Court Information

Ontario Court of Justice

Date: October 22, 2025

Court File No.: Newmarket 998-23-91107152

Between:

His Majesty the King

— and —

Panpan Liu

Before: Justice Michael Perlin

Heard: September 15 and 16, 2025

Reasons for Judgment Released: October 22, 2025

Counsel

Brooke Wakegijig — counsel for the Crown

Carson Hurley — counsel for the defendant

PERLIN J.:

I. Overview and Positions of the Parties

[1] A traffic stop for unauthorized licence plates led police to charge the accused, Mr. Liu, with failing to provide a breath sample into an approved screening device (ASD) contrary to s. 320.15 of the Criminal Code, R.S.C. 1985, c. C-46. At trial, the Crown relied on video evidence and the testimony of Police Constables Lau and Velema. The Crown asks me to find Mr. Liu guilty: he was arrested lawfully for having unauthorized plates; an odour of alcohol furnished grounds for the police to demand that he provide a breath sample into an ASD; and he failed to provide a sample.

[2] The defence called no evidence, and focussed on three alleged Charter breaches:

(1) An unreasonable search, contrary to s. 8, when officers opened Mr. Liu's car door and visually inspecting the interior;

(2) An arbitrary detention, contrary to s. 9, when officers arrested Mr. Liu for "unauthorized plates" without reasonable grounds to believe he had committed that provincial offence; and

(3) A breach of the s. 10(b) right to access counsel without delay, when Mr. Liu was held for almost two hours at the roadside without access to counsel.

[3] Mr. Liu asks for two remedies. First, he submits that if the arrest was unlawful the odour of alcohol it disclosed must be excised from the officer's grounds to make the ASD demand. Without that evidence, there were no grounds for the demand. Without a lawful demand – an essential element of the charge – the charge must be dismissed.

[4] Second, Mr. Liu submits that the Charter breaches should lead to the exclusion of the evidence of his failure to comply with the ASD demand. If this evidence is excluded, it would also result in the dismissal of the charge.

[5] The defence also argues that the ASD demand was unlawful because it was not made "forthwith", and that Mr. Liu had a reasonable excuse for failing to comply based on information police gave him regarding his right to counsel.

[6] Before analyzing these issues, I will briefly summarize the evidence.

II. Brief Summary of the Facts

[7] On August 17, 2023, PCs Lau and Velema were operating separate marked cruisers in Markham. PC Lau observed a white Porsche SUV. He queried the SUV's licence plate in his computer system and learned it was registered in relation to a brown Porsche SUV. PC Lau decided to stop the SUV for "unauthorized plates" – i.e., using "a number plate upon a vehicle other than a number plate authorized for use on that vehicle": see Highway Traffic Act, R.S.O. 1990, c. H.8, s. 12(1)(d). He testified that he thought the SUV might be stolen, based on its location in Markham.

[8] At 12:15 a.m., PCs Lau and Velema initiated a traffic stop. PC Lau used his cruiser to block the front of the SUV in a live lane of traffic. PC Velema blocked it from the rear. The officers approached and found a male driver, Mr. Liu, and a female passenger. PC Lau told Mr. Liu he had been stopped because his licence plate was for a different car.

[9] PC Lau demanded Mr. Liu's driver's licence, insurance and motor-vehicle permit. He demanded Mr. Liu's keys to prevent him from fleeing. PC Lau testified that Mr. Liu complied with the demand for his keys. PC Lau also testified that he decided to open the SUV's driver-side door to take Mr. Liu's keys, and did so. Inside the door, PC Lau saw an open can of beer and advised Mr. Liu, "now you're being investigated under the LLA" (i.e., the Liquor Licence and Control Act, 2019, S.O. 2019, c. 15, Sched. 22 (LLCA)).

[10] Mr. Liu told officers the SUV was his and that the colour did not match because he had had the SUV "wrapped" to change its colour to white. PC Lau told Mr. Liu that he could be arrested for the non-matching plate, but that the officer was not arresting him.

[11] Mr. Liu gave the officers his whole wallet and a collection of papers. His driver's licence was found in the wallet. PC Lau glanced at the papers and they did not appear to contain the insurance or permit information. Mr. Liu said he would need to call someone to get the documents requested.

