Court File and Parties
Ontario Court of Justice
Date: November 5, 2025
Court File No.: Toronto Region 4810 998 23 48121819
Between:
His Majesty the King
— and —
Trevor Jerlo
Before: Justice Joseph Callaghan
Heard on: May 28, 2025 and October 6, 2025
Reasons for Decision on Charter Application released on: November 5, 2025
Counsel
M. Boissonneault — Counsel for the Crown
A. Harnett — Amicus
T. Jerlo — Self Represented Accused
Reasons for Decision
J. CALLAGHAN J.:
Overview
[1] On October 8, 2023, Trevor Jerlo was operating a motor vehicle on Jane St. in the City of Toronto, where he was stopped as part of a RIDE spot check operation. As part of the RIDE set up, a mobile booth was on scene where arrested persons could exercise their right to counsel in private and where a Qualified Breath Technician (QBT) was located to administer the breath test procedure on an approved instrument.
[2] During a brief discussion with Mr. Jerlo, Officer Mohamed Haji suspected that there was alcohol in Mr. Jerlo's body.
[3] In making a breath demand for Mr. Jerlo to provide a sample of his breath into the approved screening device (ASD), Officer Haji did not specify on which section of 320.27 of the Criminal Code he was relying. When he testified before me, he made it clear that he had relied on s. 320.27(1)(b). It appears that he erroneously believed that a demand pursuant to s. 320.27(2) was not available to him.
[4] The grounds for Officer Haji's suspicion were that when queried about the consumption of alcohol, Mr. Jerlo was hesitant in responding and there was a very strong smell of perfume emanating from the vehicle. The officer explained that based on his many years of experience, people who had consumed alcohol and then operated a motor vehicle would sometimes use perfume (or smoke cigarettes or chew gum) to mask the smell of alcohol.
[5] Despite Officer Haji's honest belief that he had reasonable grounds to suspect that Mr. Jerlo had alcohol in his body at the time of driving, it is agreed by the Crown and amicus that the officer's grounds for the demand pursuant to s. 320.27(1)(b) of the Criminal Code were insufficient to reach the level of reasonable suspicion. (Mr. Jerlo adopted amicus' positions throughout the proceedings.)
[6] After receiving a 'fail' on the ASD, Officer Haji made a breath demand. Mr. Jerlo was immediately given his rights to counsel, which he exercised in a private booth and spoke with Duty Counsel. After speaking with Duty Counsel, Mr. Jerlo was turned over to the on-site QBT where he provided two samples of his breath:
- (1) 131 mg of alcohol in 100 ml of blood
- (2) 123 mg of alcohol in 100 ml of blood
[7] Mr. Jerlo was released at the scene on a Form 9.
[8] The entire process, from vehicle stop to release, was approximately 1.25 hours in duration.
Procedural Overview
[9] Mr. Jerlo is representing himself. On May 28, 2025, prior to commencing the trial in this matter, Mr. Jerlo was given the opportunity to review the video evidence and speak with Duty Counsel. Rather than seek more time to retain counsel, Mr. Jerlo indicated his desire to proceed as scheduled, without counsel.
[10] In response to the evidence of Officer Haji, Crown counsel made it clear that in arguing the validity of the ASD demand, he would be relying on the mandatory alcohol screening (MAS) demand in s. 320.27(2), rather than s. 320.27(1)(b), the section relied upon by the officer in his testimony before me.
[11] Given the potential complexity of the legal arguments, which were novel to me, and the fact that Mr. Jerlo, who had no legal training, was representing himself, I made an order appointing amicus to assist me in understanding the issues, including the view contrary to the Crown's position.
[12] This case went over a number of months for Mr. Harnett to be selected by LAO and for amicus counsel to get up to speed, including obtaining a copy of the disclosure and the transcript of Officer Haji's evidence. Over the course of this timeframe, Crown Counsel, Mr. Boissonneault, should be commended for assisting amicus in this endeavour.
[13] Mr. Harnett, on Mr. Jerlo's behalf, filed an application alleging a breach of sections 8 and 9 of the Charter and seeking to exclude the breath readings in this case. He also filed a factum on the relevant issues to help me. I am grateful for Mr. Harnett's assistance in this matter.
[14] It is not disputed that the statutory preconditions for a valid MAS demand pursuant to s. 320.27(2) existed in this case:
- (1) Officer Haji had in his possession an approved screening device;
- (2) Officer Haji was acting in the course of the lawful exercise of his powers in conducting a valid RIDE spot check; and
- (3) Mr. Jerlo was operating a motor vehicle at the time the demand was made.
