His Majesty the King v. Thanushan Balaganeshamoorthy, 2026 ONCJ 309

ONTARIO COURT OF JUSTICE

CITATION: R. v. Balaganeshamoorthy, 2026 ONCJ 309

DATE: 2026 05 29

COURT FILE No.: Toronto 4810 998 25 48102280; Toronto 4810 999 25 48100682

BETWEEN:

HIS MAJESTY THE KING

— AND —

THANUSHAN BALAGANESHAMOORTHY

Before Justice J. Trehearne

Heard on March 19 and 20, 2026

Reasons for Judgment released on May 29, 2026

H. Mann counsel for the Crown

D. Holmes counsel for the defendant Thanushan Balaganeshamoorthy

TREHEARNE J.:

1. Introduction

1Thanushan Balaganeshamoorthy stood trial before me on one count of failing to comply with a police demand that he provide a breath sample into an approved screening device (“ASD”), contrary to s.320.15(1) of the Criminal Code of Canada. He was also charged with driving while suspended, contrary to s.53(1) of the Highway Traffic Act.¹

2Mr. Balaganeshamoorthy concedes that he was driving while suspended, and is guilty of the offence under s.53(1).

3As for the charge of failing to provide a breath sample, the trial gave rise to three issues:

(1) Whether the police demand for a breath sample was lawful;

(2) Whether Mr. Balaganeshamoorthy unequivocally failed to provide a breath sample; and,

(3) Whether Mr. Balaganeshamoorthy had a ‘change of heart’, and would have provided a breath sample if given another opportunity, within the time within which the police could have lawfully obtained a compelled breath sample.

4For the Reasons that follow, I have concluded that:

(1) The police made a lawful demand for a breath sample in this case;

(2) Mr. Balaganeshamoorthy unequivocally failed to provide the breath sample; and,

(3) I am sceptical as to whether Mr. Balaganeshamoorthy had a sincere ‘change of heart’ such that he would have provided a breath sample if given a further opportunity. In any event, any such ‘change of heart’ occurred after the time within which the police could have lawfully obtained a compelled breath sample.

5I therefore find Mr. Balaganeshamoorthy guilty of both offences before the Court.

2. The Evidence

6There is no meaningful dispute as to what occurred in this case. The relevant events were captured on the body-worn cameras of the officers, as well as the in-car camera of the police cruiser, which recordings were filed at trial.

A. The police pull Mr. Balaganeshamoorthy over

7On January 18, 2025, Detective David Fischer was in plain clothes and on patrol. Detective Fischer was part of the unit which investigates vehicle thefts, among other offences. At 9:42 pm, Detective Fischer was driving westbound on Steeles Avenue, approaching Midland Avenue, when an SUV caught his attention. The SUV was travelling faster than the other traffic, and was weaving around the other vehicles.

8Detective Fischer caught up with the SUV. He noted that the vehicle was a smaller, white Nissan Qashqai. He queried the license plate on the Ministry of Transportation database, and learned that the license plate should have been on a black Nissan SUV, although the model of that SUV was unavailable. The mismatch between the license plate and the vehicle caused Detective Fischer to wonder whether the vehicle was stolen, or whether it had been ‘re-vinned’ (a process by which the Vehicle Identification Number, or VIN, is changed on a stolen vehicle).

9Detective Fischer pulled up alongside the Nissan Qashqai and observed that the driver was wearing his hood pulled forward. In Detective Fischer’s experience, this, too, was potentially a sign that the vehicle was stolen or ‘re-vinned’, as the driver might have been trying to conceal his identity.

10Detective Fischer decided to stop the Nissan Qashqai. He explained, however, that as he was in plainclothes and an unmarked police car, it would have been difficult for him to do so, so he put out a radio call for a uniform car to assist with the traffic stop. Sergeant David Crampton heard, and responded to, Detective Fischer’s radio call.

11At approximately 9:50 pm, Detective Fischer saw Sergeant Crampton coming up behind them in a marked scout car. At this point, the vehicles were travelling northbound on the 404 highway, approaching the 407 highway. Sergeant Crampton pulled in behind the Qashqai with lights activated, and Detective Fischer positioned his vehicle in front of the Qashqai so as to assist with the stop. At 9:55 pm, the Qashqai pulled over to the right shoulder on the 404 highway, just south of 16^th Avenue. Once the vehicle was stopped, Detective Fischer investigated the vehicle to determine if it had been ‘re-vinned’, while Sergeant Crampton interacted with the driver. Sergeant Crampton observed two occupants of the Qashqai, a male in the driver’s seat and an older female in the front passenger seat. The defence does not dispute that Mr. Balaganeshamoorthy was the driver, and his mother the front passenger.

12Sergeant Crampton testified that in his view, he was exercising his authority to stop Mr. Balaganeshamoorthy to investigate the offence of ‘using plate not authorized’ under the Highway Traffic Act. He further testified that he did not advise Mr. Balaganeshamoorthy of his right to counsel at this stage, as he did not think that was required when investigating a “traffic” offence. Sergeant Crampton agreed that one possibility in his mind was that the vehicle had been stolen. However, he also thought there might be an innocent explanation for the mismatched plate, and that even if the vehicle had been stolen, that did not mean Mr. Balaganeshamoorthy was necessarily aware he was driving a stolen vehicle. Sergeant Crampton noted that if the vehicle had been stolen, it would be unusual for Mr. Balaganeshamoorthy to be driving around with his elderly mother, and that Mr. Balaganeshamoorthy made no attempt to flee.²

B. Sergeant Crampton requests Mr. Balaganeshamoorthy’s driver’s license and forms grounds for a breath demand

13After stopping Mr. Balaganeshamoorthy, Sergeant Crampton told Mr. Balaganeshamoorthy that he had been stopped because his plate came back to a different car, a black Nissan. He asked Mr. Balaganeshamoorthy for his driver’s license, proof of ownership, and insurance. Mr. Balaganeshamoorthy was focussed on calling his wife, whom he told Sergeant Crampton was the registered owner of the Qashqai. Sergeant Crampton asked Mr. Balaganeshamoorthy to produce his driver’s license first, as he did not want to continue to stand close to the passing traffic on the highway. Mr. Balaganeshamoorthy told Sergeant Crampton he had a driver’s license, but needed to get out of the car to look for it, which he was permitted to do. Mr. Balaganeshamoorthy continued to focus on calling his wife, and did not produce a driver’s license.

