R. v. Hansraj, 2026 ONSC 106

CITATION: R. v. Hansraj, 2026 ONSC 106

COURT FILE NO.: SCA 22-12

DATE: 20260106

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

Respondent

– and –

TARIQ HANSRAJ

Appellant

Mr. David Levy, for the Crown

Mr. Adam Little, for the Appellant

HEARD: June 27, 2025

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

HENSCHEL J.

A. OverviEW

[1] Tariq Hansraj appeals his June 6, 2022 conviction for having a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 ml of blood within two hours after ceasing to operate a conveyance, contrary to s. 320.14(1)(b) of the Criminal Code (“80 plus”).

[2] The events underlying the charges occurred on January 20, 2021, during the lockdown period of the pandemic. Bars and restaurants were closed and gatherings of groups in homes were limited. After work, the Appellant and a friend were drinking beer in his car. The Appellant was sitting in the driver’s seat. His car was parked in the parking lot of a strip plaza. PC Ramzy saw the Appellant’s running vehicle parked beside another vehicle in a quiet part of the parking lot. He thought it was unusual and decided to investigate whether the driver was drinking or using cannabis.

[3] PC Ramzy parked his cruiser behind the Appellant’s vehicle, effectively preventing him from driving away. He walked up to the vehicle and asked him if he had been drinking or smoking cannabis. The Appellant told him he had not. As he turned to leave, PC Ramzy, noticed beer and open beer cans in the Appellant’s back seat and the Appellant admitted he had been drinking.

[4] At 9:15 p.m., PC Ramzy told the Appellant he would be requiring him to provide a breath sample. He asked him when his last drink was and explained that he needed to make sure he could get a proper sample that was not affected by any residual alcohol in his mouth. The Appellant told him his last drink was within the previous 15 minutes. PC Ramzy decided it was necessary to wait for 15 minutes before obtaining an approved screening device (ASD) sample to ensure he could get an accurate sample. He told the Appellant he would need to provide a breath sample and would have to do so in 15 minutes to ensure it was accurate. PC Ramzy did not have an ASD with him and requested another officer bring one to the scene.

[5] The ASD arrived at 9:28 p.m., two minutes before the 15 minute waiting period ended. At 9:30 p.m., when the 15 minute waiting period was over, PC Ramzy read the Appellant the formal ASD demand from his notebook. The Appellant provided an ASD sample and registered a fail. PC Ramzy arrested the Appellant for “80 plus”, searched him, and placed him in the rear of the police car.

[6] Before providing the Appellant with his rights to counsel, PC Ramzy spoke with the passenger and the other officers to sort out whether the passenger was free to leave, or if he would be required to provide an ASD sample. Approximately 11 minutes after receiving the fail result and arresting the Appellant, PC Ramzy read the Appellant his rights to counsel.

[7] At the police station, the Appellant spoke to duty counsel and provided two samples into an approved instrument which resulted in readings of 174 mg/100 millilitres of blood and 165 mg/100 millilitres of blood.

B. Issues at trial

[8] At trial, the Appellant submitted that his s. 8, 9, 10(a), and 10(b) Charter rights were violated and that the breath sample results should be excluded as a remedy under s. 24(2) of the Charter.

• The Appellant argued that PC Ramzy detained him and because his car was on private property, further to R. v. McColman, 2021 ONCA 382, R. v. Thompson, 2020 ONCA 264, [2020] O.J. No. 1757 (C.A.) PC Ramzy did not have authority under the Highway Traffic Act or at common law to detain him to conduct a sobriety investigation without reasonable suspicion that he had committed an offence. He submitted he was arbitrarily detained contrary to s. 9 of the Charter and the ASD demand that followed was unlawful. He submitted the screening results were obtained in violation of s. 8 of the Charter, and because he was not provided with the right to counsel during his detention for the ASD test, his s. 10(b) rights to counsel were violated. The Appellant submitted that because the ASD sample was unlawfully obtained, the officer could not rely on the ASD fail result to support the grounds to arrest him or to demand samples under s 320.28(1)(a)(i.) of the Criminal Code and the breath samples obtained at the police station were obtained in violation of s. 8 of the Charter.

• The Appellant argued that the ASD demand and samples did not meet the immediacy requirements of s. s. 320.27(1) or s. 320.27(2) of the Criminal Code because PC Ramzy did not make the ASD demand immediately and because there was no ASD at the scene. The Appellant submitted that it was unclear what PC Ramzy initially said to the Appellant about providing a screening sample and what he told the Appellant was insufficient to amount to a constructive ASD demand. The need to wait 15 minutes due to residual mouth alcohol was secondary to the lack of device on the scene. Because the failure of the ASD test was obtained in violation of s. 8 of the Charter, there were no grounds for the demand under s 320.28(1)(a)(i.) of the Criminal Code and the breath samples at the police station were obtained in violation of s. 8 of the Charter and the Appellant’s arrest was contrary to s. 9 of the Charter.

• The Appellant submitted that his s. 10(a) right was violated because PC Ramzy did not promptly inform him of the reason for his detention when he was initially stopped.

• The Appellant submitted his s. 10(b) right to counsel was violated because he was not read his rights to counsel during the period between when PC Ramzy formed reasonable suspicion to make the ASD demand and the taking of the ASD sample.

• The Appellant also submitted his s. 10(b) rights were violated because PC Ramzy failed to read the Appellant his right to counsel “immediately” upon arrest. PC Ramzy should have read the Appellant his rights to counsel prior to searching the Appellant and should not have delayed providing him with the rights to counsel to speak with the passenger and other officers. The Appellant submitted that his s. 10(b) right to counsel was further violated because of the delay in entering the police station which lead to an implementational breach of the right to counsel.

[9] On the trial proper, the Appellant argued that the Crown failed to prove the Appellant was in care and control of the motor vehicle.[1] The Appellant submitted that he rebutted the presumption in s. 320.35 of the Criminal Code that he was in the driver’s seat of the vehicle for the purpose of setting the vehicle in motion and pursuant to R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157 (S.C.C.), the Crown had failed to establish he posed a “realistic risk” of danger to persons or property. The Appellant argued the potential that he might change his mind and drive, rather than having his uncle pick him up or calling an Uber, was a theoretical rather than a “realistic” risk of danger.

C. Findings of the Trial Judge

[10] On June 6, 2022, Justice Rose, the trial judge, provided comprehensive written reasons for judgment, R. v. Hansraj, 2022 ONCJ 258. Based on the 11-minute delay in PC Ramzy reading the Appellant the right to counsel following his arrest, he held that PC Ramzy violated the Appellant’s s. 10(b) right to counsel by failing to inform him of his right to counsel “immediately” upon arrest. The trial judge did not find any other Charter breaches. He held that PC Ramzy had authority at common law to briefly detain the Appellant in a parking lot without reasonable suspicion for the purposes of conducting a sobriety investigation. He concluded that the ASD demand was a valid demand pursuant to s. 327(1)(b) of the Criminal Code. He held that the breath test results should be admitted under s. 24(2) of the Charter.

[11] The trial judge held that care and control was established on the basis that the Appellant posed a realistic risk of danger to public safety. He found that the Crown had proven the essential elements of the offence beyond a reasonable doubt and found the Appellant guilty.

D. Grounds of Appeal

[12] The Appellant appeals his conviction and alleges the trial judge erred by:

i.) Finding common law authority for the detention of the Appellant;

ii.) Finding the ASD demand was valid;

iii.) Not excluding the breath test results under s. 24(2) of the Charter;

iv.) Finding a realistic risk of danger and that it was “unnecessary to identify the particular risk”; and

v.) Misapprehending the evidence of why the Appellant was in the driver’s seat with the car running.

E. Standard of Review

[13] Section 686(1)(a)(i.) and (ii.) of the Criminal Code, incorporated into s. 822 for summary conviction appeals, allows for an appeal against conviction after trial where the summary conviction appeal court is of the opinion that (i.) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, and (ii.) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law.

[14] The standard of review for a question of law is correctness. The scope of appellate review on findings of fact made by a trial judge is very narrow. Findings of fact are not to be reversed unless it can be established that the trial judge made a "palpable and overriding error". See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 (S.C.C.). R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309.

[15] The jurisdiction of a summary conviction appeal court to review findings as to the sufficiency of evidence is limited. A summary conviction appeal court is not entitled to retry the case. It must determine whether the verdict is unreasonable. This requires the appeal court judge to determine whether the trial judge could reasonably reach the conclusion that the accused was guilty beyond a reasonable doubt. The test, therefore, is not whether the summary conviction appeal judge would have reached the same decision, but rather whether the trial judge's decision was reasonable. Where evidence exists to support a factual inference, an appellate court would be hard pressed to find a palpable and overriding error. As noted by the Supreme Court of Canada in Housen, it is open to an appellate court to find an inference of fact made by a trial judge is clearly wrong. However, deference is owed to a trial judge when it comes to assessing and weighing the evidence and making factual inferences. R. v. Grosse (1996), 1996 CanLII 6643 (ON CA), 29 O.R. (3d) 785 (Ont. C.A.).

[16] It is not the role of the appellate court to second guess the weight to be assigned to various items of evidence. If there is no palpable or overriding error with respect to the underlying facts that the trial judge relies on to draw the inferences, then it is only where the inference drawing process is palpably in error that an appellate court can interfere with a factual conclusion.

[17] An argument that the trial judge misapprehended the evidence is analyzed by looking at whether the trial judge was mistaken about the substance of material parts of the evidence and whether the errors played an essential part in the reasoning process. R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732. A difference of opinion with the trial judge over evidence or factual findings is not enough to justify appellate intervention. R. v. Titcombe, 2022 ONSC 2320, at para. 5.

[18] The legal effect of findings of fact or of undisputed facts raises a question of law, and a summary conviction appeal court judge is free to disagree with the legal conclusion reached by a trial judge provided the appeal judge does not intrude upon the fact finding function of the trial judge. R. v. J.M.H., 2011 SCC 45, at para. 28. [2011] 3 S.C.R. 197; R. v. McCorriston, 2024 SKCA 5.

[19] The Appellant has not established that the verdict was unreasonable or cannot be supported by the evidence and has not established that the trial judge committed reversible legal error.

[20] I am satisfied that in thorough reasons the trial judge correctly concluded that PC Ramzy had common law authority to detain the Appellant in the parking lot to conduct a sobriety investigation; that the ASD demand was valid; and that the breath test results were admissible under s. 24(2) of the Charter. The judge correctly applied the law and reasonably concluded that the Appellant was in care and control of his vehicle and posed a realistic risk of danger to persons and property. These are my reasons.

F. Summary of the Evidence at Trial

[21] At the outset of the trial, the Appellant admitted his identification, as the person who was in the driver’s seat of the vehicle investigated by PC Ramzy, and date and jurisdiction of the offence.

[22] Most of events, and the time they occurred, were captured by PC Ramzy’s In-Car Camera Recording Device (ICC) and were not in dispute. There was video, but no audio recoding, of PC Ramzy’s interactions with the Appellant until the Appellant was placed in the rear seat of PC Ramzy’s police cruiser at which time the Appellant’s interactions with PC Ramzy were audio and video recorded.

[23] The investigation occurred during the midst of the COVID pandemic during a period of lockdown. On January 20, 2021, at approximately 9:10 p.m., PC Ramzy, a uniformed police officer on routine patrol, stopped to get some food at a Subway restaurant in a plaza at Weston Road and Highway #7, in the City of Vaughan. The small commercial strip plaza contained other restaurants and bars. The associated parking lot was used by members of the public going to the businesses.