[12] At 12:17 a.m., PC Lau arrested Mr. Liu for unauthorized plates, based on Mr. Liu not being able to provide documentation and insisting the SUV was his, and the fact that the SUV was supposed to be brown but was white. He handcuffed Mr. Liu and conducted a search incident to arrest.

[13] While both officers were near Mr. Liu during the search, they both smelled an odour of alcoholic beverage coming from him. During the search, officers also discovered a suspected controlled substance in his pocket and arrested him for possession. Officers later searched the SUV under the LLCA and found more suspected drugs.[1]

[14] At 12:19 a.m., based on the odour of alcohol, PC Velema demanded that Mr. Liu provide a breath sample into an ASD. Officers placed him in the back of PC Lau's cruiser.

[15] At 12:21 a.m., PC Lau read Mr. Liu his right to counsel in relation to the unauthorized-plate and controlled-substance arrests. Mr. Liu requested a lawyer and a Mandarin-language interpreter. PC Lau requested that PC Chang, a Mandarin-speaking officer, attend the scene.

[16] PC Chang attended. Between 12:29 a.m. and 12:35 a.m., he spoke with Mr. Liu and read him the ASD demand again. He also read Mr. Liu his right to counsel, and Mr. Liu indicated he wished to call a lawyer. Mr. Liu was asked three times to provide a sample into the ASD. On all three occasions, he indicated that he wanted water. When officers presented an ASD and asked if he would provide a sample, he said "of course not".

[17] At 12:31 a.m., PC Lau checked the VIN (vehicle identification number) of the white SUV, which was visible on its dash, and learned that it matched the VIN for the brown SUV. PC Lau determined that Mr. Liu had not committed the "unauthorized plate" offence.

[18] Sometime between 12:38 a.m. and 12:40 a.m., PC Chang advised Mr. Liu that PC Lau and PC Velema would be charging Mr. Liu with refusing to provide a sample.

[19] After PC Chang had told Mr. Liu he would be charged, PC Lau continued to encourage Mr. Liu to provide a sample. Mr. Liu never completed the ASD test.

[20] PC Lau testified that he told Mr. Liu that if he wanted to speak with a lawyer, he could do that back at the station. He also told Mr. Liu that he could release Mr. Liu at the roadside if he wanted to speak to a lawyer later. Mr. Liu did not indicate a preference.

[21] At 2:28 a.m., PC Lau released Mr. Liu at the roadside. Mr. Liu's SUV had already been towed away at this time. PC Lau testified that at no point between the initiation of the stop at 12:15 a.m. and Mr. Liu's release at 2:28 a.m. had efforts been made to implement Mr. Liu's right to counsel. After releasing Mr. Liu, PC Lau drove to the station, which was approximately six minutes away.

III. Analysis of Alleged Charter Breaches

[22] Mr. Liu argues police breached his Charter rights by (a) opening his car door, (b) arresting him without grounds and (c) failing to facilitate access to counsel.

A. Section 8: Opening the SUV Door

[23] The Crown concedes that PC Lau, by opening the SUV's driver-side front door and visually inspecting its interior, conducted a search. Section 8 of the Charter provides a right against unreasonable search and seizure. A search, for the purposes of s. 8 of the Charter, occurs when the state interferes with a reasonable expectation of privacy. Mr. Liu, as the driver of the SUV, had a reasonable expectation of privacy in it: R. v. Belnavis, [1997] 3 S.C.R. 341, at para. 19. PC Lau interfered with Mr. Liu's reasonable expectation of privacy by opening the door and inspecting the interior.

[24] A warrantless search is presumptively unreasonable and an infringement of s. 8, unless the Crown establishes that the search was authorized by law, the authorizing law is reasonable, and the search was conducted in a reasonable manner: R. v. Tim, 2022 SCC 12, at paras. 45-46.

