ONTARIO COURT OF JUSTICE
CITATION: R. v. Plazas Castillo, 2026 ONCJ 479
DATE: 2026 08 14
COURT FILE No.: Toronto 4810 998 25 48104877
BETWEEN:
HIS MAJESTY THE KING
— AND —
JHON PLAZAS CASTILLO
Before Justice J. Trehearne
Heard on June 18, 2026
Reasons for Judgment released on August 14, 2026
T. Sarantis............................................................................................ counsel for the Crown
P. Patterson.......................................... Counsel for the defendant Jhon Plazas Castillo
I. Introduction
[1] Mr. Plazas Castillo stood trial on the charge of failing or refusing to comply with a demand to provide a breath sample, contrary to s.320.15(1) of the Criminal Code of Canada.
[2] The only real issue in this case is whether the Crown has proven that Mr. Plazas Castillo understood the breath demand, given potential language difficulties.
[3] For the following Reasons, I have concluded that the Crown has not proven beyond a reasonable doubt that Mr. Plazas Castillo understood the breath demand, and I find him not guilty.
II. The Evidence
[4] Officer Gavin Rowe was working in a uniform capacity and conducting general patrol on March 9, 2025. At approximately 4:50 am, he was patrolling the collector lanes on the highway 401 eastbound. He observed a black Toyota motor vehicle pass his own vehicle at a high rate of speed. Officer Rowe began to conduct a pace of the black Toyota, and observed it to reach speeds between 150 and 165 kilometres per hour. The speed limit in the area was 100 kilometres per hour. As a consequence, Officer Rowe entered into an investigation for stunt driving. The vehicle eventually travelled southbound on highway 404, and Officer Rowe stopped the vehicle just north of Yorkdale mall on the shoulder of the highway. From this point forward, Officer Rowe’s interactions with the driver, whom it is not disputed is Mr. Plazas Castillo, were caught on the officer’s body-worn camera, and the video of that interaction was filed as an Exhibit.
[5] Officer Rowe got out of his cruiser and approached Mr. Plazas Castillo’s vehicle at 4:51 am. Other cars can be heard passing quickly and loudly on the highway. Before Officer Rowe got up to the driver’s window of Mr. Plazas Castillo’s vehicle, Officer Rowe said: “Police, roll your window down, driver”. He repeated: “roll your front window down”, and “all the way down”. In response, Mr. Plazas Castillo turned his head to the left and back toward the direction of Officer Rowe’s voice, and put his hands up in front of him. He said something which cannot be discerned. Officer Rowe repeated “down down”, and made a rolling motion with his hand as one would do to roll down a window, and then pointed down. Mr. Plazas Castillo then rolled down his window.
[6] Officer Rowe asked how Mr. Plazas Castillo was doing, and Mr. Plazas Castillo replied: “Very good”. Officer Rowe told Mr. Plazas Castillo he was being stopped for speeding. It is difficult to hear what Mr. Plazas Castillo said in reply to this, but it sounds like he may have said: “Yeah, I know.”
[7] Officer Rowe asked Mr. Plazas Castillo for his driver’s license. As Mr. Plazas Castillo searched through a number of cards for his driver’s license, Officer Rowe told Mr. Plazas Castillo he was being recorded, and asked “Do you understand me?”, to which Mr. Plazas Castillo nodded and said “yes”. Mr. Plazas Castillo then continued to look for his driver’s license, which it appears he located, and then opened his glove compartment and removed some papers.
[8] At 4:52 am, as Mr. Plazas Castillo looked through the papers he had removed from his glove compartment, Officer Rowe said: “In the meantime, I’m going to demand that you provide a sample of your breath into this…” and then interrupted himself to specify which papers he needed from Mr. Plazas Castillo. As Officer Rowe was speaking, he was holding an Approved Screening Device, or ASD, in his hand. As Mr. Plazas Castillo handed Officer Rowe his driver’s license, Officer Rowe accidentally dropped Mr. Plazas Castillo’s driver’s license inside Mr. Plazas Castillo’s car. Officer Rowe asked Mr. Plazas Castillo to pick it up, and Mr. Plazas Castillo said he was going to open the door, which was necessary to reach the driver’s license where it had fallen. It is at this point that it becomes clear on the body-worn camera that Mr. Plazas Castillo speaks accented English. Officer Rowe then reiterated his request for the insurance documents. Mr. Plazas Castillo held up a number of documents, and Officer Rowe gestured to the two he wanted.