[24] After getting his food, PC Ramzy noticed two cars parked beside each other at the end of a dark alley that was part of the parking lot that serviced the restaurants and bars. PC Ramzy testified that vehicles did not usually park in that location, and he thought the other restaurants and bars were closed because of the pandemic. As a result, he believed the vehicles were suspicious and decided to investigate the two cars because of their location and the circumstances. He decided to approach and talk to them “casually”. He agreed he did not have any reason to suspect a specific offence.

[25] PC Ramzy drove his marked cruiser towards the two cars. The back taillights of one of the vehicles were on, but it was off. The other car was running. PC Ramzy parked at an angle directly behind the running car and approached the occupants of the vehicle. The Appellant was in the driver’s seat and a passenger, Mr. Osman, was in the front seat. There were no occupants in the other vehicle.

[26] The position of PC Ramzy’s cruiser prevented the Appellant’s vehicle from leaving because his car was facing the curb and PC Ramzy’s vehicle was behind it blocking him in. PC Ramzy said he parked as close as possible to the running car so that he could capture his interaction with the occupants on his ICC. In addition, he positioned his vehicle for officer safety. He did not want the vehicle to drive off and hurt him in the process.

[27] At trial the Appellant argued that by parking behind him, PC Ramzy detained him. The Crown conceded that the position of the cruiser resulted in the Appellant being detained for the purposes of s. 9 of the Charter.

[28] When asked by defence counsel about his authority to investigate the driver, PC Ramzy said it was under the Criminal Code because the person had general care and control of the vehicle and was in a parking lot. He agreed he was not acting under the Highway Traffic Act (HTA).

[29] PC Ramzy said he approached the vehicle to investigate whether there was any cannabis or alcohol being used or any other offences. He wanted to confirm that the driver was “eligible to drive, there’s no issue or any impairment that will forbid him from doing this. In addition, from previous experience you might find a driver that happens to be passed out behind the wheel. So that was the main reason I approached the vehicle”.

[30] At approximately 9:11 p.m., PC Ramzy asked the Appellant if he had anything to drink or had smoked any cannabis. Mr. Hansraj said he “did not have any”. PC Ramzy thanked him and turned to leave. He noticed a container with six packs of tall-boy beer. A “couple” were open. The open cans of beer caused him to suspect the Appellant had been drinking.

[31] PC Ramzy told the Appellant he saw the open cans of beer and he was going to investigate it. At 9:15 p.m., PC Ramzy asked the Appellant if he had consumed any drinks in the previous15 minutes. He told the Appellant it was not a trick question, and he was asking because “he will be providing a sample into an approved screening device” and if he had been drinking in the last 15 minutes he would wait 15 minutes to ensure that he had an opportunity to provide a breath sample that was not contaminated by any residue in his mouth. PC Ramzy said he wanted to make sure any residue in the Appellant’s mouth would not affect the sample.

[32] At 9:15 p.m. Mr. Hansraj told PC Ramzy he had a drink within the previous 15 minutes.

[33] PC Ramzy testified that when he told the Appellant he would be providing a sample into an ASD, he could not recall whether he said “ASD” or used the words “approved screening device”, but he was “absolutely sure that he knew that he had to provide the sample of his breath because he would be tested for driving - for drinking.” PC Ramzy said he clearly communicated to the Appellant that he will be providing a sample because of the cans and the open alcohol in the backseat, and he would be providing the sample 15 minutes from his last drink. PC Ramzy did not have an ASD in his vehicle and did not read the formal ASD demand at that time.

[34] After he told the Appellant that he would be providing a sample, PC Ramzy requested a second police car attend with an ASD. He agreed in cross-examination that he did not know how long it would take for the device to arrive.

[35] At 9:28:30 p.m., PC Brennan arrived with an ASD and at 9:30 p.m., immediately after the expiry of the 15 minute waiting period, PC Ramzy read the formal ASD demand to the Appellant.

[36] PC Ramzy said he waited to read the formal ASD demand until he had device in hand. He also said he did not read the Appellant his rights to counsel during the 15 minute waiting period because he did not have the device on hand. He said he was waiting for the 15 minute period to pass.

[37] PC Ramzy testified that he did not believe the Appellant was detained or under arrest for anything, so he did not give him rights to counsel before he had the device in his hand. He believed the Appellant’s rights to counsel were suspended until he confirmed there was an offence, and he did not believe he was required to read the right to counsel during that period because it was suspended. PC Ramzy said there were two factors, he had to wait for 15 minutes to obtain a proper sample, and he did not have the device. He said if there had been no need for the 15 minute waiting period, he would not have read rights to counsel while waiting for the device to arrive because they were suspended.

[38] Nothing happened between 9:15 p.m. and 9:29 p.m. PC Ramzy was in his police vehicle, and Mr. Hansraj remained seated in the driver’s seat of his vehicle. PC Ramzy mentioned at one point he approached the Appellant’s car to ensure there were no officer safety concerns because he was by himself in a dark alley.

[39] After PC Ramzy read the Appellant the ASD demand at 9:30 p.m., the Appellant provided a sample into the screening device and registered a fail. At 9:31:52 p.m., PC Ramzy placed the Appellant under arrest for “80 plus”.

[40] PC Ramzy conducted a pat down search of the Appellant and at 9:35:23 p.m. PC Ramzy placed the Appellant in the rear of the police cruiser.

[41] After placing the Appellant in the police cruiser, the ICC camera from PC Ramzy’s car shows the officers on scene speaking with the passenger. At that point, four officers were on scene. PC Ramzy, PC Brennan, PC Saldivar and PC Pyatt.

[42] PC Ramzy testified that he spoke with the passenger because he and the other officers were concerned that the passenger, who had also been drinking, may have care and control of the other vehicle, When he arrived the taillights were on the second vehicle. They shut off a short time later and no one else was in the area. PC Ramzy said he had to ensure the passenger’s safety because the passenger had also been drinking. He had to make sure he did not go onto the road while drunk and that he was not in care and control of the other vehicle. PC Ramzy discussed the circumstances with the passenger and discussed with the other officers whether an ASD demand should be made to the passenger. Ultimately, PC Ramzy and the other officers decided not to demand a sample from the passenger. After ensuring he was not driving, they let him walk away. PC Ramzy then provided rights to counsel to the Appellant.

[43] PC Ramzy explained that he chose to speak to the passenger and other officers prior to providing rights to counsel to the Appellant because he did not want to unnecessarily detain the passenger. He said he was trying to balance taking care of the first person, and the passenger, who might also be arrested for drinking and driving. PC Ramzy explained in cross-examination that he dealt with the passenger because the other officers did not “see the whole thing from beginning to an end. They have no idea how this guy is associated to the car. So I was trying to get that clear so I would not be holding him for no reason whatsoever because he’s just a passenger at this point. So I want to make sure that he can be cleared and the rights to the client – your client will be read as soon as I can”. PC Ramzy agreed that it took minute or two to read rights to counsel.

[44] PC Ramzy said his training was that he had to give the rights to counsel to a detainee as soon as possible, which meant immediately to him, and that is what he was trying to do. He said he was not going to just “leave everything hanging and just go give him the rights without making sure that the second person [was not] having his rights infringed”.

[45] At 9:43:03 p.m., about 7.5 minutes after he was placed in the cruiser, PC Ramzy read the Appellant the rights to counsel and the Appellant asked to speak with duty counsel. PC Ramzy then read the Appellant the breath demand.

[46] At 9:46 p.m., PC Ramzy and the Appellant left the scene. At 9:55:29 p.m. they arrived at the police station. There was a delay entering the sallyport. PC Ramzy believed another person was being booked. PC Ramzy explained that he would have immediately pulled into the sallyport if he could have done so. At 10:03:54 p.m. PC Ramzy pulled his cruiser into the sallyport, and the Appellant was booked between approximately 10:04 p.m. and 10:24 p.m. when he was placed in a cell.

[47] At 10:24 p.m., PC Ramzy contacted duty counsel and left a message. At 10:56 p.m. duty counsel called back and spoke with the Appellant.

[48] At 11:06 p.m. after completing his call with duty counsel, the Appellant was turned over to P.C. Brownlee, the qualified breath technician. After determining that the approved instrument was working properly, P.C. Brownlee obtained two suitable samples of breath from the Appellant into an Intoxilyzer 8000C. At 11:12:08 p.m., he obtained a reading of 174 mg of alcohol in 100 millilitres of blood, and at 11:33:49 p.m. he obtained a second reading of 165 milligrams of alcohol in 100 millilitres of blood.

Evidence of Tariq Hansraj

[49] The Appellant did not call any evidence on the Charter motion. He and Mr. Osman testified on the trial proper. Mr. Hansraj said on the day of his arrest he was working. He works as a mechanic at a car dealership near where he was arrested that night. He left work at around 6:00 p.m. He had a rough day at work and earlier in the day he and his friends decided they would get beer from the Beer Store and drink in the parking lot.

[50] His 2013 Subaru WRX, a manual vehicle, was parked in the parking lot where he was later arrested. He parked there regularly for work.

[51] The Appellant said he and his co-worker, Ejaaz Osman, drove to the Beer Store, purchased a six-pack of beer and a 12 pack of tall cans. They returned to the parking lot around 6:30 p.m. Three other friends, also co-workers, met up with them. They smoked and drank beer. He said he and his friend met at the parking lot to drink beer several times during the pandemic. He explained that they could not go anywhere else because everything was closed because of COVID, and he could not get together with his friends at his home because his family would not allow a large group of people in the home. He said he and his friends met in the same parking lot to drink about five times previously during the COVID period and usually met in the same spot.

[52] The Appellant said he did not allow smoking in his vehicle, so he smoked outside of the vehicle. He estimated they spent about 40 minutes outside of the vehicle and the rest of the time in the car. He said he drank “about seven tall boys”. He said it was a lot for him and he would not drive after drinking that amount because he needed his licence for work.

[53] The Appellant said he and Mr. Osman stayed at the parking lot after his other friends left. They were talking and listening to music. The car was on to provide heat.

[54] The Appellant testified that he had a plan to get home. He lived with his aunt, uncle, and mother and he planned for his uncle to pick him up, as he had done in the past. He said if his uncle could not pick him up he would get his aunt or mom to pick him up. His home was about a ten minute drive from the parking lot. He said if none of his family members could pick him up he would take an Uber home or could stay at Mr. Osman’s home. He planned to Uber back to work the next morning, or have his aunt drive him.

[55] The Appellant agreed he had not called anyone at the point the officer arrived. He said he was in no rush to get home even though he had to work the next morning at 8:00 a.m. because 9:30 p.m. was not that late. He thought Mr. Osman planned to walk home because he lived nearby. He said it was about a 15 or 20 minute walk to Mr. Osman’s home.

[56] The Appellant’s car, a Subaru WRX with manual transmission, was running and in neutral. The parking brake was on. He said to put his vehicle in motion he had to release the parking break, push the clutch in, hit the break, put the vehicle in gear and then release the break and clutch and hit the gas.

[57] In cross-examination, the Appellant agreed he was drunk and his ability to make decisions that night was impaired by alcohol. However, when the Crown suggested to him that because he was drunk he might decide to drive his car home because his judgment was impaired, he said he would not have driven home, because he needed his licence, and he would have gotten in trouble with his family if he drove home after drinking.

