ONTARIO COURT OF JUSTICE

CITATION: R. v. Indrakumar, 2026 ONCJ 265

DATE: 2026 05 07

COURT FILE No.: Newmarket 998 24 91110330

BETWEEN:

HIS MAJESTY THE KING

— AND —

PRIYANGA INDRAKUMAR

Before Justice Michael Perlin

Heard on February 17 and 18, and March 24, 2026

Reasons for Judgment released on May 7, 2026

Zenia Sethna........................................................................................ counsel for the Crown

Richard Posner and Travis Moore........................................ counsel for the defendant

PERLIN J.:

[1] On November 2, 2024, at around 2:45 a.m., Ms. Indrakumar was in the driver’s seat of her car, parked on the shoulder of a roadway in Vaughan. Detective Nicosia saw her. He stopped. He spoke with her outside her car, which was damaged. She said she had been in a collision with another vehicle. She had a strong odour of alcohol on her breath. At Det. Nicosia’s request, a uniformed officer, Constable Nielsen, attended. He demanded that the defendant provide a breath sample for roadside screening. The screening device registered a “fail”. The defendant was arrested. At the station, she provided breath samples into an Intoxilyzer 8000C, which reported her blood-alcohol concentration (“BAC”) was over 200 mg of alcohol per 100 mL of blood.

[2] At this trial, the two issues, broadly expressed, are (i) the admissibility of the Intoxilyzer results, and (ii) reliability of that evidence. If the results are admissible and reliable, they prove the defendant’s guilt on the sole count of 80+ operation.[^1]

[3] Regarding admissibility, the defendant alleges three Charter breaches, which she says should lead to the exclusion of the Intoxilyzer results under s. 24(2) of the Charter.

[4] First, under Charter, ss. 8 and 9, she points to Cst. Nielsen’s limited knowledge regarding the meaning of a “fail” result on the screening device he used at the roadside. She argues his limited knowledge meant he could not rely on the “fail” to form reasonable grounds to believe she had an illegally high BAC. If he did not have reasonable grounds, the arrest was an arbitrary detention contrary to s. 9 and the seizure of her breath samples at the station was an illegal search contrary to s. 8.

[5] Second, under Charter, s. 10(b), she argues Cst. Nielsen unreasonably delayed giving her an opportunity to consult counsel because he

(1) should have called duty counsel immediately after they arrived at the station,

(2) wrongly, after the booking process, allowed nine minutes to elapse before calling while he moved his police cruiser from the sally port,

(3) wrongly waited 35 minutes for duty counsel to call back before he placed a second call to duty counsel, and

(4) wrongly failed to update the defendant on his efforts to facilitate access to counsel while he waited for a call back.

[6] Finally, under Charter, s. 9, the defendant argues that police arbitrarily detained her when they held her in a cell at the police station after lawful authority to do so had expired. The defendant focusses on an allegation that the officer in charge of the station, Sgt. Partridge, forgot about her after she had completed her breath tests and then, upon realizing his error, intentionally fabricated an ex-post facto rationale for her detention—i.e. his stated belief that she was too intoxicated to be released.

[7] If I do not exclude the breath samples under s. 24(2) of the Charter, in the unusual circumstances of this case, I will then consider the defendant’s allegation that the Intoxilyzer results are too unreliable to support a finding of guilt. The preconditions for the application of s. 320.31(1) have been satisfied such that the Intoxilyzer results are—from a legal perspective—conclusive proof of an illegally high BAC. However, the defence argues that the breath technician who administered the tests, Cst. Bell, did not respond correctly to two “purge fails” that occurred during testing. Counsel submits that—from a factual perspective—I should have reasonable doubt regarding the accuracy of the Intoxilyzer results. Counsel argues such doubt would have been a defence under the former law—i.e. the law in force before s. 320.31(1) was enacted in 2018.

[8] Defence counsel advises that, if I find that the evidence would have raised a reasonable doubt under the former law, he will seek leave to challenge the constitutional operability of the current law, and would file a Notice of Constitutional Question under s. 109 of the Courts of Justice Act, R.S.O, 1990, c. C.43. He concedes that if the evidence would not raise a reasonable doubt under the former law, this constitutional issue is moot. If the issue is moot, the current law applies and the Intoxilyzer results are conclusive proof that the defendant had an illegally high BAC within two hours of operating a conveyance.

[9] I will address the Charter issues and then, if necessary, the alleged unreliability of the breath-test results.

I. Analysis

A. Charter complaints: admissibility of the Intoxilyzer results

1 Grounds for the arrest and demand

[10] If, at the roadside, Cst. Nielsen had reasonable grounds to believe the defendant had committed the offence of either impaired operation or 80+ operation of a conveyance, he had legal authority to arrest her and demand that she provide a breath sample into an approved instrument: Criminal Code, R.S.C., 1985, c. C-46, ss. 320.28 and 495(1)(a). If he lacked reasonable grounds, the arrest was unlawful and an arbitrary detention contrary to s. 9 of the Charter and the breath samples were seized unlawfully contrary to s. 8 of the Charter.

[11] The defence argues that it is unclear whether Cst. Nielsen arrested the defendant for impaired operation or 80+ operation. Either way, the defence submits, he acted without reasonable grounds: if he arrested the defendant for impaired operation, he lacked grounds to believe she was impaired; if he arrested her for 80+ operation, he lacked sufficient understanding of the roadside screening device he had used to reasonably rely on the “fail” result it produced to believe she had a BAC of 80 or higher.

[12] The grounds issue emerged late in this trial[^2] in contravention of this court’s Rules.[^3] Despite this fact, in the absence of any objection by the Crown or allegation that raising the issue late is prejudicial, I will consider the issue.[^4]

a) Was the arrest for 80+ operation or impaired operation?

[13] When Cst. Nielsen testified, he accepted that he did not have grounds to arrest the defendant until she blew a “fail” on the roadside screening device. In examination in chief and cross-examination, he testified he had arrested her for impaired operation. In re-examination, his memory was refreshed using his notes, and he testified that he had arrested the defendant for 80+ operation, not impaired operation.