[25] No one suggests this search was authorized by statute. In some cases, police will have common-law authority to open a car door and inspect the interior: see e.g., R. v. Aguilar, 2025 ONCJ 474. In this case, there was no such common-law authority. The Waterfield test governs whether police action that interferes with individual liberty is authorized by common law. The test requires, in part, that the police action be reasonably necessary for the carrying out of a particular police duty in all the circumstances: Fleming v. Ontario, 2019 SCC 45, at paras. 43-49; R. v. McDonald, 2014 SCC 3, at paras. 35-37.

[26] I am satisfied that opening the door was not reasonably necessary for PC Lau to carry out his duties. PC Lau testified that he opened the SUV's door to get the key to prevent Mr. Liu from attempting to drive away. He could have secured the key without opening the door. He was speaking to Mr. Liu at close proximity through an open window. In cross-examination, he agreed nothing would have prevented him from reaching through the open window rather than opening the door. Further, the evidence does not allow me to conclude that the key was still inside the SUV when PC Lau opened its door. On the in-car-camera, PC Lau asked for the keys within seconds of beginning to speak to Mr. Liu. PC Lau also testified in chief and in cross-examination that Mr. Liu complied and handed over his key in response to PC Lau's demand.

[27] Opening the door was not reasonably necessary. The search was not authorized at common law. By opening the car door and visually inspecting the interior, PC Lau breached Mr. Liu's s. 8 Charter right.

B. Section 9: Grounds for the Arrest

[28] The next major event at the roadside was PC Lau's decision to arrest Mr. Liu for unauthorized plates. The defence contends that the arrest was not founded on reasonable grounds to believe that the offence had been committed, so was unlawful and arbitrary contrary to s. 9 of the Charter. The arrest was what led the officers to detect an odour of alcohol on Mr. Liu's breath, which furnished the grounds for the ASD demand.

[29] Reasonable grounds for arrest exist where "compelling and credible information" establishes "a reasonable probability of crime". The officer must have subjective and objective grounds. Subjective grounds exist where "the arresting officer honestly believed that the suspect committed the offence". The officer's subjective belief "must be justifiable from an objective viewpoint". The "objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer": R. v. Beaver, 2022 SCC 54, at paras. 72(1), (2), (3), (6) (emphasis in original).

[30] If an officer forms reasonable grounds, they have no obligation to undertake further investigation to seek exculpatory facts or rule out innocent explanations: Beaver, at para. 72(6). However, in determining whether they have grounds, officers cannot assess the information they have in a piecemeal fashion. They must consider all relevant information. They may "disregard only information which [they have] good reason to believe is unreliable": R. v. Chehil, 2013 SCC 49, at para. 33; R. v. Golub.

[31] Section 12(1)(d) of the Highway Traffic Act, R.S.O. 1990, c. H.8, makes it an offence to use "a number plate upon a vehicle other than a number plate authorized for use on that vehicle". I am satisfied that PC Lau did not have reasonable and probable grounds to arrest Mr. Liu for this offence. He explained that he decided to arrest Mr. Liu based on two factors: first, the plates were supposed to be on a brown Porsche SUV but were on a white Porsche SUV; and second, Mr. Liu's conduct in response to requests for his documentation was suspicious.

[32] On the first factor, I find that PC Lau wrongly excluded information from his assessment. Mr. Liu told the officer that he had had the SUV "wrapped" — i.e., he had changed its colour. He volunteered this information after PC Lau had advised him that he had been stopped because he was driving a white Porsche with incorrect plates, but before being told that the police database had reported that the SUV was brown. The information volunteered by Mr. Liu was a completely plausible, innocent explanation for PC Lau's observations. It demonstrated independent awareness that the issue was not just that the plate was attached to a white SUV, but that the colour could be the source of confusion. The fact that this information came from the suspect, Mr. Liu, does not make it inherently unreliable such that PC Lau was entitled to disregard it entirely. Mr. Liu's plausible explanation had to feature in the analysis. Once it was considered in combination with the fact that the registered SUV and the SUV driven by Mr. Liu were the same make and style, in my view, PC Lau had a reasonable suspicion, but not reasonable and probable grounds. There was a reasonable possibility of an offence, but not a reasonable probability of an offence.

