DATE: February 6, 2026
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
TARLAN MED-NEJAD
Before Justice Michael Waby
Heard on 8 th & 9 th July, 2025 and 14 th & 15 th January, 2026
Reasons for Judgment released on 6 th February, 2026
H. Duhme................................................................................................................... for the Crown
P. Lindsay ............................................................................................................... for the Accused
Waby J.:
[ 1 ] Tarlan Med-Nejad is charged with a single count of unlawfully refusing to provide a breath sample. The Crown proceeded summarily and Ms Med-Nejad pleaded not guilty.
[ 2 ] Date, time, jurisdiction and identity are not in issue in this case. Nor is the fact that the Accused was the driver of the motor vehicle in question and had been shortly before the single car accident that resulted in the deployment of its air bags.
[ 3 ] Defence counsel filed various Charter applications and sought the exclusion of evidence, namely the actus reus of the refuse, under s 24(2) of the Charter of Rights and Freedoms based upon alleged breaches of Ms Med-Nejad section 7, 8, 9 and 10 & 12 Charter rights. In the alternative the Accused seeks a stay of proceedings based upon the Charter breaches that she submits occurred.
[ 4 ] On consent, at trial a blended voir dire was conducted with the relevant and admissible evidence to be applied to the trial proper.
[ 5 ] With respect to the Charter applications the Crown submits that the Accused’s Charter rights were not breached but that if the Court finds that they were, then the evidence should be admitted following a Grant analysis under s. 24(2).
[ 6 ] Few, if any, of the actual facts in this particular case are in dispute. The encounter between Ms Med-Nejad, her mother and the officers is captured on BWC or ICC and is testament to the value of such independent and objective footage as an historian of key events in this particular case. The central focus of this case is on the alleged Charter breaches and how to approach them if they occurred.
Overview
[ 7 ] At approximately 8:42pm, on June 6, 2024 a civilian witness called 911 to report a collision between a Silver BMW and a Red Mercedes. The civilian witness provided a description of the driver of the Silver BMW to police dispatch, and informed dispatch that he believed the driver of the Silver BMW was drunk. He advised dispatch that the Red Mercedes left the scene, but the Silver BMW remained.
[ 8 ] At or around 10:27pm , Officer Vahey and Officer Tran arrived on scene. The Silver BMW was still at roadside partly on the curb. There were no occupants inside and the airbag was deployed. A Lexus motor vehicle was also on scene, parked behind the Silver BMW at roadside. The Applicant and her mother were sitting in the Lexus.
[ 9 ] At about 10:31pm , P.C. Vahey spoke to the two occupants of the Lexus and observed a strong odour of alcohol coming from the passenger side of the vehicle, where the Ms Med-Nejad was sitting . Subsequent to this the officers spoke again to the civilian witness.
[ 10 ] It is not disputed that Ms Med-Nejad was the driver of the Silver BMW nor is it disputed that the officers formed legitimate grounds to require her to provide a sample of her breath at the roadside into the ASD the officers had with them. In her evidence at trail Ms Med-Nejad accepted that she was the driver of the Silver BMW, that she had consumed a considerable amount of alcohol that evening and that she refused to provide a breath sample through fear that she may fail it and incriminate herself.
[ 11 ] As the video footage makes patently clear and as Ms Med-Nejad also accepted in her evidence, she became rude, belligerent and obstructive towards the officers and their requirement of her to provide the breath sample. At trial she described this behaviour as being out of character. Over the course of several minutes PC Vahey explained the requirement to provide the breath sample and the consequences of failing to do so. Ms Med-Nejad variously advises the officer several times that she did not have ‘probable cause” for the demand, and she was not going to be detained. She repeatedly asserted that the officers had not seen her driving the vehicle.
[ 12 ] Ms Med-Nejad called to her mother who was standing nearby several times to tell her to call a criminal lawyer as the police ‘were harassing me.” PC Vahey repeatedly explained to the Accused the consequences of failing to comply with the demand. Ms Med-Nejad replied ‘take it to court.”