[14] I find that Cst. Nielsen’s evidence in re-examination reflects the true basis for the arrest. Cst. Nielsen was a very junior officer at the time of the alleged offence. He was also an inexperienced witness, testifying for the first time in a criminal trial. While testifying, he struggled to find in his notes the information he needed to refresh his memory, including information regarding the basis for the arrest. That said, he was a credible witness, who was doing his best to provide honest and accurate evidence. After reviewing the relevant passage in his notes, he testified the arrest had been for 80+ operation. I accept that his notes refreshed his memory. Corroboration comes from Det. Nicosia, who was present during the arrest. He also testified the arrest was for “over 80”.

b) Did Cst. Nielsen have reasonable grounds?

[15] The defendant provided breath samples into a roadside device that Cst. Nielsen described as an approved screening device, or ASD. It registered a “fail”. Although Cst. Nielsen testified he believed the ASD would register a fail only if it detected an illegally high BAC, he later acknowledged in cross examination that he was not sure at what specific level a fail would register. He then acknowledged he was “not sure” whether it is “possible that it fails at 70” mg of alcohol in 100 mL of blood, below the legal limit.

[16] The defence submits that this concession means Cst. Nielsen did not have subjective or objectively reasonable grounds for the arrest and breath demand.

[17] An officer has reasonable grounds where “compelling and credible information” establishes “a reasonable probability of crime”. The officer must have subjective and objective grounds. Subjective grounds depend on the officer’s subjective belief that there are reasonable grounds to arrest: did the officer subjectively believe it was reasonably probable that the arrestee committed the offence? The officer’s subjective belief “must be justifiable from an objective viewpoint”. “The objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest […] as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer”. The assessment is made “at the time of the arrest”. See R. v. Beaver, 2022 SCC 54, at paras. 72(1), (2), (3), (6) (emphasis in original); R. v. Desilva, 2022 ONCA 879, at para. 60.

[18] Did Cst. Nielsen subjectively believe a “fail” made it reasonably probable that the defendant’s BAC exceeded the legal limit? I agree with the defence that it is evident that Cst. Nielsen had a very limited understanding of the ASD and its operation. That said, “[t]here is no requirement the officer knew the calibration setting of the device, when it was last calibrated, or whether the device was in fact working properly”: R. v. Mastromartino, 2004 28770 (ON SC), at paras. 78-79; R. v. MacDonnell, 2004 9939 (ON SC), at paras. 20-29.

[19] To determine what Cst. Nielsen believed, I must assess his evidence in its entirety rather than looking at individual pieces in isolation: Gaudet v. R., 2024 NBCA 87, at paras. 18-24. While his evidence was inconsistent on what a “fail” signified, three factors satisfy me that, at the time of the arrest, he subjectively believed a “fail” signified an illegally high BAC.

[20] First, in the portion of Cst. Nielsen’s evidence relied on by the defence, he did not testify that he believed the device could register a fail at a BAC lower than 80. Rather, he admitted he was not sure at what BAC a fail would register; and, after having done so, he agreed with defence's counsel's suggestion to him that he could not be sure whether it was calibrated to fail below 80, at 79 or 70, testifying “I’d have to look at the manual”, “I don’t know the parameters of where it does fail”, and “I’m not sure at this time”.

[21] At this point in his testimony, he did not assert any affirmative belief with respect to any particular calibration. On the contrary, he acknowledged his ignorance on that issue. There is no evidence to suggest that Cst. Nielsen was even conscious of this ignorance before it was brought to his attention during cross-examination. The question here is not what he believed during cross-examination; it is what he believed at the time of the arrest.

[22] Second, when he was asked what he did believe, he explained in various ways that he understood a “fail” signified an illegally high BAC. He testified more than once that he believed the ASD was calibrated to fail at 80 or “over 80”. He then testified he believed the device would register a “warn” at between “50 and about 80” mgs. He testified a 90 would be a “fail” because it would be “past 80”; that he believed there was some “leeway” over 80 mgs, “about 10 or so”, before registering a “fail” to “give the user the benefit of the doubt”; and that “approximately, to the best of my knowledge”, it would register a “fail” at 90. Finally, when asked to summarize his understanding, he referenced his earlier evidence regarding pass, warn and fail readings: “I gave you the ranges: pass, warn, fail.”

[23] Third, his actions were consistent with the presence of a subjective belief that a “fail” signified an illegally high BAC. He explained the “fail” was what allowed him to conclude he had grounds to proceed with the arrest and demand. He was cautious about ensuring he had grounds to believe the defendant had committed the offence; and I find he would not have made the arrest for 80+ operation if he did not believe the defendant had committed that offence.

[24] Upon assessing Cst. Nielsen’s evidence as a whole, I find that he did not know at what level the ASD would register a “fail” but subjectively believed a “fail” signified an illegally high BAC that gave him grounds to proceed with the arrest and demand.

[25] I am satisfied it was objectively reasonable for Cst. Nielsen to rely on the ASD “fail”. I have assessed the objective reasonableness of his subjective belief from the perspective of a reasonable officer with his knowledge and experience:

(1) He could not say with any confidence at what BAC the ASD would register a “fail”; but he subjectively believed a “fail” signified an illegally-high BAC;

(2) He knew the ASD had been issued to him by his police service, and that it was a model he was trained on and that was used by officers every day; and

(3) He knew his ASD’s accuracy had recently been checked by another officer.

[26] Reasonable inferences can and should be drawn from these facts: R. v. Gundy, 2008 ONCA 284, at paras. 46, 48. In this vein, in Gundy, at para. 46, Rosenberg J.A. asked rhetorically, what is the likelihood that a police service would furnish an officer with an unapproved device? Similarly, what is the likelihood that a police service would calibrate an ASD to fail at a level below the legal limit? There is no evidence to suggest it may have been calibrated to fail below the limit. In the absence of evidence, such a suggestion would be absurd: see MacDonnell, at para. 28, citing R. v. Toledo, [1999] O.J. No. 903 (C.J.), at paras. 41-42. An officer is entitled to rely on an ASD fail as “yielding reasonable and probable grounds” in the absence of “evidence of any high degree of unreliability”: MacDonnell, at para. 24. Even without an understanding of the precise meaning of a “fail”, Cst. Nielsen had good reasons to rely on the ASD fail. He had no good reason to question its reliability. His grounds were objectively reasonable.