[33] The second factor relied on by PC Lau – Mr. Liu's conduct – did not convert the reasonable suspicion into reasonable grounds. PC Lau pointed to the fact that Mr. Liu "insisted that the vehicle was his". I cannot see how this denial of guilt suggests he was in fact guilty, unless one improperly presumes that Mr. Liu was guilty and was lying to avoid accountability. If he owned the car, asserting this fact does not make it less true.

[34] PC Lau also pointed to Mr. Liu's inability to produce documents PC Lau had requested. Mr. Liu provided some papers in response to the demand for his insurance and permit documents. PC Lau testified he glanced briefly at the papers and concluded that "they did not appear" to contain the documents he had demanded. He did not see the colours of paper he would expect for insurance and permit documents. I accept that this factor could properly be seen as suspicious. But it is not sufficiently probative as to convert PC Lau's suspicion into reasonable grounds, particularly given that PC Lau only glanced briefly at the papers and only concluded they did not "appear" to include the documents he had demanded. This factor would have carried more weight if PC Lau had reviewed the papers carefully and had been sure the documents were not there.

[35] Although police contemplating an arrest are not obliged to investigate further when presented with an exculpatory explanation, if they lack grounds, further investigation may be the only practical way forward. There was an obvious step for PC Lau to take that would have either converted the suspicion into reasonable grounds or demonstrated it was unfounded. Shortly after the arrest, PC Lau checked the VIN on Mr. Liu's SUV and compared it to the VIN for the licensed SUV, and learned that the white SUV and the brown SUV were one and the same.

[36] In the absence of grounds, the arrest was unlawful, and infringed Mr. Liu's s. 9 right against arbitrary detention: R. v. Grant, 2009 SCC 32, at paras. 55-57.

C. Section 10(b): Failure to Facilitate Access to Counsel

[37] Section 10(b) of the Charter provides that a person, "on arrest or detention", has the right "to retain and instruct counsel without delay and to be informed of that right". When a detainee is advised of their right to counsel and indicates a desire to exercise that right, the police must facilitate access at the first reasonably available opportunity. If access to counsel is delayed, the Crown bears the burden of demonstrating that the circumstances could not afford a realistic opportunity to consult with counsel – i.e., the ability and opportunity to contact, seek advice from, and receive advice from counsel. Delay may be justified by, e.g., "practical obstacles to access" and "privacy and safety issues": R. v. Taylor, 2014 SCC 50, at paras. 24, 27-29, 32, 34; R. v. Edwards, 2024 ONCA 135, at paras. 36-42; R. v. Torsney, 2007 ONCA 67, at para. 13.

[38] An ASD demand suspends the obligation to comply with the informational and implementational components of s. 10(b) in relation to both the impaired-driving investigation and any other offence being investigated. The suspension is a reasonable limit on the detainee's Charter rights. It exists to permit relatively brief roadside screening tests. It terminates when those tests are completed: R. v. Breault, 2023 SCC 9, at para. 35; R. v. Commisso, 2020 ONSC 957, paras. 26-49.

[39] At 12:21 a.m., after police arrested Mr. Liu for unauthorized plates and the controlled substances, they read him his right to counsel. He said he wished to speak to a lawyer. A few minutes later, sometime between 12:29 a.m. and 12:35 a.m., PC Chang read him his right to counsel and asked him if he wished to call a lawyer. Mr. Liu said he did, and that he wished to call his friend to get his lawyer's number. PC Chang also read Mr. Liu the ASD demand during this interaction. At this time, while the demand was outstanding, Mr. Liu's s. 10(b) right was suspended. Police did not need to read Mr. Liu his right to counsel in relation to any of the charges. But they did so, and learned that Mr. Liu wished to exercise his right.

[40] Sometime between 12:38 a.m. and 12:40 a.m., PC Chang advised Mr. Liu that PC Lau and PC Velema would be charging him with refusal and that they would be completing his release documents. I am satisfied that at that point, the suspension of the right to counsel concluded. It appears that no one re-read Mr. Liu his right to counsel after the decision had been made to charge him. For the next one hour and 50 minutes, until 2:28 a.m. when PC Lau released Mr. Liu from the roadside, Mr. Liu was never given access to counsel. PC Lau agreed that at no point did he attempt to facilitate access.