[9] At 4:53 am, Officer Rowe again began to make the breath demand. He said: “All right, so, I demand you provide a sample of your breath into an approved screening device to allow for analysis of your breath to be made and that you accompany me for that purpose. Do you understand?” Mr. Plazas Castillo then said something which cannot clearly be discerned, but which sounds like “yeah”, and he seems to have given the slightest of head nods. Mr. Plazas Castillo then said something else, which is also hard to hear, but it sounds like he said “I was..” and then trailed off. He also made a hand gesture which is difficult to interpret.
[10] Whatever Mr. Plazas Castillo meant, it seems Officer Rowe interpreted Mr. Plazas Castillo to be indicating he did not understand the breath demand, as Officer Rowe began to explain the breath demand in plain language. Officer Rowe started: “So basically…” but then was interrupted as he dealt with another vehicle passing by. Officer Rowe said “woah” a couple of times, before yelling that the other vehicle should “go”. At this point, Mr. Plazas Castillo put his hands up, and Officer Rowe said to Mr. Plazas Castillo, “Sorry, I’m not talking to you”. Mr. Plazas Castillo did not put his hands down, despite Officer Rowe’s clarification.
[11] Officer Rowe then said to Mr. Plazas Castillo: “So it’s a demand to provide a sample into this device here, okay?”. As he said this, he showed Mr. Plazas Castillo the ASD. Officer Rowe said: “Do you understand that?” and Mr. Plazas Castillo said “No”.
[12] Officer Rowe then said to Mr. Plazas Castillo: “Turn your ceiling light on for me”. Mr. Plazas Castillo appeared not to understand. Officer Rowe repeated “your ceiling” and pointed to Mr. Plazas Castillo’s ceiling light. Mr. Plazas Castillo then turned the light on. Officer Rowe then showed Mr. Plazas Castillo the ASD and asked: “You ever blown into one of these before?” Mr. Plazas Castillo shook his head and said “no, no, no”. Officer Rowe said: “It’ll just tell me if you have any alcohol in your system, okay?” Mr. Plazas Castillo replied: “No, I don’t want to do it”. Officer Rowe replied: “Huh?” and Mr. Plazas Castillo repeated: “I don’t want to do it”. Officer Rowe said: “Say it again?” and Mr. Plazas Castillo again said: “I don’t want to do it”.
[13] At this point, Officer Rowe told Mr. Plazas Castillo: “If you refuse to blow into this device, you’re going to be arrested for refusal. It’s a criminal offence”. Mr. Plazas Castillo’s reply is difficult to make out in its entirety, but he seems to say: “I haven’t had alcohol but” or “I haven’t had alcohol bad”. Officer Rowe responded by saying: “We do it for every traffic stop, so if you haven’t had alcohol, there’s no reason for you to refuse, right?” Mr. Plazas Castillo nodded. Officer Rowe continued: “But I’m letting you know that if you refuse to give a sample, you’re going to be arrested for refusal, which is a criminal offence”. Mr. Plazas Castillo said something like: “I’m going to call my lawyer”, or “can I call my lawyer”. Officer Rowe replied “huh?” and Mr. Plazas Castillo again said something about calling his lawyer. Officer Rowe replied: “Oh, you can talk to a lawyer if you want, but right now, we’re not going to wait for a lawyer right now”. In response to this, Mr. Plazas Castillo asked again: “Can I call my lawyer?” to which Officer Rowe said no. He added: “Right now, you don’t get to talk to a lawyer until you get through this”, and showed Mr. Plazas Castillo the ASD.
