ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
JEGENATHAN MURUGESU
Before Justice T. Lipson
Reasons for Judgment released on March 16, 2026
Counsel: Ms. B. Guppy, counsel for the Crown Mr. K. Marynick, counsel for Jegenathan Murugesu
Lipson J.:
REASONS FOR JUDGMENT
Overview of the case
1Jegenathan Murugesu entered a plea of not guilty to a charge under s. 320.15(1) of the Criminal Code of refusing or failing, without reasonable excuse, to provide a suitable sample of breath into an Approved Screening Device (ASD).
2The Crown called two witnesses, P.C. David Un and PC Nicholas Forrest. They testified about a traffic stop they conducted late in the evening of February 17, 2025, on Parliament Street near Richmond Street in Toronto. They stopped Mr. Murugesu after seeing his vehicle travelling with its high beams on despite oncoming traffic.
3The Crown’s case is based on the evidence of the officers as well as video evidence from the officers’ body worn cameras.
4P.C. Un investigated Mr. Murugesu. The officer advised him at the outset of their roadside interaction, that when his police car pulled up next to the defendant’s car P.C. Un signalled him to lower his window. The defendant lowered it slightly and raised it again as he pulled over. As he approached the defendant’s car now stopped, P.C. Un observed that the driver’s side window was lowered only a couple of inches. P.C. Un requested Mr. Murugesu to fully lower his window. The defendant lowered his window but not fully. P.C. Forrest also described the defendant as being “ a little up and down with the windows”. P.C. Un also noticed the vehicle’s gas-cap door was open. The defendant said he was not aware of that. Both officers described the defendant’s eyes as glassy and that there was a delay in his responses to routine questions. Mr. Murugesu denied alcohol or drug use. The interaction was in English. The defendant provided documents and followed physical directions, including exiting the vehicle when directed.
5Based on all of these observations, P.C. Un formed a suspicion that alcohol might be in the accused’s body and made an ASD demand at about 11:00 p.m. The ASD was an Alcotest 7000 that had been checked for accuracy the previous day. Mr. Murugesu was given six opportunities to provide a suitable sample. The first three attempts involved biting the mouthpiece and/or starting to blow and then stopping. The last three attempts involved no airflow from the defendant as he placed his mouth or teeth on the mouthpiece without blowing. After the sixth attempt, the defendant was arrested at approximately 11:08 p.m. for refusal. Only after arrest did Mr. Murugesu say he did not understand and request a Tamil interpreter; an interpreter was then used for the right-to-counsel advisement and release paperwork.
Issues
6The issues in this case are as follows:
- Was there a lawful ASD demand?
- Was the ASD functioning properly?
- Was the process fair—did Mr. Murugesu have a real opportunity to comply?
- Has the Crown proved beyond a reasonable doubt a refusal or failure without reasonable excuse, including the required intent?
Analysis
Did P.C. Un have lawful grounds to make the ASD demand?
7A driver cannot be convicted of refusing to comply with an unlawful demand. The Crown therefore must prove a lawful demand as an essential element of the offence. Before making an ASD demand under s. 320.27(1)(b), an officer must have a subjective suspicion that alcohol is in the driver’s body, and that suspicion must be objectively reasonable. The standard is “reasonable suspicion”—a low threshold that requires a reasonable possibility, not probability, of alcohol in the body. The indicia must be assessed cumulatively; alternative innocent explanations do not, by themselves, defeat reasonable suspicion. Reasonable suspicion is a lower standard than reasonable grounds to believe. It is based on the reasonable possibility, rather than probability, of alcohol in the body. Indicia are assessed cumulatively, and an odour of alcohol is not required.
8Here, the officers relied on their observations: high beams on for no apparent reason, an open gas-cap door, unusual hesitancy of Mr. Murugesu to lower his driver’s side window, glassy eyes, and delayed responses.
9None of these factors must, on its own, point conclusively to alcohol. Reasonable suspicion does not require probability of impairment or proof of consumption. The law requires the officer—and the court—to consider the overall picture. Here, the officer was faced with the defendant’s driving with high beams on and an open gas cap, suggesting the driver’s inattentiveness to his surroundings; difficulty or hesitancy following simple instructions such as lowering the driver’s side window, and objective physical indicia such as glassy eyes and delayed responses
10Viewed together, these factors present a coherent constellation of factors supporting the reasonable possibility that alcohol was present in Mr. Murugesu’s body, thereby meeting the legal threshold for reasonable suspicion.
11While each factor can have an innocent explanation, the law requires the court to consider them cumulatively. Taken together, they provided a rational basis for suspicion. I find the ASD demand was lawful.
12I note that P.C. Un’s inclusion of the defendant’s glassy eyes in his grounds was made after he had decided to make an ASD demand but before the demand was delivered aloud to Mr. Murugesu. The case law confirms that “in‑between” indicia properly form part of the grounds at the time the demand is made: R. v Adams [2009] O.J. 6027 at paras. 20-21 (S.C.J.)
