ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
PANKAJ TANDON
Before Justice F. A. McCracken
Heard on June 9, 2026
Reasons for Judgment released on June 10, 2026
Z. Morani counsel for the Crown
C. Avery counsel for the defendant Pankaj Tandon
McCRACKEN J.:
1Pankaj Tandon is charged with failing or refusing to comply with a demand to provide a sample of his breath into an approved screening device, contrary to s. 320.15 of the Criminal Code.
2Mr. Tandon is presumed innocent. That presumption remains with him unless and until the Crown proves his guilt beyond a reasonable doubt. The burden of proof rests on the Crown throughout the trial and never shifts to Mr. Tandon.
3The Crown must prove each essential element of the offence beyond a reasonable doubt. In this case, those elements are:
that a lawful demand was made under s. 320.27 or s. 320.28 of the Criminal Code;
that Mr. Tandon knew that such a demand was made;
that Mr. Tandon failed or refused to comply with that demand; and
that he did so without a reasonable excuse.
4Defence counsel fairly conceded that the Crown has proven each of these elements beyond a reasonable doubt, except for the lawfulness of the demand. I agree with that concession, although will briefly analyze the evidence on each of these elements.
5The live issue in this trial is whether Constable Bains’ breath demand was lawful.
Knowledge of the Demand
6I am satisfied beyond a reasonable doubt that Mr. Tandon knew that a breath demand had been made.
7Constable Harmandeep Bains testified that he explained the demand to Mr. Tandon in both English and Hindi. He testified that he read the approved screening device demand in English, then translated it into Hindi. He explained that he attempted to translate the demand as closely as possible, although certain terms, such as “approved screening device,” did not translate directly. For that reason, he used plain-language terms and physically showed Mr. Tandon the device.
8Constable Bains testified that he told Mr. Tandon that he was demanding a sample of his breath, and that he used the Hindi word for breath. He demonstrated the act of blowing. He showed Mr. Tandon the device. He explained that the device would show whether Mr. Tandon had alcohol in his body while driving. He repeatedly asked Mr. Tandon whether he understood.
9Constable Bains also testified that he explained the consequences of failing or refusing to comply. Those consequences included a licence suspension, towing and impoundment of the vehicle, a criminal charge, and a criminal record. He told Mr. Tandon that he could not force him physically to provide a sample, but that he was not free simply to leave without providing one or facing the consequences.
10This was not a brief or obscure exchange. The evidence establishes that the demand was repeated, explained, simplified, translated, and demonstrated. Constable Bains used both words and gestures. He used both English and Hindi. He explained the demand in legal language and in plain language. He gave Mr. Tandon multiple opportunities to comply.
11I also accept Constable Bains’ evidence that Mr. Tandon was able to understand and respond when he chose to do so. Constable Bains testified that the initial exchange at the vehicle was in English, that Mr. Tandon provided the correct documents when asked, and that he exited the vehicle when directed to do so in English. Mr. Tandon also repeatedly said, in English, words to the effect of “I didn’t do anything wrong.”
12In all these circumstances, I am satisfied beyond a reasonable doubt that Mr. Tandon knew that he was required to provide a sample of his breath into the approved screening device.
Failure or Refusal to Comply
13I am also satisfied beyond a reasonable doubt that Mr. Tandon failed or refused to comply with the demand.
14Constable Bains testified that Mr. Tandon was given multiple opportunities to provide a sample. He demonstrated how to blow. He opened a new mouthpiece. He placed the mouthpiece on the device. He held the device close to Mr. Tandon’s mouth, such that Mr. Tandon did not have to move much to provide a sample.
15Despite that, Mr. Tandon did not provide a breath sample.
16Constable Bains testified that Mr. Tandon did not provide a medical or other reason why he could not blow. Constable Bains asked whether there was any medical problem preventing him from providing a sample, but no such explanation was given.
17On the evidence, Mr. Tandon’s conduct was not a mere misunderstanding or inability. He was repeatedly told what was required. He was repeatedly shown what was required. He was repeatedly warned of the consequences of non-compliance. He was given multiple opportunities to comply. He did not do so.
18I find beyond a reasonable doubt that Mr. Tandon knowingly failed or refused to comply with the demand.
19No reasonable excuse was raised, and none is apparent on the evidentiary record.
Lawfulness of the Demand
20The issue in this case is whether the Crown has proven beyond a reasonable doubt that the demand was lawful.
21The Crown relies on two possible bases for the lawfulness of the demand:
that it was authorized as a mandatory alcohol screening demand under s. 320.27(2) of the Criminal Code; and
that, in any event, Constable Bains had a reasonable suspicion that Mr. Tandon had alcohol in his body while operating a conveyance.
