Court File and Parties

Ontario Court of Justice

Date: October 23, 2025

Court File No.: Toronto, Ontario 24-48124843, 24-48101458

Between:

His Majesty the King

— and —

Kevin Bridgeraj

Before: Justice Caolan Moore

Heard on: September 17 and 18, 2025

Reasons for Judgment released on: October 23, 2025

Counsel:

• Ledya Abdalla, counsel for the Crown
• Michael Engel, counsel for the Defendant

Introduction

[1] Kevin Bridgeraj is charged with failing or refusing to comply with a demand to provide a sample of his breath into an approved screening device ("ASD"). He was pulled over for speeding on July 15, 2024. The officer who pulled him over had an ASD in his possession and made a mandatory alcohol screening demand pursuant to section 320.27(2) of the Criminal Code.

[2] Mr. Bridgeraj alleges breaches of his section 8, 9, and 10(b) rights under the Canadian Charter of Rights and Freedoms. He submits that, should I find any Charter breaches, the incriminating evidence against him should be excluded under section 24(2) of the Charter, or, in the alternative, the proceedings should be stayed under section 24(1). In any event, he asserts the prosecution has failed to prove the charge against him beyond a reasonable doubt. Mr. Bridgeraj called no evidence in his defence.

[3] Mr. Bridgeraj is also charged with speeding, driving 135 kilometers per hour in a 100 kilometers per hour zone, contrary to section 128 of the Highway Traffic Act. It was conceded at the beginning of trial that the evidence would also be considered in relation to this provincial offence. His guilt on this offence was conceded by counsel at the end of trial.

Evidence

[4] On July 15, 2024, Cst. Osborn was acting Sergeant in uniform for the Ontario Provincial Police ("OPP") detachment charged with monitoring Highway 401 in Toronto.

[5] Around 12:44 a.m. he was on patrol driving westbound on Highway 401 near McCowan Road. He had set his cruise control to 135 km/h in a posted 100 km/h zone to catch cars driving in excess of that speed. His attention was drawn to a white pickup truck driving westbound in the collector lanes and overtaking his position. He sped up, weaved through traffic, and crossed into the collector lanes to catch the truck. He believes he drove in excess of 150 km/h because the in-car camera ("ICC") in his scout car activates automatically at that speed. He could not say how much faster than 150 km/h he had driven.

[6] He caught up to the truck as it exited onto Kennedy Road. He came up behind it at a red light and watched it make a rolling stop before turning and taking another right at a red light. Cst. Osborn activated his emergency equipment and pulled the truck over.

[7] As Cst. Osborn approached the truck, the driver, conceded to be Mr. Bridgeraj, opened the front door of the vehicle. Cst. Osborn noticed what appeared to be an X-acto knife in the driver's side door. He asked Mr. Bridgeraj to close the door and he complied.

[8] Cst. Osborn informed Mr. Bridgeraj he had stopped him for speeding and failing to stop at a red light. He then explained that the OPP were administering mandatory alcohol screening demands for all highway traffic stops. Around 12:46 a.m. he made a demand that Mr. Bridgeraj provide a sample of his breath into an ASD.

[9] Cst. Osborn conducted a self-test on the ASD to show Mr. Bridgeraj how to use it and to ensure it was in proper working order. The screen display said "ready" and there was a flashing green light indicating it was ready to receive a sample.

[10] Cst. Osborn asked Mr. Bridgeraj to blow into the device while he was seated in the driver's seat of his vehicle. He provided him with a new mouthpiece, reset the unit, explained that he needed to make a tight seal with his mouth, and asked him to blow with a constant breath until he was told to stop.

[11] On Mr. Bridgeraj's first attempt, he barely touched the mouthpiece with his mouth. Cst. Osborn heard a short tone, indicating there was some breath, but the ASD displayed "blow interruption", which occurs when there is insufficient breath for the device to provide an analysis.

[12] Cst. Osborn checked the device and was satisfied there were no obstructions. He again told Mr. Bridgeraj to make a tight seal on the mouthpiece and blow. Mr. Bridgeraj tried again to the same effect. He kept saying he was blowing, but Cst. Osborn observed that he failed to make a tight seal with his mouth on the mouthpiece. A third attempt was then made in a similar manner with the same result.