[ 13 ] During the ongoing belligerent exchange the Accused asked PC Vahey if she was being detained and she was told that she was. A further exchange occurred during which Ms Med-Nejad asked a number of times whether she was being arrested and PC Vahey sought to explain that she was not under arrest but she was detained for the purpose of providing the breath sample.
[ 14 ] At the third time of asking “ Am I being arrested?” the Accused then stated “ then I’m free to go” and attempted to walk past PC Vahey and away from her vehicle and the officers. At this point PC Vahey then stopped Ms Med-Nejad and, after a brief struggle, placed her in handcuffs and seated her in the rear of the scout car with the rear door left open.
[ 15 ] Ms Med-Nejad was advised by PC Vahey that she was placed in handcuffs as she had tried to leave the scene. The officer made a further demand of the Accused to provide a sample of her breath. Again, Ms Med-Nejad refused and told the officer she was not operating a motor vehicle and had not been drinking. On two further occasions PC Vahey held up the ASD to the Accused and provided her with the opportunity to provide a breath sample. Ms Med-Nejad variously responded “take it to court” and that the officer didn’t have “probable cause”. When asked whether she was aware of the consequences of failing to comply with the demand she replied “sure.” It is clear that even at this late stage, had Ms Med-Nejad simply provided the sample as required and it had registered a pass, she would have been uncuffed and released from the scene. Unfortunately, Ms Med-Nejad chose not to pursue this sensible course.
[ 16 ] At approximately 10.48 p.m. the Accused was arrested for failing to comply with a breath demand and was given her rights to counsel. She advised that she did wish to speak to a lawyer and again loudly instructed her mother to call a criminal lawyer.
[ 17 ] PC Vahey subsequently processed Ms Med-Nejad and completed the required paperwork at the roadside while the Accused remained handcuffed and in the rear of the scout car. At approximately 11.38 p.m. Ms Med-Nejad’s handcuffs were removed and she was released from the scene in the company of her mother.
[ 18 ] The case for the Crown is advanced through the viva voce testimony of PCs Vahey and Tran, certain portions of video footage from their BWCs and in-car video. The defence called Ms Med-Nejad.
Position of the Parties
[ 19 ] Mr Lindsay accepts that the officers had a basis to make the breath demand of Ms Med-Nejad and that such a demand was lawful and that there was not a breach of her s.8 Charter rights in this case. I agree. There was no breach of the Accused s8 Charter rights.
[ 20 ] Mr Lindsay submits that on the evidence before the court, officers subjected Ms Med-Nejad to unnecessary and unreasonable force and that her s7 and s 12 Charter rights were breached. He further argues that she was detained and questioned without being advised of her rights to counsel or the opportunity to exercise that right and her s 7, 9 & 10 Charter rights were breached. Mr Lindsay submits that there was a de facto arrest of Ms Med-Nejad earlier than 10.48 p.m. which triggered her rights to counsel.
[ 21 ] Defence counsel seeks an order for the exclusion of the evidence, namely the refusal by Ms Med-Nejad to provide a breath sample and in the alternative he seeks a stay of proceedings pursuant to s 24(1).
Unreasonable force and handcuffing
[ 22 ] I shall first deal with the issue of whether the officers used unnecessary or excess force in their dealing with Ms Med-Nejad and whether the application of handcuffs to her in this case was proportionate.
[ 23 ] It is trite law that the police are entitled to use reasonable force in the execution of their duties. This includes preventing someone escaping from their custody, R v Nasogaluak , 2010 SCC 6 at para 32 .
[ 24 ] I accept that it is the defence position that Ms Med-Nejad was arrested earlier than the officers or the Crown suggest and that the so called “first arrest” occurred earlier in the encounter. For reasons that I shall subsequently address, I do not find that this was the case. I find that the Accused was arrested at 10.48 pm when she was detained in the rear of the scout car and given her rights to counsel by PC Vahey.
[ 25 ] In R v Aucoin 2012 SCC 66 , the Supreme Court of Canada set out the test for someone who is not under arrest being detained in the rear of a police car and whether such a course is reasonably necessary in the circumstances of the particular case. In this case the Crown submits the evidence is clear that a combative Ms Med-Nejad gave every indication of leaving the scene when she began to walk away from the officers accompanied by the words “then I’m free to go.”