13Because the refusal allegation depends on the defendant’s conduct during the testing, I will set out Mr. Murugesu’s attempts in detail. They are captured on the body-worn camera evidence which I have carefully reviewed. The officers described the ASD procedure to Mr. Murugesu as requiring him to form a tight seal around the mouthpiece and then provide an uninterrupted stream of breath until the machine registered a complete sample.
14They cautioned the accused repeatedly about the consequences of failing to provide a suitable sample and gave demonstrations, including an analogy to blowing up a balloon.
15The first three attempts were administered by P.C. Forrest shortly after the demand. On his first attempt, Mr. Murugesu placed his mouth on the mouthpiece but bit down on it. The mouthpiece came off the device. On the second attempt, he began to blow and a steady tone was heard, but the defendant stopped blowing partway through. The tone stopped when the airflow stopped. The device indicated an insufficient or interrupted sample. Mr. Murugesu was again warned about the consequences of failing to provide a suitable sample. On the third attempt, the defendant again started to blow but stopped too early. The officers again showed him the device indicating an insufficient or interrupted sample. The defendant was again instructed to take a deep breath and blow continuously, like blowing up a balloon.
16After the first three unsuccessful attempts, P.C. Un took over and provided further explanations and demonstrations. The evidence was that Mr. Murugesu’s effort deteriorated during these latter attempts. On the fourth attempt, he placed his mouth on the mouthpiece but did not blow. The officer described there being no airflow and no tone from the device. The officer cautioned again and explained, using the balloon analogy, that a steady, continuous blow was required. On the fifth attempt, the defendant again produced no airflow. He placed his mouth on the mouthpiece but did not blow. No tone was heard, consistent with no airflow. On the sixth attempt, the defendant was told this was his last chance and again warned of the consequences. Mr. Murugesu again did not provide a continuous breath and did not generate airflow sufficient for a suitable sample. After this final attempt, the defendant was arrested for refusal.
17Two aspects of this sequence of events are important to note. First, the officers did not treat the matter as an immediate refusal. They offered repeated explanations, warnings, and multiple new opportunities. Second, the pattern shifted from partial attempts (biting, starting and stopping) to no attempt (no airflow at all). In my view, that progression is more consistent with an intentional decision not to comply, rather than because of confusion.
18Refusal can be by words or by conduct. Where a driver persists in non‑compliance after clear instructions and warnings, the police may reasonably conclude the driver is refusing. After six failed attempts—particularly the last three with no airflow—the officers had reasonable grounds to believe the offence had been committed. The arrest was lawful.
Was the ASD was functioning properly?
19In “feigned compliance” cases, the Crown may need to prove the ASD was in good working order to avoid a reasonable doubt that the failure was caused by a faulty device. The Crown met that burden here.
20The ASD had been checked for accuracy the day before. The officers described how the device normally operates during testing: a tone when airflow begins; the tone stopping when airflow stops; and “insufficient sample” outcomes when the defendant started to blow and then stopped. The absence of any tone on attempts where the accused did not blow is also consistent with a functioning ASD.
21This is not a case like R. v. Mateus, 2013 ONCJ 183, where the record lacked meaningful evidence about performance checks or device behaviour during multiple attempts. Here, the Crown led sufficient evidence to satisfy me the ASD was functioning properly.
Was Mr. Murugesu provided with a fair and meaningful opportunity to provide a suitable sample?
22The defence pointed to the cold weather, slushy roadside conditions, the defendant’s footwear, and the later request for a Tamil interpreter as factors to be taken into account. I accept that the cold weather could have caused the defendant to raise and lower his car windows as well as some discomfort standing outside his vehicle to do the ASD test. However, the weather does not explain the repeated absence of airflow from the defendant on the last three attempts.
23On language, the accused communicated in English at the roadside, produced documents, followed physical directions, and did not request a Tamil interpretation until after arrest. He was repeatedly shown what to do and warned about consequences. On the whole of the record, I am satisfied that the defendant understood what he was required to do and that he had a meaningful opportunity to comply.
Elements of the Offence, Intent, and Reasonable Excuse
24To convict under s. 320.15(1), the Crown must prove beyond a reasonable doubt: (1) a lawful demand; (2) a requirement to provide a suitable sample; (3) a failure or refusal to provide a suitable sample; and (4) no reasonable excuse.
25The mental element is willfulness—refusing on purpose. Repeated failures, particularly after clear instruction and warnings, can support an inference that the failure was deliberate, but knowledge of failure alone is not enough.
26I am satisfied beyond a reasonable doubt that Mr. Murugesu’s failure to comply amounted to a refusal by conduct. After three partial attempts, he moved to three attempts with no meaningful breath at all, despite clear instruction and a final warning. In the circumstances, I infer his failure was purposeful.
27Immediately after being placed under arrest, Mr. Murugesu told the officers his hand hurt and that he needed to go home. That explanation does not amount to a reasonable excuse for failing to exhale into the ASD. There was no evidence of a medical inability to provide breath, and there was no contemporaneous indication that he could not do so.
28The Crown has proven beyond a reasonable doubt that Mr. Murugesu, without reasonable excuse, refused or failed to provide a suitable breath sample after a lawful demand. He is guilty of refusal under s. 320.15(1) of the Criminal Code.
Released: March 16, 2026
Justice T. Lipson