[13] Cst. Osborn checked to ensure there was no physical reason Mr. Bridgeraj was unable to blow into the device. He examined his seatbelt and made sure there were no restraints on his chest or lungs. He then cautioned Mr. Bridgeraj, saying that if he failed to comply with the demand he would be arrested and charged criminally, and that the penalties for failing to comply were the same if not more significant than if he were to provide a sample that was over the legal limit. Cst. Osborn reminded him to make a tight seal on the mouthpiece.

[14] At 12:50 a.m., Mr. Bridgeraj was presented with the ASD for the fourth time. He made the same effort to blow with the same result and error message. He was asked to step out of the vehicle and was placed under arrest.

[15] Once outside the vehicle, Cst. Osborn handcuffed Mr. Bridgeraj and patted him down to ensure he had no dangerous items. Around 12:53 a.m., Cst. Osborn placed him in the rear of the scout car, told him again the reason for his arrest, and read him his rights to counsel. The ICCs in OPP scout cars at that time did not capture audio outside of the vehicle, only inside. Cst. Osborn explained that he took Mr. Bridgeraj to the scout car so that his rights to counsel would be audio and video recorded.

[16] Mr. Bridgeraj indicated he wanted to call a lawyer and needed the number from his phone. Cst. Osborn went to the truck. He retrieved Mr. Bridgeraj's phone and conducted a brief inventory search of the vehicle. A little over two minutes later, Cst. Osborn was back in the scout car. He cautioned Mr. Bridgeraj and asked him questions about his personal information to conduct background checks to determine if he was suitable for release from the scene. He noticed some signs of impairment during his interactions with Mr. Bridgeraj which caused him some concern about his release, including an odor of alcoholic beverage, slurring some of his words, slow blinking and closing of his eyes, and being argumentative.

[17] At 12:59 a.m., Cst. Osborn informed Mr. Bridgeraj he was suitable for release from the scene if he would agree to appear in court and appear to have his fingerprints taken. Cst. Osborn also offered to drive him home, which Mr. Bridgeraj said sounded "amazing". He told him he had to do paperwork that takes 15-20 minutes – 30 minutes at most. Cst. Osborn gave Mr. Bridgeraj the option of speaking to a lawyer in the scout car but warned him he would be video, but not audio, recorded so he would not have as much privacy. Alternatively, he could speak to a lawyer after he took him home. After some back and forth over several minutes, Mr. Bridgeraj indicated he wanted to speak to his lawyer after he was released. This conversation ended around 1:05 a.m.

[18] Mr. Bridgeraj was initially handcuffed to the rear. He asked for the handcuffs to be removed at 1:03 a.m. and Cst. Osborn explained he could not do so. Around 1:15 a.m., Mr. Bridgeraj asked again if the handcuffs could be removed. Cst. Osborn explained it was policy and procedure to keep them on but indicated he could have him handcuffed in the front and did so, which took a minute or two.

[19] The paperwork to release Mr. Bridgeraj and for the tow of his vehicle were completed around 1:45 a.m. Cst. Osborn testified the paperwork took longer than he had expected, even though he was being assisted by another officer who arrived on scene. Mr. Bridgeraj did not complain. At one point he told Cst. Osborn he did not care how long it took and at another point fell asleep. Cst. Osborn admitted he probably could have completed the tasks faster but took time to make sure he completed everything because Mr. Bridgeraj did not seem concerned.

Alleged Charter Breaches

Section 8

[20] A mandatory alcohol screening demand can be made during the lawful exercise of an officer's powers when the officer has the ASD in their possession. Counsel asserts that by driving 135km/h on cruise control, and the manner in which he drove over 150 km/h, in a 100 km/h zone without activating his emergency equipment, Cst. Osborn was not acting within his lawful powers. Because of this conduct the demand is unlawful for failing to comply with one of the requirements of section 320.27(2).

[21] Cst. Osborn testified he had been employing this speed enforcement tactic for several years to catch stunt drivers, starting when roads were completely open during the COVID-19 pandemic. Cst. Osborn did not testify as to how often he employed this tactic. He testified he had not been doing it for very long on July 15, 2024. He did not activate his emergency equipment right away because, in his experience, it causes confusion and danger on the highway as drivers start to suddenly slow down or pull over.

