ONTARIO COURT OF JUSTICE

CITATION: R. v. Lai, 2026 ONCJ 308

DATE: 2026 05 29

COURT FILE No.: Newmarket 998-23-91107515

BETWEEN:

HIS MAJESTY THE KING

— AND —

SEBASTIAN YUK LAI

Before Justice Edward Prutschi

Heard on April 13-14, 2026

Reasons for Judgment released on May 29, 2026

Tharziha Ganeshamoorthy.............................................................. counsel for the Crown

Tom Hicks.................................................. counsel for the defendant Sebastian Yuk Lai

PRUTSCHI J.:

[1] In the rainy early morning darkness of August 30, 2023, Mr. Sebastian Lai crashed his car into the lamp post of a centre median on a major roadway. Subsequent testing revealed Mr. Lai’s blood alcohol concentration (“BAC”) to be as much as double the legal limit. He was charged with impaired driving and operating a conveyance with excess BAC.

ISSUES

[2] Mr. Lai alleges that he was arrested and compelled to provide breath samples without the requisite reasonable grounds in breach of his section 7, 8 and 9 Charter rights. The case raises several narrow legal issues.

[3] First, has the crown proven that Mr. Lai’s ability to operate the vehicle was impaired to any degree by alcohol?

[4] The second issue raises three interrelated questions. Did the police have the necessary reasonable grounds to arrest Mr. Lai and demand a breath test from him? More specifically, where one officer forms reasonable grounds and directs the arrest of the accused by a second officer who has not formed reasonable grounds independently, can that second officer still proceed to make a lawful breath demand? Finally, does a subsequent breath demand by a qualified breath technician (“QBT”) that was predicated on information received from the first officer cure any defect in the groundless breath demand made by the second officer?

SPIELMACHER AND REASONABLE GROUNDS

[5] PC Barbara Spielmacher was the first officer on the scene that night. She found Mr. Lai behind the wheel of his car which had suffered significant front-end damage, having struck the centre median’s lamp post. The car’s airbags had deployed.

[6] When Mr. Lai exited the vehicle, PC Spielmacher asked him if he required medical attention. He responded “no” and Spielmacher immediately detected a smell of alcohol on his breath. She further noted Mr. Lai was wavering slightly, though his feet remained stable and firmly planted on the ground. As she continued to talk to Mr. Lai, she found him unable to focus on her face and it appeared as if Mr. Lai was “looking past or through me”.

[7] At this point PC Spielmacher saw officer Amanda Smith approaching the scene in a separate police cruiser. Spielmacher directed Mr. Lai to place his phone and keys, which he had been holding in his hands, back in the vehicle on the car seat. Spielmacher walked the short distance to DC Smith and informed Smith something along the lines of “this is going to be an impaired”.

[8] Spielmacher recalled a time lapse of between 30-45 seconds from when she directed Mr. Lai to put his things back in the car until he completed this simple task. During the entirety of this time, she believed he was hunched over the vehicle seemingly frozen. She acknowledged that she could not see his hands and didn’t know what, if anything, he was doing in the car. This unusual delay was one of the indicia Spielmacher relied on in forming her grounds that Mr. Lai’s ability to drive was impaired by alcohol.

[9] I have had the benefit of closely observing the interaction between PC Spielmacher and Mr. Lai through the in-car camera (“ICC”) videos of both Spielmacher and Smith. The view of Mr. Lai is largely obstructed by the driver’s side door of his car and the entire interaction is blurred by the rain on the windshield causing substantial spotting and flare from the refracted lights of the emergency vehicles. Despite these challenges, Mr. Lai’s shoulders and head are visible and it is difficult to discern anything but the slightest waver. Moreover, PC Spielmacher immediately communicated her view that “this is gonna be an impaired” to DC Smith the moment they crossed paths without any visible glance back to Mr. Lai at his vehicle.

[10] For these reasons, I discount Spielmacher’s observations of wavering or any extended hunching over the vehicle when I conduct my assessment of the objective reasonableness of her grounds. Leaving these factors aside, PC Spielmacher still had ample indicia to form reasonable grounds for impaired driving. Mr. Lai was the sole occupant and driver of a car that had just been in a recent serious unexplained collision with a stationary lamppost. His breath smelled of alcohol. He was unable to focus his eyes.

[11] Each of these indicia may have been the result of other reasonable alternatives. The collision took place in wet and dark conditions. The crash caused the airbags to deploy which could have resulted in shock, explaining Mr. Lai’s inability to properly focus. The smell of alcohol on his breath strongly suggests recent consumption but says little about the quantity of that consumption or its impact on his ability to drive.