[27] In sum, I am satisfied that Cst. Nielsen had reasonable grounds to believe that the defendant had an illegally high BAC, and, on that basis, to arrest her and make the Intoxilyzer demand. He did not infringe her rights under ss. 8 and 9 of the Charter.

2 Delayed implementation of the right to counsel

[28] The defendant argues that police infringed her right to counsel under s. 10(b) of the Charter by delaying calling duty counsel upon arriving at the station. The defendant argues Cst. Nielsen (i) should have called duty counsel immediately after they arrived at the station, (ii) wrongly, after the booking process, allowed nine minutes to elapse before calling while he moved his police cruiser, (iii) wrongly waited 35 minutes for duty counsel to call back before he placed a second call to duty counsel, and (iv), while he waited, wrongly failed to update the defendant on what was happening.

[29] Section 10(b) guarantees a right on arrest or detention “to retain and instruct counsel without delay and to be informed of that right”. The duty to facilitate access to counsel is triggered “immediately upon the detainee’s request to speak to counsel”. The duty obliges police to facilitate access “at the first reasonably available opportunity” or “the earliest practical opportunity”. If access to counsel is delayed, the Crown must demonstrate that “the delay was reasonable in the circumstances”. R. v. Taylor, 2014 SCC 50, at paras. 24, 27-29, 32, 34; R. v. Torsney, 2007 ONCA 67, at para. 13.

[30] The defence says a call to duty counsel should have been placed immediately upon arriving at station at around 3:52 a.m. I disagree. At that time, police would not have known which lawyer to call. When Cst. Nielsen asked the defendant at the roadside if she wished to speak to a lawyer, she said “yes”. There was no evidence that she communicated whether she wished to speak to duty counsel or some other lawyer.

[31] After arriving inside the station, the defendant and police were engaged in the booking process until 4:12 a.m. During the booking process, she indicated she wished to speak with duty counsel. At 4:12 a.m., Cst. Nielsen brought her to a cell.

[32] The defence takes issue with how the booking sergeant at the time (not Sgt. Partridge) reviewed matters with the defendant during the booking process. Rather than explaining the situation her, he asked her to explain why she had been arrested and her understanding of her right to counsel. He then directed her to read an explanation of her right to counsel that was posted in the booking hall. I cannot conclude that the approach taken breached the duty to facilitate access to counsel at the earliest practical opportunity. I have no basis to believe that another approach would have saved any meaningful time.

[33] Next, the defence complains about a nine-minute delay between 4:12 a.m., when Cst. Nielsen placed the defendant in a cell, and 4:21 a.m., when he called duty counsel. He testified that during these nine minutes he removed his police cruiser from the sally port, parked it elsewhere, retrieved his mobile data terminal, and re-entered the station.

[34] This delay did not violate Cst. Nielsen’s obligation to facilitate access at the earliest practical opportunity. I accept that the car needed to be moved. Cst. Nielsen testified that his cruiser was occupying the sally port—the area of the station used by officers to enter the booking hall to parade a detainee before the booking sergeant. Until the cruiser was removed, the sally port was unavailable for any other officer’s or detainee’s use. Leaving it in the sally port could have caused delay for other detainees. It had to be moved.

[35] Cst. Nielsen’s decision to move the cruiser himself was reasonable in the circumstances and did not infringe the defendant’s rights. He was working alone that night, operating a cruiser for which he was responsible. During cross-examination, he accepted he could have asked another officer to move his cruiser. He noted that this idea had not occurred to him at the time. However, I cannot find that this approach would have meaningfully expedited the defendant’s access to counsel. There were other officers at the station. But it would be speculative for me to find that another officer, free from other duties, would have been available to move the cruiser immediately; how long it would have taken Cst. Nielsen to find that officer; and, if he had found that officer, how much sooner he could have called duty counsel, or when duty counsel may have called back.

[36] The defence also complains about the delay between Cst. Nielsen’s call to duty counsel, and, after he received no response, his second call 35-minutes later. Cst. Nielsen testified he gave duty counsel 30 minutes to respond, and when there was no response, he called again. The second call, at 4:56 a.m., was returned eight minutes later. The defence argues this delay is problematic because it demonstrates a lack of reasonable diligence and because, during the delay, Cst. Nielsen failed to update the defendant on his efforts to connect her with counsel.

[37] I do not accept that the decision to wait amounted to a lack of reasonable diligence that infringed the defendant’s right to counsel under s. 10(b). Cst. Nielsen testified that, in his experience, duty counsel often takes time before calling back. It is clear that he waited for what he perceived to be a reasonable time in the circumstances, in the middle of the night, before deciding that he needed to call again. I accept his conclusion. In my view, it was not unreasonable for him to wait as long as he did.

[38] Finally, I reject the defendant’s argument that, after Cst. Nielsen lodged her in a cell, his failure to give her an update on the status of her call to duty counsel breached her Charter rights. The defence relies on R. v. Palden, 2025 ONSC 500, at paras. 61-62: see also R. v. Wu, 2017 ONSC 1003, at para. 78(h) and R. v. Rover, 2016 ONSC 4795, at para. 70, rev’d on other grounds, 2018 ONCA 745. Palden is distinguishable. It describes a police duty to advise a detainee when the police deliberately suspend a detainee’s right to counsel, based on, e.g., concerns regarding safety or the destruction of evidence. That principle has no apparent application in a case like this involving no deliberate suspension of the right to counsel. Here, the police were trying to facilitate access, as the defendant had been told.

[39] I am satisfied that her s. 10(b) right to counsel was not infringed.

3 Arbitrary detention: alleged overhold

[40] The defendant submits that her s. 9 Charter right against arbitrary detention was infringed when police overheld her—i.e., detained her at the police station after the lawful authority to do so had expired. Detention without lawful authority is arbitrary and offends s. 9: R. v. Grant, 2009 SCC 32, at paras. 54-56. The defendant was clearly detained at the station. The only question is whether the detention was lawful.