[41] Officers decided to release Mr. Liu at the scene and to forego facilitating access to counsel. Mr. Liu cannot be seen as having implicitly agreed to this approach. At 12:40 a.m., PC Chang told Mr. Liu, "if you insist on talking to your lawyer, we're going to have to take you back to the station". At 12:42 a.m., PC Lau said, "I'm going to let you go […] as soon as possible, so I'm going to give you some paperwork, okay? So you can, you can call your lawyer after, okay? Okay?" PC Lau then tried to encourage Mr. Liu to provide a sample. Mr. Liu indicated he wanted a lawyer. PC Lau then said, "You want your lawyer now?" and Mr. Liu began complaining about how he was being treated. A few minutes later, at 12:46 a.m., PC Lau advised Mr. Liu, "[s]o right now, my plan is to release you right away. You can call your lawyer after. Ok? I want to let you go right here."

[42] Mr. Liu asked to speak to a lawyer. He was entitled to do so. The Crown bears the burden of justifying the nearly-two-hour delay on the basis that access in that time was not realistically possible. The Crown has not discharged this burden. On PC Lau's evidence, the station was only minutes away, and, if Mr. Liu had been booked at the station, he would have accessed counsel within 30-to-60 minutes. Instead, he was held at the roadside without counsel for one hour and 50 minutes. The delay occurred because officers had decided to release Mr. Liu at the roadside rather than provide access to counsel. They wrongly saw this as a binary choice that was theirs to make. Their preference to release Mr. Liu from the scene could not supersede their constitutional obligation to implement Mr. Liu's right to consult counsel, and to do so without delay.

IV. Remedies

A. Excision of Evidence Obtained Through the Unlawful Arrest

[43] A lawful ASD demand is an essential element of the offence of failing to comply with an ASD demand under s. 320.15(1). If the demand is unlawful, the subject has no obligation to comply and, in failing to do so, does not commit the offence: see R. v. Grant, [1991] 3 S.C.R. 139, [1991] S.C.J. No. 78, at para. 19; R. v. Squires, [2002] O.J. No. 2314 (C.A.), at para. 24; R. v. Breault, 2023 SCC 9, at para. 68.

[44] The ASD demand was made under s. 320.27(1)(b), which requires that an officer have reasonable grounds to suspect that the subject has alcohol (any amount) in their body and has operated a conveyance within the preceding three hours.

[45] The reasonable suspicion standard is satisfied where "objectively discernible facts" furnish a reasonable basis to suspect (i.e., when there is a "reasonable possibility, rather than probability") that the requisite facts are true. To determine whether this standard is met, the court must consider the "constellation of objectively discernible facts" available: R. v. Chehil, 2013 SCC 4, at paras. 26-34.

[46] PC Velema made the ASD demand. She testified that her grounds rested on Mr. Liu being belligerent and the fact that she detected an odour of alcohol on his breath when she was close to him while PC Lau was conducting a search incident to arrest.

[47] With that information in hand, PC Velema's grounds were objectively reasonable. An odour of alcohol on a driver's breath is sufficient to furnish grounds for an ASD demand: R. v. Lindsay (1999), 134 C.C.C. (3d) 463; R. v. Carson, 2009 ONCA 157; R. v. Schouten, 2016 ONCA 872, at paras. 17, 26-28.

[48] However, the observation of the odour must be excised. It was detected only because of the unlawful arrest. The Supreme Court of Canada has held that "reasonable grounds […] cannot be supplied by actions that involved violations of the Charter". Unconstitutionally obtained evidence must "be excised from the factual matrix" when analyzing the sufficiency of grounds: R. v. Zacharias, 2023 SCC 30, at paras. 30, 44 (per Rowe and O'Bonsawin JJ.) and 107 (per Martin and Kasirer JJ.).

[49] Once those observations are excised, what remains is the belligerence, which PC Velema testified was, in her mind, not enough to satisfy the standard of reasonable suspicion. She did not subjectively believe the belligerence furnished reasonable grounds to suspect there was alcohol in Mr. Liu's body. I agree that belligerence alone would have been insufficient. I also note that, on my review of the video evidence, during the initial interactions before Mr. Liu was arrested, I do not see his conduct as belligerent.