[12] The formation of reasonable grounds does not require proof of impairment beyond a reasonable doubt nor even proof against the lesser standard of a balance of probabilities. The existence of other explanations for various indicia of impairment does not detract from both the subjective and objective elements required to formulate lawful reasonable grounds. There is no requirement that an officer dispel innocent alternative explanations in order to sustain the reasonableness of their grounds.

[13] For these reasons, I find that PC Spielmacher possessed the necessary reasonable grounds to make a lawful arrest for impaired driving and make the associated demand for breath samples. However, PC Spielmacher did not make the arrest or demand and my analysis must therefore delve deeper.

SMITH’S ARREST AND BREATH DEMAND

[14] DC Smith arrived on scene just seconds after PC Spielmacher. She too observed a serious single-car collision with Mr. Lai as the sole potential driver. Before Smith could make any other observations, Spielmacher approached her saying “this is gonna be an impaired”. Though Smith was not told by Spielmacher whether the impairment had its source in alcohol, drugs, or both, she proceeded on the basis that it was alcohol assuming that Spielmacher would have been more explicit if the much less common drug impairment was the focus of the investigation.

[15] Smith walked back to Mr. Lai’s car with Spielmacher and the two simultaneously told Mr. Lai that he was under arrest for impaired driving. Smith physically took control of Mr. Lai as she was slightly better positioned to do so than Spielmacher. Having made the physical arrest and handcuffed Mr. Lai, DC Smith proceeded as the arresting officer to make the breath demand.

[16] DC Smith had not been advised by PC Spielmacher of any smell of alcohol coming from Mr. Lai’s breath, nor had Spielmacher shared any information about Lai’s difficulty focussing. By the time of his arrest and the breath demand, Smith herself had made no such observation as Mr. Lai had not yet spoken to her. When asked about her own independent grounds to arrest Mr. Lai and subject him to a breath demand, Smith noted the collision, that Mr. Lai was the lone occupant, and that Spielmacher had communicated to her that Mr. Lai was impaired which Smith took to mean impaired by alcohol.

[17] Essentially, Smith relied on Speilmacher’s conclusion of impairment as the foundation for her own reasonable grounds. This is a problematic approach. It is clear that an officer can rely on the grounds of a colleague when directed to make an arrest (see R. v. Beaver, 2022 SCC 54 at para. 72 clause 8). This however does not permit an officer to simply accept the word of a colleague for the formulation of the reasonable grounds necessary to make a lawful breath demand.

[18] Unlike an arrest, a breath demand triggers a conscriptive search and seizure procedure. While it is not a particularly intrusive procedure, it typically involves securing a person for an extended period of time to transport them to a police detachment where a QBT administers the testing regime. This process can take several hours from start to finish with the subject detained the entire time. It is not something to be entered into lightly. For these reasons both the Criminal Code and Charter require that the officer making such a demand have reasonable grounds to do so.

[19] These grounds can be acquired by information passed along to the demanding officer by other colleagues. They however cannot be totally sub-contracted to another officer to the point where the demanding officer merely relies on the bare conclusion of their co-worker.

[20] As I have already noted, PC Spielmacher had lawful reasonable grounds to make a breath demand. Had Spielmacher relayed these grounds to DC Smith, it would have been entirely appropriate for Smith to assume that the facts relayed by Spielmacher were accurate. This would have allowed Smith to reach her own independent conclusion as to reasonable grounds based upon those facts.

[21] Instead, Smith heard only Spielmacher’s conclusion. Most glaringly, Smith was not advised that Spielmacher had smelled alcohol on Mr. Lai’s breath nor that Mr. Lai was unable to focus. The only information available to Smith at the moment of arrest and breath demand was the fact of the collision and Spielmacher’s unexplained conclusion. These are insufficient to formulate reasonable grounds.

HYDE AND THE BREATH TESTS

[22] When Mr. Lai arrived at the police station, he was eventually handed over to officer Ashton Hyde, a QBT, for the purposes of conducting the breath testing. Hyde spoke to PC Spielmacher and learned that she had arrived at the scene of the collision, smelled alcohol on Mr. Lai, and that Mr. Lai had expressed a “blank stare” when interacting with her.

[23] Based on this information, Hyde formed his own opinion that Mr. Lai’s ability to drive was impaired by alcohol. Hyde then made his own breath demand for Mr. Lai to comply with the testing procedure. This resulted in obtaining truncated BAC readings of 160 and 140.