[22] Section 128(13)(b) of the Highway Traffic Act, R.S.O. 1990, Chapter H.8, stipulates that speed limits do not apply to police department vehicles used in the lawful performance of an officer's duties. There is no question Cst. Osborn was engaged in police duties in attempting to apprehend speeding drivers. What is at issue is the manner in which he carried out that duty. Police must exercise caution in exercising their powers to avoid and minimize danger to the public. Failure to do so could result in civil claims or Provincial Offences Act or criminal charges: see R. v. Brown, [2011] O.J. No. 4848, at paras. 110-113.

[23] Cst. Osborn was driving at a high rate of speed on a controlled-access, multi-lane, 400 series highway in the early morning hours with little traffic and what appeared to be clear conditions. While he increased his speed to catch up to Mr. Bridgeraj's vehicle and had to change lanes quickly to do so, I do not find that his actions fell remotely outside of the lawful execution of his duties. In any event, I fail to see any link between the officer's driving and Mr. Bridgeraj's section 8 Charter rights.

[24] Mr. Bridgeraj was speeding. Cst. Osborn was unquestionably exercising his lawful powers when he pulled him over. There was no breach of his section 8 rights.

Section 9

[25] Mr. Bridgeraj argues that the length of time he spent handcuffed in the scout car exceeded the amount of time that was necessary to process his release and amounts to an arbitrary detention. It was approximately 55 minutes from the time of arrest at 12:50 p.m. to the time of his release at 1:45 a.m. It was approximately 40 minutes from the time Mr. Bridgeraj indicated he wanted to speak to a lawyer after being driven home, between 1:05 a.m. and 1:45 a.m.

[26] Cst. Osborn told Mr. Bridgeraj the paperwork would take 15-20 minutes, 30 minutes at most. It took ten minutes longer than his outside estimate. Cst. Osborn explained why it took additional time, noting the paperwork was slower than anticipated and he had to assist and wait for the tow truck. There is no evidence as to what portion of this time involved completing the paperwork for Mr. Bridgeraj's release or related to the tow truck.

[27] Cst. Osborn testified he handcuffed Mr. Bridgeraj for Mr. Bridgeraj's safety as well as his own. He believed Mr. Bridgeraj may have been impaired and found him hostile and argumentative at times, which created concerns about the predictability of his behaviour. There is no evidence the handcuffs were applied too tightly or caused Mr. Bridgeraj any injury. I find that handcuffing him reasonably flowed from Cst. Osborn's safety concerns in all the circumstances: R. c. Viti, [2023] J.Q. No. 1972, at paras. 73-76, 84-88, and 94.

[28] Counsel relies on the case of R. v. Fisher, [2023] O.J. No. 5201 for the proposition that keeping an individual in custody in the back of a police car for more than roughly fifteen minutes – the approximate time it should normally take to prepare and serve the proper documentation for his release – amounts to an arbitrary detention. I do not think Fisher stands for this proposition. In Fisher, Justice Berg found that it took fifteen minutes for the officer to arrange for Mr. Fisher's release for the criminal offence in that case. The additional 74 minutes Mr. Fisher spent detained were unlawful because the officer was issuing tickets for provincial offences.

[29] Cst. Osborn detained Mr. Bridgeraj until he had completed the paperwork for his release. He had the lawful authority to detain him and detained him only so long as was reasonably necessary. Cst. Osborn did not busy himself with unrelated tasks. It is not clear how much of this time was spent working on the paperwork for the tow truck. The time it took for him to complete the paperwork was ten minutes longer than his outside estimate. I do not find it amounted to an arbitrary detention. His evidence he did not work as quickly as he could have because Mr. Bridgeraj seemed fine and fell asleep was an honest reflection that, had Mr. Bridgeraj been demanding, he could have worked quicker or potentially completed a more succinct report. He was not asked how much faster he could have worked or how much time working at a faster pace would have saved. I do not find his testimony that it was possible for him to complete his tasks faster indicative of any carelessness in his obligations or indifference towards Mr. Bridgeraj's rights. I find no breach of Mr. Bridgeraj's section 9 Charter rights.

Section 10(b)

[30] At issue are the three minutes between the time Mr. Bridgeraj was placed under arrest and when he was read his rights to counsel.

[31] Cst. Osborn saw a knife in the driver's door and had no idea who Mr. Bridgeraj was. He deemed it appropriate to handcuff him and pat him down to ensure he had no weapons before reading him his rights to counsel. The additional delay, approximately one minute, was spent taking him to the scout car to ensure the reading of his rights to counsel was audio recorded.

