ONTARIO COURT OF JUSTICE
CITATION: R. v. Burns, 2026 ONCJ 494
DATE: 2026 08 19
COURT FILE No.: Brampton 25-31101659
BETWEEN:
HIS MAJESTY THE KING
— AND —
GRAHAM BURNS
Before Justice F. A. McCracken
Heard on July 28 and 29, 2026
Reasons for Judgment released on August 19, 2026
E. Wong................................................................................................. counsel for the Crown
C. Avery............................................................. counsel for the defendant Graham Burns
[1] Graham Burns is charged with impaired operation and excess blood alcohol. He brings an application seeking exclusion of the breath samples taken from him. In support of this application he asserts that his s. 8 and 9 Charter rights were infringed when the police failed to demand that he provide a breath sample into an approved screening device immediately upon forming the requisite reasonable suspicion.
Findings of Fact
[2] The evidence and my findings of fact on this application are relatively straightforward. At 2:52 a.m. on December 28, 2024 PC Normy Pierre of the Ontario Provincial Police was dispatched to a single-vehicle collision in the 401 Express lanes. He testified that he arrived on scene at approximately 3:00 a.m., although his in-car camera shows that it was more precisely 2:58:30 a.m.
[3] When he arrives he observes Mr. Burns in the driver’s seat of an SUV that was up against a concrete median, facing the wrong way. It had severe damage to its passenger side and its airbags had been deployed.
[4] He spoke briefly with two bystanders who had stopped to help but advised him that they did not witness the collision. He approached Mr. Burns and demanded his driver’s license, ownership and insurance. While speaking with him though, he noticed the smell of an alcoholic beverage emanating from his breath. He also observed other alleged indicia of impairment.
[5] PC Pierre ultimately formed a suspicion that Mr. Burns had alcohol in his body. This suspicion is not challenged on this application. Indeed, it is this suspicion that Mr. Burns relies upon in support of his application. More specifically, he asserts that Cst. Pierre should have made the approved screening device demand immediately upon forming this suspicion.
[6] I conclude that PC Pierre formed his suspicion at 3:00 a.m. I reach that conclusion because he agreed that by the time he walked away from Mr. Burns and went back towards his cruiser, he had formed the suspicion. The in-car camera shows that he started walking away from Mr. Burns at 3:00:35. It is common ground that PC Pierre did not make the demand at that time.
[7] Instead, he went back to his cruiser to (i) make a radio call, and (ii) secure the ASD. His radio call is audible in the in-car camera footage. And, while he is in his cruiser the distinctive sound of an approved screening device mouthpiece packaging can be heard crinkling.
[8] Cst. Pierre testified that he thought he had to have the approved screening device physically in his possession prior to making the demand. In other words, he was of the view that having it in his cruiser was not enough. This is not an accurate statement of the law.
[9] Cst. Pierre then does not make the approved screening device demand until approximately 3:05 a.m. In the intervening time he is seen standing in between his car and Mr. Burns. He then approaches Mr. Burns again. On his evidence he asks Mr. Burns further questions about the collision. He agreed in cross-examination that he waited 4 or 5 minutes after he had the approved screening device in his hand. During that time, he agreed that he was conducting 4 or 5 minutes of further investigation. He asserted in cross-examination that this was consistent with his training and knowledge of the law.
[10] I find as a fact that there was a 5-minute delay between Cst. Pierre’s formation of reasonable suspicion and the approved screening device demand.
[11] Mr. Burns later went on to provide two samples of his breath into an approved instrument. The analysis of those samples yielded a result of 120 and 110 milligrams of alcohol in 100 millilitres of blood. It is these samples that he seeks to exclude.
The Alleged Breach
[12] Section 320.27(b) of the Criminal Code states that if a peace officer has reasonable grounds to suspect that a person has alcohol or drugs in their body and has within the 3 preceding hours operated a conveyance, they may by demand require that person:
“to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose”.
[13] In Breault 2023 SCC 9 the Supreme Court of Canada made clear that the immediacy requirement is firm. They rejected the suggestion that the test may be delayed allowing the police to comply with other parts of their duties. Instead, the test may only be delayed for operational requirements of the device or for ‘unusual circumstances’. They held that the immediacy requirement is a fundamental feature of the legislative scheme. It is the constitutional quid-pro-quo that allows for the suspension of a detained person’s right to counsel.