[58] The Appellant agreed that on the other occasions he drank with his friends in the parking lot he had one or two drinks. On the night of his arrest he did not originally plan to drink seven tall boys but “it just kind of got there”. He said his plan “was to have more than a couple but not seven”, but the plan changed because he started drinking. The Appellant agreed that it is dangerous to drink in a vehicle that is capable of being turned on.

[59] The Appellant said he and Mr. Osman finished their beer and were deciding whether they should have more beer or leave when the officer showed up. He agreed Mr. Osman’s car was parked beside his car. The Appellant said the officer pulled up behind his car and came up to the window, and asked if he was drinking or smoking weed. He responded “no”. The officer was about to leave but saw the beer in the back, and asked him again, and he said “yeah”.

[60] The Appellant said the officer told him he had to do a test, that he did not have anything on him, and he would have to wait there. He said minutes later the additional officers showed up. He said nothing happened during the period he was waiting. He thought he may get a ticket or something for having open booze in the car.

[61] The Appellant said he knew it was wrong to drink in public, but was shocked when he was arrested because he was not planning to drive. He said prior to that night he did not know it was an offence to be in care and control of a vehicle while drinking.

[62] Mr. Osman, the passenger, also testified. He confirmed much of the Appellant’s evidence. He lived about 15 minutes from the parking lot. He agreed that after work he and the Appellant got their cars from the parking lot, went to the Beer Store and returned to the parking lot to drink beer. He parked his car next to the Appellant’s vehicle. He described the parking lot as the Firkin lot and agreed it was a public parking lot, accessed from a public road.

[63] Mr. Osman said between around 6:30 p.m. and when the police arrived he and the Appellant were drinking beer, talking, and playing on their phones. He thought he drank around five beers, but did not think he was drunk. He did not remember how much the Appellant drank. He thought the Appellant was “a bit buzzed” but was not “sloppy drunk”.

[64] Mr. Osman said he planned to walk home, and the Appellant was going to call an Uber or his uncle to pick him up. He said he and the Appellant drank in the parking lot on four or five occasions, and he would usually walk home. He saw the Appellant’s uncle pick him up one or two times, and the other times he took an Uber home. He was not concerned that the Appellant would drive home.

G. The McColman Issue – PC Ramzy Had Common Law Authority to Detain the Appellant for A Sobriety Check in the Parking Lot

[65] The primary issue in this appeal is whether Justice Rose erred in finding PC Ramzy had common law authority to detain Mr. Hansraj in a parking lot to conduct a sobriety check in the absence of reasonable suspicion that he had committed an offence.

[66] At trial, the Crown conceded that Mr. Hansraj was detained when PC Ramzy parked his cruiser behind the Appellant’s vehicle. The trial judge concluded that in the wake of R. v Thompson, 2020 ONCA 264, and R. v. Tutu (2021), 2021 ONCA 805, 407 C.C.C. (3d) 137, this was a reasonable concession. I agree.

[67] The trial judge found the location where the vehicles were parked was private property. The lot was neither a “highway” under the Highway Traffic Act R.S.O. 1990 c. H.8 (HTA), nor a private dwelling. Applying the reasons of the majority of the Court of Appeal in McColman, Justice Rose found the detention of Mr. Hansraj was not authorized by the HTA because s. 48 of the HTA did not apply on private property. However, he disagreed with the defence assertion that McColman applied so as to require the police to have an individualized suspicion to stop a motorist on all private property. He concluded that the police had a well-established common law authority to detain motorists for random sobriety testing in parking lots.

[68] The trial judge held that McColman was distinguishable because it applied to police stops of a person on their own property. At issue in McColman was whether there was common law authority for the police to conduct random stops on a private driveway. At para. 21 of his reasons the trial judge concluded that McColman was grounded in the “heightened privacy interest in a person’s own home going back hundreds of years and followed ever since” and it was the heightened liberty interest in a persons own private property which drove the result. At para. 22, he held that in McColman the heightened liberty interest in on one’s private property outweighed society’s interest in random stops of a motorist on their own land but “the heightened privacy interest does not extend to parking lots which are available to the public, connected to highways which are within the jurisdiction of the HTA”. He found there was no evidence that the parking lot occupied by Mr. Hansaraj was “anything other than an open piece of pavement attached to a commercial property for which there is no effort to exclude anyone choosing to use it. Put bluntly, it was a public space, apparently owned by a private entity”. [Emphasis added]

[69] In reaching the conclusion that the officer had common law authority to detain the accused to conduct a sobriety investigation, the trial judge relied upon R. v. Dillon (2006), 2006 CanLII 10745 (ON SC), 32 M.V.R. (5^th) 13 (S.C.J.), wherein Justice Molloy held that police officers were authorized at common law to conduct random sobriety checks on motorists in private parking lots available to the public. Justice Rose found that Dillon had been consistently followed by “a plethora” of summary conviction appeal rulings and remains good law, citing R. v. Vander Griendt, 2015 ONSC 6644, R. v. Ndaye, 2019 ONSC 4967, R. v. Nield, 2015 ONSC 5730 (a summary conviction appeal ruling). He emphasized that Justice Hourigan in his dissenting reasons in McColman held that Dillon remained good law. He noted the majority of the Court of Appeal did not reference Dillon, but did not disagree with Hourigan JA on that point.

[70] Justice Rose ultimately concluded that he was still bound by Dillon. At para. 24, he held that when the police are authorized at common law to randomly detain a motorist in a parking lot accessible to the public they do not require individualized suspicion. He held if the motorist is on his or her own property then the heightened liberty interest in that space elevates the situation such that the police must have an individualized suspicion before detaining the motorist.

[71] Applying his findings to the facts, Justice Rose held:

Based on this finding, PC Ramzy had a common law authority to detain Mr. Hansraj at 9:15. His initial conversation with Mr. Hansraj was quite brief and confined to sobriety investigation of a person behind the wheel of a car whose engine was running. Once PC Hansraj was on his way back to his police car and saw the open beer in the car he had reasonable grounds to suspect that Mr. Hansraj had alcohol in his system and the detention had the legislative authority under the Criminal Code per 320.27. [Emphasis added]

[72] Consequently, Justice Rose concluded there was no s. 9 violation when PC Ramzy blocked Mr. Hansraj in at 9:15 p.m. to conduct a sobriety investigation.

[73] There is no error in Justice Rose’s findings of fact or law. His finding of fact that PC Ramzy was engaged in a random stop to check for sobriety is supported by the evidence and is entitled to deference. His conclusion that the police have authority at common law to detain a person who is operating a motor vehicle in a parking lot to conduct sobriety testing is correct in law. I agree with Justice Rose that McColman is distinguishable from the facts in this case, and Dillon remains good law.

[74] A review of the relevant cases leading up to McColman will help to provide context for my reasons.

R. v. Dedman, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2.

[75] Beginning with Dedman in 1985, the Supreme Court of Canada considered the authority of the police to stop a motor vehicle under a RIDE spot check program in Ontario. The Supreme Court of Canada held that random stops by police of a motor vehicle under an impaired driving detection program in Ontario was lawful at common law.

[76] Dedman occurred prior to the Charter. In Dedman, after the accused was randomly stopped as part of the RIDE program, the officer smelled alcohol on his breath and demanded a breath sample into a roadside screening device. The accused failed to provide a proper sample and was charged with refusal. At issue was whether the breath demand was lawful. The accused contended that the unauthorized stop affected the validity of the subsequent screening device demand and if the demand was improper, the offence of failing to provide a sample could not be made out.

[77] Central to the determination was whether the officer had authority to conduct the random stop. At the time, there was no statutory authority in the Criminal Code or under the HTA for police officers to stop a driver to investigate sobriety. As a result, the Supreme Court considered whether the police had a common law power to stop the vehicle to investigate for drinking and driving.

[78] The purpose of the RIDE program was to detect, deter, and reduce impaired driving. The police, at a location where they believed there was a high incidence of impaired driving, on a random basis requested motorists to stop. They would ask the driver for a valid driver’s license and proof of insurance to initiate conversation with the goal of detecting the otherwise undetectable drinking driver. If the officer detected the presence of alcohol, they would demand a breath sample into a roadside screening device.

[79] The accused in Dedman was stopped randomly as part of the RIDE program. Up until the time he failed to provide a sample in response to the demand, the officer did not have reasonable grounds to believe or suspect that he had committed any offence under provincial law or federal statute.

[80] Despite the absence of statutory authority, the Supreme Court held that impaired driving detection programs were lawful at common law applying the Waterfield test. (the ancillary powers doctrine). R. v. Waterfield, [1963] 3 All E.R. 659. The Supreme Court held that police conduct which is prima facie an unlawful interference with a person's liberty or property is lawful if such conduct falls within the general scope of any duty imposed by statute or recognized at common law and the conduct is not an unjustifiable use of powers associated with the duty.

[81] The Supreme Court held that although a random vehicle stop was a prima facie unlawful interference with liberty because it was not authorized by statute, the right to circulate in a motor vehicle was not a fundamental liberty like an individual's right of movement because it is a licensed activity subject to regulation and control for the protection of life and property. A random stop fell within the general scope of police duties to prevent crime and to protect life and property by the control of traffic, as these were the very objects of the R.I.D.E. program, a measure intended to improve the deterrence and detection of impaired driving.

[82] The Supreme Court held that a random vehicle stop was not an unjustifiable use of police power because it was both necessary to the execution of police duties and reasonable, having regard to the nature of the liberty interfered with, the importance of the public purpose served by the interference, and the fact that the stop would be of relatively short duration and of slight inconvenience.

R. v. Hufsky, [1998] 1 S.C.R. 621.

[83] Next, in 1988, in R. v. Hufsky, 1988 CanLII 72 (SCC), [1988] 1 S.C.R. 621, the Supreme Court of Canada considered whether the random stop of a motor vehicle by a police officer for broader purposes than in Dedman, including to check licenses, insurance, mechanical fitness of a vehicle, and sobriety violated s. 9 of the Charter.

[84] By the time of the case, s. 189(a)(1) of the HTA had been enacted. It authorized the police to conduct random stops of a motor vehicle. In Hufsky, the officer conducted a random “spot check” stop of the Appellant. At trial the officer indicated that there were no criteria, standards, guidelines, or procedures in place to determine which vehicles should be stopped. When the Appellant was randomly stopped, the officer asked for his licence and insurance and smelled alcohol on his breath. The officer demanded he provide a breath sample into a roadside screening device. He refused and was charged and convicted at trial after his s. 8 and s. 9 Charter applications were dismissed. His appeal of conviction was dismissed by the Court of Appeal, and he appealed to the Supreme Court of Canada.

[85] The Supreme Court considered s. 189(a)(1) of the HTA which empowered a police officer who was in the lawful execution of their duties and responsibilities to require the driver of a motor vehicle to stop. The Supreme Court found that by virtue of s. 189(a)(1) the stop was authorized by statute and carried out for a lawful purpose, the Court, at para. 13, but concluded that the random stop for the purposes of the spot check procedure resulted in an arbitrary detention because there were no criteria for the selection of drivers to be stopped and subjected to the spot check procedure.

[86] However, the Supreme Court held the authority to stop motor vehicles conferred by s. 189(a)(1) of the Criminal Code, was a reasonable limit that was demonstrably justified in a free and democratic society under s. 1 of the Charter. Central to the determination was the importance of highway safety and the important role to public safety of a random stop authority for the purpose of increasing both the detection and the perceived risk of detection of motor vehicle offences, many of which cannot be detected by mere observation of driving.

