ONTARIO COURT OF JUSTICE
Toronto Region
BETWEEN:
HIS MAJESTY THE KING
— AND —
Kumar SINGH
Before Justice Cidalia C.G. Faria
Heard on December 17, 2025, February 2, March 26, 2026
Reasons for Judgment released on July 29, 2026
Saumya Augustine counsel for the Crown
Cavan Maiolo counsel for the defendant Kumar Singh
I. Introduction
1On July 5, 2024 Kumar Singh was operating his motor vehicle in the evening hours, when he was stopped by police because his rear lights were off. After observations were made, he was asked to provide a breath sample into an Approved Screening Device (ASD) and he failed the test. He was arrested for impaired driving, and subsequently, for refusing to comply with a breath demand contrary to ss. 320.14(1)(a) and 320.15(1) of the Criminal Code.
2Mr. Singh alleges his s. 10(b) Charter right to counsel was violated as it took the officer about 10 minutes to read him his right to counsel after his arrest. He seeks the exclusion of the officer’s observations from evidence as the remedy.
3The Crown called the arresting officer and the qualified breath technician. The Defence called no evidence. The Charter allegation proceeded by way of a blended voir dire.
II. Legal Principles:
4The onus is on the Applicant Mr. Singh to demonstrate a breach of a Charter right on a balance of probabilities.1
5Section 10(b) of the Charter requires that upon arrest or detention, the Applicant has the right to retain and instruct counsel without delay and to be informed of that right.
i. to inform the detainee of his/her/their right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;
ii. if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and
iii. to refrain from eliciting evidence from the detainee until he/she/they have had a reasonable opportunity to consult with counsel (again, except in cases of urgency or danger).
7If a breach is found, the court must balance the following factors to determine whether the impugned evidence should be excluded or not:3
i. The seriousness of the conduct that led to the breach.
ii. The impact of the breach on the Applicant.
iii. Society’s interest in a trial on the merits.
8As in every criminal case, the onus rests upon the Crown to prove guilt beyond a reasonable doubt which is inextricably linked to the presumption of innocence. The onus rests with the prosecution throughout the trial and never shifts. Reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence.4
9The relevant legislative sections are:
320.14 (1) Everyone commits an offence who
(a) operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug;
and
320.15 (1) Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under section 320.27 or 320.28.
III. Summary of Evidence
10PC Jacqueline Onyszkiewicz testified that on the evening of July 5, 2024 she was driving her scout car eastbound on Sheppard Avenue West in the city of Toronto while on general patrol when she observed Mr. Singh at about 9:51 p.m. driving his SUV in the same direction without his rear lights activated. She observed him turn left on Oakdale Rd. and travel north, still with no rear lights activated.
11She signalled Mr. Singh to stop which he did. She approached his vehicle to conduct a Highway Traffic Act investigation. The entirety of her interactions with Mr. Singh were captured on her Body Worn Camera (BWC).
12When PC Onyszkiewicz arrived at the window on the driver’s side, she spoke to Mr. Singh for about a minute discussing his rear lights not being on. She observed his eyes were bloodshot and he would not look at her directly while she spoke to him. She formed the suspicion that he had consumed alcohol and made an (ASD) demand. She asked when he had last consumed alcohol and he said 2 days earlier. She informed his ex-wife in the passenger seat to remain in the vehicle for her safety and walked Mr. Singh to the front of her scout car. She explained and demonstrated how the device worked, including that a reading of 0 to 49 is a pass, 50 to 99 is an alert, and 100+ is a “fail” as well as the consequences of each result. Mr. Singh said he understood and easily blew into the device. It registered a “Fail” at 9:55 p.m. and at PC Onyszkiewicz arrested him for impaired driving. When asked what were her grounds she testified his bloodshot eyes, his evasion of eye contact, and his “behaviour” as well as the ASD result.
