Court File and Parties

Court File No.: CR-24-10000079-00AP
Date: 2025-06-20
Court: Superior Court of Justice – Ontario

Between:
His Majesty the King, Respondent on Appeal
and
Jason Robertson, Appellant

Before: S.F. Dunphy

Counsel:
Yaroslav Obouhov, for the Appellant Jason Robertson
Andres Hannah-Suarez, for the Respondent Crown

Heard at Toronto: June 19, 2025

Reasons for Decision – Summary Conviction Appeal

Introduction

[1] This is an appeal by Mr. Robertson from his conviction for Refusal to Provide a Breath Sample pursuant to s. 320.15 of the Criminal Code following a short trial before Bhabba J. of the Ontario Court of Justice on December 12, 2024.

[2] There are no material facts in dispute. The defendant called no evidence. The Crown called the arresting officer who testified about the events, substantially all of which were captured contemporaneously on his body-worn camera.

[3] On September 16, 2023, Officer Haji was assigned to investigate an accident scene in North Toronto shortly before 3:00 am. Upon arriving at the scene, he observed an SUV with extensive damage and airbags deployed. Fire and ambulance first responders were already on the scene and the officer learned that there had been a serious accident, one of the drivers had left the scene, and the driver of the remaining vehicle was in the ambulance. The appellant, Mr. Robertson, emerged from the ambulance and walked towards him.

[4] The officer cautioned the appellant immediately that he was being recorded and that he was not obliged to respond to any questions. Shortly after beginning the questioning of Mr. Robertson about the accident, the officer advised the appellant of a change in circumstances because he could smell alcohol on his breath and was now also conducting a criminal investigation in addition to the accident investigation. The officer read him his caution and rights to counsel. The appellant indicated he understood. When asked if he wished to call a lawyer he asked “right now?” and then responded “no” when asked if he had a lawyer. The officer told the appellant he would be walking him to the ambulance and proceeded to do so. They arrived there in about 60 seconds (at 3:04 am). After seating Mr. Robertson inside the ambulance, the officer discussed the injuries of the appellant with the paramedic, including whether it would be safe to administer the roadside test. Upon being advised that it would, he proceeded to explain the ASD to the appellant and made the formal demand at 3:05 am.

[5] The appellant declined to provide a breath sample, reiterating what he had told the officer on the way to the ambulance – that he should not be investigated because he was the one who was hit. The officer repeatedly explained to him that the alcohol investigation was separate from the accident investigation. The refusal to provide a sample was maintained and repeated over the following few minutes inside the ambulance. The appellant was asked if he wanted to talk to somebody or his lawyer and the appellant became belligerent and said that he did not wish to talk to anyone and continued to maintain his refusal.

[6] Having maintained his refusal over the patient and polite attempts of the officer to explain the consequences of refusal, Mr. Robertson was then formally arrested for failure to provide a breath sample at 3:13 am, placed in handcuffs and read his caution and rights to counsel. He was processed on the scene and released on a promise to appear about an hour later.

Issues to be Argued

[7] Although the Notice of Appeal raised four grounds of appeal, only two were addressed in the appellant’s factum:

a. Was the demand for a breath sample immediate?
b. If not, were unusual circumstances sufficient to excuse the failure made out?

[8] The Notice of Appeal alleged violations of the informational and implementational aspects of the s. 10(b) rights of the accused. The findings of fact of the trial judge – amply supported by a review of the body-worn camera evidence – dispose of the first issue. Mr. Robertson was read his caution and rights to counsel twice within less than ten minutes and it was clear that he understood them on both occasions even if he took some time to convey that to the officer. Whether the officer could have implemented the appellant’s rights to counsel in the ambulance after the refusal to provide a sample and the arrest is a moot point. The appellant did not ask to speak to counsel and was at all events released on his promise to appear at the scene once the paperwork was prepared.

Analysis

(a) Was the demand for a breath sample “immediate”?

[9] The appellant relied heavily upon the decision of the Supreme Court of Canada in R. v. Breault, 2023 SCC 9. The Breault decision recognized that there is both an explicit, statutory requirement attaching to the obligation of the person to whom a demand is made to supply a breath sample “immediately” and an implicit requirement that the police demand for such a sample is also subject to a requirement of immediacy due to the exceptional nature of the intrusion upon Charter-protected rights that s. 320.27 represents. However, the decision itself examined only the explicit, statutory obligation to provide a breath sample immediately: Breault at para. 2. Breault clearly did not modify the law as regards the timing of the police demand relative to the acquisition of the reasonable grounds required by s. 320.27(1) of the Code.