[14] Mr. Plazas Castillo then said something that Officer Rowe could not hear, and which cannot be discerned on the body-worn camera. Officer Rowe replied “Say it again?” and again, Mr. Plazas Castillo said something difficult to hear. Officer Rowe replied again: “Say it again?”, and Mr. Plazas Castillo then said: “I’m not going to do that”.
[15] At this point it was 4:54 am. Officer Rowe then said: “Okay, so you understand there’s a consequence for not blowing into it?”. Mr. Plazas Castillo said something unintelligible, and then said: “I’m going to call my lawyer”. Officer Rowe told Mr. Plazas Castillo that it was a demand he had to “adhere to” and “comply with right away”. Officer Rowe said to Mr. Plazas Castillo: “You don’t get to talk to a lawyer now. You’re not under arrest.” Officer Rowe explained: “You get to provide a sample, or you can choose not to provide a sample. If you provide a sample and it’s over the legal amount, which is 80 mg per 100 mL of your blood, you’ll be arrested for having over the legal amount. And if you refuse to provide a sample into this, you’ll be arrested for refusal.” Officer Rowe then asked: “So do you understand that?” Mr. Plazas Castillo replied: “No”. Officer Rowe asked: “You don’t?” and Mr. Plazas Castillo said something hard to hear. Then Mr. Plazas Castillo repeated himself. The parties disputed what Mr. Plazas Castillo said at this point, with the defence arguing that he said: “I need a translator”. Officer Rowe then asked: “Say it again?” and Mr. Plazas Castillo replied: “I don’t get it.” Officer Rowe asked: “You don’t understand that you have to blow into this?” and gestured to the straw he had placed on the ASD. Mr. Plazas Castillo shook his head.
[16] The time was now 4:55 am. Officer Rowe told Mr. Plazas Castillo to step out of the car. Mr. Plazas Castillo sat still. Officer Rowe again repeated: “Step out of the car for me”, and Mr. Plazas Castillo continued to sit still. Officer Rowe then opened the driver’s side door, and Mr. Plazas Castillo put his hands up again. Officer Rowe said: “Let me talk to you back here since you don’t understand.” Mr. Plazas Castillo got out of the car and headed to the back of it. He turned his back to the officer and put his hands up. Officer Rowe told Mr. Plazas Castillo: “I’m not trying to arrest you”. Officer Rowe said “I’m trying to explain to you that once a demand is made, a lawful demand, you either comply with it or you refuse. If you comply with it, and you provide a sample, as long as you’re not over the legal limit, you’ll be good to go. If you’re over the legal limit, you will be arrested for that. If you refuse to provide a sample, you’ll be arrested for that, and a criminal charge, and it comes with consequences. Driver’s license suspension. You’ll have to attend court for a criminal matter. Do you understand that?” During this explanation, Mr. Plazas Castillo can be seen to stand impassively.
[17] In response to Officer Rowe’s inquiry as to whether Mr. Plazas Castillo understood, Mr. Plazas Castillo said “No, I…” and made a gesture with his hands which is difficult to interpret. He then said: “You’re telling me I need a lawyer”. Officer Rowe replied: “No, you don’t need a lawyer for that”. Mr. Plazas Castillo again said something about calling a lawyer. Officer Rowe said: “You can talk to a lawyer but after, but…” and was then interrupted by Mr. Plazas Castillo, saying something difficult to hear. Officer Rowe said: “You’re going to deal with this right now, or you’re going to be placed under arrest”, and held up the ASD. Mr. Plazas Castillo shook his head in the negative. At this point, Mr. Plazas Castillo held his arms out in front of him and put his wrists together, as if preparing to be handcuffed. Officer Rowe said: “So you’d rather be placed under arrest than deal with the criminal consequences?” Mr. Plazas Castillo did not reply.
[18] It was now 4:57 am, and Officer Rowe stated: “K, I’m going to give you one last chance.” Mr. Plazas Castillo shook his head in the negative and gestured as if saying the conversation was over, or as if he had made his decision. Officer Rowe said: “Provide a sample into this device, okay?” Mr. Plazas Castillo again shook his head in the negative, and waved his hand. Officer Rowe asked: “So you’re not going to do it?” Mr. Plazas Castillo shook his head. Officer Rowe asked: “Are you refusing… Are you refusing to provide a sample?” Mr. Plazas Castillo replied: “yeah”. Officer Rowe then arrested Mr. Plazas Castillo for failing or refusing to comply with the breath demand.