13PC Onyszkiewicz handcuffed Mr. Singh and placed him in the back seat of her scout car. She testified she smelled alcohol on Mr. Singh at that point. She then called for assistance as she was alone by the roadside.
14She proceeded to inform Mr. Singh’s ex-wife of Mr. Singh’s arrest, that she would need to arrange how to leave, she searched Mr. Singh, seized his property including currency that she counted out and gave to Ms. Singh in the presence of Mr Singh. She provided Ms. Singh with Mr. Singh’s cell phone for her to call her daughter. She took photos of the ASD results, packed up the ASD, and escorted Ms. Singh back to her vehicle. She obtained the keys to the vehicle for it to be towed. She spoke to dispatch again and to an officer to his him her location. She then attended the scout car and gave Mr. Singh his right to counsel, cautioned him and made a demand for his breath at about 10:00 p.m. It took another 16 minutes for an assisting officer to arrive.
15PC Onyszkiewicz left the scene with Mr. Singh at 10:30 p.m. and transported him to 32 Division. The In Car Camera System (ICCS) footage of the ride captured he entirety of the ride. Mr. Singh repeatedly complained about his handcuffs hurting, he talked about being a sickly person who used a puffer, he takes aspirin and has health difficulties. He fell over in the back seat, and PC Onyszkiewicz stopped the scout car three times to pull Mr. Singh back into a sitting position. She politely and consistently engaged Mr. Singh in conversation during the entire ride.
16Once at 32D Mr. Singh had to be pulled out of the scout car. He requested to see a doctor and an ambulance was called. He was taken to North York Hospital and once medically cleared, PC Onyszkiewicz turned his custody over to PC Christopher Hominuk, the qualified breath technician. Her BWC captured the interaction between Mr. Singh and PC Hominuk until 1:53 a.m. when she took him back into her custody. She prepared his release documents and released him at 2:39 a.m.
17PC Hominuk was called to 32D at 10:11 p.m. to obtain Mr. Singh’s breath sample, but by the time he arrived, Mr. Singh had been taken to hospital, so he attended at the hospital. He set up the Intoxilyzer 8000-C, made sure it was in proper working condition and took custody of Mr. Singh at 1:37 a.m. He observed Mr. Singh had bloodshot eyes, smelled of alcohol and was upset and agitated. He again gave him his right to counsel, cautioned him and made a breath demand.
18PC Hominuk explained the test to Mr. Singh he had to take a deep breath, make a tight seal around the mouthpiece, and blow hard and continuously into it until he was told to stop. He told him he would hear a tone and keep that tone going until he was told to stop.
19PC Hominuk observed Mr. Singh put his tongue into the mouthpiece, and no condensation form in the mouthpiece which indicated that no air was being exhaled into it. He felt spray and spittle come out of the side of his mouth and land on his hand demonstrating there was no tight seal. He heard air escaping the side of his mouth. He saw Mr. Singh puff his cheeks and hold his breath. During each attempt Mr. Singh would stop a second or two after hearing the tone rather than exhale for the 7 to 10 seconds required. PC Hominuk gave Mr. Singh another mouthpiece to try.
20PC Hominuk testified to 7 separate attempts to obtain a sample of Mr. Singh’s breath. PC Hominuk demonstrated one of the things Mr. Singh was doing wrong by sticking his tongue into the straw. There is another attempt where Mr. Singh is puffing his cheeks but blowing no air into the tube. At one point a tone is heard but only for about 2 seconds and Mr. Singh is told that is not long enough. The Intoxilyzer timed out and was re-set. PC Hominuk then cautioned Mr. Singh that he could be charged with refusing to provide a breath sample and provided him with another opportunity to provide a sample. PC Hominuk then hears a tone during the next attempt and sees the number 121 briefly on the Intoxilyzer, but Mr. Singh stopped blowing and a proper sample was not obtained. At 1:53:16 Mr. Singh again stopped short and did not provide a sample.