R. v. Ladouceur, 1990 CanLII 108 (SCC), [1990] 1 S.C.R. 1257, 1990 CarswellOnt 96.

[87] In 1990, in R. v. Ladouceur, 1990 CanLII 108 (SCC), [1990] 1 S.C.R. 1257, the Supreme Court of Canada considered the constitutionality of completely random stops under s. 189(a)(1) of the HTA. Under consideration were routine checks that were not part of an organized program. Cory J. writing for the majority held that while such a routine check is an arbitrary detention in violation of s. 9 of the Charter, the infringement is one that is reasonable and demonstrably justified in a free and democratic society under s. 1 of the Charter.

[88] In Ladouceur, the purpose of the Appellant’s random stop was to ensure that his papers were in order and that he had a valid driver’s licence. The stop was not part of an organized RIDE program, or any other organized program. Following the stop, the Appellant was charged with driving while under suspension.

[89] On Appeal, the Court of Appeal held that the random stop of the Appellant violated s. 9 of the Charter and was not saved by s. 1. However, rather than striking down s. 189(a)(1) the Court of Appeal held that the provision should be read down, requiring that it be “limited to an organized programme of stopping, like the RIDE programme or roadblocks where all vehicles are required to halt, or to stopping for some articulable cause”. (at para. 4)

[90] On further appeal to the Supreme Court of Canada, the Supreme Court framed the questions as whether s. 189(a)(1) of the HTA was inconsistent with s. 7, 8, and 9 of the Charter “to the extent that it authorized the random stop of a motor vehicle and its driver by a police officer acting without any reasonable grounds or other articulable cause to believe that an offence has been committed, when such stop is not part of an organized procedure such as the R.I.D.E. program”, and if so whether s. 189(a)(1) is justified pursuant to s. 1 of the Charter.

[91] Cory J. writing for the majority held that so long as the police officer making the stop is acting lawfully within the scope of a statute, the random stops can be justifiably conducted in accordance with the Charter. He held that to provide the proper control, society must be able to require that random stops be made without articulable cause and outside of any formal programs (at para. 62). In reaching this conclusion, in conducting the s. 1 analysis, Justice Cory emphasized:

• s.189(a)(1) and random stops are designed to deal with and meet the very real and pressing and substantial concern of the danger posed by unlicensed drivers, mechanically unfit vehicles, and the reduction of impaired driving, for which the evidence is overwhelming in respect of the relationship between serious accidents and driving under the influence of alcohol or other drugs. (at para. 48)

• The random stop is rationally connected to and carefully designed to achieve safety on highways. The stops impair as little as possible the rights of the driver, and do not severely trench on individual rights. (para. 52)

• Stopping vehicles is rationally connected to highway safety and is the sole method of checking a drivers license and insurance, or the mechanical fitness of a vehicle or whether the driver is impaired. There must be a real element of risk of detection of driving by unlicensed drivers for the suspension of a licence to be an effective remedy. Random stops supply the only effective remedy. (para. 53)

• Deterrence is a critical aspect of the routine check. A random check is beyond the drivers control and may prevent an unlicensed or impaired driver from getting behind the wheel. (at para. 54)

• In rural areas, random checks that are not part of an organized program are a necessity because of the unavailability of effective organized programs. (para. 56)

• The fears for perceived potential for abuse of the power by law enforcement officials are unfounded because there are mechanisms in place which prevent abuse. Officers can stop persons only for legal reasons, related to driving a car such as checking the driver’s licence and insurance, the sobriety of the driver, and the mechanical fitness of the vehicle. Once stopped the only questions that may be justifiably asked are those related to the driving offences.

R. v. Dillon, (2006) 2006 CanLII 10745 (ON SC), 32 M.V.R. (5^th) 13, [2006] O.T.C. 342 (S.C.J).

[92] In a case factually similar to this one, in Dillon Justice Malloy concluded that the police had authority at common law to stop/detain a vehicle in a parking lot. In Dillon, the two arresting police officers became suspicious about a vehicle parked in a strip plaza parking lot. The car was running, and its lights were on. It was late. A bar in the plaza was well known to the police as a trouble spot. However, there had been no complaints that evening.

[93] The police suspected that the driver of the vehicle may be impaired because of the history of police involvement with the bar, the late hour, the fact the parking lot was nearly deserted, the proximity of the car to the bar, and the fact the vehicle was sitting with its engine running. The officers decided to investigate the driver’s sobriety. Justice Malloy accepted the evidence of the two police officers that they sincerely believed their suspicion was sufficiently reasonable to give them the right and duty to investigate for the protection of the public.

[94] The police parked behind the car and blocked it from leaving. They approached the vehicle, and spoke with the driver, who was the sole occupant of the vehicle. From the observations they made they believed the driver was intoxicated, and he was arrested for impaired care and control of the motor vehicle.

[95] The police searched the vehicle incident to arrest and located a large amount of cocaine. The accused provided breath samples at the police station that resulted in readings over the legal limit. The accused was charged with possession for the purposes of trafficking and “over 80”.

[96] Justice Malloy concluded that Mr. Dillon was detained when the police cruiser pulled behind him preventing him from leaving. The central issue was whether the accused’s detention was arbitrary and therefore unlawful. If so, the drugs seized and the breathalyzer readings were obtained in breach of Mr. Dillon’s rights under s. 8 of the Charter, because they would not have been obtained without the initial stop by the police.

[97] Because Mr. Dillon was detained on private property to which the HTA did not apply, Justice Malloy considered the police authority to detain at common law. In assessing whether the Supreme Court of Canada’s findings in Dedman applied, Justice Molloy considered that Dedman pre-dated the Charter, and the stop in Dedman occurred on a public highway as part of an organized and well-publicized program of random stops. In contrast, like in this case, the stop in Dillon was purely random. It was not part of an organized program and occurred in a parking lot.

[98] Justice Molloy determined that if Dedman had been decided under the Charter the result would have been the same and that the principles derived from Dedman support the finding that there is common law authority for random stops to investigate sobriety that are not part of an organized program. She made this finding considering the Supreme Court’s findings in Hufsky that a spot check program to check for licenses, insurance, mechanical fitness, and sobriety, was an arbitrary detention but saved by s. 1 of the Charter, and the Court’s finding in Ladouceur that the common law authority extended to completely random spot check stops that were not part of an organized program. Justice Molloy concluded that “a completely random stop by a police officer acting on his own was, under s. 1 of the Charter, a justifiable infringement of the right of a motorist to be free from arbitrary detention”. Dillon, at para. 33.

[99] Next, Justice Molloy held that there was no rationale for limiting the common law police powers to detain for investigative purposes when the detention occurred in a parking lot. She found that Mr. Dillon had virtually no privacy interest in the public parking lot stating at para. 40:

At the heart of the objection to police entering private property for police business is a concern for the invasion of the privacy interest of the property owner. That privacy interest is significantly diminished where the property is one that is generally open for any member of the public to enter. At the lowest end of the spectrum, in my view, would be a parking lot of a commercial establishment such as the one at issue here where the detainee is himself there by license, as opposed to being the owner or tenant of the property with a right to exclude others. There can be virtually no privacy interests on the part of the member of the public who happens to be parked on a lot adjacent to a public street. The accused, Mr. Dillon, was not on his own private property; he was on a parking lot owned by a business catering to the general public. His expectation of privacy in the parking lot can surely be no greater than his expectation of privacy had he parked at the street curb a few meters away. He had no greater right to be in the parking lot than did the police officers, and no right to exclude the officers from the lot. Indeed, in these circumstances, given the fact that he did not have a valid drivers licence and had been suspended from driving for life, it may well be said that he had far less right to be there than did the police officers, and that the deemed invitation to enter from the business owner did not extend to an unlicensed driver, to say nothing of an impaired driver.

[100] Justice Molloy also considered the impact of the findings of the Ontario Court of Appeal in R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 79 C.C.C. (3d) 482 (C.A.), and the Supreme Court of Canada in R. v. Mann, 2004 SCC 52, (2004), [2004] 3 S.C.R. 59. In Simpson, the police were investigating a confidential informant tip that a particular location was associated with drug trafficking. The police were seeking to link a vehicle and its occupants to the drug trafficking activities. It was a targeted investigation aimed at the occupants of the vehicle. In Mann, the police were investigating a reported break and enter and stopped Mann, a pedestrian, and searched him because they believed he matched the description of the person involved.

[101] In Simpson and Mann the Court imposed an “articulable cause”/reasonable suspicion requirement for investigative detentions. In Mann the majority of the Supreme Court of Canada, at para. 34 held: “The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officers suspicion that there is a clear nexus between the individual being detained and a recent or ongoing criminal offence”.

[102] Like in this case, in Dillon, the police did not have reasonable suspicion that Mr. Dillon had committed an offence when he was detained. They decided to investigate because they had a concern, a “hunch”, that the driver of the vehicle might be impaired. Mr. Dillon was in a running vehicle in a parking lot and the nearby bar had been problematic in the past. Although Justice Malloy accepted that the officers sincerely believed their suspicion was sufficiently reasonable to require them to investigate him for the protection of the public, she was not satisfied that the police had individualized reasonable suspicion as defined in R. v. Mann (2004), 2004 SCC 52, 185 C.C.C. (3d) 308 (S.C.C.) and R. v. Simpson (1993), 12. O.R. (3d) 182 (Ont. C.A.). Dillon, at para. 43.

[103] In conducting her analysis, Justice Malloy identified that there are circumstances where the Simpson individualized articulable cause standard is not applicable such as where the underlying police purpose is the protection of the public. She referenced R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311, 131 C.C.C. (3d) 129, where the police were responding to a silent 911 call and entered a home to ensure the safety of the 911 caller and the Ontario Court of Appeal decision in R. v. Clayton and Farmer (2005), 2005 CanLII 16569 (ON CA), 194 C.C.C. (3d) 289 (Ont. C.A.), which had not yet been considered by the Supreme Court of Canada.

[104] Notably, post-Dillon, in R. v. Clayton and Farmer, 2007 SCC 32, [2007] 2 S.C.R. 725, the majority of the Supreme Court of Canada confirmed that individualized suspicion linking an individual to a crime is not required for certain investigative detentions where public safety concerns are engaged. In Clayton the police received a 911 call reporting four persons “flaunting” handguns within a night club. The men were part of a larger group of 10. The Supreme Court of Canada held it was a justifiable use of police power for the police to stop all vehicles leaving the parking lot of the club because the police action was required for public safety. There were grounds to believe an offence had been committed and the police investigative purpose was to protect the public.