[ 26 ] Mr Lindsay submits that the surrounding circumstances made it clear the Accused did not intend to leave or flee the scene. He points to Ms Med-Nejad having her small dog with her along with her mother being at the scene and her motor vehicle. Defence counsel submits the actions of PC Vahey were unnecessary and disproportionate.
[ 27 ] R v Aucoin makes it clear that the test to be applied is whether the officers’ actions were reasonable necessary within the constellation of facts in each particular case. It was clear from the evidence of PC Vahey that she was concerned about the Accused leaving the scene. This however is not by itself sufficient to justify her handcuffing the Accused and placing her in the rear of the scout car.
[ 28 ] It is clear from the video footage available in this case that Ms Med-Nejad was hostile and combative over a sustained period of time to PC Vahey, with whom she had most of her interaction. While I acknowledge that with hindsight Ms Med-Nejad accepts her very poor conduct, I would observe that in light of the available video evidence there is little scope for doubt about that.
[ 29 ] For several minutes prior to her handcuffing Ms Med-Nejad was hostile and uncooperative and frequently raised her voice at the officers while inaccurately challenging the legality of their actions and pacing around the scene. She did so while maintaining in the face of evidence to the contrary available at the time, that she had neither been drinking alcohol nor driving the silver BMW that night.
[ 30 ] Furthermore, in close physical proximity to the officers and the Accused was Ms Med-Nejad’s mother who frequently interjected loudly and verbally into proceedings and with whom Ms Med-Nejad was speaking and giving instructions while the officers were attempting to engage with her. The Accused’s conduct was sustained and determined. It is clear that she was determined to try and control both the scene and the situation and it seems apparent that once she had deemed it appropriate for her to leave the scene she began to do so despite being given clear instructions to the contrary.
[ 31 ] The video makes it clear that PC Vahey struggled at times to control the scene and the actions of the Accused. In fairness I accept that PC Vahey at the time of this incident was a relatively young and inexperienced officer but I find that for any officer Ms Med-Nejad would have been challenging to manage given her behaviour that night. I accept Mr Lindsay’s observation that PC Vahey was accompanied by a male colleague who would have been able to assist her had matters escalated further.
[ 32 ] The unarguable reality is that police officers frequently find themselves in rapidly evolving, dynamic and potentially dangerous situations in which they are required to make timely decisions. A multitude of factors will influence those decisions, including their training, and past experiences. It is neither in the interests of an accused nor the officers to run the unnecessary risks of a physical encounter that may result in injury or worse to anyone involved. Once such an encounter begins it can escalate rapidly and in unforeseen and significant ways with potentially serious consequences.
[ 33 ] On the evidence before me officers made a lawful breath demand of Ms Med-Nejad. PC Vahey acted reasonably and was not hostile or unprofessional in her engagement with the Accused. Nor was her colleague PC Tran. While PC Vahey may have become flustered during her dealings with the angry and combative Ms Med-Nejad, she did not act inappropriately. The Accused frequently raised her voice , talked over the officer, refused to comply with instructions and actively engaged with her mother who was physically proximate at the scene while PC Vahey sought to deal with her.
[ 34 ] However understandable it may be for a parent to be concerned about the welfare of their child, Ms Med-Nejad’s mother would have been well advised to avoid involving herself as she did in the officer’s dealings with the Accused and haranguing them. Her close physical presence and interventionist manner further unnecessarily escalated the temperature at the scene and reasonably added to concerns that the officer had. I accept that Ms Med-Nejad had her small dog with her and note that she attempted to leave the scene while taking her dog with her.
[ 35 ] The best guide to Ms Med-Nejad’s intentions were her observable words, actions and demeanour over the course of time in the face of reasonable and proportionate direction by the officers. The fact that this scenario could have been even more combative or even more fraught with the addition of more characters or fewer officers does not in my view detract from the reasonableness of the officer’s actions in this case. The investigation related to a possible criminal impaired driving charge following an accident rather than a simple HTA investigation and Ms Med-Nejad actions rendered this driving related investigation considerably less than straightforward.