[19] Officer Rowe read Mr. Plazas Castillo his right to counsel, and asked if he understood. Mr. Plazas Castillo nodded in the affirmative, although then made a gesture with his head which is difficult to interpret. Officer Rowe asked Mr. Plazas Castillo: “Do you wish to speak to a lawyer?” Mr. Plazas Castillo did not immediately reply. Officer Rowe repeated: “Do you wish to speak to a lawyer?” to which Mr. Plazas Castillo replied: “Yeah but I can’t do it now”.
[20] Officer Rowe then read Mr. Plazas Castillo the caution, and asked if he understood. Mr. Plazas Castillo did not immediately reply. Officer Rowe again asked if Mr. Plazas Castillo understood, to which Mr. Plazas Castillo said something which is difficult to hear, but clearly included the words “my lawyer”.
[21] Officer Rowe then asked Mr. Plazas Castillo if he had a lawyer “of choice”, to which Mr. Plazas Castillo said he had his “own lawyer”. Officer Rowe testified that Mr. Plazas Castillo advised that the lawyer’s information could be found on a business card in Mr. Plazas Castillo’s wallet.[1]
[22] Officer Rowe testified at trial that he believed Mr. Plazas Castillo understood the process and the potential outcomes. Officer Rowe based this belief on Mr. Plazas Castillo’s answers to Officer Rowe’s questions. Officer Rowe acknowledged that Mr. Plazas Castillo spoke with a thick Spanish accent. He also acknowledged that the traffic going by on the highway was noisy. Officer Rowe said that for these reasons, he made additional attempts to explain the situation to Mr. Plazas Castillo, and asked Mr. Plazas Castillo several times if he understood. Officer Rowe also said that he had Mr. Plazas Castillo step out of the car so they could speak face-to-face, and Officer Rowe could ensure Mr. Plazas Castillo understood.
[23] Officer Rowe disagreed that Mr. Plazas Castillo had asked for a translator. He agreed there was a system available to him by which he could have requested a translator for Mr. Plazas Castillo.
III. The Foundational Legal Principles
[24] Every person charged with an offence is presumed to be innocent, unless and until Crown counsel proves every essential element of the charge against that person beyond a reasonable doubt.[2] The obligation to prove an accused person’s guilt rests with Crown counsel. A person charged with a criminal offence does not have to present evidence or prove anything.[3]
[25] The phrase “beyond a reasonable doubt” is a very important part of our criminal justice system. It is one of the principle safeguards which seeks to ensure that no innocent person is convicted.[4] A reasonable doubt is not an imaginary, far-fetched, or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in the trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence.[5]
[26] Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. However, it is nearly impossible to prove anything to an absolute certainty. Crown counsel is not required to do so. If, at the end of the case, after considering all the evidence, I am sure that the accused person committed the offence, I must find that person guilty of it, since I would have been satisfied of the person’s guilt of that offence beyond a reasonable doubt. If, at the end of the case, based on all the evidence or the lack of evidence, I am not sure that an accused person committed an offence, I must find the accused person not guilty.[6]
IV. The Requirement for a Detainee to Understand the Breath Demand
[27] In R. v. Degiorgio[7], the Court of Appeal for Ontario set out the elements of the offence of refuse breath sample, each of which the Crown must prove beyond a reasonable doubt:
i. That the preconditions to making a demand have been satisfied (here, those preconditions are set out in s.320.27 of the Criminal Code);
ii. That the police have made a demand that the detainee provide a breath sample immediately;
iii. That the detainee understood the demand;
iv. That the detainee refused to comply with that demand; and,
v. That the detainee did not have a reasonable excuse for failing to comply with the demand.[8]
The third element is what is at issue here. It is trite that language may be a barrier to an understanding of the demand.[9]
[28] With respect to what, in particular, a detainee needs to understand, in R. v. Torsney[10], the Court of Appeal for Ontario held that a detainee needs to understand that he is required to provide a breath sample forthwith.[11] While the language of the relevant Criminal Code section has changed from “forthwith” to “immediately”, the Supreme Court of Canada made clear in R. v. Breault[12] that the two terms are interchangeable in this context. Thus, a detainee must understand that he: (1) is required to provide a breath sample; and (2) is required to do so immediately.