[41] Section 320.28 of the Criminal Code compelled the defendant to provide breath samples at the station. Once she had provided her second sample at 5:51 a.m., since the police did not intend to hold her for a bail hearing, the authority to potentially continue her detention would have to be found in s. 498.

[42] Section 498 authorizes detention if an officer “believes, on reasonable grounds, […] that it is necessary in the public interest that the person be detained in custody […] having regard to all the circumstances”, including certain enumerated circumstances: s. 498(1.1)(a). It requires release “as soon as practicable” or “at the earliest reasonable opportunity”: ss. 498(1), 493.1. An officer’s grounds “must both be subjectively held and objectively reasonable”: R. v. Babulal, 2021 ONSC 3531, at paras. 25-27, 32, 34.

[43] The time at issue is from 5:51 a.m. when the defendant provided her second breath sample until shortly after 9 a.m. when she was released: just under three and a half hours. Sgt. Partridge was the officer in charge of the station. He was responsible for deciding when to release the defendant. He offered two explanations for why she was held until shortly after 9 a.m.: the need to complete paperwork; and safety concerns arising from her level of intoxication.

a) The paperwork justification

[44] Sgt. Partridge testified that the defendant needed to be served with certain paperwork before he could release her. It is evident that he saw the preparation and service of certain documents as critical steps that had to be taken before her detention would no longer be necessary. I agree. The need to serve some documents is tied to two enumerated bases for detention under s. 498: ensuring she understood her release documents is related to ensuring her attendance in court and avoiding the commission of an offence; ensuring she understood the Administrative Driver’s Licence Suspension was tied to avoiding the commission of an offence: see ss. 498(1.1)(a)(iii) and (b). I also accept that it is reasonable to serve the detainee prior to release with other documents, like the certificate prepared by the breath technician.

[45] I am satisfied this factor justified the defendant’s detention until around 7:20 a.m.

[46] I accept that Cst. Nielsen needed information from the breath technician, Cst. Bell, before he could prepare documents required for the defendant’s release. Cst. Bell prepared the certificate documenting the Intoxilyzer results, and gave it to Cst. Nielsen at 6:15 a.m. At some point shortly after receiving the information from Cst. Bell and learning that the defendant would be charged with 80+ operation, Cst. Nielsen went to the cells and had a discussion with the defendant until around 6:38 a.m. He testified that he spoke to her about getting her some medicine that she needed, and about the fact she was feeling claustrophobic. (He offered to move her to a bigger cell.) He testified that the defendant kept interrupting him, prolonging the discussion.

[47] Cst. Nielsen testified that it then took him until close to 8 a.m. to complete the paperwork. (The booking video shows he was back with the defendant at her cell, with documents in hand, just after 7:52 a.m.) He testified that he was being “pulled to and fro”, was new to this type of investigation, and needed to get help from other officers to ensure he was completing the paperwork properly.

[48] While it is unclear precisely when after 6:15 a.m. the conversation between Cst. Nielsen and the defendant occurred, I am satisfied Cst. Nielsen had time to dedicate to the paperwork and the information he needed to complete it by, at the latest, 6:38 a.m.

[49] I accept that some of the time after 6:38 a.m. was required for Cst. Nielsen to complete the paperwork. But I cannot accept that Cst. Nielsen’s paperwork justified detention for the entire period. Release paperwork has been accepted as a reasonable explanation for around two hours of post-testing detention: see e.g. R. v. Mazit, 2016 ONCJ 817, at para. 80(j). However, here, Sgt. Partridge testified that, at most, 20 minutes could be required to complete the release document and that some further time would be needed to complete an Administrative Driver’s Licence Suspension and a notice regarding videotaping in the station.

[50] Based on Sgt. Partridge’s evidence and allowing for Cst. Nielsen’s inexperience and his need to get help from other officers, I am satisfied that approximately 40 minutes would have been a reasonable time to complete the paperwork. Cst. Nielsen was a credible witness. I accept that he was doing his best. The evidence suggests, however, that an hour and 14 minutes (from 6:38 a.m. until 7:52 a.m.) was simply too long. The paperwork was a reasonable basis for detention up to approximately 7:20 a.m. I also find that from 7:52 a.m. until 8 a.m., officers were discussing the paperwork with the defendant, as depicted in the booking video. This was a necessary step, relating to the paperwork issue, which justified her detention during that time.

b) The intoxication justification

[51] Sgt. Partridge testified that, at some point that night, he had learned the defendant’s breath testing had disclosed a BAC around 200 mg of alcohol per 100 mL of blood. Based on the readings, which he described as “fairly high”, he immediately had concerns about her ability to understand her release conditions, about her safety if he were to release her while she was intoxicated, and about any ensuing moral, ethical, civil, or criminal liability. At 8 a.m., Sgt. Partridge spoke to the defendant in the booking hall about a plan for her release. When they spoke, he noted that she had trouble recalling how to spell her fiancé’s name: while providing the spelling, “she changed kinda halfway through giving the spelling”. He thought she should have been able to remember this information. After this, he was sufficiently concerned with her level of intoxication that he decided it would not be safe to release her and that she would not be able to understand her release documents.

[52] He learned that the defendant’s sister would be able to come pick her up at around 9 a.m. (There was also evidence that they could have come earlier in the morning.) He thought this would allow sufficient time for the defendant to “sober up”. At around 9 a.m., he served her with release documents. He spoke with her, answering her questions until about 9:12 a.m. By then, he was satisfied she was better able to communicate. He concluded he was comfortable releasing her, and did so.

[53] The defence accepts that if the defendant was clearly intoxicated at 8 a.m., there were grounds to hold her at that time. Police can reasonably continue a detention to prevent the risk to public safety and potential liability that may accrue if an intoxicated detainee is released, with or without a chaperone. Such a person might injure themselves or others, or might find a new vehicle to drive. See e.g. R. v. Kavanagh, 2017 ONSC 637, at para. 41.