[ 36 ] Ms Med-Nejad gave every indication of leaving the scene had PC Vahey not restrained her as she did. The officer was firm but not violent and I am satisfied on the facts before me that it was necessary and reasonable for Ms Med-Nejad to be both handcuffed and placed in the rear of the scout car as she was. She was not taken to the ground, no additional use of force techniques were deployed on her , she was not subject to any threats of additional force.
[ 37 ] The rear door of the scout car was left open throughout the time the Accused was in the police vehicle and PC Vahey was courteous to Ms Med-Nejad in her dealings once she had been placed inside. The officer provided her with several further opportunities to provide a breath demand, despite the robustly expressed intention of the Accused to not do so.
[ 38 ] I do not consider that there was any other reasonable course of action open to the officer in the face of Ms Med-Nejad’s conduct short of the one PC Vahey pursued. Indeed, doing so led to the to de-escalation of this challenging and volatile situation and contributed to the safety of all parties in this case.
[ 39 ] I am satisfied on the evidence before me that the application of any force by the officers to the Accused was minimal, necessary and proportionate. The handcuffing in this case was not inappropriate and nor was the placement of Ms Med-Nejad in the rear of the open doored scout car given her behaviour which culminated in her self-declared intention to leave the scene and her physical attempt to do so. I also find that any accompanying pat down search of Ms Med-Nejad or her purse while so detained was necessary and reasonable in the circumstances
[ 40 ] The courts rightly need to guard against inappropriate and over-zealous actions on the part of police officers and never more so than when it concerns the use of force or detention of those who are not under arrest. In Ms Med-Nejad’s case I do not find that her s 7 or s 9 or s 12 Charter rights were breached by the officers and there is nothing in relation to their conduct in this regard that would merit or result in the exclusion of evidence nor a stay of proceedings.
Alleged Section 10 (a) and (b) Charter Breaches
[ 41 ] Mr Lindsay submits that Ms Med-Nejad was effectively arrested at approximately 10.41 p.m. after she advises the officer that she is leaving the scene and is handcuffed by the officer. He submits that this arrest then triggers Ms Med-Nejad’s rights to counsel of which PC Vahey did not inform the Accused nor implement. Defence counsel argues this breached the Accused’s 10 (a) and 10 (b) Charter rights. In the alternative, Mr Lindsay submits that if the Court finds Ms Med-Nejad was arrested later than this, her s 10(b) Charter right were still violated and should still result in the exclusion of evidence, namely the prior refusal.
[ 42 ] The Crown submits that the arrest of Ms Med-Nejad did not occur until she was arrested for failing to provide a sample at 10.48 p.m. and that the Accused s 10 Charter rights were not breached.
[ 43 ] As the video footage indicates and as I have previously alluded to, Ms Med-Nejad was extremely voluble and combative in her engagement with the officers and extremely dogmatic in her, erroneous, belief of both the law and the powers of the officers in the circumstances that pertained to her. I was clear that at one point in the encounter with the Accused PC Vahey became flustered when dealing with Ms Med-Nejad and mistakenly advises her when she tries to leave the scene that she is under arrest.
[ 44 ] It is clear that the officer misspoke in the course of the loud and challenging exchange with the Accused while trying to manage her behaviour.
[ 45 ] I am satisfied that on the basis of the clear video footage, as well as the evidence of PC Vahey that she quickly corrected this mistake and made it clear to Ms Med-Nejad that she was ‘ detained” and not under arrest. It is also clear that despite her evidence to the contrary Ms Med-Nejad understood that she was ‘ detained “ rather than under arrest and the Accused was robust in asserting this to PC Vahey both before and after she was handcuffed. I accept Mr Lindsay’s submission that the words officers use are important. So too is the context in which they are used and the surrounding circumstances.