[14] In Borko 2024 ONSC 1988, Justice Mew of the Superior Court sitting as a summary conviction appeal court held that the immediacy requirement continues to apply to the demand itself. In other words, the constitutionality of the scheme is premised on the officer making the demand immediately upon forming the requisite suspicion.
[15] The immediacy requirement has been interpreted post-Breault in a relatively strict fashion by the Saskatchewan Court of Appeal. While these decisions are not binding on me, I do find that they are persuasive. McMorriston 2024 SKCA 5 found that a 5-minute delay was not immediate. Westgard 2025 SKCA 53 held that a delay of two minutes and four seconds did not comply with the immediacy requirement. In McMorriston, the Court upheld the exclusion of evidence and acquittal. In Westgard, the Court declined to exclude the evidence despite finding a breach.
[16] On the facts of this case, there is no operational delay that justifies a departure from immediacy. There are no unusual circumstances. There is nothing that otherwise justifies the delay. Cst. Pierre could have – and should have – made the demand immediately upon forming his suspicion.
[17] I find that the 5-minute delay in making the approved screening device demand did not comply with the statutory and constitutional requirements. Accordingly, Mr. Burns’ rights under s. 8 and 9 of the Charter were infringed.
Remedy
[18] I now turn to the issue of remedy. On behalf of Mr. Burns, defence counsel submitted that where there is a right there must be a remedy. While that is a tempting and logical line of reasoning, it is not how the Charter is drafted. Instead, prior to excluding evidence, courts must go on to consider whether admission of the evidence would bring the administration of justice into disrepute.
[19] In Grant 2009 SCC 32 the Supreme Court set out a framework for this analysis. Courts must consider the seriousness of the state Charter-infringing conduct, the impact of the breach on the accused, and society’s interest in an adjudication of the matter on its merits.
[20] In the context of this case, I find that the seriousness of the breach moderately favours exclusion. It is true that Cst. Pierre was either negligent in failing to follow his training or his training was wrong. However, I accept that this is a very technical area of the law. Ultimately, the breach was grounded in a 5-minute delay while Mr. Burns was at the side of the 401 express lanes dealing with the aftermath of a collision.
[21] This is not a breach that resulted from wilful or reckless disregard of Charter rights such that it would have a negative effect in public confidence in the rule of law. But it is also not one that is minimal, as it is grounded in the failure to follow a statutory scheme that is in place to ensure its constitutionality.
[22] On the impact of the breach, I similarly find that it moderately favours exclusion. On one hand, the actual conduct that gave rise to the breach amounted to a 5-minute delay at the roadside. It is true that this delay resulted in non-compliance with the statute that authorizes the demand. It resulted in an unlawful demand, unlawful detention, and the failure to inform Mr. Burns of his rights under s. 10(a) and (b) of the Charter. But, it was 5 minutes.
[23] The impact does not end there though. There is a cascading effect that flows from the breach. After being required to comply with an unlawful demand, Mr. Burns was handcuffed, arrested, searched, taken to the police station, and had further samples of his breath compelled from him. The impact of all of this is not lost on me. Were it just the impact of the 5-minute delay, this branch would only weakly favour exclusion. But it is not. When I consider the totality of the impact, in my view this factor moderately favours exclusion.
[24] Finally, society has a strong interest in an adjudication of this charge on its merits. While the seriousness of the charge alone cannot justify admission of evidence, the Supreme Court has repeatedly recognized the dangers of impaired driving and society’s interest in its detection and prosecution. See McColman 2023 SCC 8 at para. 72. The evidence that Mr. Burns seeks to exclude here – namely, his breath samples – is highly reliable and central to the Crown’s case. I find that this factor strongly weighs towards admission of the evidence.
[25] Ultimately, this is a balancing exercise. It is not one of arithmetic where I simply tally up the results of these three discrete inquiries. I find that when I balance the precise nature of the Charter-infringing state conduct, its impact on Mr. Burns, and society’s interest in an adjudication of this matter on its merits, the admission of Mr. Burns’ breath samples would not bring the administration of justice into disrepute. While I have not lost sight of the cascading impact of these breaches, I cannot ignore that the breach was grounded in a 5-minute delay in an otherwise lawful demand at the roadside. In my view, the long-term repute of the administration of justice is best served with the admission of the breath samples in question.
[26] The application is dismissed.
Released: August 19, 2026
Signed: Justice F. A. McCracken