21At this point PC Hominuk instructed PC O Onyszkiewicz to charge Mr. Singh with refusing to comply the breath demand.
IV. Analysis
22Counsel provided several cases5 for my consideration as did the Crown6.
A. Section 10(b) Right to Counsel
23It took PC Onyszkiewicz 10 minutes between the time she arrested Mr. Singh and the time she provided him with his right to counsel. Rights to counsel are to be provided “immediately” upon arrest.7
24The Applicant Mr. Singh submits that the delay violated his Charter right. The Crown responds that immediate does not mean instantaneous. The delay was the result of PC Onyszkiewicz legitimate need to ensure the safety of the parties involved and thus not a breach.
25During the 10-minute interval between arrest and rights to counsel, PC Onyszkiewicz:
i. Handcuffed Mr. Singh and placed him in the scout car.
ii. Called for police dispatch for assistance.
iii. Went to Mr. Singh’s vehicle and informed Ms. Singh of the arrest.
iv. Responded to Mr. Singh’s complaints about his handcuffs.
v. Searched Mr. Singh, and seized a lighter, a cell phone and currency.
vi. Brought Ms. Singh to Mr. Singh to count out and provide the currency to Ms. Singh in Mr. Singh’s presence.
vii. Assisted Ms. Singh to call her daughter for help.
viii. Too photos of the ASD results, packed the device and stored it.
ix. Spoke to a colleague on the phone to provide her location.
x. Escorted Ms. Singh back to her car and seized the keys to Mr. Singh’s car.
26Granted PC Onyszkiewicz had multiple tasks to perform including and importantly maintaining control of the scene and ensuring everyone’s safety by herself, nonetheless, she erroneously prioritized several tasks that were not safety related above providing Mr. Singh with his right to counsel.
27She could have, and I find she should have, provided Mr. Singh with his right to counsel within a couple of minutes of his arrest at 9:51 p.m. and once she ensured he was handcuffed and safely in her scout car at 9:53 p.m. and while his passenger was also still safe in his car.
28Although her subsequent tasks were important, they were not sufficiently urgent or so immediately necessary that she could not provide rights to counsel shortly after the arrest and the handcuffing. PC Onyszkiewicz was exceptionally courteous and helpful to the stranded Ms. Singh, and exceedingly attentive to Mr. Singh’s complaints, which I am sure both Mr. and Ms. Singh appreciated, but she delayed providing his right to counsel.
29The 10-minute delay in this circumstance is a s.10(b) breach.
30Proceeding to the s. 24(2) analysis, on the first prong of the Grant test, this s. 10(b) breach is on the low end of the seriousness spectrum. The delay was short, and occurred, in part, because of the officer’s good faith efforts to assist Mr. Singh with his property, and his ex-wife with understanding the situation and arranging how to get home safely. This was a momentary breach and does not favour the exclusion of evidence.
31Similarly, the impact of this s. 10(b) breach on Mr. Singh was minimal. No evidence was obtained. The delay was only 10 minutes, and this factor also does not favour the exclusion of evidence.
32Finally, impaired driving is a scourge on our society. It is a pervasive problem that causes tragic deaths on our roads everyday inflicting grief and lifelong pain on the families of those loved ones. Society has a significant interest in a trial on the merits in this case. Exclusion of evidence is not favoured on this last prong either.
33I find that though there is a s. 10(b) violation, no evidence will be excluded.
B. Impairment
34The Criminal Code does not provide a test for determining impairment. It is an issue of fact which the trial judge must decide on the evidence and the standard of proof is neither more nor less than that required for any other element of a criminal offence. Before convicting Mr. Singh of impaired driving, I must be satisfied that his ability to operate a motor vehicle was impaired by alcohol or a drug.