[24] There is clear authority that a lawful breath demand made by a QBT can cure the failure of an officer who neglected to make a demand at the roadside (see R. v. Guenter, 2016 ONCA 572). Conceptually, this makes sense. Where the roadside officer had reasonable grounds to make the breath demand but simply forgot to do so, the accused has not been detained arbitrarily or subjected to an illegal search. The legal difficulty being rectified by the QBT’s breath demand is the timing of the demand and the statutory requirement that the testing happen as soon as practicable (“ASAP”) after that demand.

[25] However, a QBT’s demand should not be permitted to retroactively justify a groundless roadside demand by widening the scope of permissible observation of the accused through the entirety of the lengthy arrest, transport and transfer procedures. If a roadside officer lacked reasonable grounds at the time of the demand, the QBT should not be permitted to rely on indicia not available to the roadside officer. To do so would encourage officers to make unlawful demands based on a hunch, knowing that the demand itself would open a longer investigative window in which they could back-fill an initially unreasonable demand.

[26] The facts in Mr. Lai’s case a reveal a unique hybrid situation. As I noted previously, DC Smith predicated her demand on insufficient grounds having not received all the necessary information from PC Spielmacher. Officer Hyde mistakenly believed that Spielmacher was in fact the arresting officer who made the roadside demand. He obtained his grounds from her rather than Smith. In speaking with Hyde, Spielmacher provided the critical information that she neglected to pass on to Smith – namely that Mr. Lai smelled of alcohol and was unable to focus.

[27] This now crystalizes the legal question at the heart of this case. Spielmacher had reasonable grounds but did not make the demand. Smith did make the demand but did not have reasonable grounds. Hyde later made his own demand but based that demand on reasonable grounds he obtained from Spielmacher rather than the actual arresting / demanding officer, Smith.

IS THERE A CHARTER BREACH

[28] In analyzing whether the conduct in Mr. Lai’s case amounts to a breach of his Charter rights, it is important to keep at the forefront the type of police behaviour the Charter is designed to insulate against. Time after time, appellate courts have asserted that the roadside arrest, demand and testing regime is vitally important to ensure public safety when exercising the highly regulated privilege to drive a car. There must be a sensible mechanism for police to detain, arrest and test drivers who they reasonably suspect to be impaired or over the legal BAC limit. At the same time, these extraordinary police powers must not permit a mere hunch to justify the hours-long frightening intrusion that flows from an arrest and breath demand.

[29] With this principled backdrop in mind, it can be understood how the later formation of reasonable grounds by a QBT serves to cure an error at the roadside if the QBT’s grounds rely solely on information available to the roadside officer at the time of their demand. This distinction is critical. The arrest, demand and detention in such circumstances are not being used to unlawfully collect further grounds while a detainee is subject to police control. Instead, the QBT is merely putting themselves in the shoes of the roadside officer, conducting their own independent analysis of the information that was available in the moment to determine if reasonable grounds existed.

[30] Seen in this light, officer Hyde’s reliance on the complete indicia observed by Spielmacher result in no Charter breach. Smith was entitled to rely on Spielmacher’s bare conclusion to act as Spielmacher’s agent in making the lawful arrest of Mr. Lai. She was not however able to rely on that bare conclusion for the formulation of her own reasonable grounds to make the breath demand. In making that demand without the proper grounds, Smith erred – an error subsequently cured through the later actions of QBT Hyde. This curative function operates here in the same way that it would when fixing the mistake of a roadside officer who forgot to make a breath demand despite having had reasonable grounds to do so.

SECTION 24(2) ANALYSIS

[31] While I am generally loath to engage in hypothetical exclusion exercises, the unique and unusual circumstances of this case call for this analysis in the event that an appellate court determines that I have erroneously concluded that no breach took place.

[32] This analysis follows the well-known three-part test articulated by the Supreme Court of Canada in R. v. Grant. This test permits a court to balance the effect of admitting unlawfully obtained evidence against society’s confidence in the administration of justice if the evidence were to be excluded. This is accomplished by weighing the seriousness of the Charter-infringing conduct, the impact of the breach on the Charter-protected interests of the accused, and society’s interest in seeing cases determined on their merits.