[54] There is disagreement in the law on whether a high BAC on its own is sufficient to justify a detention: see e.g. R. v. Brar, 2020 ONSC 4740, at paras. 28-31. Cases following R. v. Price, 2010 ONSC 1898, at para. 93, leave ref’d, 2010 ONCA 541, suggest that a high BAC should not be “the sole determinant”, and mandate an assessment of all the relevant circumstances. Other cases interpret the Court of Appeal’s decision in R. v. Sapusak, [1998] O.J. No. 4148 (C.A.), as binding authority in Ontario for the view that a desire to allow high BAC readings (in that case 130 mgs) to drop before releasing a detainee is a sufficient basis to justify hours of detention: in that case, between six and seven hours. See Kavanagh, at paras. 32-43; R. v. Gomez, 2024 ONSC 6147, at para. 69.

[55] Sapusak from the Court of Appeal and other appellate authorities like Kavanagh provide that BAC levels alone can justify a detention under s. 498—particularly where, as here, they are very high. However, the officer must conduct an individualized assessment. If relying on BAC, the officer must relate that fact to real concerns regarding, e.g. the detainee’s or the public’s safety: see Brar, at para. 44.

[56] On Sgt. Partridge’s evidence, when he met with the defendant at 8 a.m., he related her readings and level of intoxication to safety concerns and concluded she was too intoxicated to be released.

[57] The defendant argues, however, that I should reject this evidence. She asks me to infer that Sgt. Partridge had simply forgotten about her, and, when he remembered—as an ex post facto justification for her detention designed to conceal his mistake—he fabricated a claim that he believed she was too intoxicated to be released, which he recorded in his notes and testified to in court.

[58] I reject this submission. Sgt. Partridge was a credible witness. I accept that he conducted the analysis he said he conducted at 8 a.m., and believed she was intoxicated and was having difficulty spelling her fiancé’s name. In the booking video, he appeared genuinely uncertain about the information he was receiving from her. I find nothing sinister in the reference in Sgt. Partridge’s notes to overholding. I accept he was simply adverting to the fact he had an obligation to release her as soon as practicable. In other words, he was appropriately concerned about respecting her rights.

[59] It was open to Sgt. Partridge to conclude that the defendant was intoxicated when he spoke with her. His belief that she was having difficulty spelling her fiancé’s name finds support in the booking video. While spelling her fiancé’s last name, she initially stopped. When she started over, she paused at one point. When she resumed again she paused while saying one letter before moving on and finishing. When asked to spell the last name again, she again paused and again held a letter while doing so. When spelling her fiancé’s first name, she gave two different spellings: first “R, A, M [pause], N [longer pause]”; and then “R, A, M [short pause], N, A, T, H”.[^5]

[60] At around 8 a.m., Sgt. Partridge’s observations of the defendant and the evidence of her high BAC—more than double the legal limit—provided a reasonable basis to conclude that it was “necessary in the public interest that [she] be detained in custody” within the meaning of s. 498.

[61] What is unclear is whether Sgt. Partridge reached a similar conclusion before 8 a.m. He testified that he had immediate concerns based on her readings. Although he thought he had learned of the readings from Cst. Nielsen before 8 a.m., he could not give a specific time.

[62] The defence bears the persuasive burden under s. 9 in a case like this.[^6] I am satisfied that this burden has been discharged. Sgt. Partridge could not identify when he learned of the defendant’s BAC and had immediate concerns about her release. His evidence is also not clear on whether, when he did so, he actually concluded that her detention was required, or, instead, only made that decision after meeting with her at 8 a.m. I find that her detention is essentially unexplained between 7:20 a.m. and 7:52 a.m., and that she was detained without lawful authority during this time, contrary to s. 9.

4 Exclusion of evidence

[63] Evidence will be excluded under s. 24(2) if it was “obtained in a manner that infringed or denied” Charter rights, and its admission “would bring the administration of justice into disrepute”. As I will explain, I am satisfied that the overhold does not justify exclusion of the Intoxilyzer results under s. 24(2) of the Charter.

[64] I will assume the s. 9 breach sufficiently connected to the breath tests to satisfy the requirement that the tests were “obtained in a manner” that infringed the defendant’s rights. Evidence will be considered to have been “obtained in a manner” that infringed a claimant’s Charter rights where there is a causal, temporal, or contextual connection between the evidence and the breach (or a combination of all three), that is neither tenuous nor remote. See R. v. Tim, 2022 SCC 12, at para. 78; R. v. Pino, 2016 ONCA 389, at para. 72.

[65] Some cases suggest this requirement cannot be met when the breach at issue is an overhold that only commences after the breath testing concludes: see e.g. R. v. Sapusak, [1998] O.J. No. 4148 (C.A.); R. v. Cheema, 2018 ONSC 229; R. v. Laroque, 2018 ONSC 6475. Other cases suggest overholding may be considered under s. 24(2) on the basis that it can be seen as falling within the same overarching transaction between police and a detainee in which breath samples were taken: see e.g. R. v. King, 2019 ONSC 5748, at paras. 37-73. I need not resolve this issue here given my conclusion that the s. 9 breach could not lead to exclusion under the test from R. v. Grant, 2009 SCC 32.

[66] Section 24(2) is concerned with whether admission or exclusion of the impugned evidence would better serve the “overall repute of the justice system, viewed in the long term”. Under the Grant test, I must consider and balance three factors: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the accused’s Charter-protected interests; and (3) society’s interests in an adjudication of the case on its merits: Grant, at paras. 68, 71.

[67] The first factor asks the court to place the police conduct on a spectrum that starts with “blameless”, “inadvertent or minor” deviation from Charter standards undertaken in good faith and ends with “blatant”, “wilful or reckless disregard of Charter rights” and bad-faith conduct. As the seriousness of conduct increases, the need increases for the court to disassociate itself from that conduct by excluding the evidence. See Grant, at para. 74; R. v. Harrison, 2009 SCC 34, at para. 23; R. v. King, 2019 ONSC 5748, at para. 78.

