ONTARIO COURT OF JUSTICE
NEWMARKET
BETWEEN:
HIS MAJESTY THE KING
— AND —
SHUJAAT SARWAR
JUDGMENT
Evidence Heard: January 8, 2026.
Delivered: January 9, 2026.
Ms. Ranya Taher counsel for the Crown
Mr. Shujart Sarwar ........................................................................................... self-represented
KENKEL J.:
Introduction
1Mr. Sarwar was sitting in the driver’s seat of a Honda Civic on Tufo Avenue in Markham. Two police cruisers happened to be canvassing that area on an unrelated matter. P.C. Phangnanouvong noticed Mr. Sarwar had his hoodie over his head and he looked away when the officer passed. He was still there when the officers returned to Tufo Avenue in their continued canvas of the area.
2They passed the parked Civic at different times, but the automatic license plate reader (ALPR) system in both cruisers sent a notice to the officers that an unlicensed driver was associated with that vehicle. Once the officers cleared the other call, they went back to Tufo and drove up to the Civic to investigate whether the person in the driver’s seat was licensed. Mr. Sarwar stepped out of the driver’s seat and tried to walk away. He was detained, but he refused to identify himself. After multiple requests and warnings, he was arrested.
3From the moment the officers approached Mr. Sarwar, he refused to cooperate and follow their directions. He repeatedly insulted the officers throughout their interaction. He physically resisted the arrest.
4Mr. Sarwar is charged with obstructing a peace officer contrary to s 129(a) of the Criminal Code.
5The evidence at trial requires consideration of the following issues:
Has the Crown proved the officers had lawful authority to detain Mr. Sarwar?
Mr. Sarwar abandoned his vehicle as the officers approached him. Did that deprive the officers of authority to detain him?
Has the Crown proved the officers had lawful authority to arrest Mr. Sarwar?
Has the Crown proved that Mr. Sarwar resisted arrest and obstructed P.C. Cando as alleged?
Has the Crown proved that the search of Mr. Sarwar’s vehicle was incident to arrest and lawful?
Did the officers provide Mr. Sarwar with timely right to counsel advice?
Was Mr. Sarwar assaulted? If so, what remedy should apply?
Was the Detention Lawful?
6Two police cars registered notices from their ALPR systems showing a person associated with the Honda Civic was not a licensed driver. There was also a warrant outstanding for the arrest of that person in British Columbia.
7Section 33(1) of the Highway Traffic Act, RSO 1990 c H8 (HTA), requires drivers of motor vehicles to carry licenses with them at all times while they are in charge of a motor vehicle. They must surrender the license for reasonable inspection upon demand by a police officer.
8If a driver refuses to surrender his license or is unable to so when requested by a police officer, that person must identify themselves by giving their correct name and address – s 33(3) HTA.
9The word “driver” is defined in s 1 of the HTA as meaning a person who drives on a highway. Tufo Avenue is a public road and meets the definition of a “highway” set out in s 1.
10The meaning of the word “driver” in s 33 must be determined in the context of the wording of that section which includes not just a person actively operating a vehicle, but also includes a person who is, “in charge of a motor vehicle” – R v Heffernan, [2018] OJ No 6599 (CJ) at para 54. The Court of Appeal has held that the term “in charge of a motor vehicle” in this section is not limited to active driving and is wider than actual present physical custody– R v Richards, 1999 1602 (ON CA), [1999] OJ No 1420 (CA) at para 17.
11A person sitting in the driver’s seat of a parked vehicle is a driver who is in charge of a motor vehicle under s 33 of HTA – R v Bhagiratti, 2018 ONCJ 44 at para 20, R v Heffernan, [2018] OJ No 6599 (CJ) at para 58. This case illustrates why the province extended the definition beyond the act of driving for the purposes of this section. Mr. Sarwar was in the driver’s seat of the Honda with the key to the vehicle. He was in a position to drive at any time. To require the police to wait until Mr. Sarwar was driving down the roadway before they could check whether he was licensed to do so would pose a risk to public safety.
12The Crown has proved that the investigation of Mr. Sarwar was lawful. His attempt to walk away from the police led to his detention which was lawful in that context.
Abandonment
13Mr. Sarwar stepped out of the vehicle as the police approached. His statements to police at the time of arrest indicated that he questioned their authority to stop him based on the fact that he was able to exit the vehicle as they arrived.
14The fact that Mr. Sarwar stepped out of the vehicle and walked away from the police as they approached did not cancel the existing right the officers had to investigate him under the HTA. A person is not “immune from the reach of the HTA just because he is able to exit from his vehicle before being investigated” – R v Melmer, 2018 ONCJ 914 at para 34.
15Further, being the person “in charge of a motor vehicle” includes circumstances where the driver recently exited the vehicle – R v Richards, 1999 1602 (ON CA), [1999] OJ No 1420 (CA) at para 17, R v Heffernan at para 59, R v Bhagiratti, 2018 ONCJ 44 at para 19.
Was the Arrest Lawful?
16Section 217(2) of the HTA provides that where a person has contravened s 33(3) of the HTA, a police officer may arrest that person without warrant.
17It’s not plain why, but Mr. Sarwar refused to identify himself to the officers. He was warned several times that he was required to do so, and that continued refusal would result in his arrest. Mr. Sarwar continued to refuse and to attempt to leave the scene. He left the officers with no choice but to resort to the arrest power under s 217(2).