22Defence counsel submits that the Crown has failed to prove lawfulness. The defence relies on several points: Constable Bains’ inconsistent evidence about whether this was a mandatory alcohol screening stop or a reasonable suspicion demand; the absence of any reference to mandatory alcohol screening in the arrest report; the late disclosure and disorganized state of some notebook entries; the mistaken references to time; and the fact that the odour of alcohol was said to be emanating from the vehicle, which contained two passengers, rather than specifically from Mr. Tandon.
23I will address each of those arguments.
Assessment of Constable Bains’ Evidence
24I have significant reliability concerns about aspects of Constable Bains’ evidence.
25At times, his evidence about the timeline was unclear. He initially referred to observing the vehicle at approximately 8:40 p.m., although the body-worn camera footage and the balance of the evidence demonstrate that the stop occurred around 10:40 p.m. He also gave evidence about demands at 10:41 p.m. and 10:47 p.m., and his notebook entries were not as clear or complete as they should have been.
26His notetaking left much to be desired. The notes were disorganized in places. There were blank or crossed-out sections. Passenger information appeared in a confusing sequence. A page referencing traffic enforcement and MAS was not initially disclosed. The arrest report did not expressly state that this was a mandatory alcohol screening stop. Rather, it referred to police conducting licence plate checks and to a suspicion arising from the vehicle’s driving and the odour of alcohol.
27Those matters are properly the subject of criticism.
28However, my concerns are substantially allayed by the objective evidence of the body-worn camera footage, which I find reliable and to which I give significant weight. The body-worn camera footage confirms the timing of the interaction, the nature of the demand, the repeated explanations given to Mr. Tandon, the use of both English and Hindi, the demonstrations, and Mr. Tandon’s failure to provide a sample. It corroborates much of Cst. Bains’ evidence, albeit I acknowledge it does not provide corroboration for the basis of the demand.
29I also accept that Constable Bains’ reference to 8:40 p.m. was a misstatement. There is no realistic possibility, on the evidence, that he was observing Mr. Tandon’s vehicle for approximately two hours. The only reasonable explanation is that Constable Bains mixed up the hour when testifying and said 8:40 p.m. when he meant 10:40 p.m. I find that the stop occurred at approximately 10:40 p.m.
Was Constable Bains Conducting Mandatory Alcohol Screening?
30I accept Constable Bains’ evidence that he was conducting mandatory alcohol screening during his nightshift.
31That evidence was not unsupported. Constable Bains had an approved screening device on his person. He testified that he had the ASD in his pocket throughout the night because he was conducting mandatory alcohol screening. I accept that evidence. His notebook contained an earlier entry indicating “traffic enforcement” and “MAS.” There were also earlier entries involving licence plates and zero readings, consistent with alcohol screening activity during the shift.
32The defence relies on the fact that the arrest report states that police were conducting licence plate checks and does not expressly mention mandatory alcohol screening. I agree that this is an inconsistency by omission.
33However, I do not find that it undermines Constable Bains’ evidence. Traffic enforcement, licence plate checks, and sobriety checks are not mutually exclusive categories of policing activity. They may overlap during a patrol shift. The evidence establishes that Constable Bains was engaged in traffic enforcement and had an ASD available for alcohol screening. I accept that he was conducting mandatory alcohol screening during the shift.
34I also accept that this was initially a mandatory alcohol screening stop.
Reasonable Suspicion
35At the same time, the evidence shows that specific concerns developed during the interaction. Constable Bains testified that he observed the vehicle making abrupt lane changes while travelling eastbound on Steeles Avenue. He described the vehicle changing lanes from lane 2 to lane 1 and back again. The roads were dry, lighting was artificial, there were no obstructions, and traffic did not explain the movements. He described the manoeuvres as abrupt and as appearing intentional, perhaps as though the driver was “playing” with the vehicle.
36After the stop, Constable Bains approached the driver’s side. He testified that there were three occupants in the vehicle, including Mr. Tandon, and that he detected a faint odour of alcohol emanating from the vehicle. I accept that evidence.
37It is true that there were two passengers in the vehicle. The odour was described as emanating from the vehicle, not specifically from Mr. Tandon. Constable Bains did not record in his notes or report that he continued to smell alcohol on Mr. Tandon once Mr. Tandon was outside the vehicle. In cross-examination, Constable Bains acknowledged that this was not in his notes or report and that he did not recall smelling alcohol on Mr. Tandon once he was standing outside. I find that is because he did not smell alcohol coming from Mr. Tandon during his lengthy interactions with him while outside of the vehicle, but after the demand had been made.