[50] With the odour of alcohol excised, PC Velema did not have the reasonable suspicion necessary to make the demand. The demand was unlawful. Mr. Liu's failure to comply with the demand is not an offence. For this reason, he must be found not guilty.[2]

B. Section 24(2): Exclusion of the Evidence of Mr. Liu's Failure to Comply

[51] Mr. Liu asks the court to apply s. 24(2) to exclude evidence of his failure to provide breath samples. Although I have concluded that the arrest was unlawful and the charge must be dismissed on that basis, in the event I am wrong, I have considered whether the evidence should be excluded based on the other two breaches, under ss. 8 and 10(b).

[52] Section 24(2) directs courts to exclude evidence (1) "obtained in a manner that infringed or denied any of the rights or freedoms guaranteed by the Charter" if satisfied that (2) "the admission of it in the proceedings would bring the administration of justice into disrepute".

1. "Obtained in a Manner" and the Actus Reus Exception

[53] Defence counsel provided cases dealing with whether evidence of a failure to comply with an ASD demand can be excluded under s. 24(2) or is instead subject to the actus reus exception from R. v. Hanneson. If the exception applies, it would place the impugned evidence beyond s. 24(2)'s reach. Courts in Ontario have grappled with how Hanneson applies where a breach precedes a failure to provide a breath sample: see e.g., R. v. Soomal, 2014 ONCJ 220, at paras. 62-83; R. v. Kraus, 2015 ONSC 2769; R. v. O'Shea, 2019 ONSC 1514; R. v. Doobay, 2019 ONSC 7272, at paras. 60-61; R. v. Odemi, 2022 ONSC 2292; R. v. Kerr et al, 2023 ONSC 3638, at paras. 83-111; R. v. McNair, 2024 ONCJ 217, at paras. 83-97. The Crown did not argue that Hanneson applies in this case. Defence counsel did not make submissions on its application.

[54] Hanneson cannot be read as barring the exclusion of all evidence constituting the actus reus of an offence. A few years after it was decided, in R. v. Cobham, [1994] 3 S.C.R. 360, the Supreme Court excluded evidence of a refusal to provide a breath sample. The rule is narrower. It arose in a particular factual context. Accused persons, whose s. 10(b) rights had been violated, made false statements to investigators, leading to charges of obstructing justice, and an application to exclude the false statements. In this scenario (1) police breached a person's rights while investigating them for an offence (offence #1); (2), after the breach, the person allegedly committed another offence (offence #2); and (3), at a trial for offence #2, the person sought to rely on the breach to exclude evidence constituting the actus reus of offence #2.

[55] The facts of the present case are distinguishable. First, while Hanneson involved a breach that occurred before "offence #2", in this case, the s. 10(b) breach occurred after "offence #2 (the failure to provide a breath sample). Second, although the s. 8 breach here occurred before Mr. Liu's failure to provide breath samples, Hanneson does not suggest how its rule would apply, if at all, in a situation involving Charter breaches that occurred both before and after the creation of the evidence sought to be excluded. I do not believe that the s. 8 breach can be disentangled from the s. 24(2) analysis.

[56] If Hanneson were not distinguishable, to follow it, I would have to disregard binding contradictory authority from the Supreme Court of Canada. In R. v. Tim, 2022 SCC 12, at para. 78, the Supreme Court held that to determine whether evidence is subject to being excluded under s. 24(2) in that it was "obtained in a manner" that breached an accused person's Charter rights, courts must take "a purposive and generous approach", examining the "entire chain of events". "Evidence will be tainted if the breach and the discovery of the impugned evidence are part of the same transaction or course of conduct". The Court further held that the necessary connection may be satisfied by a connection that is "temporal, contextual, causal or a combination of the three": "[a] causal connection is not required". The Court rejected the premise of bright-line rules in this context: "There is 'no hard and fast rule for determining when evidence obtained following the infringement of a Charter right becomes too remote".

[57] Hanneson is inconsistent with Tim in at least two ways. First, a categorical rule prohibiting the exclusion of certain types of evidence conflicts with the Supreme Court's flexible articulation of the "obtained in a manner" threshold. Second, the rule in Hanneson arose from a concern regarding the absence of a causal connection between a breach and the evidence sought to be excluded: see R. v. Ha, 2010 ONCA 433, at paras. 6-8; Kerr et al, at paras. 90-92, 102-04. In Tim, the Supreme Court held that a causal connection is not required.

