ONTARIO COURT OF JUSTICE
CITATION: R. v. Nzeyimana, 2026 ONCJ 484
DATE: 2026 07 31
COURT FILE No.: Newmarket 998 25 91100281
BETWEEN:
HIS MAJESTY THE KING
— AND —
TRESOR LENNOX NZEYIMANA
Before Justice Michael Perlin
Heard on July 30 and 31, 2026
Reasons for Judgment released on July 31, 2026
Esti Azizi............................................................................................... counsel for the Crown
Sutikshan Raina........................................................................... counsel for the defendant
[1] The defendant is charged with driving with excessive blood alcohol contrary to s. 320.14(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46.
[2] He asks the court to exclude the results of his breath testing from evidence on the basis that the demand PC McFadden made that he provide a breath sample into an approved screening device was unlawful. The defence submits that if the ASD test was unlawful, the results of that test—a fail—were unconstitutionally obtained, and that, without those test results, PC McFadden lacked grounds to arrest the defendant and demand that he provide breath samples into an approved instrument at the police station.
[3] The parties agree that if the breath-test results (i.e. the certificate of a qualified technician) are admitted into evidence, the defendant must be found guilty. If the results are excluded, there is no evidence before the court capable of proving that his blood-alcohol concentration exceeded the legal limit, and he must be found not guilty.
[4] The key issue I must decide is whether PC McFadden made a lawful ASD demand. In the defendant’s pre-trial Charter application, he argued that PC McFadden lacked reasonable grounds to suspect that the defendant had alcohol in his body, such that one precondition for a demand under s. 320.27 was absent. For the first time in closing submissions, defence counsel sought leave to amend the Charter application to also argue, in the alternative, that PC McFadden had grounds, but failed to make the demand immediately, which is also a precondition for a lawful ASD demand.
I. Reasonable grounds to suspect the defendant had alcohol in his body
[5] Under s. 320.27(1), a peace officer who “has reasonable grounds to suspect that a person has alcohol […] in their body” and has driven within the preceding three hours may demand that the person perform an ASD test. There is no question that PC McFadden, when he made the demand, suspected on reasonable grounds that the defendant had recently been driving: PC McFadden had observed the defendant’s vehicle in a small collision with another vehicle in a parking lot. He observed the defendant get out of his vehicle, apparently to inspect any damage, re-enter the vehicle, and drive away. Shortly thereafter, PC McFadden initiated a traffic stop and found the defendant in the driver’s seat.
[6] The only issue is whether PC McFadden had reasonable grounds to suspect there was alcohol in the defendant’s body.
[7] The reasonable suspicion standard is met where the officer subjectively suspects, on objectively reasonable grounds, that the relevant state of affairs exists—here, that the defendant has some amount of alcohol in his body. The standard of “suspicion” is an expectation that it is possible that the relevant state of affairs exists. The requirement that the suspicion be “reasonable” connotes a requirement greater than “mere suspicion” or a hunch, but less than a belief based on reasonable and probable grounds. Reasonable suspicion “engages the reasonable possibility, rather than probability, of crime”. It is “assessed against the totality of the circumstances”. “The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience”. The existence of the relevant state of affairs “need not be the only inference that can be drawn from a particular constellation of factors”. Factors weighing against the suspicion cannot be ignored. But there is no duty “to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations”. See R. v. Chehil, 2013 SCC 49, at paras. 26-36, 47.
[8] PC McFadden concluded the reasonable suspicion standard was satisfied based on the following observations and conclusions:
(a) He was stationed in his cruiser in a parking lot just before 3 a.m. on January 3, 2025, in Vaughan;
(b) His attention was drawn by a scraping sound to cars parked near what he knew to be the only open business, a bar-and-grill whose primary business is the sale of alcohol;
(c) Based on his extensive work as a police officer in the area, he believed that, at that time of night, people would park in the portion of the parking lot where he observed the SUV only if they were attending that establishment. (The only other open businesses nearby were in other parts of the plaza. They were also licenced establishments.) PC McFadden testified that in his experience, the bars in the area typically stay open until around 3 or 4 a.m., and that people leaving those establishments around that time had been at the bar;
(d) As a result of the sound, PC McFadden turned to observe an SUV reversing and rubbing against another parked vehicle. He then observed a male exit the SUV, and inspect its front driver’s side. The male re-entered the SUV and drove away. PC McFadden inferred that there had been a collision between the SUV and a black car that had been parked next to it, when the driver of the SUV reversed out of the parking spot;
(e) PC McFadden saw no basis to conclude the driver had spoken with the owner of the other vehicle before leaving;
(f) PC McFadden followed the SUV and initiated a traffic stop at a nearby gas station;
(g) When he approached, the defendant, who was in the driver’s seat, was wearing sunglasses, which PC McFadden found unusual or suspicious given that it was around 3 a.m. in January. He noted a possible explanation for wearing sunglasses at that time would be to conceal one’s eyes; and
(h) The defendant exited the vehicle to show the damage to the front driver’s side bumper of his SUV. They had a discussion about the collision and leaving the scene of the collision.