35If the evidence of impairment is so frail as to leave me with a reasonable doubt as to impairment, I must acquit him. If the impairment establishes any degree of impairment ranging from slight to great, the offence has been made out pursuant to Stellato.8
36PC Onyszkiewicz was a candid, clear, thoughtful, deferential and honest witness. Her evidence was not shaken, and I accept it in its entirety as credible and reliable.
37She suspected Mr. Singh’s bloodshot eyes and his avoiding her gaze were indicia of impairment when she approached him to discuss his rear lights being off. She asked him how much he had to drink and he responded, “2 days ago”. She asked him to exit the car to provide an ASD sample. She later referred to his “behaviour” as also indicative of impairment. The failure of the ASD confirmed her suspicion which led to her belief he was impaired and the arrest. Once Mr. Singh was in her scout car, she smelled alcohol coming from Mr. Singh.
38The Defence submits this is insufficient evidence to meet the beyond a reasonable doubt standard that Mr. Singh was impaired. He submits that avoiding eye contact when the officer turns on her flashlight is a normal human reaction and without knowing Mr. Singh’s eyes normally, her description of bloodshot eyes cannot be relied on. The Crown submits these two indicia are sufficient to meet her onus.
39I agree with Defence that Mr. Singh avoiding eye contact is an equivocal action particularly as the officer does have her flashlight on him.
40I do not accept the submission that Mr. Singh’s bloodshot eyes are not indicia of impairment, particularly when coupled with the BWC footage. He has a delayed response to the officer’s inquiry about his rear lights, and he is observably slow moving when he exits his vehicle on his way to the officer’s scout car to perform the ASD test. I find this is the “behaviour” PC Onyszkiewicz refers to when she lists what else contributed to her suspicion that Mr. Singh was impaired before she made the demand. Her suspicion and then her belief were subsequently re-enforced when she smelled alcohol when Mr. Singh was in her scout car.
41Mr. Singh was on video the entire time he is transported from the scene to 32D. He mumbles and complains about his handcuffs incessantly. He is insistent he is a “sickly person”, his chest hurts and he wants to call an ambulance, or his nephew. He smokes and takes medication. When asked what medication, he said baby aspirin.
42At several points Mr. Singh gets quiet and then wants to lie down. He falls over in the seat, and the officer stopped the vehicle, and pulled his ear to wake him up and get him to sit upright. The officer was extremely patient with him. In my view he is repeatedly and unsuccessful attempting to persuade the officer to remove his handcuffs. He fell asleep several times.
43At the division several officers are required to assist him out of the scout car. He asks to see a doctor and is taken to the hospital. There is no evidence there is any medical incident or medical concern.
44In this case, the indicia of impairment are bloodshot eyes, the delayed response to the officer’s inquiry, and slow movement prior to the ASD test, and the smell of alcohol from his breath, his repetitive complaints, his falling asleep in the scout car and needing assistance to get out of the vehicle. I find that Mr. Singh was impaired by alcohol while in operation of his motor vehicle.
C. Refusal
45The Crown must prove that a proper demand was made, there was a failure to provide the required breath sample, and the intention to fail or refuse to provide the required sample.
46Although there is a line of cases that take the position that if the first two elements are proven, so is the third element, there is also a line of cases where the third element stands alone and must be proven. I need not decide which line of cases is correct, as by each avenue, I find the Crown has met its onus.
47The Defence submits that the crown has not proven Mr. Singh’s intention to refuse to provide a sample beyond a reasonable doubt, PC Hominuk’s instructions were inadequate, and there is an air of reality to Mr. Singh having a medical condition that provides a reasonable excuse.
48I am not persuaded by any of the three arguments.
49PC Hominuk testified Mr. Singh was “attempting to circumvent the machine” or “defeat the test”. PC Hominuk was not called an as an expert, and I disregard his “opinion” of Mr. Singh’s intentions. However, his observations were not shaken. He was detailed and candid. I accept his observations in their entirety as reliable and credible.