Constitutional Validity of a RIDE Stop and s. 320.27(2) Not at Issue
[15] The Supreme Court has repeatedly affirmed that, although various forms of random vehicle stops for the purpose of roadside screening under the Criminal Code (including RIDE spot checks) violate s. 9 of the Charter, they are justified under s. 1 because of the relatively short duration and slight inconvenience involved in such stops, and the compelling public objective of deterring and detecting impaired driving. [See R. v. Wright, 2025 SKCA 52 at paras. 35-36; Dedman v. The Queen, [1985] 2 SCR 2; R. v. Hufsky, [1988] 1 SCR 621; R. v. Ladouceur, [1990] 1 SCR 1257; and R. v. McColman, 2023 SCC 8 at para. 29]
[16] Further, the constitutional validity of s. 320.27(2) has not been challenged in these proceedings. Indeed, there is a broad consensus at the trial level that the MAS demand is constitutional, and earlier this year, the Saskatchewan Court of Appeal upheld the constitutionality of s. 320.27(2). [See R. v. Wright, 2025 SKCA 52 and the decisions of Justice Leszczynski in R. v. Blysniuk, 2020 ONCJ 603 and Justice Michie in R. v. Brown, 2021 NSPC 32.]
Issue
[17] Given Officer Haji's flawed reliance on s. 320.27(1)(b), can the Crown rely on the provisions of s. 320.27(2) to justify the ADS breath demand made in this case? In other words, did Officer Haji need to be subjectively motivated by s. 320.27(2) to make a demand for a breath sample lawful under that authority?
[18] Mr. Boissonneault, on behalf of the Crown, submits that the s. 320.27(2) of the Criminal Code does not require an investigating officers' subjective reliance to be valid. Rather, it only requires that they satisfy the three prescribed statutory conditions. He relies on the decision of Justice M. Heerema in R. v. Handley, 2024 NSPC 39, which factually is quite similar to the present case.
[19] Mr. Boissonneault argued that Officer Haji's breath demand remains lawful because it complied with s. 320.27(2), despite the officer's belief that he was acting pursuant to s. 320.27(1)(b) and that a MAS demand was unavailable.
[20] Amicus, on behalf of Mr. Jerlo, submitted that it is concerning that Officer Haji, an experienced officer, applied the test under s. 320.27(1)(b) incorrectly. Had he properly assessed reasonable suspicion, Mr. Jerlo would have been allowed to go on his way. Mr. Harnett pointed to the decision of Justice Cozens in R. v. Schmidt, 2023 YKTC 32, in which the court declined to allow the Crown to rely on s. 320.27(2) at trial after the investigative officer relied on reasonable suspicion in s. 320.27(1) to make the ASD demand.
Analysis
Relevant Section of the Criminal Code
[21] Section 320.27 of the Criminal Code reads as follows:
Testing for Presence of Alcohol or Drug
320.27 (1) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug:
(a) to immediately perform the physical coordination tests prescribed by regulation and to accompany the peace officer for that purpose;
(b) 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;
(c) to immediately provide the samples of a bodily substance that, in the peace officer's opinion, are necessary to enable a proper analysis to be made by means of approved drug screening equipment and to accompany the peace officer for that purpose.
Mandatory Alcohol Screening
(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle 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 that device and to accompany the peace officer for that purpose.
[22] It is clear that the reasonable suspicion requirements in s. 320.27(1) ("reasonable grounds to suspect") must be established on both a subjective and objective basis. The subjective standard is satisfied when an officer testifies to having an honestly held suspicion that the person had alcohol or a drug in their body. The objective standard is satisfied when the Crown can point to factors that establish that this suspicion was reasonable. [See R. v. Bernshaw, [1995] 1 SCR 254 at para. 62]
[23] In contrast, a plain reading of the preconditions for a MAS demand made under s. 320.27(2) suggests there is no similar subjective element.
[24] To prove the preconditions for a MAS demand, the Crown must prove that:
- (1) The peace officer who made the demand was in possession of an Approved Screening Device;
- (2) The officer was acting in the lawful execution of their duties; and
- (3) The suspect was operating a conveyance.
[25] If these three simple, easy to understand preconditions are met, a MAS demand is legally valid.