[105] In Clayton, the Supreme Court of Canada held that individualized suspicion may not be required in circumstances where the police are acting in furtherance of an important public safety objective, like protection of the community from an identified threat of gun violence, protection of the vulnerable in situations of domestic violence, or members of the public from the death and destruction caused by impaired driving, provided the liberty interfered with and the nature and extent of the interference, meets the second prong of the Waterfield test. The Supreme Court, at para. 26, reiterated in assessing the second prong of the Waterfield test the interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference.[2]

[106] In Dillon, Justice Molloy concluded that the requirement of individualized reasonable suspicion, established in Mann and Simpson, as a prerequisite for lawful investigative detentions, did not apply to random stops/detentions related to the protection of the public from drinking and driving related offences. In concluding that the “gloss” on the common law power of investigative detention developed in Simpson and affirmed in Mann, that the police have individualized articulable cause to conduct an investigative detention, did not apply in the circumstances of the case, Justice Malloy emphasized that in Simpson, Justice Doherty, was careful to review and distinguish the established line of cases in which investigative detentions had been found to be valid in the absence of any “articulable cause” to suspect wrongdoing, including Ladouceur, Hufsky, and Dedman. She explained that Justice Doherty distinguished those cases because the justifiability determination at the second stage of the Waterfield test was based on the fact that the detentions were “aimed at reducing the terrible toll of death and injury so often occasioned by impaired drivers or by dangerous vehicles” stating as follows, at para. 46:

The Court of Appeal specifically distinguished the situation in Simpson from that in Dedman as follows, at p. 491

In Dedman, supra, at pp. 119-22, the court held that the common law ancillary police power justified random stops of vehicles in the course of the enforcement of laws relating to the operation of vehicles. This power to stop was, however, closely tied to the particular purpose of the stops, the dangers presented by the activity targeted by the stops, the qualified nature of the liberty interfered with by the stops, and the absence of other less obtrusive means of effective enforcement of the relevant laws. The authority to stop described in Dedman was clearly not a general power to stop for all police purposes, but was limited to stops made in furtherance of the police duty to protect those who use the public roadways from those who use those roadways in a dangerous manner. [Emphasis added]

[107] Justice Molloy found that in accordance with Simpson, the police power to detain absent individualized suspicion must be strictly limited. She held, at para. 48, that “in order to randomly detain a motorist without reasonable grounds for suspecting that person has committed a crime, the police must be acting legitimately out of a concern for the protection of the public in relation to the operation of a motor vehicle”. She concluded that in Dillon the only purpose of the two police officers for investigating Mr. Dillon was to ensure he was not impaired and did not pose a threat to the safety of the public in the operation of his motor vehicle. As such, the detention of the accused fell squarely within the scope of the common law power as established in Dedman and the officers were acting lawfully within the scope of their common law power when they detained Mr. Dillon and there was no violation of s. 9 of the Charter.

[108] I am satisfied that as in Dillon, the trial judge in this case concluded that PC Ramzy was acting legitimately out of a concern for the protection of the public in relation to the operation of a motor vehicle. Justice Rose concluded that PC Ramzy’s purpose in briefly detaining the Appellant was to conduct a sobriety investigation. At para. 24, he concluded that PC Ramzy’s initial conversation with the Appellant was brief and confined to a sobriety investigation of a person behind the wheel of a car whose engine was running.

R. v. McColman, 2021 ONCA 382, affirmed 2023 SCC 8.

[109] In McColman, the Ontario Court of Appeal considered whether the police had authority under the HTA or at common law to detain an individual on their own private driveway for the purposes of conducting a sobriety investigation in the absence of reasonable suspicion that the individual had committed an offence. Justice Tulloch (as he then was) writing for the majority of the Court of Appeal concluded the police did not.

[110] The Supreme Court of Canada’s decision in McColman had not yet been rendered at the time of the trial judge’s ruling in this case. The Supreme Court’s judgment has limited relevance on the appeal on this issue because the Supreme Court did not consider whether the police have common law authority to detain an individual on private property for a sobriety investigation.

[111] In McColman police saw an ATV leave the parking lot of a convenience store and decided to conduct a random sobriety check under s. 48 of the HTA while the vehicle was still on a highway. Before the officers stopped the vehicle, about a minute after leaving the convenience store, the ATV pulled into a private driveway. The police followed the vehicle into the driveway and activated their cruiser lights. The officers approached the driver, Mr. McColman, who had exited his vehicle on the driveway. The driveway was a shared driveway for his parents’ home and a commercial property. Prior to interacting with him, the officers did not reasonably suspect Mr. McColman was connected to any crime. While speaking with Mr. McColman in his driveway, the officers observed obvious signs of impairment. Mr. McColman told them he might have had ten beers that evening. He was arrested for impaired driving. Breath tests showed his blood alcohol concentration exceeded the legal limit, and he was also charged with operating a motor vehicle “over 80”.

[112] The trial judge in McColman concluded the stop was authorized under s. 48 of the Highway Traffic Act and the police detention did not violate s. 9 of the Charter, a finding found to be in error on summary conviction appeal. The summary conviction appeal court concluded the breath tests should be excluded under s. 24(2) of the Charter.

[113] The Crown appealed the findings of the summary conviction appeal court. The majority of the Court of Appeal concluded that neither the HTA nor the common law authorized the police to conduct random sobriety stops on an individual’s private property and that the stop violated s. 9 of the Charter. The majority of the Court of Appeal held that the evidence obtained, including the breath test results, was properly excluded by the summary conviction appeal judge.

[114] Justice Rose concluded that this case is distinguishable from McColman. He held that Dillon remained good law after McColman because the Court of Appeal in McColman considered different privacy interests than the interests at play in Dillon and in this case. I agree with the trial judge that the majority’s reasons in McColman address random stops on an individual’s own private property. The majority of the Court of Appeal did not consider the common law authority of the police to detain a driver to conduct a sobriety check in a parking lot widely used by the public, a setting that engages very different privacy and public safety considerations than a private driveway.

[115] In his reasons at paras.18 to 24 the trial judge concluded that the limited scope of the Court of Appeal’s ruling in McColman is evident throughout the reasons. I agree with this conclusion. At the outset of their reasons the majority of the Ontario Court of Appeal characterized the issue before them at para. 5 as follows:

Should a police officer be authorized to stop and question a person on the person’s own private property to determine if the person may have been driving while impaired, when that police officer has no reason to suspect that the person has been drinking?

[Emphasis added]

[116] At para. 48, the majority of the Court of Appeal framed the issue as:

The question at issue in this appeal is whether the common law authorizes the police to conduct a random sobriety check on a private driveway, in circumstances not authorized by the HTA, where the person exited the highway after the officer decided to conduct the stop but before the officer initiated the stop, and there are no grounds to suspect that an offence has been or is about to be committed. [Emphasis added]

[117] At paragraphs 65 and 66, the majority, applying the ancillary powers doctrine, considered whether random stops were justified on an individuals “own property” stating:

Having met the requirements of the first stage, the inquiry now turns to the second branch of the ancillary powers doctrine.

There can be no doubt that impaired driving is a serious problem that demands innovative strategies to deter and detect the dangers posed to the public good that the police perform their duties in this regard. But in my view, the Crown has not met its onus of demonstrating that pursuing and detaining an individual on their own property without any suspicion of wrongdoing is reasonable or necessary to pursue this objective. [Emphasis added]

[118] It is true that in paragraphs that follow the majority at times refer to “private property” without the modifier “own”. For example, at paras. 67 and 68, the majority spoke of less intrusive Charter compliant means of enforcement available to the police stating as follows:

There are many less intrusive Charter compliant means of enforcement at the disposal of police in combatting impaired driving. For example, police have (1) the common law power to conduct Reduced Impaired Driving Everywhere (“R.I.D.E.”) programs; (2) the statutory power under the HTA to stop drivers without any grounds for the purpose of checking their sobriety, so long as the statutory preconditions are met; and (3) the common law power to stop a driver for an investigative detention based on reasonable suspicion.

Considered in the light of the powers the police already have at their disposal to combat impaired driving, and the greater intrusion on liberty posed by stops on private property, I cannot conclude that the power to conduct a groundless stop on private property is reasonably necessary. The police have extensive powers to combat impaired driving, and it is difficult to see the need for the courts to fill a legislative gap in this respect. The police can conduct a random stop under s. 48(1) as soon as the vehicle enters the highway. They also have the option to observe the driver without detaining them, and based on those observations, develop a reasonable suspicion that would them a basis to detain. [Emphasis Added]

[119] Although the majority refer generally to private property at para. 68, the relevant passage also speaks of “the greater intrusion posed by stops on private property”. There is not a greater intrusion or impact on the privacy of a driver parked in a parking lot such as the one at issue in this case, and in my view, the paragraph is addressing the greater intrusion of liberty posed by stops on a persons own private property.

[120] The majority also used the more general term “private property” in paragraphs 69, 74, and 75. At para. 69, the majority of the Court of Appeal questioned whether permitting random stops on private property would have a deterrent function, a key reason why random stops were justified in Dedman, Hufsky, and Ladouceur; and at paras. 74, and 75, the majority expressed that caution was required in assessing whether the police power was reasonably necessary because of the vulnerability of marginalized individuals to low visibility encounters with the police. However, immediately following, at paras. 76 and 77, the majority made explicit reference to the significant liberty interests at stake on an individual’s own property stating:

While the liberty interests at stake are qualified by the driving context, randomly detaining an individual on their own driveway is not a trivial interference with liberty. In this case, the officers testified that the purpose of the stop was to conduct a random sobriety check. At the time of the stop, the driver was no longer on a public highway, nor was he even operating a motor vehicle. He had reached his destination – his home. He had parked the UTV on his private driveway, and he was standing outside the vehicle. It is undisputed that at this point the officer had no reason to think he was impaired, nor did they have reasonable suspicion to believe that an offence was being or had been committed. Nor was there any sign of a further driving issue.

I am satisfied that the proposed expansion of police power is not reasonably necessary and thus fails under the second branch of the ancillary powers doctrine. [Emphasis added]

[121] In my view, this passage makes clear that central to the majority’s analysis was the heightened expectation of privacy of an individual in their own driveway. As the trial judge properly concluded, this is a key factor that distinguishes the issues and findings in McColman from the issues in this case. After identifying that the majority had framed the issue in paragraph 48 as “whether the common law authorizes the police to conduct a random sobriety check on a private driveway”, Justice Rose stated as follows at para. 20:

Much of the following discussion by the majority in McColman responds to that very issue, namely the police power to detain on a person’s own property. Confining the question about common law authority to detain a motorist without individualized suspicion on their own private property is repeated throughout the ruling, see McColman at paras. 60, 61, 62, 66, 76, 78, & 90. The majority finds (at para. 68) that,

Considered in light of the powers the police already have at their disposal to combat impaired driving, and the greater intrusion on liberty posed by stops on private property, I cannot conclude that the power to conduct a groundless stop on private property is reasonably necessary.

But the omission of the word “own” in paragraph 68 does not alter the question asked by the majority nor their discussion which precedes para. 68, and carries on afterwards.

[122] Justice Rose continued at para. 21 as follows:

The basis for that finding – that an individualized suspicion is necessary to detain on a person’s own property – is grounded in the heightened privacy interest in a person’s own home going back hundreds of years and followed ever since, See McColman, at para. 61. The majority concern for territorial privacy of one’s own home reflects a long standing concern by senior appellate courts. As Binnie J. said in R. v. Tessling, 2004 SCC 67 at para. 14, “The midnight knock on the door is the nightmare image of the police State”. It is the heightened liberty interest in a persons own private property which drives that result. See McColman, at para. 62. That outweighs society’s interest in random stops of motorists on their own land.

[123] I agree with Justice Rose that read in context the reasoning of the majority of the Court of Appeal addressed the authority of the police to detain an individual on their own property, a question different than the issue in this case. I agree that “the heightened privacy interest” present in McColman distinguishes it and “does not extend to parking lots which are available to the public, connected to highways which are within the jurisdiction of the HTA”. (Trial judgment, at para. 22)

[124] As a final note, in McColman at the Court of Appeal in his dissenting reasons Justice Hourigan concluded that because the police formed the intention to make the random stop on a public highway the police had authority under s. 48 of the HTA to conduct the stop on the accused’s shared driveway. Justice Hourigan also concluded that if the police did not have authority under s. 48(1) of the HTA, they had common law authority to conduct the stop. Justice Hourigan held there was common law authority for stops on private property. In reaching his conclusion, at paras. 138-142, Justice Hourigan reviewed Dillon and Nield in detail.