[68] Cst. Nielsen’s and Sgt. Partridge’s conduct falls at the low end on the spectrum of seriousness, and thus only weakly favours exclusion of the evidence. Both officers, as depicted on videos taken that night, demonstrated genuine interest in upholding the defendant’s rights while minimizing her discomfort and confusion. Both patiently spoke with her for long periods of time. I find that both officers were doing their best to respect her Charter rights. The breach arose against this backdrop from inadvertent mistakes: for Cst. Nielsen, not completing his paperwork quickly enough, despite his efforts to complete it as quickly as he could; and for Sgt. Partridge, failing to recognize the delay in the completion of the paperwork and to conduct a full assessment of the defendant’s condition earlier. I reject the defence argument that Sgt. Partridge fabricated evidence and attempted to mislead the court to justify the detention. In the absence of this factor, in my view, the conduct was not serious.

[69] The second Grant factor considers the impact of the breaches on the defendant’s Charter-protected interests. The impact on the overhold on the defendant’s Charter-protected liberty interests was low. The breach here resulted in a temporary gap in the lawful authority for the defendant’s detention, for approximately 32 minutes: a relatively short period of time. I also have no basis to conclude that Sgt. Partridge would have reached a different conclusion with respect to the defendant’s sobriety if he had met her at around 6 a.m. shortly after her breath testing rather than at 8 a.m. Based on Sapusak and Kavanagh, her BAC alone provided an objectively reasonable basis for her detention starting at 5:51 a.m. when her breath testing concluded. Had he spoken to her or conducted the analysis based on her BAC alone earlier, it is highly probably she would have been detained with lawful authority.

[70] The final factor—the societal interest in an adjudication on the merits—favours admission. The breath samples are highly reliable evidence, demonstrating conclusively that the defendant was operating her car with a BAC more than double the legal limit. This breath-sample evidence is critical to the Crown’s case: without it, the prosecution would fail. “Society has a strong interest in adjudicating offences involving alcohol and driving. People who drink and drive put the community at risk of harm, including death”: R. v. King, 2019 ONSC 5748, at para. 89.

[71] The final stage of the Grant analysis involves assessing and balancing each of the three factors, “focussing on the long-term integrity of, and public confidence in, the administration of justice”: Tim, at para. 98. The question is whether admitting the evidence would bring the administration of justice into disrepute: Beaver, at para. 133. In this analysis, the first two Grant factors will generally pull only in favour of exclusion. The extent of that pull varies in each case. Where the first two factors strongly favour exclusion, the third factor “will seldom, if ever” lead to inclusion; if only one of the first two factors strongly favours exclusion, the third factor becomes important. It always pushes, to varying degrees, in favour of inclusion. It does so strongly “where the evidence is reliable and critical to the Crown’s case”: R. v. McGuffie, 2016 ONCA 365, at paras. 62-63.

[72] Neither of the first two Grant factors strongly favour exclusion. The third factor strongly favours admission. I am satisfied that admission of the evidence would not bring the administration of justice into disrepute. Accordingly, the application under s. 24(2) to exclude the evidence is dismissed.

B. The “purge fail”: reliability of the Intoxilyzer results

[73] The defence points to the fact that during breath testing at the station, the Intoxilyzer indicated that there were two “purge fails”. These occurred after each of the defendant’s two breath tests, while the Intoxilyzer attempted to expunge from itself alcohol received during the tests.

[74] A purge fail means that the Intoxilyzer “was not able to clear the sample chamber to within 10 mg/100ml of the alcohol content of the first air blank in a sequence”. The defence argues that the Breath Technician administering the test, Cst. Bell, did not follow proper procedure to resolve the purge fails, and that this should leave me in reasonable doubt regarding the reliability of the test results.

[75] This argument is blocked by s. 320.31(1) of the Criminal Code, which came into force in late 2018. Under this subsection, when a series of preconditions is proven beyond a reasonable doubt, Intoxilyzer results “are conclusive proof” of the test subject’s BAC at the time of the tests. There is no dispute that the preconditions were satisfied in this case.[^7] Indeed, defence counsel ultimately conceded that the purge-fail argument—which could have been advanced under the pre-amendment law (former s. 258(1)(c))—is no longer available.[^8]

[76] After acknowledging this during closing submissions, counsel advised that he would like leave to launch a constitutional challenge of s. 320.31(1). If leave were granted, counsel would argue that the evidence in this case discloses real reason to doubt the accuracy of the defendant’s test results, notwithstanding compliance with the requirements of s. 320.31(1). In the face of this doubt whether she was factually guilty, finding her guilty, as the law demands, would infringe the presumption of innocence in ss. 7 and 11(d) of the Charter.

[77] Counsel agreed that his constitutional argument would depend on me finding that what happened in this case, from a factual perspective, raises reasonable doubt regarding the reliability of the Intoxilyzer results. If it does not raise reasonable doubt, the constitutional issue is moot. Counsel clarified that he would like me to analyze whether a doubt would arise when assessed through the law that existed just before the relevant Criminal Code amendments in 2018, as reflected in cases like R. v. Cyr-Langlois, 2018 SCC 54.

[78] In Cyr-Langlois, at para. 4, Chief Justice Wagner explained for the Supreme Court majority that the accused’s burden when seeking to raise a doubt based on the alleged improper operation of an approved instrument is met through evidence showing that (i) a specific procedure that is generally required was not followed, and (ii) the procedure is meant to ensure the reliability of the test results and, in the particular case, the defect in carrying out that procedure could have affected the reliability of the results.

[79] The defendant’s argument fails both branches of this test. First, the evidence does not suggest that a generally required procedure was not followed. The defence points to a page from a training manual that sets out proper procedures for the Intoxilyzer’s operation. The manual identifies “Action” to perform when the Intoxilyzer registers a purge fail after “the subject or simulator test” (the purge fails here were after subject tests):

Action: Relocate the subject away from the breath tube, remove the mouthpiece from the breath tube, ventilate the room, re-commence testing of the subject.

A continuous purge can also be initiated through the keyboard menu using the “Esc Esc A” command. [Underlining added.]