Rationale for s. 320.27(2)
[26] The introduction of the MAS demand in s. 320.27(2) unquestionably expanded the ability of peace officers to make ASD demands. While the constitutionality of s. 320.27(2) is not being challenged in the case before me, it is helpful when analyzing this section to understand its purpose, as Parliament intended. As Justice R. Michie noted in Brown, in upholding the constitutionality of s. 320.27(2):
There can be no reasonable argument that the purpose of s. 320.27(2) of the Code, to deter, detect and remove impaired drivers from the streets and highways of Canada is highly compelling. Despite the efforts of government and society over decades, impaired driving remains the most significant criminal cause of death in Canada. This legislative purpose or intent is clear from the preamble to Bill C-46 and s. 320.12 of the Criminal Code.
The preamble of Chapter 21 states in part:
Whereas dangerous driving and impaired driving injure or kill thousands of people in Canada every year;
Whereas dangerous driving and impaired driving are unacceptable at all times and in all circumstances;
Whereas it is important to deter persons from driving while impaired by alcohol or drugs;
Where it is important that law enforcement officers be better equipped to detect instances of alcohol-impaired or drug impaired driving and exercise investigative powers in a manner that is consistent with the Canadian Charter of Rights and Freedoms.
Whereas it is important to simplify the law relating to the proof of blood alcohol concentration;
Whereas it is important to protect the public from the dangers posed by consuming large quantities of alcohol immediately before driving;
Whereas it is important to deter persons from consuming alcohol or drugs after driving in circumstances where they have a reasonable expectation that they would be required to provide a sample of breath or blood;
Whereas it is important that Federal and Provincial laws work together to promote the safe operation of motor vehicles;
And whereas the Parliament of Canada is committed to adopting a precautionary approach in relation to driving and the consumption of drugs, and to deterring the commission of offences relating to the operation of conveyances, particularly dangerous driving an impaired driving.
Section 320.12 of the Criminal Code sets out the objectives of detection and deterrence, and states, in part:
It is recognized and declared that
Operating a conveyance is a privilege that is subject to certain limits in the interests of public safety that included licensing, the observance of rules and sobriety;
The protection of society is well served by deterring persons from operating conveyances or while their ability to operate them is impaired by alcohol or a drug, because that conduct poses a threat to the life, health and safety of Canadians;
[See Brown at paras. 42-44]
[27] Justice Leszczynski, in his comprehensive decision upholding the constitutionality of s. 320.27(2), provided helpful context regarding the rationale for MAS demands:
…The personal and informational privacy interests of an individual who is operating a motor vehicle in their blood alcohol concentration as measured by an approved screening device administered pursuant to the statutory requirements of s. 320.27(2) is, at its highest, a minimal and residual privacy interest. The pressing and substantial objectives of the law aimed at increasing the rate and reliability of detection and increasing deterrence are met by eliminating suspicion-based testing, which has proven to be unreliable in many circumstances, with a screening method that is scientifically-accepted and reliable …Section 320.27(2) contains appropriate restrictions on when and in which circumstances the police may conduct this screening (lawful stop, present operation of a motor vehicle, and the approved screening device in the officer's possession), as well as, the limited use that can be made of the results (only as a screening measure and not to establish guilt). If charges are laid against an individual, there is judicial oversight through a trial where the defence can challenge the lawfulness of the stop, lawfulness of the demand and the search itself. While there is the potential for the disproportionate application of this law against racialized and other marginalized populations, this can also be said of the former s. 254(2). In many ways s. 320.27(2) serves to increase overall fairness by removing the subjectivity involved in the prior suspicion-based testing…
[See Blysniuk at para. 66, emphasis added; see also R. v. Switenky, 2020 SKPC 46 at para. 9.]
Sections 320.27(1) and 320.27(2) Are Not Mutually Exclusive
[28] There is nothing in the legislation that creates a hierarchy of demands, requiring an officer to rely upon subsection (1) prior to resorting to subsection (2). Indeed, neither section relies on the other when prescribing conditions precedent to an officer's exercise of their ASD demand powers. They are mutually exclusive.
[29] Other courts have come to similar conclusions.