[29] With respect to the first point, the detainee must understand that the demand is just that, a demand and not a request. As the Court held in R. v. Boucher:
…The offence is committed when a demand is refused - not when an invitation is declined. The demand must be unequivocal; there must be no doubt left in the mind of the accused that he must respond affirmatively to that demand or he will be charged with a failure or refusal of that demand.[13]
[30] As for the second point, the immediacy requirement, the Court in R. v. Torsney[14] made clear that the word forthwith - which has now been replaced with immediately - need not necessarily be used. However, there must be something in the tenor of the discussion that brings home to the detainee that the demand is that he provide a breath sample forthwith, or immediately.
[31] The law is clear that where an officer is in a position to require that a breath sample be provided into an ASD before the detainee has any realistic opportunity to consult counsel, the detainee does not have the right to delay the production of the breath sample in order to consult counsel.[15] There is a debate in the caselaw, however, as to whether an accused’s genuine belief that he is entitled to consult with a lawyer before providing an ASD sample holds any relevance to whether the offence has been made out.[16] To the extent such a belief holds any relevance to the analysis, courts have considered it in relation to whether any refusal to provide a breath sample was unequivocal (element iv per Degiorgio), or whether the accused had a reasonable excuse for failing to comply with a demand (element v per Degiorgio). However, there does not appear to be any caselaw to support that the police are required to make clear to a detainee as part of the demand that they do not have the right to consult counsel before providing an ASD sample.
V. The Parties’ Positions
[32] The Crown submits that the evidence proves beyond a reasonable doubt that Mr. Plazas Castillo understood the breath demand. The Crown points to the fact that Officer Rowe both read the formal breath demand, and informally explained the breath demand a number of times. The Crown also says that Mr. Plazas Castillo’s actions and responses show that Mr. Plazas Castillo understood the demand. The Crown points to the following examples: Mr. Plazas Castillo provided his documentation as requested; Mr. Plazas Castillo said he had not been drinking; and Mr. Plazas Castillo understood he needed to consult a lawyer. The Crown also says that Mr. Plazas Castillo demonstrated he understood he would be arrested if he did not provide a breath sample by putting his hands together when outside of the car. The Crown submits that even if Mr. Plazas Castillo did ask for a translator, the body-worn camera demonstrates that he understood. The Crown says that at the end of the day, Mr. Plazas Castillo simply decided he was not going to provide a breath sample until he had the opportunity to speak with a lawyer.
[33] On behalf of Mr. Plazas Castillo, Mr. Patterson reminded me that the standard of proof, guilt beyond a reasonable doubt, is a high one. Mr. Patterson submitted that although Mr. Plazas Castillo seemed to indicate at various times that he did not want to comply with the demand, he also indicated at various points that he did not understand. Mr. Patterson pointed to the apparent non-responsiveness of some of Mr. Plazas Castillo’s answers to Officer Rowe. Mr. Patterson also pointed out that on at least two occasions prior to his arrest, Mr. Plazas Castillo put his hands up as if he thought he was being arrested.