14At 9:59 pm, Sergeant Crampton asked Mr. Balaganeshamoorthy how much he had had to drink that night. Sergeant Crampton testified it was at this point that he had noticed the odour of alcohol on Mr. Balaganeshamoorthy’s breath. Mr. Balaganeshamoorthy replied that he does not drink. Sergeant Crampton asked: “So I can’t smell alcohol right now?”, in response to which Mr. Balaganeshamoorthy repeated that he does not drink. Sergeant Crampton said that he first only caught a whiff of alcohol, but that he had Mr. Balaganeshamoorthy turn toward him to confirm that Mr. Balaganeshamoorthy was the source of that smell.

15Sergeant Crampton then asked PC Liu, another officer who had arrived on scene after Sergeant Crampton, whether PC Liu had a “roadside” on him, but PC Liu did not. Sergeant Crampton testified that he did not, himself, have an ASD with him at the time. He explained there were a limited number of ASDs available on any given day, and that priority was given to those on the Traffic Response team. In any event, Sergeant Crampton could not recall if he had looked that day to see if there was an ASD he could take with him, but agreed it was not his habit to do so. Sergeant Crampton acknowledged there were other officers on scene at this point, and he did not ask them if they had an ASD. He said he wanted to focus first on obtaining Mr. Balaganeshamoorthy’s driver’s license, and did not want to leave Mr. Balaganeshamoorthy with other officers without explaining what he was doing.

16Sergeant Crampton again asked Mr. Balaganeshamoorthy for his driver’s license. Mr. Balaganeshamoorthy replied that he had “so much stuff” in his car, and that he was driving his wife’s car. Mr. Balaganeshamoorthy can be heard at this point speaking with his wife on his phone about where he could find the insurance documents. He told the officers that the car was not stolen.

17Just before 10:02 pm, Sergeant Crampton asked PC Osborne, who had arrived on scene at 10:00 pm, whether PC Osborne “had a roadside”, and he responded in the affirmative. PC Osborne went to his cruiser to retrieve the ASD. After doing so, PC Osborne and Detective Fischer had a discussion about whether the vehicle had been ‘re-vinned’. Then, PC Osborne returned to the area of Mr. Balaganeshamoorthy at 10:04 pm.

18In the meantime, between approximately 10:01 pm and 10:03 pm, Sergeant Crampton went to his cruiser, retrieved his memo book from his vehicle, and returned back to the area of Mr. Balaganeshamoorthy. Sergeant Crampton also had brief discussions with other officers about whether the vehicle had been ‘re-vinned’, and stated that he intended to “do a roadside”. During this time, Mr. Balaganeshamoorthy continued to look for the requested documents, spoke with his wife on the phone about where the documents might be located, and told officers the car had not been stolen. Mr. Balaganeshamoorthy also asked the officers to speak with his wife and tell her where they were.

19At 10:03 pm, Sergeant Crampton again asked Mr. Balaganeshamoorthy for his driver’s license. Mr. Balaganeshamoorthy continued to insist his license was in the vehicle. Sergeant Crampton then asked Mr. Balaganeshamoorthy to identify himself verbally, which he did, although he spelled his first name T-H-A-N-U-S-H-I-N. He also spelled his last name twice, the first time spelling it B-A-N-E-S-H-A-M-O-O-R-T-H-Y, and the second time B-A-L-A-G-A-N-E-S-H-A-M-O-O-R-T-H-Y. Sergeant Crampton also obtained Mr. Balaganeshamoorthy’s address and phone number. Sergeant Crampton had to continually ask Mr. Balaganeshamoorthy to focus on their conversation, as Mr. Balaganeshamoorthy was insisting the car was not stolen, and stated that he was scared and cold.

C. Sergeant Crampton makes the breath demand

20At approximately 10:05 pm, immediately after obtaining Mr. Balaganeshamoorthy’s basic information, Sergeant Crampton read the breath demand to Mr. Balaganeshamoorthy. Sergeant Crampton asked Mr. Balaganeshamoorthy if he understood, and Mr. Balaganeshamoorthy said he did. Sergeant Crampton then asked Mr. Balaganeshamoorthy what the breath demand meant to him, and Mr. Balaganeshamoorthy replied “I don’t know, sir”. Sergeant Crampton then advised Mr. Balaganeshamoorthy that he wanted him to “blow into a roadside alcotest”. Sergeant Crampton had to refocus Mr. Balaganeshamoorthy on the conversation, as he continued to look for something, presumably his documents, in his vehicle. Sergeant Crampton then walked Mr. Balaganeshamoorthy to the front of his police cruiser.

21Sergeant Crampton was asked why he did not make the breath demand as soon as PC Osborne confirmed he had an ASD with him. Sergeant Crampton gave two explanations. First, he explained he still did not know who Mr. Balaganeshamoorthy was, and had still not received Mr. Balaganeshamoorthy’s driver’s license, and wanted that information to run checks on Mr. Balaganeshamoorthy while the ASD test was occurring. Sergeant Crampton testified he prefers to know who he’s dealing with, for officer safety, and said that, for example, if a person is on firearms charges, Sergeant Crampton wants to know that. Second, Sergeant Crampton also said he wanted to calm Mr. Balaganeshamoorthy down so that he could perform the ASD test, as Mr. Balaganeshamoorthy was very flustered. Sergeant Crampton stated that his understanding of the law is that the breath demand must be made, and the ASD test must be done, within a reasonable amount of time. He said that was why he waited to make the demand until he knew an ASD was available on scene. In Sergeant Crampton’s view, a reasonable amount of time includes identifying the detainee.