[30] In R. v. Dirksen, 2020 ABQB 363, Justice Belzil, sitting as a summary conviction appeal judge, found that the two ASD demand provisions in s. 320.27 are not mutually exclusive. In that case, the demanding officer made an initial demand pursuant to s. 320.27(2); however, when the accused refused to provide a proper sample, the officer made a demand under s. 320.27(1), erroneously believing that a refuse charge could only arise from a demand made under subsection (1). Justice Belzil concluded that there is nothing in the wording of s. 320.27 preventing an investigating officer from making use of the demand provisions in both subsections and the officer's erroneous understanding of the Criminal Code did not change the legal consequences of her interaction with the accused. [See Dirksen at paras. 25-33; see also R. v. Chisholm, 2022 ONCJ 462 at para. 2; R. v. Morris-Rainford, 2020 ONCJ 447; Hayley Bradley v. Her Majesty the Queen, 2022 NBQB 31; and R. v. Thome, 2020 SKPC 36]
[31] In R. v. Monet, 2025 ONCJ 242, Justice Monahan, in finding that the demanding officer had the requisite reasonable suspicion to make a s. 320.27(1)(b) demand, noted that given the criteria for a MAS demand had also been met, the officer had grounds under both subsections of 320.27 to make an ASD demand. [See Monet at para. 11]
An Officer Is Not Required to Declare Which Subsection of 320.27 They Are Relying Upon to Make an ASD Demand
[32] In my view, there is nothing in the legislation that requires an investigating officer to declare, either to the suspect driver or in their testimony in court, on which subsection they relied in making an ASD demand. Rather, the law requires that for a demand to be lawful, it must meet the preconditions of one of the two subsections in s. 320.27.
[33] In R. v. Rahmanian, 2024 ONCJ 411, another case involving a RIDE stop, Justice Ghosh found that the officer had a reasonable suspicion sufficient to make a demand under s. 320.27(1)(b). However, he also found that the officer could rely on s. 320.27(2), even without expressly invoking it:
[25] The mandatory alcohol screening provision has been repeatedly found to be constitutional. The Charter permits the police to employ this investigatory step without any grounds whatsoever. The police must simply comply with the statutory requirements before demanding that a driver provide an alcohol screening sample of breath.
[26] Officer Samuel clearly satisfied all statutory preconditions before relying on the mandatory screening authority. Mr. Rahmanian was "operating a motor vehicle". In conducting a driver sobriety check, the officer was in the "lawful exercise" of his duties. The officer had an approved screening device in his "possession". There was an "immediate" demand and ensuing screening process.
[27] The Applicant does not submit that the officer was required to expressly invoke the mandatory screening power to the driver at roadside. Neither the Criminal Code nor the Charter requires such notification. Constable Samuel notified Mr. Rahmanian that he was conducting a sobriety check and immediately issued a lawful screening demand.
[28] Rather, the Applicant submits that the Code and the Charter required that the officer "declare" during testimony that he had relied on the mandatory alcohol screening authority in s.320.27(2). It is submitted that given the power to extract a screening sample without grounds, thereby challenging privacy and arbitrariness protections, a proper balancing of Charter interests minimally requires a declarative invocation of the mandatory authority. We have not found any jurisprudence directly determining this issue, but this cannot be the law.
[29] The earlier referenced law supporting that the police are not required to testify using any "magic words" to establish the "reasonable suspicion" for a screening demand applies more powerfully where the same step is also authorized without any grounds. To draw from the dated terminology for the "reasonable suspicion" standard – Where the police do not need "articulable cause" to use an investigatory tool, they cannot then be Charter- bound to "articulate" their reliance on it, especially given no "cause" is required. The Charter demands substance over form.
[See Rahmanian at paras. 25-29]
[27] In the case before me, the fact that Officer Haji testified that he made the ASD demand of Mr. Jerlo under s. 320.27(1)(b), and believed he could not meet the requirements of s. 320.27(2), should not preclude me from considering all the evidence to determine if the preconditions for a MAS demand in 320.27(2) had been met.
A MAS Demand Does Not Require Subjective Motivation
[34] Unlike in s. 320.27(1)(b), there is nothing in the wording of s. 320.27(2) that places an obligation on an investigating officer to form subjective grounds prior to making a MAS demand. On the contrary, as noted earlier, subsection (2) establishes a purely objective set of preconditions for a MAS demand to be valid.
[35] In my view, given Parliament's intention to simplify and improve the detection of impaired drivers by allowing police to make ASD demands without relying on sometimes flawed roadside assessments, it does not make sense to read in an additional subjective requirement for the use of s. 320.27(2) to be lawful.
[36] I found the decision of Justice Heerema in Handley, to be particularly persuasive on this issue. The issue at trial in Handley, and the issue before me, was whether the Crown can rely on the provisions of s. 320.27(2) to justify the ASD demand, despite the investigating officer's subjective reliance on s. 320.27(1)(b).
[37] In Handley, the investigating officer pulled over the accused driver in response to a call from a concerned citizen. After a short interaction with the accused, the officer made an ASD demand. In her evidence at trial, the officer testified that in making the demand, she had a reasonable suspicion that the accused had consumed alcohol.
[38] In that case, and in the case before me, the accused was not told specifically that a breath sample was being demanded under the authority of s. 320.27(1)(b).