[ 46 ] While Ms Med-Nejad did a lot more talking than listening during her initial exchanges with PC Vahey I am satisfied that she appreciated that the officer corrected her mistake and affirmed her understanding that she was detained and not under arrest. I am also satisfied Ms Med-Nejad clearly understood why she was detained and that it was because she was required to provide a breath sample.
[ 47 ] At several point in his submissions and comprehensive materials Mr Lindsay submits that PC Vahey either tailored her evidence or was disingenuous. I did not find this to be the case. While I entirely accept that PC Vahey needs to usefully spend some time reviewing TPS policy and the law on when rights to counsel may be implemented, I found her to be an honest, if occasionally nervous witness who was not always equal to the rigours of cross examination at the hands of a very experienced counsel. Whatever else the officer did she did not act in bad faith.
[ 48 ] Importantly her evidence with respect to when the arrest actually occurred is corroborated by the video footage. At 10.41 p.m. after the initial mistaken comment, it shows PC Vahey confirming to Ms Med-Nejad that she is not actually under arrest. Further at 10.44 p.m. the video captures the officer advising dispatch that she has someone detained for the purpose of “trying to get her to comply with providing a breath demand”. This accords entirely with the officer’s evidence and what clearly transpired.
[ 49 ] I am satisfied that the time of arrest of the Accused was at 10.48 p.m. after Ms Med-Nejad had been provided numerous opportunities to provide the breath sample and had unambiguously refused to do so. I reject Ms Med-Nejad’s evidence that she was confused and reject that she would in fact have given a sample had she been provided with yet another opportunity to do so. It is abundantly clear that she had no intention of providing a breath sample to the officer that night and her words and actions make that clear. Given Mr Lindsay’s submissions this also addresses the issue of any alleged 10(a) Charter breach which I do not find occurred.
[ 50 ] It is well settled that an accused does not have the right to counsel prior to complying with a lawful ASD demand. Although the person is detained, their right to counsel is implicitly suspended because of the requirement that they comply with the demand immediately. he suspension of the right to counsel is justified under s 1 of the Charter , R v Thomsen , [1988] 1 SCR 640 at paras 19 , 22.
[ 51 ] This limitation on the right to counsel may be qualified in certain circumstances, such as when an officer does not have the ASD with them at the scene. That was not the situation in this case. PC Vahey had the ASD with her at the scene and made it available moments after making the demand for the breath sample. I find that there were no circumstances in this case that would have justified Ms Med-Nejad delaying the provision of her breath sample prior to consulting counsel and nor would it have been reasonable for PC Vahey to seek to facilitate that prior to the provision of the breath sample, or its refusal as was the case here.
[ 52 ] I accept that Ms Med-Nejad directed her mother to contact a criminal lawyer prior to her arrest and her final refusal to provide sample. The video footage also shows Ms Med-Nejad’s mother telling her after her arrest that she called a lawyer but “he’s not called back”. There is no evidence before the Court to suggest that any counsel attempted to speak with Ms Med-Nejad at the roadside at any point prior to her release. As such I am not confronted with a scenario in which officers had to manage such a request to speak with a lawyer who was contacting the Accused.
[ 53 ] While I accept that PC Vahey misunderstood whether she had any obligation to ever facilitate roadside access to counsel and she accepts that after this incident she may approach things differently if that scenario arose, the reality is that in this case not only did the situation not arise but both the requirement in this case to provide a sample immediately as well as Ms Med-Nejad’s behaviour would not have justified any such hypothetical request. This would be the reality even had the arrest occurred earlier, although it is clear that was not the case here.
[ 54 ] Mr Lindsay also submits that there was not a final refusal by Ms Med-Nejad in this case and has cited a number of cases that support his argument as to how the evidence in this case should be treated. I find R v Mandryk 2012 ONSC 3964 and the other cases cited by Mr Lindsay to be factually distinguishable from the case at bar.
[ 55 ] I do not accept that there was anything ambiguous about Ms Med-Nejad’s sustained refusal to provide a breath sample. Once again, I turn to the video footage which captures the behaviour of the Accused. It culminates at 10.47 pm when the officer has made three previous demands with Ms Med-Nejad swearing and shouting at the officer and again yelling that she will not provide a sample and the officer has “no probable cause.”