VI. The Crown Has Failed to Prove that Mr. Plazas Castillo Understood the Breath Demand
[34] I will start by resolving the only real factual issue in dispute, which relates to whether Mr. Plazas Castillo asked for a “translator”. I find that he did. I do not find Officer Rowe was lying when he said Mr. Plazas Castillo did not make this request. Rather, I find that Officer Rowe simply did not hear Mr. Plazas Castillo when he uttered the word “translator”; indeed, Officer Rowe’s response to Mr. Plazas Castillo’s uttering of the word “translator” was “Say it again?”. Nonetheless, with the benefit of multiple reviews of Officer Rowe’s body-worn camera, I find that Mr. Plazas Castillo clearly said “translator”;
[35] As for whether Mr. Plazas Castillo understood the breath demand (despite his request for a translator), I am not satisfied that the Crown has proven that Mr. Plazas Castillo understood the demand beyond a reasonable doubt. I accept the Crown’s submission that it is clear that Mr. Plazas Castillo understood he was being investigated in relation to his consumption of alcohol, as evidenced by his statement that he did not drink alcohol (or did not drink “alcohol bad”, by which he may have meant he had not had too much to drink). I also accept the Crown’s submission that it is clear Mr. Plazas Castillo understood he was being asked to do something, as evidenced by his utterances “I don’t want to do it” and “I’m not going to do that”, and that he would have understood from having been shown the ASD that he was being asked to provide a breath sample. However, I am not satisfied beyond a reasonable doubt that Mr. Plazas Castillo understood he had to provide a breath sample, and that he had to do so immediately. In reaching this conclusion, I point to the following:
(1) English is not Mr. Plazas Castillo’s first language: Mr. Plazas Castillo clearly speaks English as a second language, as evidenced by his heavily accented English, and his request for a translator;
(2) Mr. Plazas Castillo indicated he did not understand the breath demand: On five occasions, Officer Rowe asked Mr. Plazas Castillo if he understood the breath demand, and Mr. Plazas Castillo replied in the negative, either by indicating with words that he did not understand, or by shaking his head;
(3) Mr. Plazas Castillo demonstrated he did not understand a number of Officer Rowe’s directions: For example, when Officer Rowe initially asked Mr. Plazas Castillo to roll his window down, Mr. Plazas Castillo put his hands up. As a further example, when Officer Rowe yelled at a passing car, Mr. Plazas Castillo clearly thought Officer Rowe was yelling at him, and put his hands up, and did not put them down even after Officer Rowe advised he had not been yelling at Mr. Plazas Castillo;
(4) It can be inferred Mr. Plazas Castillo did not understand other aspects of the interaction: A number of Mr. Plazas Castillo’s answers to Officer Rowe were non-responsive to what Officer Rowe had said. For example, when Mr. Plazas Castillo asked to speak to a lawyer and Officer Rowe said they would not be waiting for a lawyer at that stage, Mr. Plazas Castillo’s response was again to ask to speak to a lawyer;
(5) Mr. Plazas Castillo’s apparent understanding of some of Officer Rowe’s instructions could have been gleaned from Officer Rowe’s demonstrations or the situation more generally: For example, although Mr. Plazas Castillo rolled down his window and turned on his ceiling light as Officer Rowe asked, Officer Rowe had demonstrated what he wanted Mr. Plazas Castillo to do. Further, while Mr. Plazas Castillo picked up his driver’s license after Officer Rowe asked him to do so, picking it up would have flowed naturally from Mr. Plazas Castillo’s observation that the driver’s license had fallen;
(6) The breath demand involves formal language, which may be outside the understanding of someone with limited English: For example, the breath demand involves words and terms such as “demand”, “Approved Screening Device”, “analysis”, and “accompany”;
(7) Officer Rowe’s explanation of the breath demand also involved formal language: Although Officer Rowe made further efforts to explain the breath demand in plainer language, these explanations also involved words which may be outside the understanding of someone who speaks limited English, including the words “demand”, “sample”, “device”, “consequence”, “adhere”, and “comply”;
(8) The traffic was loud and it was hard to hear: It is clear from Officer Rowe’s body-worn camera that the traffic going by on the highway was loud. Officer Rowe repeatedly had difficulty hearing Mr. Plazas Castillo. Mr. Plazas Castillo would similarly have had difficulty hearing Officer Rowe, which would have compounded the language issue;
(9) The interaction was brief: The whole interaction, from the time Officer Rowe pulled Mr. Plazas Castillo over to the time of Mr. Plazas Castillo’s arrest, was only approximately 4.5 minutes. This did not leave a lot of time for Mr. Plazas Castillo to figure out what the Officer was saying; and,
(10) The interaction was stressful: It is clear from Mr. Plazas Castillo’s demeanour on the body-worn camera video that he was stressed, and even scared at times, during this interaction with Officer Rowe. These emotions are recognized to compound language difficulties.[17]
[36] I acknowledge that immediately after Officer Rowe read Mr. Plazas Castillo the formal breath demand and asked if Mr. Plazas Castillo understood, Mr. Plazas Castillo said “yeah” and gave a slight head nod. However, I do not find that this amounts to proof beyond a reasonable doubt that Mr. Plazas Castillo did, in fact, understand the demand. Mr. Plazas Castillo immediately followed his agreement that he understood with the phrase “I was…” and a hand gesture which is difficult to interpret. Moreover, Officer Rowe was clearly concerned that Mr. Plazas Castillo did not understand the demand despite Mr. Plazas Castillo’s agreement, as Officer Rowe made further efforts to explain it. Mr. Plazas Castillo subsequently denied five times that he understood the breath demand.