[39] And in both cases, the accused (Mr. Handley and Mr. Jerlo) were found operating a motor vehicle by an officer engaged in a lawful traffic stop who had an approved screening device in their possession. After a short interaction with the drivers, the officers made a demand for the driver's breath without reference to either subsection.
[40] Further, in both cases, all parties agreed that the evidence that informed the officer's reasonable suspicion was objectively insufficient; however, the preconditions for a demand pursuant to s. 320.27(2) had been met.
[41] In the present case, while I accept that Officer Haji subjectively believed, based on his experience, that he had met the reasonable suspicion standard, I agree with counsel that the constellation of objectively discernible facts did not support his honest belief. I also agree with the parties that the preconditions to a MAS demand pursuant to s. 320.27(2) had been met.
[42] In my view, the fact that the officer had insufficient grounds to make a demand pursuant to s. 320.27(1)(b) and did not appreciate that he could have made a demand under s. 320.27(2), does not preclude my assessment of the objective facts. The preconditions to a valid MAS demand clearly existed at the time Officer Haji engaged Mr. Jerlo and made the ASD demand.
[43] Like Justice Heerema in Handley [see paras. 38 to 45], I fail to see how Officer Haji's "mistaken, but unvocalized" reliance on s. 320.27(1)(b) invalidates what is otherwise plainly lawful under s. 320.27(2). Accordingly, I find the ASD demand made by Officer Haji was lawful and did not breach Mr. Jerlo's Charter rights. [See also R. v. Wynn, 2024 NSPC 51 at paras. 19-22]
[44] Further, unlike R. v. Haqyar, 2019 ABPC 195, the information before me did not particularize the section under which the demand was made.
[45] Finally, I decline to follow R. v. Schmidt, 2023 YKTC 32, which has subsequently been overturned, albeit with the reviewing justice declining to opine on the issue before me. [See R. v. Schmidt, 2024 YKSC 18]
If There Was a s. 8 Breach, I Would Not Exclude the Evidence Under s. 24(2)
[46] If I am wrong and the ASD demand in this case was unlawful, then a s. 8 breach occurred. In this alternative situation, a s. 24(2) analysis is required to determine whether the "fail" should be excluded from the evidence.
[47] The first factor under the Grant analysis requires an assessment of the seriousness of the state infringing conduct and the need for the Court to disassociate itself from it.
[48] In the case before me, I do not find that Officer Haji's conduct was driven by bad faith or wilful disregard for Mr. Jerlo's rights. On the contrary, I find that Officer Haji was otherwise respectful of Mr. Jerlo and his Charter protected rights throughout his dealings with the accused. As noted earlier, I find that Officer Haji subjectively and honestly believed he had met the standard for reasonable suspicion.
[49] Further, I adopt the reasons of Justice Fiorucci in R. v. Campbell, 2022 ONCJ 571, in which he explained how the existence of s. 320.27(2) has some relevance at the first stage of the Grant analysis:
Furthermore, if I am in error in finding that the requisite reasonable suspicion existed for the ASD demand to be made pursuant to s. 320.27(1)(b), the existence of a statutory basis under s. 320.27(2) to make the demand without any grounds in these circumstances attenuates the seriousness of the Charter breach. The seriousness of the breach would be at the inadvertent or minor end of the spectrum.
[See Campbell at para. 40, emphasis added]
[50] I conclude that the first factor only weakly favours exclusion.
[51] Turning to the second factor, I must consider the impact of the breach on the interests of the accused, and I must do so using the broader lens as explained by the Supreme Court of Canada in R. v. Zacharias, 2023 SCC 30 at para. 57. In this case, I must consider that the accused was detained for approximately 1.25 hours and was required to provide samples of his breath. Unlike many impaired cases, however, Mr. Jerlo was never transported to the police station in handcuffs and detained for hours.
[52] I find that this factor under Grant only moderately favours exclusion.
[53] Turning to the third Grant factor, I find that society's interest in an adjudication on the merits is significant. Indeed, impaired driving remains a scourge on our society, leaving far too many broken families and destroyed lives. This factor strongly favours admission.
[54] Finally, when balancing the Grant factors, I find that the admission of the evidence would better serve the truth-seeking function of the criminal trial process and society's interest in the adjudication of the case on its merits. Indeed, I find that in the circumstances of this case, the exclusion of the breath test evidence would damage the long-term repute of the criminal justice system.
[55] Accordingly, I dismiss the Charter application filed by amicus on behalf of Mr. Jerlo.
Released: November 5, 2025
Justice Joseph Callaghan