[ 56 ] PC Vahey then exhibits a notable degree of patience and after calmly repeating the demand and the consequences of failing to do so she tells Ms Med-Nejad she will give her one further minute within which to provide the sample. PC Vahey stands silently while Ms Med-Nejad defiantly stares at her and after the allotted minute she then tells the officer to “take it to court” and emphatically refuses the sample yet again.
[ 57 ] I have no hesitation in concluding that the refusal was unambiguous and Ms Med-Nejad was resolutely determined to not provide a sample to PC Vahey under any circumstances. Despite her evidence at trial to the contrary, the video evidence again is the best available evidence and it clearly contradicts the Accused’s evidence.
[ 58 ] At 2248 hours Ms Med-Nejad is arrested and then given her rights to counsel from PC Vahey’s memo book immediately following the arrest. She indicated that she does wish to speak with a lawyer and again directs her mother to call one and her mother replies that she has done so but the lawyer has not responded. After this, the Accused remains in the rear of the scout car while PC Vahey prepares all of the relevant paperwork and conducts the necessary checks to facilitate Ms Med-Nejad release from the roadside.
[ 59 ] During the course of the time in the scout car and prior to her release Ms Med-Nejad does not complain of any physical discomfort and the officer has limited engagement and conversation with her and does not seek to elicit any evidence from the Accused after her arrest. The video footage also makes it clear that the officers’ actions in continuing to keep Ms Med-Nejad handcuffed and keeping her in the rear of the open doored scout car were justified in the context of her earlier behaviour and indeed gradually had the effect of calming Ms Med-Nejad down as she eventually became accepting of her situation.
[ 60 ] By the time she was signing her release paperwork Ms Med-Nejad had regained her composure and was civil with the officers. She was also sufficiently in control of herself to engage in a conversation with them about whether she could change the dates of her appearances for court and fingerprints. It is also notable that during this exchange that once her daughter was outside the scout car once again, her mother continued to harass the officers and interject and interrupt the release process and had to be directed to move away from them. I find that this reinforced the wisdom of the officer’s initial decision to place Ms Med-Nejad in the scout car and keep her there while the paperwork was being processed.
[ 61 ] During the release process PC Vahey continued to be polite to Ms Med-Nejad and acted professionally and diligently in processing her release and answering her questions. The officer’s focus was clearly on processing Ms Med-Nejad and releasing her from the scene expeditiously. On the totality of the evidence before me, including t the compelling video evidence, I am satisfied that Ms Med-Nejad’s s 10(b) rights to counsel were not breached.
[ 62 ] In the alternative, if I am mistaken then pursuant to my Grant analysis under s24(2) I would still admit the evidence in this case, namely the repeated and sustained refusal by Ms Med-Nejad to provide a breath sample.
Seriousness of Breach
[ 63 ] If there was a breach of the Accused 10(b) Charter rights, I find that the context in this case places its seriousness very much at lower end of scale. Any alleged breach occurred after arrest and after the completion of the offence. Following arrest, the Accused was immediately given her rights to counsel and was cautioned. She indicated that she understood those rights. She repeated her instruction to her mother to contact a criminal lawyer and was told by her mother that she had done so. I accept that during this release process the officer did not take additional steps to connect the Accused to counsel .
[ 64 ] For the period after the arrest the officer is processing the Accused and facilitating her release PC Vahey advised the Accused what she was doing throughout. I accept that the presence of the Accused’s mother and her conversations about counsel with Ms Med-Nejad do not relieve the police of their responsibilities to implement rights to counsel when required. Nevertheless, it was clear that the Accused had clearly indicated her request for a lawyer and her mother facilitated that. The officers did nothing to impede this communication or instruction. The reality is that despite her mother acting as instructed by Ms Med-Nejad, and calling counsel given the time of day, no lawyer called back prior to her release from the scene shortly afterwards.
[ 65 ] The Impact of the Breach on the Charter -protected Interests of the Accused
[ 66 ] Ms Med-Nejad’s rights to counsel were clearly explained to her and understood by her. Her liberty interests were infringed over a relatively brief period of time, and, this was solely as a result of the officer processing release paperwork and explaining it to her along with the related steps.