[58] Tim sets out the principles I must consider to determine whether the evidence of Mr. Liu's failure to provide a breath sample is capable of being excluded under s. 24(2). There is a sufficient connection between each breach and the impugned evidence such that the evidence should be seen as having been obtained in a manner that infringed Mr. Liu's Charter rights. The ss. 8 and 10(b) breaches are contextually and temporally connected to the evidence Mr. Liu seeks to exclude. The breaches formed part of the same transaction and course of conduct as the discovery of the evidence.

2. Grant Analysis

[59] Pursuant to R. v. Grant, 2009 SCC 32, the remaining question is whether admission or exclusion of the evidence would better serve the "overall repute of the justice system, viewed in the long term". The analysis starts from the conclusion that a breach has occurred, "and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system": Grant, at paras. 68-70. The analysis considers three factors: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the accused's Charter-protected interests; and (3) society's interests in an adjudication of the case on its merits: Grant, at para. 71.

a) Seriousness of the Breach

[60] I find that the first factor strongly favours exclusion of the evidence.

[61] The search of the SUV was not a serious s. 8 breach but was also neither trivial nor technical. PC Lau could not identify any authority he had to search the SUV when he opened the door. He testified, "I do not view it to be a search". The existence of a driver's reasonable expectation of privacy in a motor vehicle has long been settled law: see e.g. R. v. Belnavis, [1997] 3 S.C.R. 341, at para. 19. PC Lau's ignorance of Charter rights enhances the seriousness of the breach. I cannot find the breach was made in good faith. PC Lau testified he suspected a far more serious offence had been committed (auto theft), and approached the investigation in a more aggressive manner than he would for an ordinary investigation into unauthorized plates. I am satisfied that the search flowed from this aggression. PC Lau had a hunch and pursued it without regard to Mr. Liu's rights.

[62] The s. 10(b) breach was serious. Mr. Liu asked to speak to counsel multiple times. The police took no steps to facilitate access to counsel. They chose to release him from the scene and held him without access to counsel for nearly one hour and 50 minutes while preparing paperwork. Police unilaterally chose to prioritize their administrative preference over Mr. Liu's Charter rights. Comments made to Mr. Liu to the effect that if he chose to exercise his rights, he would have to be brought to the station, tended to undermine Mr. Liu's Charter rights, discouraging him from exercising them.

[63] The breaches arise from independent forms of misconduct in the same course of conduct. Their effects must be considered cumulatively: see R. v. Zacharias, 2023 SCC 30, at para. 49; R. v. Truong, 2025 ONCA 69, at paras. 38-44; R. v. James, 2025 ONCA 213, at para. 37. While I do not find that police deliberately breached Mr. Liu's rights, I am satisfied that both breaches demonstrate that police were unaware of, or disregarded, Mr. Liu's rights. Collectively, the misconduct must be seen as serious.

b) Impact on Mr. Liu's Interests

[64] The second factor also strongly favours exclusion of the evidence.

[65] The s. 8 breach had only a moderate impact on Mr. Liu's Charter-protected interests. By opening the door, police were able to make observations of the inside of the SUV. Those observations were a but-for cause of a LLCA search of Mr. Liu's SUV. The impact of the search is mitigated by the fact that driving is a heavily-regulated activity, and there were likely a variety of ways in which the SUV's door could have been opened lawfully. For example, officers could have made a mandatory ASD demand under s. 320.27(1) without reasonable grounds to suspect he had alcohol in his body. This likely would have led Mr. Liu to open the door to exit the SUV.

[66] The impact of the s. 10(b) breach was significant. The Court of Appeal explained in R. v. Rover, 2018 ONCA 745, at para. 45, that lengthy delays can be inherently harmful:

The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.