[32] The law in this area is well established: rights to counsel must be provided immediately upon arrest or detention, subject to some exceptions, including officer or public safety: R. v. Suberu, 2009 SCC 33, [2009] S.C.J. No. 33, at paras. 2 and 42. It must be kept in mind that rights to counsel must be provided "immediately, not instantaneously": R. v. Fisk, [2020] O.J. No. 707, at para. 51.

[33] I accept that the search of Mr. Bridgeraj was done for valid officer safety reasons: see R. v. Rossi, [2017] O.J. No. 3494, at paras. 29-36.

[34] I take no issue with the short amount of time it took to escort Mr. Bridgeraj to the rear of the scout car or his reasons for doing so. Cst. Osborn did not busy himself with administrative or investigative tasks or attempt to elicit information from Mr. Bridgeraj: see R. v. Davis, 2023 ONCJ 358, at para. 28; R. v. Danyliuk, [2024] O.J. No. 844, at para. 115; R. v. Santos Escutin, [2024] O.J. No. 5780 at para. 7; R. v. Aliyak, [2024] Nu. J. No. 23, at para. 24.

[35] When asked when rights to counsel must be given after arrest, Cst. Osborn answered, "as soon as practicable". When asked what he meant by that, he testified he was to provide rights to counsel after he determined it was safe for him to do so. While the phrase "as soon as practicable" should be removed from the acceptable lexicon of words used to describe the implementation of this right, its use alone does not mean there was a breach. Cst. Osborn's articulation of what he meant is Charter compliant: officer safety is a valid reason to delay providing an accused their rights to counsel. His actions and explanations align on the evidence before me.

[36] I find Cst. Osborn was diligent in providing Mr. Bridgeraj with his rights to counsel. There is no merit to the alleged violation of his section 10(b) Charter rights.

Fail or Refuse

[37] Mr. Bridgeraj is presumed innocent. The burden of proof is never his. It is not enough for me to believe he is probably or likely guilty. Beyond a reasonable doubt is an exacting standard that can arise from the evidence or from the absence of evidence. While the Crown is not required to prove its case to an absolute certainty, proof beyond a reasonable doubt falls much closer to an absolute certainty than a balance of probabilities. While Mr. Bridgeraj did not testify, any exculpatory evidence before me is considered in light of the principles in R. v. W. (D.). To convict Mr. Bridgeraj, I must be satisfied on the totality of the evidence that there is no reasonable doubt as to his guilt.

[38] The onus is on the Crown to prove every element of this offence beyond a reasonable doubt. It must prove a lawful demand was made, failure or refusal of the accused to provide the required breath sample, and that the accused intentionally failed or refused to provide a breath sample or knew that his conduct would have this result: R. v. Khandakar, [2024] O.J. No. 3767, at paras. 18-19.

[39] I find a valid demand was made under section 320.27(2) of the Criminal Code. Cst. Osborn was engaged in the lawful exercise of his police powers when he pulled Mr. Bridgeraj over and had an ASD in his possession.

[40] I also find Mr. Bridgeraj failed to provide a sample of his breath as required.

[41] Counsel argues there is insufficient evidence the ASD was in proper working order. While the officer satisfied himself the ASD was in proper working order by checking to ensure it was properly calibrated, observing it indicated it was "ready", noting a green light that confirmed it was ready, and conducting a self-test, the officer failed to note if the ASD made a tone when turned on to indicate it was ready or inspect it for damage as described in the manual for this device. The same manual also indicates that when the ASD registers "blow interruption" a light should flash red. Cst. Osborn did not make any observations of the colour of the light after each attempt by Mr. Bridgeraj.

[42] While failing to follow practice manual directions is some evidence undermining the reasonableness of an officer's belief, there is no evidence of the impact a failure to note the functions above may have had on the device's proper functioning. Cst. Osborn did not fail to follow any directions so much as he failed to observe all the features the ASD uses to show it is operating effectively. The officer's failure to record or observe these additional aspects of the device's function does not necessarily negate the reasonableness of the officer's belief. Failing to follow a practice manual direction is not dispositive: see R. v. Jennings, 2018 ONCA 260, [2018] O.J. 1460, at para. 17.