22PC Osborne was asked why he did not take the ASD directly back to Sergeant Crampton and Mr. Balaganeshamoorthy once he retrieved it from his vehicle. He explained he believed the other officers were involved in investigating whether the vehicle had been ‘re-vinned’, and he did not want to interrupt. He was not sure how quickly a demand had to be made once the grounds for the demand were formed, but thought the demand had to be made as soon as reasonably possible. He noted that Sergeant Crampton brought Mr. Balaganeshamoorthy over to the scout car for the ASD “fairly quickly”.

D. Mr. Balaganeshamoorthy attempts to provide a breath sample

23At 10:06 pm, Mr. Balaganeshamoorthy arrived at the front of the police cruiser, where PC Osborne and another officer, PC Clark, were standing. PC Osborne read Mr. Balaganeshamoorthy the breath demand again. Mr. Balaganeshamoorthy asked the officers to tell him what this was “really about”. Sergeant Crampton told Mr. Balaganeshamoorthy that it was “both”, that is, the issue of the plate and the breath demand. Once the demand was re-read, PC Osborne asked Mr. Balaganeshamoorthy whether he understood, to which he replied: “No, sir”. He said that English was his second language, and that he was nervous. PC Osborne replied “no problem”. He said that the device was “like a breathalyzer”, and that he was “making a demand” that Mr. Balaganeshamoorthy give the officer a sample of his breath to determine his “sobriety”. PC Osborne again asked if Mr. Balaganeshamoorthy understood, to which he replied “yeah, yeah”. Mr. Balaganeshamoorthy then asked for a translator.³ The officers noted Mr. Balaganeshamoorthy was speaking English “perfectly”. Sergeant Crampton asked Mr. Balaganeshamoorthy what it was he did not understand. He said he did not know what the officers were doing and why he had been pulled over. Sergeant Crampton replied: “You do understand, because you said the car’s not stolen, so that’s why you got pulled over”. He repeated that Mr. Balaganeshamoorthy was pulled over because “the plate doesn’t match”, and said that now he could smell alcohol on Mr. Balaganeshamoorthy’s breath, so he was asking Mr. Balaganeshamoorthy to blow into the machine. Mr. Balaganeshamoorthy replied: “I see, okay”.

24Sergeant Crampton then returned to his vehicle to conduct queries on the police database to confirm Mr. Balaganeshamoorthy’s identity. He determined that Mr. Balaganeshamoorthy’s driver’s license was suspended due to unpaid fines. At the same time, PC Osborne demonstrated how to blow into the ASD. PC Osborne then put a new straw in the ASD. PC Clark told Mr. Balaganeshamoorthy to be “calm” and to give a “continuous breath”. He told Mr. Balaganeshamoorthy not to stop “in the middle”, until the police told him to stop. PC Osborne told Mr. Balaganeshamoorthy to put the straw in his mouth, and provide a “continuous breath”.

25At 10:08 pm, Mr. Balaganeshamoorthy attempted to provide his first ASD sample. PC Osborne said that Mr. Balaganeshamoorthy did not seal his lips around the mouthpiece. PC Osborne told Mr. Balaganeshamoorthy to put his lips “tight around” the straw, and PC Clark told Mr. Balaganeshamoorthy it was “like… blowing a balloon”. Mr. Balaganeshamoorthy made a second attempt, but PC Osborne noted that Mr. Balaganeshamoorthy was not blowing into the device. Mr. Balaganeshamoorthy told PC Osborne he had asthma. PC Osborne explained to Mr. Balaganeshamoorthy that he could be arrested for refusing to provide a breath sample. Mr. Balaganeshamoorthy said this was “not right”. PC Osborne explained they were allowed to make this demand, and noted that Detective Fischer had noticed Mr. Balaganeshamoorthy’s driving, and Sergeant Crampton had detected the odour of alcohol on Mr. Balaganeshamoorthy’s breath.

26At 10:09 pm, Mr. Balaganeshamoorthy made a third attempt to provide a breath sample. PC Osborne said on this occasion, Mr. Balaganeshamoorthy was providing short breaths, whereas a long breath is required. PC Osborne explained this to Mr. Balaganeshamoorthy. He told Mr. Balaganeshamoorthy to provide a “long, steady breath”, and PC Clark stated: “we’ll tell you when to stop”. PC Osborne told Mr. Balaganeshamoorthy to take a deep breath in, to blow out, and he would tell Mr. Balaganeshamoorthy “when to stop”.

27At 10:10 pm, Mr. Balaganeshamoorthy made a fourth attempt to blow into the ASD. However, it again appeared to PC Osborne that Mr. Balaganeshamoorthy was not blowing into the machine. Mr. Balaganeshamoorthy said he was cold. PC Osborne then speculated that perhaps the straw was not on the ASD properly, and put a new straw on, to ensure the machine was functioning. He testified he had been satisfied that the straw was on properly, but wanted to give Mr. Balaganeshamoorthy “the benefit of the doubt”. PC Osborne then explained to Mr. Balaganeshamoorthy that a person’s “lung capacity doesn’t have to be much to blow”.