[80] Defence counsel argues that Cst. Bell failed to follow a “generally required procedure” by failing to “re-commence” the breath test after each purge fail. In counsel’s submission,

(1) Cst. Bell agreed that the word “re-commence” in the Intoxilyzer manual means “start over”—i.e., discarding previous test results and starting the test process from the beginning,

(2) this is the clear meaning of the word “re-commence” in this context, and

(3) the set of procedures culminating in “re-commencing” is required.

[81] I reject the argument that Cst. Bell agreed breath testing must “start over” after a purge fail. Cst. Bell accepted that he did not “re-commence” as counsel interprets the word. After taking steps he understood would address the purge fail, he “resumed” rather than starting over from the beginning. However, the meaning of “re-commence” was in dispute. Cst. Bell initially explained,

It’s not necessarily restart the test[….] [R]ecommence can either be continue testing or a restarting[….] You don’t need to redo the test[….] The purge fail following the subject tests would have no effect on the actual subject test itself.

[82] Cst. Bell did at points agree with counsel’s suggestion that he did not recommence. But the surrounding context makes clear he was only agreeing for the sake of argument: “So, yes, in your definition of recommence, I did not recommence”. The last time the issue was raised, Cst. Bell reasserted his disagreement with counsel’s definition:

Q: Did you recommence after the second purge fail?

A: I did not start over.

[83] I reject the argument that the Intoxilyzer manual, on its face, clearly suggests that starting over is required. I disagree with the defence that “re-commence” can only be understood as “start over”. The word “recommence” is not so precise that it excludes the meaning Cst. Bell would ascribe to it: i.e., to resume. It is often used to describe the resumption of an ongoing process rather than the act of starting over from scratch. “Recommence” means to start or commence again: Merriam-Webster Dictionary, online, “recommence” (accessed April 2026). Recent examples of the word’s use often employ it as a synonym for “resume”, without suggesting that any steps already taken would need to be repeated: see e.g., from Merriam-Webster Dictionary, online, “millions of borrowers will still need to recommence student loan payments” (quoting Nicole Fallert, USA TODAY, 1 Mar. 2023); “the virus undercuts plans to recommence ordinary life” (quoting Peter S. Goodman, Chicago tribune.com, 11 June 2021), and “the deep-sea search for MH370 will recommence on December 30” (quoting Joe Edward’s, MSNBC Newsweek, 3 Dec. 2025). ‘Starting again’ does not always mean ‘starting over’.

[84] Further, the Intoxilyzer manual is equivocal on whether “re-commencing” (however that term is defined) is a generally required procedure for a breath technician addressing a purge fail. The manual identifies potential responsive actions in two separate paragraphs: first, it outlines a series of actions culminating in “re-commencing”, and, in a separate paragraph, it says, “[a] continuous purge can also be initiated […] using the ‘Esc Esc A’ command’”. Cst. Bell testified that he used that command to initiate a “continuous purge” or “continuous blank”, meant to purge the Intoxilyzer of any remaining alcohol. I do not understand there to be any dispute that this action was consistent with the second paragraph in the manual.

[85] The defence argues, however, that the word “also” in the second paragraph means it should be understood as an optional secondary procedure that can supplement the first paragraph, which is mandatory. There is no evidence to support this reading of the two paragraphs. In my view it is at least equally likely that the manual should be read as allowing a breath technician to perform either procedure to resolve a purge fail. Cst. Bell performed the second procedure. I have no basis outside of speculation to conclude this was an error.

[86] The defendant’s argument also fails to satisfy the second step of the test from Cyr-Langlois, under which, to raise a doubt, the defendant would need to point to evidence tending to show that the procedure not followed is meant to ensure reliability and that non-compliance with it in this case could have affected the reliability of the results. The Supreme Court majority affirmed, at paras. 15-16, that although expert evidence is not necessarily required at this stage, “mere hypothesis or conjecture” are insufficient: there must be “concrete evidence [… showing] that the improper operation […] of the instrument may be linked to the results”.

[87] It is speculative to suggest that what happened in this case may have affected the Intoxilyzer results. Cst. Bell went through the mandatory steps to receive and analyze the first sample without incident. After the sample had been analyzed, the Intoxilyzer registered a purge fail—a failure to successfully purge the chamber of alcohol. Cst. Bell then performed steps he understood would remedy the issue.

[88] The device then performed a system blank test, which indicated that the chamber had been completely purged of alcohol.

[89] He then initiated the testing sequence for the second sample. This included further system blanks, which indicated there was no alcohol in the chamber.

[90] In R. v. Rousselle, 2025 SCC 35, at paras. 13, 25-26, the Supreme Court majority took judicial notice of the fact that if a system blank produces an unacceptable result, “the approved instrument will not allow the qualified technician to process a sample from the subject”. Here, after the first purge fail, Cst. Bell’s response, and the system blanks, the device received and analyzed the second sample. The Intoxilyzer would not have accepted the second sample if the issue had persisted. It was only after it received and analyzed the second sample that the second purge fail occurred. There is nothing to suggest the second-sample’s analysis could have been affected by a purge fail that occurred only after the analysis had concluded.

[91] I am satisfied that Cst. Bell’s response to the purge fails would not have raised a reasonable doubt under the law as explained in Cyr-Langlois. As such, the proposed Charter challenge to the current provision, seeking access to the pre-amendment law, is moot.

C. Disposition

[92] The application to exclude evidence under s. 24(2) of the Charter is dismissed. The BAC readings are admitted into evidence.

[93] A finding of guilt is contingent on proof beyond a reasonable doubt that the defendant had a BAC equal to or exceeding 80 mg of alcohol per 100 mL of blood within two hours of ceasing to operate a conveyance.

[94] The defendant was in the driver’s seat of her car (a conveyance) at approximately 2:45 a.m. Pursuant to s. 320.35 of the Criminal Code, this fact triggers a rebuttable presumption that she was operating her car at the time. The defence has not attempted to rebut this presumption.

[95] The evidence establishes that the defendant had an illegally high BAC within two hours of ceasing to operate a conveyance. I find her BAC during the two-hour window was 207.[^9]

[96] On this basis, I am satisfied beyond a reasonable doubt that Ms. Indrakumar had a BAC exceeding the legal limit within two hours of operating a conveyance. I find her guilty of 80+ operation contrary to s. 320.14(1)(b) of the Criminal Code.