[125] The majority in McColman made no reference in their reasons to Dillon or Nield. It is doubtful that the majority of the Court of Appeal intended for their reasons to overrule the conclusions in Dillon and Nield, that the police have common law authority to conduct random sobriety stops in private parking lots to which the public have access, without making any reference to those decisions.

[126] As noted, the trial judge’s reasons were given prior to release of the Supreme Court of Canada’s judgment in R. v. McColman, 2023 SCC 8, [2023] S.C.J. No. 8. The issues considered by the Supreme Court of Canada in McColman were restricted to whether s. 48 or s. 216 of the HTA authorized the stop of Mr. McColman and whether the evidence was properly excluded under s. 24(2) of the Charter.

[127] The Supreme Court of Canada did not grant leave on the issue of whether the police had common law authority to stop or detain drivers on private property to investigate sobriety and did not address the issue. The Supreme Court of Canada held that the police stop in Mr. McColman’s driveway was not authorized by the HTA, and the police conduct including the investigative steps that followed violated s. 8, and s. 9 of the Charter.

[128] Ultimately, the Supreme Court of Canada concluded that the Court of Appeal erred in upholding the summary conviction appeal ruling that the evidence should be excluded. The Supreme Court of Canada set aside the acquittal and restored the conviction at trial.

[129] Recently in R. v. Virk, 2025 ONSC 5790, at paras. 21 and 22, Justice Stribopoulos addressed the legality of sobriety check detentions on private property. In keeping with the trial judge’s findings, Justice Sribopoulos held that several decisions from this court have recognized the authority at common law to conduct sobriety check stops on private property that is open to the public, like the parking lots of commercial plazas. He held that those decisions were not overruled by either McColman in the Supreme Court of Canada or in the Ontario Court of Appeal. Justice Stribopoulos cited Dillon, Nield, and Vander Griendt, also cited by the trial judge, at para. 23. Justice Stribopoulos also referenced R. v Strmota, 2018 ONSC 7437.

Analysis and Conclusions: PC Ramzy Had Common Law Authority to Detain the Appellant

[130] The actions of police officers must find legal justification in statutory or common law authority. Police officers, when acting in their official capacity as agents of the state, act lawfully only if they act in the exercise of authority which is conferred by statute or derived as a matter of common law from their duties. Dedman, at para. 62.

[131] At the time of the allegations in January 2021, PC Ramzy did not have authority under the HTA to detain the Appellant to conduct a sobriety investigation because the detention occurred in a private parking lot. At the time, s. 48 of the HTA which authorizes the police to conduct stops for sobriety testing and s. 216 which requires drivers to stop when directed by the police, did not apply to vehicles in private parking lots. Both provisions were amended in 2024.[3]

[132] At trial, the parties agreed that any authority to detain the Appellant in a private parking lot, if it existed, was at common law under the ancillary powers doctrine.

[133] The ancillary powers doctrine holds that police actions that interfere with individual liberty are authorized by common law if they are “ancillary” to the pursuit of recognized police duties, provided that the police action is reasonably necessary for fulfillment of that duty. This involves a two-stage inquiry which asks the following questions:

i. whether the police action at issue falls within the general scope of a statutory or common law police duty; and

ii. whether the police action involves a justifiable exercise of police powers associated with the general police duty or duties in question. Is the police action reasonably necessary for the fulfillment of the duty or duties?

McColman, at para. 54. (C.A.)

[134] In Dedman, at para. 75, the Supreme Court of Canada explained that under the ancillary powers doctrine the interference with liberty “must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference”.

[135] The concept of reasonableness requires the court to consider whether other less intrusive measures are available or there are other valid options in the circumstances. If the police can fulfill their duties by an action that interferes less with liberty the purported power is clearly not reasonably necessary. McColman, at para. 55 (C.A.)

[136] In R. v. Macdonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 37, the Supreme Court instructed courts to weigh three factors in the stage 2 ancillary powers determination:

(1) The importance of the duty to the public good;

(2) The necessity of the interference with individual liberty for the performance of the public duty;

(3) The extent of the interference with individual liberty.

[137] The onus remains with the state to justify the existence of common law police powers that involve the interference with liberty. McColman, paras. 52 -56 (C.A.)

Ancillary Powers – Step 1 – PC Ramzy’s Conduct Fell within The General Scope of a Statutory or Common Law Police Duty

[138] Applying the first component of the ancillary powers test there is no dispute that PC Ramzy’s action, detaining the Appellant to investigate his sobriety, fell squarely within the general scope of a statutory or common law police duty, to investigate crime and to protect life. I am satisfied the trial judge correctly concluded that PC Ramzy’s conduct fell within the general scope of his ancillary powers. PC Ramzy was conducting a sobriety investigation. He was engaged in the protection of life having regard to the grave dangers posed by drinking and driving. Detecting impaired drivers and preventing them from operating cars in our public spaces, including parking lots and highways, fell squarely within the scope of his police duties. Dedman, at para. 14; Dillon, at para. 25; McColman, paras. 64 and 143 (C.A.).

Ancillary Powers – Step 2 – PC Ramzy’s Action involved a Justifiable Exercise of Police Power

[139] In respect of the second component, whether the conduct involved a justifiable exercise of police powers associated with the general police duty or duties in question, I am satisfied that a review of the Macdonald factors establishes that the trial judge, relying on and applying Dillon, correctly concluded that PC Ramzy’s conduct was a justifiable exercise of police power.

[140] In assessing whether the police conduct was a justifiable use of the powers associated with the duty it is necessary to balance public safety interests and the liberty interests at stake. Mr. Hansaraj was in the driver’s seat of a running vehicle when he interacted with PC Ramzy. Whether on public or private property, driving is subject to regulation and control in the interests of safety. The public safety interests must be balanced against the liberty interest of an individual who is driving or in care or control of a vehicle in a parking area of a plaza to which the public has access. McColman, at para. 60. (C.A.)

Importance of the Duty to the Public Good

[141] In considering the MacDonald factors, the duty, conducting a sobriety investigation in a parking lot, was of importance to the safety of the public having regard to the grave dangers of drinking and driving . There are similar if not equal public safety concerns surrounding drinking and driving offences on a highway and in a public space like the parking lot where the Appellant was detained. The “overwhelming need” to ensure public safety on our roads and highways extends to spaces like parking lots that functionally, as indicated by Justice Rose, become an extension of public roadways.

[142] Parking areas of plazas are widely used by members of the public. Drinking and driving in such public spaces raises the same safety concerns as drinking and driving on highways. In some instances, such as at schools or busy malls, the public safety concerns may be greater due to the prevalence of pedestrians. Drinking and driving poses similar risks to the public whether it occurs on a “highway” or in the parking lot of a school property, plaza, mall, or community centre.

[143] The significance of public safety concerns surrounding drinking and driving have been repeatedly recognized by Courts. In McColman, at para. 72, the Supreme Court of Canada, citing R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254, at para. 16, reiterated the vital interest that society has in combatting drinking and driving:

Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country. [Emphasis added]

[144] Section 320.12(b) of the Criminal Code explicitly recognizes the significant public safety concerns posed by drinking and driving. It provides as follows:

(b) the protection of society is well served by deterring persons from operating conveyances dangerously or while their ability is impaired by alcohol or drug, because that conduct poses a threat to the life, health, and safety of Canadians.

[145] Section 320.12(b) is not restricted to the operation of a vehicle on a highway.

Was the Detention Reasonably Necessary for the Performance of the Duty

[146] The Appellant submits it was not “reasonably necessary” for PC Ramzy to detain the Appellant to investigate him for impaired driving while his vehicle was parked on private property. He submits there were less intrusive means of enforcing the law. He submits PC Ramzy could have investigated the Appellant without using his cruiser to block the Appellant’s vehicle. He could have pulled up to or walked up to the vehicle and spoken to the Appellant to investigate him for impaired driving instead of blocking his exit and detaining him. The Appellant submits that in Dillon, Justice Molloy failed to consider whether the detention of the accused was reasonably necessary, and as a result the conclusion that the detention was authorized by the ancillary powers doctrine was legally flawed because it was incomplete.

[147] This argument is being made for the first time on appeal. As a result, it is not surprising that the trial judge did not address reasonable necessity in more detail. At trial, the Appellant, citing para. 68 of McColman, took the position that because PC Ramzy was not acting pursuant to the HTA, at common law he required reasonable suspicion that the Appellant had committed an offence for the detention to be lawful. The Appellant submitted that because PC Ramzy lacked reasonable suspicion the detention was not authorized by law. At trial, the Appellant’s position was that all detentions that occurred on private property required reasonable suspicion.

[148] During reply submissions, counsel for the Appellant briefly submitted that PC Ramzy could have carried out his duties without detaining the Appellant, however, the submission was not tied to an analysis of the second stage of the ancillary powers test.

[149] In any event, I am satisfied that the record establishes that the power to briefly detain the Appellant to conduct a sobriety investigation was reasonably necessary. The importance and necessity of the police power to randomly stop vehicles on public roadways has long been recognized. The jurisprudence has recognized that a short detention and suspension of the right to counsel, for the purpose of detecting and deterring drinking and driving is justified to protect the lives and safety of other persons using the roadway. The jurisprudence does not support the submission that the police may only stop and detain the driver of a moving vehicle.

[150] Contrary to what the appellant submits, there is no “expansion” of police powers being proposed. The balancing of interests is well established with respect to drivers in public spaces and supports the common law authority for random stops to investigate sobriety. The significant role of random stops in combatting impaired driving has been accepted since Dedman and has been recognized in subsequent Supreme Court jurisprudence, including in Ladouceur, and Hufsky. McColman, dissenting reasons at para. 144 (C.A.).

[151] Public awareness of the power to stop and/or detain a driver in a parking lot, like on a highway, has an important deterrent value. Plaza and mall parking lots cannot become sanctuaries. There is a need to deter the very conduct at issue in this case. Drinking large amounts of alcohol in a vehicle in a place widely used by the public and connected to a highway poses very real dangers to the public. When a vehicle is in such a parking lot, there is good reason to believe that a driver has not reached his or her final destination.

[152] I disagree that there were other less intrusive means available to PC Ramzy to carry out his duty. It was “reasonably necessary” for PC Ramzy to park behind the Appellant’s vehicle so that he could effectively and safely conduct the sobriety investigation. PC Ramzy was alone in a secluded part of the parking lot. He was outnumbered. He testified that he parked behind the Appellant’s vehicle so he could capture the interaction on his in-car camera recording device, and so the vehicle did not drive off and hurt him in the process. These are important officer safety considerations.

[153] Although the police could wait for a person in a vehicle in a parking lot to enter a highway before conducting a sobriety check, this would undermine the effectiveness of the detection and deterrence of impaired driving and expose members of the public in the parking lot and connected highways to greater risk.

[154] In addition, I agree with the submission of the Crown that even if the officer had parked his marked cruiser beside the Appellant, rather than behind it, the issue of psychological detention may well be engaged if an officer approaches a driver of a vehicle to conduct a sobriety investigation.