38However, reasonable suspicion is a relatively low threshold. The issue is not whether alcohol consumption by Mr. Tandon was the only possible explanation. Nor is it whether Constable Bains had grounds to conclude that Mr. Tandon was impaired. The issue is whether, viewed objectively and in light of the circumstances known to Constable Bains at the roadside, there was a reasonable suspicion that Mr. Tandon had alcohol in his body while operating the vehicle.
39There may have been innocent explanations for each observation. The lane changes may have had some benign explanation. The odour of alcohol may have come from one or both passengers. The fact that Constable Bains did not later note an odour coming specifically from Mr. Tandon corroborates that. But those alternative possibilities did not have to be resolved at the roadside before an ASD demand could lawfully be made based on the observations that Constable Bains already made. The unsourced smell of alcohol from within a vehicle, despite the presence of other occupants or potential sources, can support a "reasonable suspicion" that the driver had alcohol in his system. See: R. v. Rahmanian, 2024 ONCJ 411 at para. 19, R. v. Doyle, 2017 ONSC 1826; R. v. Mason, 2013 ONCJ 328, para. 12. That suspicion is buttressed in the specific circumstances of this case by the driving behaviour attributed to Mr. Tandon.
40I therefore find that Constable Bains had the necessary reasonable suspicion to make an ASD demand.
Mandatory Alcohol Screening as an Independent Basis for the Demand
41Even if I am wrong about reasonable suspicion, I would still find that the demand was lawful under the mandatory alcohol screening provisions.
42The police need not expressly invoke s. 320.27(2) for a demand to be lawful under that section. While there is a lack of appellate guidance on this issue, I adopt the reasoning in R. v. Rahmanian, 2024 ONCJ 411. There is no additional subjective requirement that the officer must expressly identify the demand as a mandatory alcohol screening demand at the time.
43As stated in R. v. Jerlo, 2025 ONCJ 586, at para. 36:
“In my view, given Parliament's intention to simplify and improve the detection of impaired drivers by allowing police to make ASD demands without relying on sometimes flawed roadside assessments, it does not make sense to read in an additional subjective requirement for the use of s. 320.27(2) to be lawful.”
44The question is whether the statutory preconditions for a mandatory alcohol screening demand existed.
45I find that they did.
46First, Constable Bains had an approved screening device in his possession. He testified that it was in his pocket. The body-worn camera footage shows the ASD being used during the interaction.
47Second, Mr. Tandon was operating a motor vehicle. Constable Bains testified that Mr. Tandon was in the driver’s seat. Mr. Tandon provided his driver’s licence, and the photograph matched him. The body-worn camera footage also shows him in the driver’s seat.
48Third, the demand was made immediately. I accept that the stop occurred at approximately 10:40 p.m. The body-worn camera footage shows Mr. Tandon in the driver’s seat at approximately 10:41 p.m., providing documents while Constable Bains held up the ASD and explained that all Mr. Tandon needed to do was blow into the instrument. Although Constable Bains acknowledged some brief initial conversation or “small talk,” I find that, in the circumstances, the demand was made immediately.
49The requirements of s. 320.27(2) were therefore met.
Conclusion on Lawfulness of the Demand
50I find that the demand was lawful.
51It was authorized on two bases. First, it was supported by Constable Bains’ reasonable suspicion, arising from the driving observations and the faint odour of alcohol emanating from the vehicle. Second, it was independently authorized under the mandatory alcohol screening provisions.
52I accept that Constable Bains was inconsistent at times about the precise legal basis for the demand. At different points, his evidence and documentation referred to mandatory alcohol screening, traffic enforcement, licence plate checks, and reasonable suspicion.
53However, those inconsistencies do not create a reasonable doubt about the lawfulness of the demand. The statutory preconditions for mandatory alcohol screening were present. In addition, the evidence supported reasonable suspicion. It cannot be that concerns about a driver’s alcohol consumption which crystallize during a mandatory alcohol screening stop detract from, rather than supplement, an officer’s lawful authority to require a breath sample.
54The Crown has proven beyond a reasonable doubt that the breath demand was lawful.
Conclusion
55The Crown has proven beyond a reasonable doubt that:
a lawful demand was made;
Mr. Tandon knew that the demand was made;
Mr. Tandon failed or refused to comply with the demand; and
he did so without reasonable excuse.
56Mr. Tandon, please stand. I find you guilty.
Released: June 10, 2026
Signed: Justice F. A. McCracken