Released: May 7, 2026

Signed: Justice Michael Perlin

[^1]: I.e., having a BAC of 80 or more mg of alcohol per 100 mL of blood within two hours of operating a conveyance: Criminal Code, R.S.C., 1985, c. C-46, s. 320.14(1)(b).

[^2]: This issue was not mentioned in the defence pre-trial Charter notice of application or when the defence confirmed the scope of the Charter application at the beginning of the trial. While PC Nielsen was cross-examined regarding his grounds, the issue was not formally raised until it appeared in the defence written submissions, filed after the evidence at trial had concluded. This issue should have been raised in the pre-trial notice of application. At the very least, defence counsel should have notified the Crown and court as soon as he had decided to raise the issue.

[^3]: Under this court’s Rules, notice of an application to “seek the exclusion of evidence” under the Charter must state “the grounds to be argued”, provide “a detailed statement of the factual basis for the application”, and be filed “30 days before the date of the hearing of the application”, unless the time period is shortened “with the consent of the parties, subject to approval by the Court”: Criminal Rules of the Ontario Court of Justice, Rules 2.1(1), (2), 3.1(1), (3)(b).

[^4]: The Crown initially asked that the grounds argument be dismissed for failure to provide proper notice. The Crown later abandoned this argument, did not allege any specific prejudice, and was content to argue the issue based on the record already before the court. In these circumstances, it is appropriate to consider the issue, despite the non-compliance with the Rules: see e.g. R. v. Gundy, 2008 ONCA 284, at paras. 23-24; R. v. Tash, 2008 1541 (ON SC), at paras. 15-23.

[^5]: Cst. Bell also identified issues with the defendant’s manner of communication, noting her speech had been “slow and delayed” during the breath testing. Cst. Nielsen also testified that “wasn’t able to get an answer from” the defendant, who was not listening to his responses to her questions when they spoke at around 6:38 a.m. While this evidence was before the court and speaks to the defendant’s ability to communicate, I note that there is no evidence Sgt. Partridge was aware of the other officers’ observations such that they could have had any effect on his assessment under s. 498.

[^6]: For a standalone alleged s. 9 breach, where there was no concurrent search that is being challenged, the burden is on the Charter claimant to establish a detention and that the detention was unlawful: R. v. Gerson-Foster, 2019 ONCA 405, at para. 75; R. v. Fyke, 2025 ONCA 602, at para. 18; R. v. Nartey, 2013 ONCA 215, at para. 14; R. v. Campbell-Johnson, 2022 ONSC 2027, at para. 11. However, some cases suggest that where the Crown seeks to rely on s. 498 to justify a detention, the Crown bears an evidential burden to account for the time, while the persuasive burden remains on the applicant: see e.g. R. v. Brar, 2020 ONSC 4740, at para. 37. The court in R. v. Ruscica, 2019 ONSC 2442, at paras. 49-51, accepted that the accused’s burden is to establish a prima facie case of arbitrary detention, which triggers a shift in burden to the Crown to explain what occurred.

[^7]: I rely on PC Bell’s evidence and the Certificate to find beyond a reasonable doubt that (i) the defendant’s breath samples were received into an approved instrument, an Intoxilyzer 8000 C (see s. 320.11 “approved instrument”; s. 320.39; Approved Breath Analysis Instruments Order, SI/85-201, s. 2(p)); (ii) the Intoxilyzer was operated by a qualified technician (PC Bell was designated by Ontario’s Solicitor General: see ss. 320.11 “qualified technician”, 320.4(a), and s. 2 “Attorney General” (definition “a”); (iii) PC Bell, before each sample was taken, conducted a system blank test showing not more than 10 mg of alcohol in 100 mL of blood and a system calibration check “the result of which is within 10% of the target value” of an alcohol standard certified by an analyst; (iv) more than 15 minutes elapsed between the two samples being taken; and (v) the samples did not differ by more than 20 mg (rounded down, they were 210 and 200 mg).

[^8]: R. v. Kelly, 2019 NSPC 73, at para. 49, suggests in obiter that s. 320.34(3) appears to leave room to advance a defence “based on the functioning of the [AI] or procedure of the technician”. It is unclear to me whether Kelly is intended to suggest that the conclusive presumption in s. 320.31(1) can be defeated by functional or procedural defects relating to matters other than those listed in s. 320.31(1). If so, I would not follow Kelly. The conclusive presumption operates when the enumerated list of preconditions in s. 320.31(1) is satisfied. Subsections 320.34(2) and (3) do not purport to add to that list; they permit an accused person to apply for disclosure relevant to “determining whether the [AI] was in proper working order”. Evidence regarding whether the AI is in proper working order could conceivably be relevant to whether one of the preconditions in s. 320.31(1) has been satisfied. Such evidence may also be relevant in a case where the Crown seeks to rely on AI results in circumstances where the conclusive presumption is unavailable. (In such a case, AI results may still be admitted into evidence: see e.g. R. v. McCarthy, 2013 ONSC 599, at paras. 21-22; R. v. Wu, [2019] O.J. No. 5000, at para. 9.)

[^9]: The samples were taken at 5:31 and 5:51 a.m., which is more than two hours after she ceased operating her car. Pursuant to s. 320.31(1), the lowest result of the BAC analysis (202), is conclusive proof of her BAC at the time the samples were analyzed. As such, I find her BAC at 5:31 a.m. was 202 mg of alcohol per 100 mL of blood. Pursuant to s. 320.31(4), her BAC during the two-hour window after she ceased operating the conveyance is conclusively presumed to be 202 mg, “plus an additional 5 mg of alcohol in 100 mL of blood for every interval of 30 minutes in excess of those two hours.” DC Nicosia observed the defendant behind the wheel “at around 2:45”. Her first sample was provided over 2.5 hours later at 5:31 a.m. I must add 5 mg to account for one full interval of 30 minutes. As such, her BAC during the two-hour window was 207.