[155] It is reasonably necessary for police officers to have the authority to briefly detain drivers in parking lots to safely and effectively conduct sobriety checks necessary to detect and deter impaired driving. Officer safety and the ability to carry out the important duty would be compromised without the authority to briefly detain. A brief detention is a necessity for the performance of the public duty.

Extent of the Interference

[156] As emphasized by Justice Molloy in Dillon, “the Supreme Court has consistently held that the brief detention of a motorist to check for driver’s licenses, mechanical fitness and/or sobriety is a minimal infringement of liberty when seen in the context of the extreme danger represented by unlicensed or impaired drivers on roads”. Dillon, at para. 27.

[157] The Appellant argued that the liberty interest of a driver in a parking lot is not qualified in the same way as on a highway because of the limited application of the Highway Traffic Act. By way of example, the Appellant submitted that s. 33(1) of the HTA, and s. 3(1) of the Compulsory Automobile Insurance Act (CAIA), requiring a “driver of a motor vehicle” and an “operator of a motor vehicle on a highway” to carry with them a license and insurance card do not apply on private property.

[158] I disagree that the limited application of the HTA should lead to a conclusion that the police lack common law authority to conduct random stops for sobriety checks in a parking lot. The liberty interest of a driver in a parking lot is qualified. A motor vehicle in a parking lot is not unregulated even if s. 33, s. 48 and s. 216 of the HTA, and s. 3(1) of the CAIA do not apply. It is an offence to operate a motor vehicle while impaired or while over the legal limit in a parking lot or on a highway. The Criminal Code investigative powers conferred by s. 320.27 and s. 320.28 of the Criminal Code apply when a vehicle is operated on private property. Section 320.12(a) explicitly recognizes and declares that:

(a) operating a conveyance is a privilege that is subject to certain limits in the interests of public safety that include licensing, the observance of rules, and sobriety;

[159] A driver operating a vehicle in a public space has a reduced expectation of privacy. In this case, there are no circumstances, such as those present in McColman, that heightened Mr. Hansraj’s privacy interests. Like in Dillon, Mr. Hansraj had virtually no privacy interest in the public parking lot. He had no ownership interest in the property and no additional expectation of privacy in the parking lot versus on the highway. Like in Dillon, Mr. Hansraj was engaged in prohibited activity. He was drinking open alcohol in his car. Like in Dillon, Mr. Hansaraj had no greater right to be in the parking lot than did the police officers, and he had no right to exclude PC Ramzy from the lot. Given the fact he and his passenger, Mr. Osman were using the car as a place to drink, it may be well said that Mr. Hansaraj had far less right to be there than did PC Ramzy, and that the deemed invitation to enter from the business owners did not extend to someone using the parking lot as a place to drink. Dillon, at para. 40.

[160] If Mr. Hansaraj had exited the parking lot and been stopped by the police on Weston Road, it is clear his detention would have been lawful. Likewise, if he were sitting and drinking in a car parked at the curb of Weston Road rather than a short distance away in the parking lot, that served as an extension of Weston Road, his detention would have been lawful. Nothing about his location enhanced Mr. Hansraj’s expectation of privacy. Nothing in the circumstances of this case leads me to conclude that the balancing of interests that lead the Supreme Court in Dedman to conclude that the police had a common law power to briefly detain drivers under a RIDE spot check program in Ontario, or that the detention of the accused in Dillon was authorized by law should lead to a different result in this case.

[161] As for the Appellant’s submission that recognition of the common law authority for random stops to investigate sobriety in a parking lot will create uncertainty for the police because it will be unclear when there are heightened privacy interests. In my view, the police will have little difficulty in recognizing the quasi public nature of locations like plaza parking lots and distinguishing such locations from the driveways of private residences. Where there is uncertainty, the police are well advised to act with constraint.

[162] The police action involved a justifiable exercise of police powers associated with the general police duty in question: the protection of life through the detection and deterrence of impaired driving offences. I am satisfied that briefly detaining the Appellant was reasonably necessary to investigate the Appellant’s sobriety in furtherance of detecting and deter impaired driving.

[163] I am satisfied that the common law power of the police to stop and/or detain a vehicle in a parking lot is of high importance to the public good, that the brief detention was necessary to the fulfillment of the important police duty of conducting sobriety checks in furtherance of detecting and deterring impaired drivers; and that there was a limited interference with individual liberty. As in Dillon, the stop by PC Ramzy was authorized by the ancillary powers doctrine, and individualized suspicion was not required. It was a limited and justified interference with individual liberty having regard to the limited expectation of privacy of the vehicle parked in a public parking lot.

[164] Justice Rose was correct in his conclusion that there was no violation of s. 9 when PC Ramzy briefly detained the Appellant in a plaza parking lot to conduct a sobriety check because he was authorized to do so by the common law ancillary powers doctrine, as detailed in Dillon.

H. The Immediacy Requirement of Section 320.27(1) of the Criminal Code

[165] The Appellant submits that Justice Rose erred in law by finding that the s. 320.27(1)(b) demand was a lawful demand. He submits PC Ramzy did not make an ASD demand until 9:30 p.m., 15 minutes after he formed reasonable suspicion that the Appellant had alcohol in his body and, as a result, the demand did not meet the implicit immediacy requirement of s. 320.27(1)(b) of the Criminal Code.

[166] The Appellant submits that Justice Rose erroneously relied upon the Ontario Court of Appeal’s decision in R. v. Quansah, 2012 ONCA 123 in finding that both the demand and provision of the sample met the immediacy requirement of s. 320.27(1)(b). The Appellant submits Quansah, which unduly expanded the immediacy requirement, was overruled by the Supreme Court of Canada’s decision in Breault which required that immediacy be given its ordinary meaning except in unusual circumstances.

[167] The Appellant submits that applying Breault, PC Ramzy’s demand was not a lawful demand because it was not made “immediately”. The Appellant submits the need to delay the provision of the breath samples because of concerns for residual mouth alcohol justified the delay in taking the sample but did not justify delay in making the demand and the fail result of the screening test was obtained in violation of s. 8 and 9 of the Charter and could not be relied upon to establish grounds to arrest Mr. Ramzy or to make the s. 320.28(1)(a) Criminal Code demand for breath samples at the station.

[168] For reasons I will explain, I am satisfied that the trial judge made findings of fact that establish that PC Ramzy made an informal demand immediately after he formed reasonable suspicion that Mr. Ramzy had alcohol in his body and the informal demand met the immediacy requirements of s. 320.27(1)(b) of the Criminal Code, despite the fact the ASD was not present at the time the demand was made. The trial judge properly concluded that there were “unusual circumstances” that necessitated a 15 minute delay in the taking of the screening sample. As such, both the demand and the provision of the sample, met the immediacy requirements of s. 320.27(1)(b) of the Criminal Code.

[169] The Supreme Court of Canada’s decision in R. v. Breault, 2023 SCC 9, which considered and clarified the immediacy requirements of a s. 254(2)(b) of the Criminal Code, was released on April 13, 2023, ten months after the trial judge’s decision.

[170] The events in Breault occurred in 2017, prior to the enactment of the new impaired/80 plus provisions, including s.320.27(1)(b) of the Criminal Code, which came into force on December 18, 2018. Consequently, in Breault, the Supreme Court was considering s. 254(2)(b) of the Criminal Code that set out the statutory requirements for an approved screening device demand. It provided as follows:

254(2) 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 motor vehicle or vessel, … or had the care or control of a motor vehicle, …, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (c), in the case of a drug, or with the requirements of either or both of paragraphs (a) and (b), in the case of alcohol:

(b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose; and

[171] PC Ramzy’s ASD demand was made pursuant to s. 320.27(1)(b) of the Criminal Code which provides:

320.27 (1)(b) 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:

(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;

[172] For the purposes of this appeal, nothing turns on the replacement of the word “forthwith” in the former legislation with the word “immediately” in the new legislation. In Breault, the Supreme Court of Canada, explicitly stated that the guidance provided on the interpretation of the “forthwith” immediacy requirement in s. 254(2)(b) applies to the interpretation of the word “immediately” in s. 320.27(1)(b). Breault, at para. 44.

[173] Prior to Breault, in R. v. Woods, 2005 SCC 42, [2005] 2 SCR 205, the Supreme Court of Canada held that s. 254(2)(b) had both an “implicit” and an “explicit” immediacy requirement. The section required both that a peace officer demand forthwith a breath sample (the implicit requirement) and that the driver provide forthwith a breath sample (the explicit requirement). If the immediacy requirements of s. 254(2)(b) are not met, then the driver will have been unlawfully detained at the roadside, and any subsequent ASD sample will have been obtained in violation of s. 8 of the Charter.

[174] In Breault, the police were informed by forest patrollers that an intoxicated individual who had been driving an ATV had parked his vehicle and was about to leave on foot. The police located Mr. Breault. His eyes were bloodshot, and his breath smelled strongly of alcohol. He admitted drinking a beer but denied driving the ATV. Police spoke with the patrollers and confirmed their belief that Mr. Breault was the driver of the ATV. The officer did not have an ASD in his possession. He requested an ASD be brought to the scene. He anticipated it would arrive within 10 to 15 minutes. An officer made a s. 254(2)(b) ASD demand to Mr. Breault. When the ASD demand was made the police officer did not tell Mr. Breault there was no ASD at the scene.

[175] Mr. Breault explicitly refused to provide a sample three times. He said he was refusing because he had not been driving and asked to speak to counsel. Approximately four minutes after the demand was made, Mr. Breault was arrested for refusing to comply with the ASD demand contrary to s. 254(5) of the Criminal Code. He could not have provided a sample at that time because there was no ASD on scene. Twenty minutes after the ASD demand there was still no ASD on scene. The police cancelled the request for the ASD because of the refusal.

[176] The trial judge in Breault held the validity of the ASD demand was not dependent on the presence of the ASD at the scene and convicted the accused of failing to comply with an ASD demand. His summary conviction appeal was dismissed. However, his appeal to the Quebec Court of Appeal was allowed. The Court of Appeal concluded that for an s. 254(2)(b) demand to be valid the officer must be able to demand the driver provide the sample forthwith which means the officer must have immediate access to the ASD.

[177] The Crown appealed the ruling to the Supreme Court of Canada. The Supreme Court of Canada held that the demand was invalid because there was no unusual circumstance that would account for the absence of an ASD at the scene and justify a flexible interpretation of the immediacy requirement. As a result, the Supreme Court of Canada found that Mr. Breault’s refusal did not attract criminal liability and upheld the acquittal entered by the Court of Appeal.

[178] In Breault, the Supreme Court of Canada clarified the immediacy requirements of s. 254(2)(b). A summary of the findings of the Supreme Court includes the following:

• The immediacy requirement of s. 254(2)(b) is implicit with respect to the police demand for a breath sample and explicit as to the mandatory response. The police must make the demand “forthwith” and the driver must provide a sample “forthwith” in response to the demand. Forthwith means “immediately” or “without delay”. (at para. 2)

• Drivers stopped for the purpose of providing ASD samples are detained and such detentions are meant to be brief. The Court’s jurisprudence allows a limit under s. 1 of the Charter on the right to counsel guaranteed by s. 10(b) of the Charter during such a detention because the detention is of very brief duration. (at para. 6)

• As a general rule, the word “forthwith” must be given an interpretation consistent with its ordinary meaning, “immediately” or “without delay”, because a driver who is stopped for a breath sample is being detained without the right to counsel. But for the immediacy requirement, s. 254(2)(b) would not pass constitutional muster. (paras. 6, 17, 34, and 47)

• The Supreme Court rejected the Ontario Court of Appeal’s interpretation of the immediacy requirement in R. v. Quansah, 2012 ONCA 123. In Quansah, the Court of Appeal concluded that s. 254(2)(b) permitted short delay that is reasonable and necessary in all the circumstances, including a delay due to the time required to bring an ASD to an officer who needs one. The Supreme Court, at para. 51, held that the Ontario Court of Appeal “unduly broadened” the immediacy requirement in finding that it must allow for the time “reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2).(Quansah, at para. 47)”. The Supreme Court concluded “forthwith” is not synonymous with “time reasonably necessary” and must be given an interpretation consistent with its ordinary meaning, except in unusual circumstances.