28At 10:11 pm, PC Osborne told Mr. Balaganeshamoorthy that the machine was again ready, and that he had “to blow”. Mr. Balaganeshamoorthy again made a short attempt, but stopped blowing. PC Osborne explained to Mr. Balaganeshamoorthy that he could be arrested for refusing. PC Osborne demonstrated blowing out a long breath. Mr. Balaganeshamoorthy stated he had dentures. PC Osborne said that had “nothing to do with it”. PC Osborne said that Mr. Balaganeshamoorthy was refusing, and told him that if he refused, he would be arrested. Mr. Balaganeshamoorthy said the officers were “blackmailing” him. PC Osborne told Mr. Balaganeshamoorthy it was “part of the Criminal Code”. PC Clark told Mr. Balaganeshamoorthy: “We’re not going to give you a hundred tries”. Mr. Balaganeshamoorthy said he was “nervous” and needed to talk to his lawyer, as he did not know what this was “about”. At this point, another officer on scene can be heard saying: “Just arrest him”. Mr. Balaganeshamoorthy said he did not want to get arrested. PC Osborne replied: “Then blow”. Mr. Balaganeshamoorthy said he thought the police were ‘trapping’ him “into something”. PC Osborne replied that the police were not trapping Mr. Balaganeshamoorthy. He explained that if Mr. Balaganeshamoorthy provided a breath sample and was not impaired, he was not impaired, whereas if he refused to provide a breath sample, he would be arrested for refusing, “which is the same as being impaired”. Mr. Balaganeshamoorthy said he was not impaired. PC Osborne replied: “Okay, so if you’re not impaired, then there’s no problem blowing”.

29At 10:13 pm, Mr. Balaganeshamoorthy made a fifth attempt to blow into the ASD. Again, PC Osborne observed that Mr. Balaganeshamoorthy was only giving little breaths. It can also be observed on PC Osborne’s body-worn camera that Mr. Balaganeshamoorthy did not seal his lips around the straw. Mr. Balaganeshamoorthy then made a sixth attempt, but again can be observed on the body-worn camera blowing into the ASD only briefly, if at all. Mr. Balaganeshamoorthy then repeated that he had asthma. PC Osborne explained that the ASD could be used by people with asthma.

30Mr. Balaganeshamoorthy made a seventh attempt to blow into the ASD. Again, he was giving little breaths. PC Osborne attempted to explain to Mr. Balaganeshamoorthy that he needed to give a long, steady breath, and that PC Osborne would tell Mr. Balaganeshamoorthy when to stop. PC Osborne told Mr. Balaganeshamoorthy to take a “deep breath”, and PC Clark reiterated that it was like “blowing up a balloon”. Mr. Balaganeshamoorthy then made an eighth attempt, during which PC Osborne repeated “keep going, keep going”, but Mr. Balaganeshamoorthy again only blew short breaths. PC Osborne then repeated: “Don’t stop until I say stop”.

31Mr. Balaganeshamoorthy then made a ninth attempt. On this attempt, PC Osborne observed that Mr. Balaganeshamoorthy’s mouth was open around the straw, and he was not giving a continuous breath.

E. Mr. Balaganeshamoorthy is arrested

32At this point, it was 10:14 pm, and PC Osborne was of the view that he had the grounds to arrest Mr. Balaganeshamoorthy for refusing to provide a breath sample. He testified he did not believe Mr. Balaganeshamoorthy was making valid or reasonable attempts to provide a breath sample. He noted he had given Mr. Balaganeshamoorthy multiple opportunities to provide a sample, and had explained how to do so multiple times. PC Osborne’s escort arrested Mr. Balaganeshamoorthy and told him he was being arrested for refusing to provide a breath sample. Sergeant Crampton told Mr. Balaganeshamoorthy that his license was also suspended.

33PC Osborne and his escort took Mr. Balaganeshamoorthy to the rear of their scout car. At 10:15 pm, PC Osborne read Mr. Balaganeshamoorthy his right to counsel. Mr. Balaganeshamoorthy indicated he understood, and said he wanted to speak with a lawyer. PC Osborne then read Mr. Balaganeshamoorthy the caution, and Mr. Balaganeshamoorthy said he understood. Mr. Balaganeshamoorthy reiterated that he has asthma.

34As noted above, the in-car camera video, which shows Mr. Balaganeshamoorthy in the scout car starting at 10:15 pm, was filed as an Exhibit on the proceedings. At 10:19 pm, an officer can be heard explaining to Mr. Balaganeshamoorthy that the police could “not afford [Mr. Balaganeshamoorthy] any privacy right now”, and that was why they could not contact Mr. Balaganeshamoorthy’s lawyer “right now”. The officer told Mr. Balaganeshamoorthy he would likely be released on a “document” called a Form 9, and that he would have a date to attend court. Mr. Balaganeshamoorthy said he was “really sorry” and that he could get a note from his doctor. Mr. Balaganeshamoorthy also provided other reasons that he did not provide a sample, including that he was cold and scared. He repeated that he has asthma.

F. Mr. Balaganeshamoorthy asks for a further opportunity to provide a breath sample

35At 10:23 pm, Mr. Balaganeshamoorthy told the officers: “I have asthma officer, I am more than happy to cooperate with you, sir.” Further discussion then ensued about whether Mr. Balaganeshamoorthy’s license was suspended. Mr. Balaganeshamoorthy also told the officers he looked tired because he had not slept, not because he had been drinking. He told the officers his breath stank because he had not brushed his teeth. At 10:29 pm, he once again told the police he did not provide a sample because he had asthma.

36At 10:30 pm, Mr. Balaganeshamoorthy told the officers: “Okay, let’s do that, guys. Let’s do the breath sample”. Mr. Balaganeshamoorthy said he did not “want any trouble”. The officers told Mr. Balaganeshamoorthy it was “too late”. Mr. Balaganeshamoorthy asked: “Too late? Are you going to arrest me?”, to which the officers replied that Mr. Balaganeshamoorthy had already been arrested for refusing to provide a breath sample. Mr. Balaganeshamoorthy said “Okay, I’m sorry, let’s do that”, and added: “I just don’t like cops”. He repeated a number of times that he would do the breathalyzer. The officers told Mr. Balaganeshamoorthy that they were “past that point”. Mr. Balaganeshamoorthy continued to offer to take the breath test. Mr. Balaganeshamoorthy later said: “Excuse my arrogance”. He said he was “really sorry” and said “let’s do this again”. He said he had negative interactions with other police officers in the past, but agreed the officers with whom he was interacting had been respectful. He repeated: “Let’s do the breathalyzer now”.