18Once they were able to confirm his identity by way of his driver’s license found in the Civic, Mr. Sarwar was processed at the scene and released.
19The Crown has proved the arrest was lawful.
Was P.C. Cando Obstructed?
20Mr. Sarwar’s belligerence, resistance and obstruction of the officers was recorded on the in-car-camera (ICC) video of P.C. Cando.
21He argued with the officers. He called them “fucking dumb”, “fucking clowns”, “fucking idiots”. He ignored their direction to stop and speak with them. He caused himself to be detained. His refusal to identify himself caused his arrest. He physically resisted that arrest, struggling with several officers to the point where they ended up on the ground. He resisted their efforts to put him in the police car, requiring multiple officers to assist P.C. Cando.
22There was no reason for any of this. The officers were calm and professional throughout. As one of the officers said after they confirmed Mr. Sarwar’s identification with the driver’s license found in his car, “Why were you being so difficult?”.
23The Crown has proved that P.C. Cando was in the lawful execution of his duty. Mr. Sarwar’s belligerent conduct deliberately obstructed that officer in the execution of his duty.
Was the Search of the Vehicle Lawful?
24At the scene Mr. Sarwar questioned whether the police had the right to search his Honda Civic. That’s where his driver’s license was found.
25A search of a vehicle incident to arrest is lawful where police have a lawful objective including the discovery of evidence related to the arrest – R v Nolet, 2010 SCC 24, [2010] SCJ No 24 at para 49, R v Caslake, 1998 838 (SCC), [1998] SCJ No 3 at para 25.
26Even after arrest Mr Sarwar refused to provide his name. Constable Graham searched Mr. Sarwar’s Civic to check for identity documents. That was said on the video during the search. He found Mr. Sarwar’s driver’s license. He confirmed Mr. Sarwar’s identify with his mother who had come out of the house to speak to the officers. Mr. Sarwar then finally admitted his identity.
27The search assisted Mr. Sarwar who was about to be taken to the station for a bail hearing. Once his identity was confirmed, he was released at the scene on a Form 10.
28The Crown has proved that the search was lawful under the common law doctrine of search incident to arrest. The limits of that power were respected. The objective was evidence of identification as the officers said on the video. Once Mr Sarwar’s driver’s license was found the search ended. There is no evidence that Mr. Sarwar was the registered owner of the vehicle, but assuming he had some privacy interest in the contents of the vehicle the search was a necessary and reasonable limit to that right incident to his arrest.
Right to Counsel
29Mr. Sarwar was actively resisting arrest until he was placed in the police car. After he was secure in the cruiser, P.C. Cando advised Mr. Sarwar again of the reason for his arrest. He read right to counsel advice. Mr. Sarwar continued to be uncooperative. He provided non-responsive answers to the officer’s repeated questions about the advice read and whether he wanted to call a lawyer of choice or duty counsel.
30Mr. Sarwar was provided with his right to counsel advice at the first opportunity. He refused to participate in the discussion that could have implemented access to counsel. The officer read a Prosper warning but could do no more. There is no evidence of a s 10 breach.
Allegation of Assault
31In his final submissions, Mr. Sarwar alleged that he was taken out of the police car prior to his release and thrown onto the ground. An officer kicked him, then put him back into the cruiser. He said, “We saw that on the video”.
32We didn’t. The Crown played the ICC video from the police car Mr. Sarwar was in, both from the front facing camera that captured his arrest and the rear facing camera that showed Mr. Sarwar in the back seat. There was also the ICC of P.C. Graham’s vehicle that was behind that car and facing towards it. There was no evidence that Mr. Sarwar was taken out and assaulted. The Crown offered to play any portion of the ICC videos Mr. Sarwar would like, but he never asked for other portions of video to be played or suggested that important parts of either video were not played.
33Mr. Sarwar cross-examined two of the three officers who testified. He declined to cross-examine P.C. Graham. He never suggested that there had been any assault or even misconduct on the part of the officers. He focused instead on the authority for the arrest, whether right to counsel advice was provided promptly on arrest, whether the search of his vehicle was lawful and whether the B.C. arrest warrant was Canada-wide.
34At the start of the trial Mr. Sarwar was advised that he had the right to call evidence at the close of the Crown’s case if he chose to do so. That information came with an explanation that the burden of proof always rests with the Crown. Mr. Sarwar was also told that he could only refer to evidence the court heard during the trial when making final submissions.
35At the close of the Crown’s case Mr. Sarwar was again advised that he had the right to call evidence if he wished to do so. He was told again, “If you do not call evidence the case will be based on the evidence heard to this point alone. In final submissions both sides may only refer to evidence that was heard during this trial”. He declined to call evidence.
36Mr. Sarwar’s claim arose for the first time in final submissions. It finds no support in the evidence. It also doesn’t make sense as the officers were plainly calm and professional throughout their dealings with Mr. Sarwar. When his driver’s license was discovered and he was finally identified, Mr. Sarwar calmed down and the officers started processing his release.
37The ICC videos and the testimony of the three officers show that the only violence that day was initiated by Mr. Sarwar. There was a struggle to put him in the police car, where officers did assist from the other side to pull him in, but that was because he continued to try to escape and was kicking the cruiser door to prevent it being closed.
Conclusion
38I find the Crown has proved the charge alleged beyond a reasonable doubt. There will be a finding of guilt.
Delivered: January 9, 2026.
Justice Joseph F. Kenkel