[67] Mr. Liu was left in a vulnerable state: under arrest for CDSA charges and apparently about to be charged for refusing to provide a breath sample. He wanted legal advice. Police subtly discouraged him from asserting his right to counsel: he was told that if he insisted on speaking to a lawyer, he would have to submit to attending the police station. Police held him for nearly two hours at the roadside. The investigation was effectively over, so there was little risk that further investigative action would call on Mr. Liu to decide whether to cooperate. However, throughout this time, the prospect of the additional charge was left hanging over him. Although PC Chang had advised Mr. Liu that the other officers were going to charge him with failing to provide the breath sample, PC Lau gave Mr. Liu an additional opportunity to provide a sample. It appears that no one advised Mr. Liu that he was indeed being charged until he was released at around 2:28 a.m. He had been told he had the right to speak to a lawyer and had asked to exercise that right. Nothing was done to satisfy his request. All these factors combined to create an atmosphere of confusion and uncertainty in which access to legal advice was crucial. I note that the impact of the s. 10(b) breach would have been more significant if Mr. Liu had given an incriminatory statement while in custody, or if the breach had led to the discovery of evidence sought to be excluded.

[68] The cumulative impact on Mr. Liu's Charter-protected interests was significant.

c) Society's Interests in an Adjudication on the Merits

[69] The third factor strongly favours admission of the evidence. Drinking and driving offences are serious crimes that jeopardize public safety and that must be deterred and denounced through effective prosecution and punishment: R. v. Ramage, 2010 ONCA 488, at paras. 74-75. The impugned evidence proves that Mr. Liu failed to provide a breath sample. In the clearest example of his failure to comply with the demand, when an ASD was presented to him and he was asked if he would provide a sample, he responded, "of course not". Excluding the evidence would gut the Crown's case.

d) Balancing

[70] The final stage of the Grant analysis involves assessing and balancing each of the three factors, "focussing on the long-term integrity of, and public confidence in, the administration of justice": Tim, at para. 98. The question is whether admitting the evidence would bring the administration of justice into disrepute: Beaver, at para. 133. In this balancing, where the first two factors strongly favour exclusion, the third factor "will seldom, if ever" lead to inclusion; if only one of the first two factors strongly favours exclusion, the third factor becomes important. It always pushes, to varying degrees, in favour of inclusion. It does so strongly "where the evidence is reliable and critical to the Crown's case": R. v. McGuffie, 2016 ONCA 365, at paras. 62-63.

[71] I conclude that the evidence of Mr. Liu's failure to provide a breath sample must be excluded. The first two factors strongly favour exclusion. The police conduct in this case – unlawfully searching Mr. Liu's SUV and holding him for nearly two hours without taking any steps to facilitate access to a lawyer – is, when viewed cumulatively, serious misconduct that significantly impaired his Charter-protected interests. Although members of the public would be concerned about the exclusion of evidence critical to the Crown's case on a serious charge relating to drinking and driving, I find the public would be more concerned by the court's failure to take steps to disassociate itself from the conduct at issue. Admitting the evidence would do more harm than excluding it.

V. Disposition

[72] The Charter motion is allowed. Police infringed Mr. Liu's rights under ss. 8, 9 and 10(b) of the Charter. The odour of alcohol must be excised from the officers' grounds to make the ASD demand. In the absence of that evidence, the ASD demand was unlawful. A lawful demand is an essential element of the charge.

[73] In the alternative, if the arrest was lawful, the ss. 8 and 10(b) breaches require that the evidence of Mr. Liu's failure to comply with the breath demand be excluded under s. 24(2). Without that evidence, the Crown cannot prove that Mr. Liu failed or refused to comply with the breath demand – another essential element of the offence.

[74] Both excision and exclusion lead to the same result: the charge must be dismissed. Mr. Liu will be found not guilty.

Released: October 22, 2025

Signed: Justice Michael Perlin

Footnotes

[1] Mr. Liu was charged with two counts of possession under the Controlled Drugs and Substances Act, S.C. 1996, c. 19. Mid-trial, at the Crown's invitation, the charges were dismissed.

[2] At the time, officers also had identified authority for a search of Mr. Liu under the LLCA, having found the open beer can in the SUV. However, the beer-can observation was made only through the unlawful search. It must be excised from an analysis of, and was the only basis for, the grounds for the LLCA search.