37The officers did not give Mr. Balaganeshamoorthy another opportunity to provide a breath sample. PC Osborne agreed that at this point, the parties and the ASD were still on the scene, and he could have given Mr. Balaganeshamoorthy such an opportunity. He was asked why he did not do so. He explained that Mr. Balaganeshamoorthy had been given at least eight attempts to provide a breath sample, that he had twice explained to Mr. Balaganeshamoorthy that a failure to blow would result in his arrest, and that he had provided ample direction on how to provide the breath sample. PC Osborne believed that Mr. Balaganeshamoorthy had been trying to avoid providing a breath sample, as he was not sealing his lips around the straw, was not giving a big breath, and was not following directions.

38PC Osborne explained that ultimately the police drove Mr. Balaganeshamoorthy home. He said they left the scene at 11:05 pm, and arrived at Mr. Balaganeshamoorthy’s home at 11:33 pm.

3. Whether the Police Made a Lawful Demand for a Breath Sample in this Case

A. The applicable legal principles

39Section 320.27(1)(b) of the Criminal Code of Canada provides that if a police officer has reasonable grounds to suspect that a person has alcohol in their body, and that the person has driven a vehicle within the preceding three hours, the police officer may, by demand, require the person to immediately provide breath samples that, in the officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device. Section 320.15(1) of the Criminal Code of Canada makes the failure or refusal to comply with such a demand a criminal offence.

40The immediacy requirement in s.320.27(1) of the Criminal Code connotes a prompt demand by the police officer, and an immediate response by the person to whom that demand is addressed.⁴ Stops to provide breath samples are meant to be brief.⁵ This is because the subject of the stop is detained, and their right to counsel is suspended. This limit on Charter rights is constitutionally permissible because the immediacy requirement balances the safeguarding of drivers’ constitutional rights and the public interest in eradicating impaired driving.⁶

41The immediacy requirement includes time for an officer to: ready the equipment and instruct the detainee on what to do⁷; demonstrate the proper use of the ASD⁸; and, explain the consequences of refusing and give the detainee a chance to reconsider.⁹ In addition, the police have considerable discretion as to how many chances they give a detainee to change his mind about refusing to provide an ASD sample.¹⁰ On the other hand, budgetary restraints which result in a limited number of ASDs cannot justify a flexible interpretation of the immediacy requirement¹¹, and the police must have an ASD immediately available when they make the breath demand.¹² In addition, the police must make the ASD demand as soon as they form the reasonable suspicion that the driver has alcohol in his body¹³; this, too, is to ensure constitutional compliance, as if the police had the discretion to wait before making the demand, the suspect would be detained and therefore entitled to consult a lawyer.¹⁴

42In unusual circumstances, the immediacy requirement may be given a more flexible interpretation than its ordinary meaning strictly suggests.¹⁵ However, the circumstances must be unusual, and cannot arise from utilitarian considerations, or considerations of administrative convenience.¹⁶ The determination of what constitutes unusual circumstances must be grounded in the text of s.320.27(1) of the Criminal Code.¹⁷ The burden to establish unusual circumstances rests on the Crown.¹⁸

43In R. v. Breault, the Supreme Cout of Canada recognized that insofar as the primary purpose of the impaired driving detection procedure is to ensure everyone’s safety, circumstances involving urgency in ensuring the safety of the public or police officers might constitute unusual circumstances allowing flexibility in the immediacy requirement.¹⁹

B. The parties’ positions

44On behalf of the Crown, Mr. Mann submitted that the breath demand was made immediately within the requirements of the Criminal Code, and was therefore lawful. Mr. Mann asked me to find that the immediacy ‘clock’ only began once the demand was made, not at the time Sergeant Crampton formed the grounds to make the demand. He submitted it was reasonable for the officers to want to identify Mr. Balaganeshamoorthy before making the demand, as is done in the normal course of any traffic stop. Mr. Mann argued that at least some of the delay was caused by Mr. Balaganeshamoorthy, who did not produce his driver’s license, spelled his name incorrectly, insisted on calling his wife, and claimed he need an interpreter – although he was speaking to his wife in English on the phone.

On behalf of Mr. Balaganeshamoorthy, Mr. Holmes submitted that the breath demand was not lawful, as it was not made immediately. Mr. Holmes highlighted that an ASD demand involves a warrantless search of an individual whose right to counsel has been suspended. Mr. Holmes argued that the immediacy ‘clock’ began when Sergeant Crampton formed the grounds for the demand, not later when the ASD was available. Mr. Holmes further submitted that there were no specific safety concerns in this case to justify the delay in the demand being made, and pointed to Sergeant Crampton’s acknowledgement that he did not believe he was investigating a stolen vehicle, and that Mr. Balaganeshamoorthy did not flee, was with his mother, and was cooperative. In Mr. Holmes’s submission, in these circumstances, the balance should have tipped in favour of making the ASD immediately, and identifying Mr. Balaganeshamoorthy after. Mr. Holmes also submitted that PC Osborne also failed to comply with the immediacy requirement, as he testified that after retrieving the ASD, he did not want to interfere with the ongoing investigation, so he stood back.

C. The breath demand was lawful

45Sergeant Crampton formed the grounds for the breath demand in this case at 9:59 pm. This is when the immediacy ‘clock’ started: R. v. Khandakar, supra.²⁰

46Sergeant Crampton read the breath demand to Mr. Balaganeshamoorthy at 10:05 pm. The question is therefore whether the six-minute delay between the forming of the grounds and the reading of the breath demand complied with the immediacy requirement in s.320.27(1)(b) of the Criminal Code.

47I do not accept that safety concerns constituted unusual circumstances in this case. While Sergeant Crampton testified that he generally wants to know with whom he is interacting for the safety of himself and other officers, he did not claim to have specific safety concerns about Mr. Balaganeshamoorthy. In any event, it is clear from Sergeant Crampton’s treatment of Mr. Balaganeshamoorthy that Sergeant Crampton did not have safety concerns in this circumstance; in this regard, I note that Sergeant Crampton allowed Mr. Balaganeshamoorthy to get out of his car, to go through the items in his car, and to call his wife, all liberties not usually afforded to a detainee. I note as well that Mr. Balaganeshamoorthy was significantly outnumbered by officers on the scene, and that Sergeant Crampton testified that when he first pulled Mr. Balaganeshamoorthy over, it was to investigate a Highway Traffic Act offence, not a criminal offence.