[37] I also acknowledge that Mr. Plazas Castillo clearly declined to provide a breath sample, as evidenced by his repeated statements to the effect of “I don’t want to do it” and “I’m not going to do that”. However, there is nothing about the interaction from which I can conclude that Mr. Plazas Castillo understood he had to provide a breath sample, and had to do it immediately.
[38] Finally, I also acknowledge that Mr. Plazas Castillo put his wrists together as if waiting to be handcuffed in response to Officer Rowe’s statement that Mr. Plazas Castillo had to “deal with” the ASD “right now” or be placed under arrest. In my view, this is the strongest evidence for the Crown that Mr. Plazas Castillo understood that he had to provide a breath sample, and that if he did not do it at that point (that is to say, immediately), he would be arrested. However, I do not find that this evidence, in the context of all the evidence, amounts to proof beyond a reasonable doubt that Mr. Plazas Castillo understood the demand. Even before this portion of the interaction, when Mr. Plazas Castillo first got out of his vehicle, he clearly thought he was being arrested, and Officer Rowe had to tell him: “I’m not trying to arrest you”. It is therefore possible that Mr. Plazas Castillo did not understand the arrest to be connected to his refusal to provide a breath sample at that time.
[39] The Crown has argued in this case that Mr. Plazas Castillo understood he was required to provide a breath sample immediately, but simply declined to provide a breath sample until he had the opportunity to speak with a lawyer. In my view, I do not need to resolve the extent to which any genuinely held belief by Mr. Plazas Castillo that he was entitled to speak to a lawyer might affect whether the Crown has proven its case. There does not appear to be an obligation on a police officer to inform a detainee as part of the demand that he does not have the right to consult counsel before providing a breath sample. However, the detainee does need to understand that he has to provide a sample immediately. I am not satisfied that the Crown’s case establishes that understanding in this case. Whatever reason Mr. Plazas Castillo may have had for not wanting to provide a sample immediately is irrelevant, if he did not understand he had to provide a sample and had to do so immediately.
[40] Although it was clear to Officer Rowe that English was not Mr. Plazas Castillo’s first language, and although Officer Rowe himself was concerned for much of the interaction that Mr. Plazas Castillo did not understand the demand, he did not ask Mr. Plazas Castillo what language he spoke, nor inquire whether he needed a translator. Nor did Officer Rowe ask Mr. Plazas Castillo to explain back in his own words what he understood Officer Rowe to be saying. As in R. v. Burko, Officer Rowe had an obligation to make some reasonable inquiries into the extent of Mr. Plazas Castillo’s ability to speak English.[18]
[41] This was a close case. However, it is insufficient for me to conclude that Mr. Plazas Castillo probably or likely understood the breath demand. I am not satisfied beyond a reasonable doubt that he understood it. In the circumstances, I find Mr. Plazas Castillo not guilty of refusing to provide a breath sample.
Released: August 14, 2026
Signed: Justice J. Trehearne
1This portion of the interaction as captured on body-worn camera was not entered into evidence.