[43] Any failure to follow manual directions in this case had no bearing on the reasonableness of the officer's belief the ASD was functioning properly when the tests were administered. While there is no assumption that the device was working properly, I find that it was based on the totality of the evidence before me, including the observations and checks of the device made by Cst. Osborn, his self-test just prior to its use, and his observations and actions when Mr. Bridgeraj attempted to provide samples of his breath. There was no suggestion that Cst. Osborn improperly administered the tests.

[44] In July of 2024, OPP officers did not have body-worn cameras. The ICCs in their scout cars only recorded two angles: the area in front of the vehicle and the back seat. Only the latter camera recorded sound. Counsel argues that by conducing the tests while Mr. Bridgeraj was seated in his truck, Cst. Osborn deprived the Court of video evidence that would have captured the alleged offence. He should have conducted the test in front of the scout car. Cst. Osborn indicated it was OPP practice to conduct mandatory alcohol screening tests while the driver was sitting in their vehicle.

[45] It would have been ideal to capture Mr. Bridgeraj's efforts on video. That being said, Cst. Osborn was obliged to act with dispatch in making the demand and obtaining breath samples: see R. v. Breault, 2023 SCC 9, [2023] S.C.J. No. 9. A practice of conducting mandatory alcohol screening tests with the driver seated in their vehicle is consistent with that obligation. Counsel argues the officer should have obtained the breath samples in front of the scout car. An extension of that logic would be to have the samples taken in the back of the scout car to capture audio as well, an act that likely would have been subject to scrutiny in the circumstances of this case: see R. v. Kelln, [2021] S.J. No. 176, at paras. 65-67 and 97. The fact counsel also argues that the one-minute delay caused by placing the accused in the back of the scout car before reading him his rights to counsel and the additional time the accused spent in the back of the scout car while the officer completed paperwork necessary for his release were violations of Mr. Bridgeraj's rights illustrates the complexity of these investigations.

[46] The lack of video evidence is a factor I consider on the whole of the evidence. Having done so, I accept Cst. Osborn's testimony as to what occurred. I found his evidence straightforward, detailed, and credible. What is captured on video corroborates his evidence. The absence of more complete video and audio recordings does not leave me in any doubt.

[47] Counsel also argues that Cst. Osborn did not give Mr. Bridgeraj a "last chance" to blow and that he should have done so in this case. In examining the circumstances of the entire transaction, I find Cst. Osborn was diligent in enquiring throughout if there were any physical or other reasons to explain why Mr. Bridgeraj could neither follow his instructions to form a tight seal on the mouthpiece nor blow consistently. He was diligent in inspecting the mouthpiece for obstructions and observing Mr. Bridgeraj to ensure there were no physical restrictions impeding him from blowing properly. I find his warning that the consequences for failing to provide a sample were the same or more severe than for blowing over the legal limit would have brought home to Mr. Bridgeraj the importance of complying. Mr. Bridgeraj did not ask for the opportunity to make another attempt: see R. v. Kitchener, 2012 ONSC 4754, [2012] O.J. No. 3857, at paras. 29-35.

[48] Finally, I find Mr. Bridgeraj did not legitimately attempt to provide a sample of his breath into the ASD. His feigned attempts amount to an unequivocal refusal. He knew he was obliged to comply and that his conduct would lead to this result. Given his conduct, there was no need to provide him with further opportunities to provide a breath sample. None were requested. The only reasonable inference to be drawn from his insufficient attempts is that he was intentionally choosing to provide inadequate samples: see R. v. Slater, [2016] O.J. No. 1592, at paras. 12-15. I find he subjectively intended not to comply with the demand: R. v. Soucy, 2014 ONCJ 497, [2014] O.J. No. 4518, at paras. 50-55; R. v. Emereuwa, [2025] S.J. No. 235, at para. 54. I am not left in any doubt by the evidence, or the lack of any evidence, before me.

Conclusion

[49] In conclusion, I dismiss Mr. Bridgeraj's Charter application. I am satisfied beyond a reasonable doubt that he failed or refused to comply with a demand to provide a sample of his breath into an approved screening device and find him guilty. I also find him guilty of speeding under the Highway Traffic Act.

Released: October 23, 2025

Signed: Justice Caolan Moore

[1] There is disagreement in the case law about the mental element of this offence. I need not address it given my findings below.