48Nor do I accept that Sergeant Crampton delayed the breath demand to calm Mr. Balaganeshamoorthy down so that he could provide a breath sample. Sergeant Crampton does appear to have tried to focus Mr. Balaganeshamoorthy, but Sergeant Crampton wanted Mr. Balaganeshamoorthy to focus on identifying himself.

49Nonetheless, I accept that the six-minute delay complied with the immediacy requirement in this case. The six minutes were taken up by the efforts of the police to identify Mr. Balaganeshamoorthy. Identifying the driver is the normal practice. In R. v. Oduneye, the Court of Appeal for Alberta recognized that some delay will always be necessary for the police to identify the driver.²¹ More generally, in R. v. Unnamed Person, the Court of Appeal for Ontario recognized the fundamental importance of identifying with some precision the person against whom the coercive powers of the state are exercised.²² Even if the detainee provides a sample and passes - and no criminal charge is brought - the functional operation of police powers requires knowing with whom they have interacted; without that knowledge, the police would not be able to keep records about these stops, and reply with any accountability in the event of complaints. Moreover, Mr. Balaganeshamoorthy was required by s.33(1) of the Highway Traffic Act²³ to surrender his driver’s license to the police upon request. He caused much of the six-minute delay by failing to focus on that request, and instead insisted on calling his wife and focussing on the issue of whether the car was stolen. He ultimately never produced his license.

50In considering the six-minute delay, I also note that the officers did what they could to identify Mr. Balaganeshamoorthy without undue delay to the reading of the breath demand. In particular, when it became clear that Mr. Balaganeshamoorthy was unable or unwilling to produce his driver’s license, Sergeant Crampton asked Mr. Balaganeshamoorthy instead to identify himself verbally. Moreover, Sergeant Crampton did not delay the breath test to conduct further investigation once he obtained Mr. Balaganeshamoorthy’s name; rather, he ran the checks on Mr. Balaganeshamoorthy as PC Osborne conducted the breath demand procedure.

51The defence argument is, essentially, that Sergeant Crampton should have given up sooner on any hope that Mr. Balaganeshamoorthy might turn over his driver’s license as required by law. At the end of the day, it is my view that the balance referred to in R. v. Breault²⁴ would tip too far in favour of constitutional considerations if an accused who fails to comply with his statutory obligation to provide his driver’s license were allowed to use that failure in order to escape liability for his failure to comply with his statutory obligation to provide a breath sample. The total delay was only six minutes. Approximately 1.5 of those six minutes, between 10:02 pm and 10:04 pm, were, in any event, used for what were clearly operational requirements, in that PC Osborne had to walk to his cruiser, retrieve the ASD, and walk back to the area of Mr. Balaganeshamoorthy. Immediately does not mean instantaneously.²⁵

52I acknowledge that it appears that both Sergeant Crampton and PC Osborne had an outdated understanding of the immediacy requirement, and believed that the immediacy requirement allowed them to take the time reasonably necessary to make the breath demand. This understanding is likely rooted in the Court of Appeal for Ontario’s decision in R. v. Quansah, which has subsequently been overturned on that issue by the Supreme Court of Canada’s decision in R. v. Breault.²⁶ However, whatever the officers’ understanding of how quickly the breath demand had to be made, I find that they made the demand as the law required in its present state.

4. Whether Mr. Balaganeshamoorthy Unequivocally Failed to Provide a Breath Sample

A. The applicable legal principles

53To secure a conviction, the Crown must prove that Mr. Balaganeshamoorthy unequivocally refused to provide a breath sample.²⁷ A refusal does not have to be explicit. To determine whether the accused has refused to provide a breath sample, a court must look at all of the circumstances of the transaction between the accused and the officer²⁸.

54In R. v. Tavangari²⁹, the Court set out a list of some factors which might assist in determining whether there has been an unequivocal refusal to provide a breath sample. These include:

(1) The explanation given to the accused about the testing procedure;

(2) Evidence of language difficulties or other problems that might interfere with the accused’s understanding of the interaction with the officer;

(3) Evidence, or lack of evidence, about the accused’s efforts to provide a sample;

(4) The amount of time during which the testing was conducted;

(5) The number of tests attempted;

(6) Whether the accused was warned it is a criminal offence to refuse to provide a breath sample;

(7) Whether the accused was told of the consequences of the refusal;

(8) Whether the accused was warned he was being given a final chance to provide a breath sample;

(9) Whether there was a direct refusal, the words spoken, and whether they were equivocal;

(10) The reasons given by the police for terminating the testing;

(11) Where there was a request to take a further test post-arrest, whether the equipment and operator were still available, and the ease of set-up and operation of the screening device;

(12) The time delay between the arrest for refusing to provide a breath sample and the request for another chance;

(13) The reasons given by police for not providing another chance if requested post-arrest; and,

(14) Other circumstances which tend to show whether or not there was a wilful failure or refusal by the accused to provide a sample.

B. The parties’ positions

55On behalf of the Crown, Mr. Mann submitted that Mr. Balaganeshamoorthy unequivocally refused to provide a breath sample. He submitted that the officers gave Mr. Balaganeshamoorthy multiple opportunities to provide a breath sample, and that it can be seen from the officers’ body-worn camera footage that Mr. Balaganeshamoorthy was only feigning attempts to provide the sample. Mr. Mann pointed out that the police told Mr. Balaganeshamoorthy that he would be arrested if he did not provide the sample, and that refusing to provide a sample was like being impaired. Mr. Mann argued that once Mr. Balaganeshamoorthy was arrested and in the police cruiser, he essentially admitted that the reasons he had given for failing to provide a breath sample were lies, and that he had not wanted to cooperate because of his dislike of the police.