[33] If there is a breach in this case, it is isolated to the premature and impulsive decision of DC Smith to make the demand with incomplete information. Had Smith received the complete observations Spielmacher made, she would have had the same grounds I previously determined to be reasonable. Spielmacher herself was standing directly beside Smith. The two of them verbalized the arrest simultaneously. It was a spur-of-the-moment decision based on convenience and proximity which resulted in Smith becoming the formal arresting officer and therefore being the officer who made the formal demand to Mr. Lai. Spielmacher could just as easily have done so herself. Hyde later did exactly that based on the same information available to Spielmacher at the moment of arrest.

[34] In these unique circumstances it is clear that the breach was technical and unintentional. This is not a case where a speculative hunch was engaged to justify an arrest and demand for the purpose of buying time to further an otherwise unlawful investigation. Collectively, the two officers on scene had ample grounds to proceed as they did. The error, such as it was, lay in the fluid way the arrest and demand unfolded. The officers had three ways they could have proceeded without any Charter difficulty.

(i) Spielmacher could have affected the arrest and demand herself based upon the adequate grounds she had already developed;

(ii) Spielmacher could have relayed those grounds to Smith by simply adding that she had smelled alcohol on Mr. Lai's breath and found him unable to focus on her as they spoke; or

(iii) Smith could have delayed proceeding with the arrest until she herself had an extra moment to interact with Mr. Lai where she would have been exposed to the same indicia Spielmacher observed.

[35] Smith’s degree of fault is at the lowest end of the range. During a quick dynamic situation at the dark and rainy roadside, Smith relied in good faith on the unexplained conclusion of her fellow officer. This was an isolated incident born of random circumstance with no systemic pattern of abuse.

[36] The impact on Mr. Lai was marginal. Spielmacher had developed good and sufficient grounds for his arrest and could herself have made the identical demand which would have changed nothing in Mr. Lai’s treatment that evening. Upon learning of Spielmacher’s complete grounds, officer Hyde reached the same conclusion, making his own demand and acting upon that. This too mitigates any negative impact on Mr. Lai.

[37] All of this is balanced against the pressing need to investigate and prosecute impaired-related charges on their merits. Though the epidemic of impaired driving is rampant across the Province, York Region takes a shameful spot near the top of the pyramid when assessing the horrific impact these serious offences have visited on our streets.

[38] If there indeed was a Charter breach by DC Smith, I find that the administration of justice would be best served by admitting the evidence of the breath tests. Mr. Lai is therefore guilty of the offence of operating his vehicle while over the legal BAC limit.

PROOF OF IMPAIRED DRIVING

[39] Having found Mr. Lai guilty of the 80+ offence, the impaired driving charge arises from the same transaction and would therefore be stayed (pursuant to the Kienapple principle). However, to enable a fulsome review of the entirety of the case, I will also set out my analysis on the impaired driving charge.

[40] My conclusion that PC Spielmacher had reasonable grounds to believe Mr. Lai was impaired does not inexorably lead to a finding that the Crown has proven impairment beyond a reasonable doubt.

[41] Further observations by Spielmacher, Smith and Hyde do little to advance the suggestion of impairment beyond the level available to Spielmacher and Smith at the time of arrest. Any modest signs of balance issues observed by Smith and Hyde in their interactions with Mr. Lai are easily attributable to the circumstances of the moment. In his interactions with DC Smith, Mr. Lai was already handcuffed to the rear and was being physically led to her police cruiser and then to the waiting ambulance. While handcuffed and guided in this way, Lai had to navigate a narrow passage between the police cruiser and the raised centre median. I see nothing on the ICC to suggest imbalance attributable to impairment during this time.

[42] Officer Hyde testified to a slight rocking or wavering when Mr. Lai was asked to stand during the breath testing procedure. This observation was so modest that Hyde did not even include it in his notes or on the alcohol influence report which has a specific section dedicated to check-boxes for any observed balance issues. I therefore place no reliance on this observation.

[43] While I have already explained why the limited indicia Spielmacher observed were sufficient to justify her reasonable grounds, these grounds are inadequate when applied to the much higher standard of proof beyond a reasonable doubt. I recognize that the Crown need only prove the slightest level of impairment, but this still requires more than proof of consumption and speculation as to impairment. An unexplained single-car collision coupled with the odour of alcohol raises considerable suspicion but fails to prove impairment of the ability to drive beyond a reasonable doubt. Nothing after Spielmacher’s initial interaction with Mr. Lai advances that claim further. For these reasons, I find that the Crown has failed to prove beyond a reasonable doubt that Mr. Lai’s ability to drive was impaired by alcohol. He will be found not guilty of that charge.

Released: May 29, 2026

Signed: Justice Edward Prutschi