[9] The defence points to many factors that are absent and which would, if present, have furnished additional grounds to suspect the defendant had alcohol in his body: e.g. poor driving in addition to the collision, an odour of alcohol, bloodshot eyes, etc. The defence notes that PC McFadden did not see the defendant exit the bar, and only inferred that he had done so. He notes that people might go there simply for food, or might be there a designated driver.
[10] I am satisfied that PC McFadden had objectively reasonable subjective grounds to suspect that the defendant had alcohol in his body at the time of the demand. The factors emerging from his evidence clearly provided an objective basis to conclude it was possible that alcohol was present. The objective factors—the collision (which the defendant admitted during the traffic stop), the time of night, the reasonable inference that the defendant had left a bar, and the fact that he was wearing sunglasses when PC McFadden approached during the traffic stop—combine to furnish an objective basis for PC McFadden’s suspicion. This remains the case even though it was also possible that the defendant had not consumed any alcohol, having been, for example, the designated driver that night for the two passengers in his SUV.
II. The immediacy requirement
[11] In the alternative, the defendant argues that PC McFadden had reasonable suspicion after observing the collision and failed to meet the “immediacy” requirement by delaying in making the demand until during the traffic stop. The defence contends there were opportunities to make the demand earlier.
[12] This issue was only raised during closing submissions. Defence counsel advised that before his cross-examination of PC McFadden commenced, he had decided to explore evidence relevant to the issue. Counsel should have alerted the Crown and the court at that time and sought leave to raise the issue. The Crown initially asked that this argument be dismissed for failure to provide proper notice. The Crown later abandoned this argument and was content to argue the issue based on the record already before the court. In these circumstances, it is appropriate to consider the issue, despite the defence non-compliance with this court’s rules: see e.g. R. v. Gundy, 2008 ONCA 284, at paras. 23-24; R. v. Tash, 2008 CanLII 1541 (ON SC), at paras. 15-23.
[13] As ASD demand must be made “immediately” upon the officer forming the reasonable suspicion that the subject has alcohol in their body: R. v. Borko, 2024 ONSC 1988, at para. 33; R. v. Khandakar, 2024 ONCA 620, at para. 38. Immediately does not mean instantaneously: see R. v. Tomasone, 2025 ONCJ 30, at para. 50.
[14] After stopping the defendant and observing his sunglasses, PC McFadden had a discussion with the defendant, providing the defendant a summary of his observations. The defendant agreed it was unusual he was wearing sunglasses. When asked, the defendant denied having consumed any alcohol. He denied that he had been involved in a collision. When pressed on this, he voluntarily exited the vehicle and pointed out the minor damage. He admitted being in the collision. They discussed the collision, and the defendant’s decision to leave the scene.
[15] I accept PC McFadden’s evidence that his reasonable suspicion only crystalized during the discussion outside the defendant’s SUV. PC McFadden was a thoughtful and careful witness who testified credibly that up to the time he made the demand he was considering the relevant circumstances and trying to decide whether he had grounds to move forward with the investigation. He testified that during his discussion with the defendant leading up to the ASD demand—which lasted less than three minutes—he was “considering things in [his] head, what [he] had”. It was clear that during the discussion he was continuing to investigate, putting questions to the defendant, including about whether the defendant had had anything to drink.
[16] I accept PC McFadden’s evidence that he was considering during this discussion whether he had grounds to make the demand. I am satisfied that PC McFadden made the demand as soon as he determined that the information he had was sufficient to support a reasonable suspicion that there was alcohol in the defendant’s body. While the information available objectively supported the demand, it was entirely reasonable for PC McFadden to consider that information before moving ahead. This was not an obvious case, like one involving an odour of alcohol on the suspect’s breath, where, as a matter of law, it is clear that grounds for an ASD demand are present. Even in those circumstances, an officer is “not required to blurt out the demand the very instant he first smelled alcohol”: R. v. Tolson, 2021 ONSC 2895, at para. 38.
III. Disposition
[17] I am satisfied that grounds existed to make the ASD demand and that the demand was made “immediately” by PC McFadden once he formed those grounds. The Charter application is dismissed. The certificate of qualified technician is admitted into evidence.
[18] The parties agreed that if the Charter application was dismissed, the offence is made out. I agree. A finding of guilt is contingent on proof beyond a reasonable doubt that the defendant had a blood-alcohol concentration (“BAC”) equal to or exceeding 80 mg of alcohol per 100 mL of blood within two hours of ceasing to operate a conveyance. Pursuant to s. 320.31(1), the lowest result of the BAC analysis is conclusive proof of his BAC at the time the samples were analyzed. The lowest sample disclosed a BAC of 150. The samples were taken within two hours of the defendant ceasing to drive.
[19] The defendant had a BAC of 150 within two hours of driving.
[20] The defendant will be found guilty of 80+ operation.
Released: August 14, 2026
Signed: Justice M. Perlin