56On behalf of Mr. Balaganeshamoorthy, Mr. Holmes submitted that Mr. Balaganeshamoorthy’s failure to provide a breath sample was equivocal. He pointed to the fact that Mr. Balaganeshamoorthy never stated he would not provide a breath sample, and expressed a desire to speak with his lawyer first. Mr. Holmes also argued that Mr. Balaganeshamoorthy’s later expressed willingness to provide a breath sample reflected that his earlier failure was equivocal.

C. Mr. Balaganeshamoorthy unequivocally failed to provide a breath sample

57I find that Mr. Balaganeshamoorthy failed to provide a breath sample. In my view, the clearest evidence of this was Mr. Balaganeshamoorthy’s statements to the officers after 10:30 pm, in which he acknowledged that he did not “like cops” and did not want to be “bossed around” by police. Mr. Balaganeshamoorthy apologized for his earlier behaviour and said now he would provide the breath sample. This apology makes clear that the reasons he had given before for being unable to provide a breath sample, including that he had asthma, had dentures, and was too cold, were just excuses because he did not want to do what the police told him to do. Indeed, Mr. Balaganeshamoorthy can clearly be seen on the officers’ body-worn cameras feigning attempts to blow into the ASD. He did not wrap his lips around the straw, and he did not give a long continuous breath as instructed.

58Other factors also point to the unequivocal nature of Mr. Balaganeshamoorthy’s refusal. These include:

(1) The officers gave Mr. Balaganeshamoorthy clear instructions on the testing procedure;

(2) Although Mr. Balaganeshamoorthy may speak English as his second language, he speaks the language fluently, as seen on the videos filed as Exhibits;

(3) The officers gave Mr. Balaganeshamoorthy nine chances to provide a breath sample;

(4) The officers clearly told Mr. Balaganeshamoorthy that he could be arrested for failing to provide a breath sample, and that failing to provide a breath sample was the equivalent of being impaired. Further, Mr. Balaganeshamoorthy clearly understood he could be arrested, as evidenced by his reply that he did not want to be arrested, when an unknown officer suggested he should be arrested after his fourth ‘attempt’; and,

(5) While the officers did not tell Mr. Balaganeshamoorthy before his ninth attempt that he would not get any more chances thereafter, PC Clark had previously told Mr. Balaganeshamoorthy that he would not get “100 tries”.

59I agree with Mr. Holmes that Mr. Balaganeshamoorthy’s subsequent offer to provide a breath sample must be considered in relation to whether his refusal was unequivocal. However, I find that the subsequent offer to provide a breath sample does not render the earlier refusal equivocal in this case. As I will explain below, I am sceptical that the subsequent offer to provide a breath sample was sincere. Further, sixteen minutes passed between Mr. Balaganeshamoorthy’s arrest at 10:14 pm and his offer to provide a breath sample at 10:30 pm.³⁰ This is not a case in which Mr. Balaganeshamoorthy waffled between agreeing to provide a sample and refusing to do so. That he may have later regretted his earlier refusal does not mean he did not commit the offence.³¹

5. Whether Mr. Balaganeshamoorthy’s ‘Change of Heart’ Occurred When the Police Could Have Lawfully Obtained a Compelled Breath Sample

A. The applicable legal principles

60Where an accused person initially refuses to provide a breath sample, that refusal will not be criminal if the accused later agrees to provide the breath sample as part of the same transaction.³² This is because a refusal and subsequent change of heart which occur “almost simultaneously” both really comprise the reply to the demand, and therefore do not constitute a refusal in law.³³ As the Court held in R. v. Domik, the Criminal Code section authorizing an ASD demand is drastic and interferes with the usual rule against self-incrimination, and it is not unreasonable for a lay person at first to react negatively to provide incriminating evidence; Parliament cannot have intended to make a refusal which is followed almost immediately by an assent, criminal.³⁴

61The duration of the “transaction” is constrained by the requirement that ASD tests be conducted immediately. In other words, when someone initially refuses to provide a breath sample, the maximum time within which they can change their mind cannot exceed the time within which a compelled breath sample can lawfully be obtained by the police. As the Court of Appeal for Ontario explained in R. v. Khandakar, there must be symmetry between the right of ASD test subjects to change their mind about refusing to comply with a demand, and the police’s statutory ability to compel compliance; otherwise, an ASD test subject could ‘run out the clock’ and avoid criminal liability by agreeing to comply with a demand only after the police could no longer lawfully collect the breath sample.³⁵

B. The parties’ positions

62On behalf of the Crown, Mr. Mann questioned the sincerity of Mr. Balaganeshamoorthy’s professed change of heart, and pointed out that while in the cruiser, Mr. Balaganeshamoorthy continued to provide explanations to attempt to avoid the ASD, such as that his breath stunk because he had not brushed his teeth. Mr. Mann further submitted that any ‘change of heart’ Mr. Balaganeshamoorthy may have experienced was too late, and pointed to the fact that these interactions involving ASD screening are meant to be brief.

63On behalf of Mr. Balaganeshamoorthy, Mr. Holmes submitted that Mr. Balaganeshamoorthy had demonstrated a ‘change of heart’ when, around 10:23 pm, he told the officers he wanted to cooperate. He further submitted that the officers could have made a lawful demand at that time, or even later at 10:30 pm, when Mr. Balaganeshamoorthy stated explicitly that he would provide a breath sample. Mr. Holmes also urged me to find that Mr. Balaganeshamoorthy’s change of heart was sincere. He said that once Mr. Balaganeshamoorthy realized that the police really were investigating him for impaired driving, and that he had been arrested for failing to provide a breath sample, he sincerely intended to provide the sample.