50Mr. Singh was instructed to take a breath, make a tight seal on the mouthpiece of the instrument and blow until he was told to stop. These are simple instructions. Mr. Singh did not follow them.
51PC Hominuk told Mr. Singh to blow into the instrument, but numerous times there was no condensation in the tube meaning Mr. Singh was not blowing air into the instrument. Mr. Singh puffed his cheeks and held his breath. He put his tongue in the instrument and impeded air flow. PC Hominuk told Mr. Singh air was coming out of the side of his mouth as he felt Mr. Singh’s spittle on his hand. Mr. Singh continued to repeatedly blow air out of the side of his mouth. PC Hominuk told Mr. Singh not to stop blowing until he was told to stop. Repeatedly Mr. Singh stopped blowing before he was told to stop. In fact, his longest attempt was barely 2 or 3 seconds as demonstrated by the tone produced by the Intoxilyzer.
52Each of these actions were examples of Mr. Singh choosing not to provide a suitable sample.
53PC Hominuk’s instructions were clear. He repeated them. He demonstrated how to perform the test at least 3 times. He told Mr. Singh what he was doing wrong, for instance by saying “don’t stop blowing”. He provided him a different mouthpiece to try again. He re-positioned Mr. Singh to a chair closer to the instrument to facilitate the test. He provided an analogy as to how to blow. He cautioned Mr. Singh about the consequences of not providing a suitable sample and gave him more opportunities to provide a sample. Nothing changed. Again Mr. Singh chose to stop blowing before told to stop, and again well short of the 6-10 seconds required.
54By my count, PC Hominuk provide more than the 7 opportunities to provide a sample. His instructions were clear, responsive to Mr. Singh’s actions, and more than sufficient to ensure Mr. Singh was properly instructed on how to provide a suitable sample.
55The mens rea as well as the actus reus has been proven to the requisite standard. I find Mr. Singh who had easily provided a sample into the ASD just hours before, intentionally refused to provide a suitable sample.
56The Crown having proven the refusal, Mr. Singh bears the burden of proving the factual foundation for an excuse on a balance of probabilities.9
57Mr. Singh did not testify. On the ICCS footage of his transport from the scene to the division, he claimed to be a sickly person who uses a puffer and takes aspirin. He fell over repeatedly in the backseat of the scout car and had to be assisted out of the vehicle when he arrived at the station. He asked to go to see a doctor.
58The officers’ prudent acquiesce to Mr. Singh’s request to see a doctor and take him to hospital is not evidence Mr. Singh has any medical condition nor that he experienced a medical incident prior to his refusal to provide a breath sample. He was not visibly experiencing any medical difficulty during the 20 minutes he conversed with PC Hominuk. Even as he stated he “had no more breath,” Mr. Singh continued to communicate and even chuckle, as he engaged with PC Hominuk.
59I find there is no air of reality to the assertion that Mr. Singh had a medical excuse for his refusal to provide a suitable sample of his breath.
V. Conclusion
60Kumar Singh, on the counts of impaired driving and refusing to provide a sample of your breath, I find you guilty.
Released: July 29, 2026
Signed: Justice Cidalia C.G. Faria
Footnotes
- R. v. Collins, [1987] 1 S.C.J. 265 and R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236 at para. 5.
- R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173 at para. 18.
- R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 71.
- R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320 at para. 39.
- R. v. Emereuwa, 2025 SKCA 83, R. v. Martin ONCJ 2019, and R. v. Davis, 2023 ONCA 227.
- R. v. Pereula,[ 2019] O.J. No. 3333, R. v. Fisk, 2020 ONCJ 88.
- R. v. Suberu, 2009 SCC 33 at paras. 41 and 42.
- R. v. Stellato 1993 CanLII 3375 (ON CA), [1993]O.J. No. 18 (CA), aff’d {1994 CanLII 94 (SCC), 1994] S.C.J. No. 51.
- R. v. Goleski, 2015 SCC 6