Defendant’s vehicle was arbitrary or that the demand for a roadside breath screening was unconstitutional.
CONCLUSION
32Given my findings of fact, it is not established on a civil standard that the Defendant’s Charter rights were violated.
33The Application is dismissed.
Released: 26 August 2025
Justice G. Paul Renwick
Footnotes
- R. v. Collins, 1987 CanLII 84 (SCC), [1987] S.C.J. No. 15 at para. 21.
- Collins, supra, at para. 23.
- Canada (Combines Investigation Acts, Director of Investigation and Research) v. Southam Inc., 1984 CanLII 33 (SCC), [1984] S.C.J. No. 36.
- Chehil, supra, at para. 3.
- Chehil, supra, at para. 32.