C. Any ‘change of heart’ occurred after the time within which the police could have lawfully obtained a compelled breath sample

64I do not accept that Mr. Balaganeshamoorthy had any change of heart at 10:23 pm. Although he told the police at that point that he wanted to “cooperate”, he also repeated again that he had asthma. His later acknowledgement that he simply did not want to be “bossed” around by the police belies his claim that he could not cooperate because of asthma. Indeed, until 10:29 pm, Mr. Balaganeshamoorthy continued to provide excuses as to why he could not, or should not have to, provide a breath sample.

65As for Mr. Balaganeshamoorthy’s offer to provide a breath sample at 10:30 pm, I doubt its sincerity. Mr. Balaganeshamoorthy had already given numerous false excuses for failing to provide a breath sample, and had repeatedly feigned attempts to provide the sample. Further, nothing had changed by 10:30 pm such that he would suddenly have had reason to like or respect the officers enough to cooperate with them. However, I acknowledge that it may be that at that point, Mr. Balaganeshamoorthy realized he was not going to be able to talk his way out of this situation, and then sincerely offered to provide a breath sample. Given that he did not testify, it is difficult to asses his credibility on this point.

66However, even if Mr. Balaganeshamoorthy’s offer at 10:30 pm to provide a breath sample was sincere, I find that that offer was not part of the same transaction as the initial refusal. Sixteen minutes passed between Mr. Balaganeshamoorthy’s arrest and his subsequent professed change of heart. Sixteen minutes is more than 2.5 times longer than the six minutes to which the defence objects at the front end. There were no unusual circumstances which would have justified a delay of that length. While the parties and the ASD remained on scene, it was too late for the police to lawfully obtain a compelled breath sample, and it was therefore too late for Mr. Balaganeshamoorthy to have a change of heart.

6. Conclusion

67For the Reasons set out above, I find Mr. Balaganeshamoorthy guilty of the offences of failing to provide a breath sample and driving while suspended.

Footnotes

1. 1Highway Traffic Act, R.S.O. 1990, c. H-8.
2. 2The defence filed, and then ultimately abandoned, an Application alleging a violation of Mr. Balaganeshamoorthy’s rights under sections 8, 9, and 10(b) of the Canadian Charter of Rights and Freedoms. Nonetheless, as Charter considerations inform the ‘immediacy’ requirement in s.320.27(1) of the Criminal Code, the circumstances of the traffic stop inform the lawfulness of the breath demand.
3. 3The defence did not argue that due to a language barrier, Mr. Balaganeshamoorthy ultimately did not understand the breath demand. However, the discussion about the possibility of a language barrier explains some of the delay in this case.
4. 4R. v. Woods, 2005 SCC 42 at ¶¶43-44.
5. 5R. v. Breault, 2023 SCC 9, [2023] S.C.J. No. 9 at ¶6.
6. 6R. v. Breault, supra, at ¶6.
7. 7R. v. Breault, supra, at ¶32.
8. 8R. v. Khandakar, 2024 ONCA 620 at ¶48.
9. 9R. v. Khandakar, supra, at ¶¶32-33, ¶47.
10. 10R. v. Khandakar, supra, at ¶60.
11. 11R. v. Breault, supra, at ¶59.
12. 12R. v. Breault, at ¶9, ¶60; R. v. Khandakar, supra, at ¶37.
13. 13R. v. Khandakar, supra, at ¶38.
14. 14R. v. Khandakar, supra, at ¶38, quoting R. v. Pierman (1994), 1994 1139 (ON CA), 19 O.R. (3d) 704 (CA), aff’d R. v. Dewald, 1996 250 (SCC), [1996] S.C.J. No. 5.
15. 15R. v. Woods, supra, at ¶43; R. v. Breault, supra, at ¶7; R. v. Khandakar, supra, at ¶¶1-2.
16. 16R. v. Breault, supra, at ¶7.
17. 17R. v. Breault, supra, at ¶7.
18. 18R. v. Breault, supra, at ¶55.
19. 19R. v. Breault, supra, at ¶58.
20. 20R. v. Khandakar, supra, at ¶38.
21. 21R. v. Oduneye, 1995 ABCA 295 at ¶31, leave to appeal refused [1995] S.C.C.A. No. 494. I note that R. v. Oduneye has been overturned by the Supreme Court of Canada’s decision in R. v. Breault, supra, on the proper interpretation of “forthwith”. However, the Breault Court did not address whether taking time to identify a driver offends the immediacy requirement.
22. 22R. v. Unnamed Person (1985), 1985 3490 (ON CA), 20 C.C.C. (3d) 481 (ONCA) at ¶11, ¶21.
23. 23Highway Traffic Act, supra.
24. 24R. v. Breault, supra, at ¶6.
25. 25R. v. Khandakar, supra, at ¶47.
26. 26R. v. Quansah, 2012 ONCA 123 at ¶52; R. v. Breault, supra, at ¶51.
27. 27R. v. Degiorgio (2011), 2011 ONCA 527, 275 C.C.C. (3d) 1 (ONCA) at ¶42.
28. 28R. v. Domik, [1979] O.J. No. 1050 (H.C.J.) at ¶5, aff’d [1980] O.J. No. 642 (C.A.) at ¶1.
29. 29R. v. Tavangari, [2002] O.J. No. 3173 (Crt. Jus.) at ¶16.
30. 30As I will explain below, I do not accept that Mr. Balaganeshamoorthy made any real offer to provide a breath sample at 10:23 pm, when he said he wanted to “cooperate”.
31. 31R. v. Woods, supra, at ¶45; R. v. Breault, supra, at ¶31; R. v. Khandakar, supra, at ¶37; R. v. Bowman, 1978 2337 (NS CA), [1978] N.S.J. No. 517 (S.C.A.C.) at ¶15.
32. 32R. v. Khandakar, supra, at ¶¶1-2.
33. 33R. v. Khandakar, supra, at ¶21.
34. 34R. v. Domik, supra, cited with approval in R. v. Khandakar, supra, at ¶22.
35. 35R. v. Khandakar, supra, at ¶50.