[2] D. Watt, K.C., and J. Makepeace, Watt’s Manual of Criminal Jury Instructions, 2024, Thomson Reuters Canada Limited, Final 11 – Presumption of Innocence; R. v. Ménard, 1998 CanLII 790 (SCC), [1998] 2 S.C.R. 109 at ¶23.
[3] D. Watt, K.C., and J. Makepeace, Watt’s Manual of Criminal Jury Instructions, 2024, Thomson Reuters Canada Limited, Final 12 – Burden of Proof; R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320 at ¶27.
[4] R. v. Lifchus, supra, at ¶13.
[5] D. Watt, K.C., and J. Makepeace, Watt’s Manual of Criminal Jury Instructions, 2024, Thomson Reuters Canada Limited, Final 13 – Reasonable Doubt; R. v. Lifchus, supra, at ¶¶30-31.
[6] D. Watt, K.C., and J. Makepeace, Watt’s Manual of Criminal Jury Instructions, 2024, Thomson Reuters Canada Limited, Final 13 – Reasonable Doubt; R. v. Lifchus, supra, at ¶14, ¶¶31-39.
[7] R. v. Degiorgio, 2011 ONCA 527 at ¶43.
[8] R. v. Degiorgio was decided under the predecessor section, s.254(5). In R. v. Emereuwa, 2025 SKCA 83 at ¶7, ¶32, the Court of Appeal for Saskatchewan recently considered the new wording of the legislation, and concluded that the mens rea of the offence requires proof not only that the accused knew a breath demand had been made (which appears to be consistent with element iii from R. v. Degiorgio, supra), but also that the accused intended to fail to provide a suitable sample. The Ontario Superior Court of Justice came to the opposite conclusion, that the Crown need only prove that the accused knew a breath demand had been made: R. v. Di Luciano, 2024 ONSC 3254 at ¶70. The Supreme Court of Canada has granted leave in R. v. Emereuwa, [2025] S.C.C.A. No. 466. However, the parties agree that the issue does not arise in this case. Here, Mr. Plazas Castillo made no attempt to provide a breath sample. If he knew or understood a demand had been made, there is no issue that he intended to fail or refuse to provide a sample.
Note as well that there is a debate as to which party has the burden to prove or disprove a reasonable excuse under element v of Degiorgio, supra, and to what standard. For example, see: R. v. Luciano, supra, at ¶85; contra see R. v. Refaeh, 2024 ONSC 755 at ¶¶55-71. However, that issue also does not arise in this case.
[9] See, for example, R. v. Burko, 2005 ONCJ 23 at ¶18. See also R. v. Warnica, 1980 CanLII 2897 (NS SCAD), [1980] N.S.J. No. 512 (C.A.) at ¶15, and R. v. Shmoel, [1998] O.J. No. 2233 (Crt. Jus.) at ¶8.
[10] R. v. Torsney, 2007 ONCA 67 at ¶6.
[11] See also: R. v. Ghebretatiyos, [2000] O.J. No. 4982 (S.C.A.C.) at ¶¶19-22; and, R. v. Johnston, 2016 ONCJ 562 at ¶8.
[12] R. v. Breault, 2023 SCC 9, [2023] S.C.J. No. 9 at ¶29, ¶44.
[13] R. v. Boucher, [1986] N.B.J. No. 761 (Q.B.) at ¶14. See also R. v. John, 2014 ONCJ 217 at ¶¶17-18.
[14] R. v. Torsney, supra, at ¶¶6-7.
[15] R. v. George, 2004 CanLII 6210 (ONCA) at ¶55.
[16] See, for example, R. v. Nanji, [2005] O.J. No. 1976 (S.C.A.C.) at ¶¶9-24, affirmed [2006] O.J. No. 943 (C.A.); R. v. McCann, 2015 ONCJ 169 at ¶¶12-33; R. v. Delarm, 2013 ONSC 975. Contra, see for example R. v. Kumar, 2016 ONSC 7928 (S.C.A.C.) at ¶93, R. v. Pociurko, 2016 ONSC 6691 (S.C.A.C.) at ¶¶19-27.
[17] See, for example, R. v. Singh, 2024 ONSC 5561 at ¶56.
[18] R. v. Burko, supra.