[ 67 ] In my view of the facts before me, any breach is also significantly mitigated by the fact that the actus reus of the offence had been completed prior to arrest and all evidential matters were effectively concluded. Given the arrest for refusing to provide a breath sample, no further processes, even those as minimally intrusive as breath samples were required.
[ 68 ] The officer was clearly mistaken in her view that there were no circumstances under which it would have been possible for Ms Med-Nejad to communicate with counsel privately while in the scout car. While I accept the officer was wrong in this belief and accepts she needs to better address her understanding of TPS policy and related law, it is clear that she acted in good faith when making the decision to prioritise the timely release of Ms Med-Nejad from the scene. It was also clear that the Accused had made a request of her mother to call counsel and that she had done so.
[ 69 ] After her exchange with her mother Ms Med-Nejad’s made no further requests to speak with counsel. All evidence related to the offence had been completed prior to her arrest and nothing was solicited from the Accused post-arrest. Any engagement with counsel, had it been sought, could only have occurred once the offence and its accompanying evidence were clearly completed. I conclude that, if any breach occurred in this case, it had a minimal impact on the Accused’s Charter -protected interests.
Society’s Interest in the Adjudication of the Case on its Merits
[ 70 ] The evidence obtained was highly reliable and amounted to the words and actions of the Accused captured on video in repeatedly refusing to provide a lawfully demanded breath sample. At trial , Ms Med-Nejad also candidly accepted that she knowingly refused to provide a breath sample to the officers for fear that she would fail the test. She also accepted that she was also aware of the consequences of failing to provide a breath sample.
[ 71 ] I would echo the Supreme Court of Canada’s comments in R v Harrison 2009 SCC 34 , [2009] 2 S.C.R. 494. In the case before me there is critical evidence, virtually conclusive of guilt of the offence charged. The evidence cannot be said to operate unfairly having regard to the truth-seeking function of the trial. While the charged offence is serious, this factor must not take on disproportionate significance. As noted in Grant , and other case law while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, the public also has a vital interest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high. Drink driving continues to take a considerable toll on the lives and safety of road users in Canada.
[ 72 ] The third line of inquiry under the s. 24(2) analysis favours the admission of the evidence as to do so would promote the public's interest in having the case adjudicated on its merits.
Balancing the three Grant Factors
[ 73 ] The Supreme Court in Harrison , supra , at para. 36 explains the proper approach to balancing the three Grant factors.
[ 74 ] “The balancing exercise mandated bys.24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. “The evidence on each line of inquiry must be weighed in the balance to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases it is the long-term repute of the administration of justice that must be assessed.” R v Koralov
[ 75 ] I note that Justice Doherty, in R. v. McGuffie , 2016 ONCA 365 at para. 63 , added this to the analysis: “If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility ” . In this case I do not find that the first or second factors militate strongly in favour of exclusion
[ 76 ] I find that even if there was a breach of Ms Med-Nejad’s 10(b) Charter rights any such breach was relatively fleeting and trivial and certainly had a minimal impact on her rights. I do not find any basis to conclude that the admission of the refusal to provide a breath sample in this case would bring the administration of justice into disrepute nor is there any conduct on the part of the police from which the court should seek to disassociate itself.
Conclusion
[ 77 ] On a balance of probabilities I do not find that any of Ms Med-Nejad’s section 7 , 8 , 9 , 10(a) or 12 Charter rights were breached. Nor do I find that her 10(b) Charter rights were breached. In the alternative, if her 10(b) Charter rights were breached, for the foregoing reasons I would admit the evidence.
[ 78 ] The burden of proof in a criminal trial always rests with the Crown. The burden of proof is a heavy one. It is proof beyond a reasonable doubt in relation to each of the of-fence’s essential elements. I find that the Crown has met its onus and I find Ms Med-Nejad guilty of the offence of unlawfully refusing to provide a breath sample.
Released 6 th February, 2026 __________________________________
Justice Michael Waby