[10] There is no issue taken on this appeal with the immediacy requirement after the demand was made. The officer had the screening device in hand and was prepared to administer it. The appellant refused to supply such a sample immediately and, after approximately eight futile minutes of attempts to persuade him to comply with his legal obligation met with repeated refusals, he was arrested.

[11] This case is solely concerned with the implicit “immediacy” requirement governing the timing of the demand for a sample by the police officer relative to the acquisition of reasonable grounds. Since the constitutional validity of s. 320.27 hinges on the reasonable nature of the intrusions it makes upon, among other rights, the right to counsel, our courts have long determined that police cannot intentionally defer making the demand reasoning that if there is time enough to defer making the demand there was time enough to facilitate access to counsel and the intrusion of fundamental rights would not be justified. In R. v. Woods, 2005 SCC 42, para 44 the Court (referring to the predecessor provision to s. 320.27 of the Code) wrote that “the ‘forthwith’ requirement in s. 254(2) appears to me, however, to connote a prompt demand by the peace officer, and an immediate response by the person to whom that demand is addressed”: Woods at para. 44 (emphasis added).

[12] The chronology of events preceding the demand has been set forth above.

[13] The suggestion that the demand was not made “promptly” after the officer had reasonable grounds to make it on these facts is simply absurd. The trial judge’s finding that it was reasonable to have seen to the health and safety of Mr. Robertson in these circumstances before issuing the demand is entirely reasonable. Mr. Robertson was visibly limping as he approached the officer, was in an ambulance when the officer arrived and was the driver of a car that had been substantially damaged to the point of air bags deploying in a hit and run incident. He himself complained of being injured after the demand was made as a reason why he found it unreasonable and would not comply. The officer prudently took care to ensure that nothing he was about to do would jeopardize the safety of Mr. Robertson and, once his concerns were allayed, issued the demand. No reasonable observer could characterize the demand as being made other than promptly. The pre-Breault jurisprudence regarding the implicit requirement for a prompt demand continues to apply and contemplates a flexible interpretation consistent with the constitutional context in which the requirement arises.

[14] This ground of appeal must fail.

(b) Was the “unusual circumstances” exception made out?

[15] My conclusion in the preceding discussion regarding the gap in time between the formation of reasonable grounds to demand and the making of the actual demand for a sample are sufficient to dispose of this appeal. For the sake of completeness I shall now review whether, in the alternative, unusual circumstances have been demonstrated sufficient to justify a delay in making the demand after reasonable grounds to demand were present.

[16] In Breault, the Supreme Court ruled that unusual circumstances that may justify a flexible interpretation of the immediacy requirement will depend on a case-by-case interpretation but must be established by the Crown having regard to the guidelines laid out by the Court including:

a. The requirement that these be identified in the light of the text of the statute without unduly extending the ordinary meaning of the terms (at para. 56);
b. They may relate to delays relating to the requirement for a proper sample and the use of the device (at para. 57);
c. They may relate to urgent circumstances relating to public or officer safety (at para. 58);
d. They may not be related to budgetary constraints nor the absence of a device at the scene (at paras. 59-60).

[17] There was no delay between the issuance of the demand and the refusal. The officer was ready, willing, and able to receive the sample when the demand was made. The officer explained his decision to demand the sample. The slight delay between the formation of reasonable grounds and walking the appellant to the ambulance and questioning the paramedic was clearly the result of a sincere concern for the health and safety of Mr. Robertson in the unusual circumstances of this incident – a serious accident, a mobile but visibly injured driver who was in the ambulance, air bags deployed, etc. The officer cannot be faulted for erring on the side of safety. The demand was made promptly upon becoming possessed of reasonable grounds. The trial judge found unusual circumstances in the alternative. While not necessary given my conclusion on the timing of the demand, I concur in his analysis of this issue as well.

[18] This ground of appeal must fail.

Disposition

[19] For the foregoing reasons the appeal was dismissed. The demand for a breath sample was made in accordance with s. 320.27 and was lawful. The appellant failed to comply and was correctly found guilty of the offence pursuant to s. 320.15 of the Code.

S.F. Dunphy
Date: June 20, 2025