• A driver detained under s. 254(2)(b) must “supply” a breath sample to the peace officer “immediately” or “without delay”. Operational time is implicit in the word “forthwith” because the officer has to ready the equipment and instruct the suspect on what to do, but operational time does not include the time needed for a device to be delivered to the scene. (at para. 30)

• Exceptionally, unusual circumstances may justify giving the word “forthwith” a more flexible interpretation than its usual or ordinary meaning demands. Unusual circumstances may be related to, among other things, the use of the device or the reliability of the result that will be generated because the text of s. 254(2)(b) specifies that the sample collected must enable a “proper analysis” to be made. As established in Bernshaw, the “forthwith” immediacy requirement allows for a 15 minute waiting period where necessary to collect a reliable sample. Such a delay is only acceptable where the officer has information suggesting that a sample collected without waiting would not be reliable. (at paras. 7, 17, 50, 53, and 57)

• Courts may recognize other “unusual circumstances”, such as circumstances involving urgency in ensuring the safety of the public or peace officers. (at para. 58)

• The burden of establishing unusual circumstances rests on the Crown. (at para. 55)

• Unusual circumstances cannot arise from budgetary considerations or considerations of practical efficiency. The absence of the ASD at the scene at the time the demand is made is not in itself an unusual circumstance. (paras. 59 and 60)

• The relevant time period for the explicit immediacy requirement is the period between the making of the demand and the moment when the breath sample can be provided. (at para. 50)

• It is not an offence to express an intention to refuse once the ASD arrives at the scene. Refusing without reasonable excuse to provide forthwith a sample is what constitutes the offence. As such, compliance must be physically possible. A person is not criminally liable for refusing to comply with a demand which was not physically possible to comply with because of the absence of the ASD at the scene when the demand was made.

Analysis

[179] In this case, PC Ramzy formed reasonable suspicion to make a screening demand at 9:15 p.m., but did not make a formal ASD demand until 9:30 p.m., when the 15 minute waiting period had elapsed. He testified that he did not make the formal demand until 9:30 p.m. because he did not have the ASD in his possession.

[180] However, the trial judge, at para. 26 of his reasons, concluded that when PC Ramzy spoke to Mr. Hansraj about his alcohol consumption “he told him that he was questioning him, not to trick him, but because he was going to have to provide a breath sample, so he wanted to time the breath tests 15 minutes after his last drink to ensure accuracy”. The trial judge found as a fact that “From that point forward Mr. Hansraj would have understood exactly what was going on, and when. There was going to be breath testing, but it had to wait until his last drink had dissipated”.

[181] The trial judge, at para. 26, held that PC Ramzy’s concern about recent consumption was well founded in the circumstances. Mr. Hansraj had admitted recent consumption and “everything about the scene”, a parked car with two individuals and open beer in the back, suggested that Mr. Hansraj had been sitting in his car with Mr. Osman drinking beer before the police arrived.

[182] At para. 27, applying factors identified in R. v. Mastromartino (2004), 2004 CanLII 28770 (ON SC), 70 O.R. (3d) 540, the trial judge had no difficulty in finding that PC Ramzy was fully justified in delaying the ASD test by 15 minutes to eliminate the possibility of residual mouth alcohol.

[183] In assessing the immediacy requirement under s. 320.27(1)(b) of the Criminal Code the trial judge relied on the principles set out in Quansah, which was the leading authority at the time of his decision. He concluded that both the demand and provision of the sample met the immediacy requirement of s. 320.27(1)(b) stating as follows at para. 28:

There is no statutory requirement that an ASD demand under s. 320.27(1) of the Code be made forthwith upon the officer developing a reasonable suspicion that the person has alcohol in his or her body. Nonetheless, Courts have inferred an immediacy requirement to the demand. In R. v. Quansah 2012 ONCA La Forme JA emphasised that a lawful demand under s. 254(2), which was the predecessor to s. 320.27, need only comply with the language of the section. He put it this way:

28. For years this court has recognized that “forthwith”, or the immediacy requirement, called for some flexibility in its interpretation. For example, s. 254(2)(b) mandates that “ a proper analysis” be made and thereby “incorporates an element of accuracy”: see Pierman, at para. 21. Consequently, if the circumstances dictate that a “short delay” is necessary for the officer to obtain an accurate result, the officer is justified in delaying either the making of the demand or the administration of the test after the demand. See Pierman, at para. 21.

[184] Applying Quansah, the trial judge held that PC Ramzy was entitled to delay giving the ASD demand until 9:30 p.m., which was 15 minutes after Mr. Hansraj admitted to recent consumption and was informed there would be a delay in doing the ASD test.

[185] The trial judge considered the fact that PC Ramzy did not have the ASD with hm and had to call for one to be brought to the parking lot. He held that the unavailability of the ASD was immaterial to the roadside testing because if the ASD had been at the scene at 9:15 p.m. it would not have been used until 9:30 p.m. when the residual mouth alcohol concern had been eliminated from the procedure. He held, at para. 29, that “the availability of the device was necessary but not sufficient for the ASD test, which could only proceed after the 15 minute wait. The arrival of the ASD caused no delay in the testing procedure”.

[186] The trial judge appropriately and reasonably concluded that a brief delay in the taking of the sample was necessary for a proper analysis to be made. It was necessary for PC Ramzy to hold off in collecting the sample from the Appellant to obtain a reliable result. His finding that the delay in provision of the sample was justified is consistent with the Supreme Court of Canada’s subsequent finding that unusual circumstances, including an officer’s reasonable belief that residual mouth alcohol may affect the reliability of the result, will permit a more flexible interpretation of the explicit immediacy requirement. His reasoning is in keeping with the subsequent finding of the Supreme Court that the relevant time period for the explicit immediacy requirement (that the driver must provide a sample “forthwith” or “immediately” in response to the demand) is the period between the making of the demand and the moment when the breath sample can be provided. The ASD was available at the first moment when the breath samples could be provided and as a result, the immediacy requirement for the provision of the ASD sample was met.

[187] The Appellant does not challenge the trial judge’s conclusion that the potential of residual mouth alcohol justified a 15 minute delay in provision of the ASD sample. Rather, the Appellant submits the s. 320.27(1)(b) demand made by PC Ramzy was not a lawful demand because the formal demand was not made “immediately”. The Appellant submits the reason the officer did not make the formal ASD demand until 9:30 p.m. was because the ASD was not at the scene, and this was not an “unusual circumstance” that justified delaying the making of the demand. Consequently, the Appellant submits the demand did not meet the implicit immediacy requirement in s. 320.27(1)(b). In fact, there were two reasons the officer did not make the formal demand, because he did not have the ASD and because of the 15 minute waiting period.

[188] In Breault the Supreme Court of Canada did not directly address whether, if unusual circumstances exist that require a delay in the provision of the ASD sample, if the demand may also be delayed. However, I agree with the Appellant that having regard to the reasoning of the Supreme Court, its rejection of the reasoning in Quansah, the finding that “immediately” be given its ordinary meaning, and the centrality of the immediacy requirement to the constitutionality of s. 320.27(1)(b), the need to delay the taking of the test to ensure the validity of the sample due to the potential impact of residual mouth alcohol, provides no justification for delaying the demand.

[189] The necessity of delaying provision of a sample to ensure accuracy of the result, does not provide a justification to relax the implicit immediacy requirement for the making of the demand. While the central issue in Breault was the explicit immediacy requirement (the time between the demand and when the sample can be provided), the reasoning in Breault applies equally to the implicit immediacy requirement (the time between suspicion and demand) such that an ASD demand must now “be made immediately, in the ordinary sense of that term, subject only to unusual circumstances”. Breault, at para. 51, overruling Quansah, at para. 47; R. v. Borko, 2024 ONSC 1988, at paras. 33-48.; R. v. McCorriston, 2024 SKCA 5, at paras. 17-18; R. v. Rajasekeran, 2024 ONCJ 228. R. v. Westgaard, 2025 SKCA 53, at paras. 43-63.

[190] In Borko, at paras. 33-49, Justice Mew of the Ontario Superior Court reached the same conclusion, finding that the discussion in Breault of the immediacy requirement in s. 320.27(1) of the Criminal Code applies to both the “demand” (or “implicit”) and “compliance” (or “explicit”) components of the subsection.

[191] In McCorriston, the Saskatchewan Court of Appeal found that the immediacy requirement for the demand in s. 320.27(1)(b) was not met based on a five minute delay between the officer forming reasonable suspicion and the making of the ASD demand. A large portion of the delay in McCorriston was due to the officer running background checks on the driver that were not necessary for officer safety or the proper operation of the ASD. See McCorriston at para. 11; and Westgaard, at para. 52.

[192] In McCorriston, at para. 16 the Court of Appeal stated as follows:

Whenever a court is called upon to consider whether an ASD demand has been made immediately, it is important to remember that the requirement for immediacy is bound up by the legal implications because it serves to preserve the constitutionality of a demand under s. 320.27(1)(b) by striking a balance between the public interest in eradicating driver impairment and the need to safeguard drivers’ ss. 8, 9, and 10(b) Charter rights; R. v. Breault at paras 6 and 50. At root, the constitutional validity of an ASD demand made under s. 320.27(1)(b) requires that both the demand and the provision of a breath sample be made immediately, i.e. forthwith or without delay; R. v. Breault, at para. 2; and R. v. Woods at paras. 13-14 and 44. If the demand was not made immediately, then the driver will have been unlawfully detained at roadside. If the driver did not immediately provide a breath sample in response to a lawful demand, then the driver will have committed the offence under s. 320.15(1) of the Criminal Code. The decision in R. v. Breault affirms that, when determining whether an ASD demand was lawful, courts must have regard for the specific circumstances in which it was made. [Emphasis added]

[193] Although the trial judge relied upon the reasoning in Quansah in reaching his conclusion that PC Ramzy was entitled to delay giving the formal ASD demand, as noted above the Supreme Court of Canada subsequently held “the Ontario Court of Appeal broadened the immediacy requirement unduly by finding that it must allow for the time “reasonably necessary” to enable the officer to discharge his or her duty as contemplated in s. 254(2)”. The Supreme Court of Canada held that “Forthwith is not synonymous with “time reasonably necessary rejecting that the word “immediately” in s. 320.27(1)(b) is synonymous with “time reasonably necessary” and found that forthwith must be given an interpretation consistent with is ordinary meaning, except, in the unusual circumstances referred to by Fish J., at para. 43 of Woods”.

[194] In my view, as a result of the Supreme Court’s finding in Breault overruling Quansah, the 320.27(1)(b) demand to Mr. Hansraj to provide samples had to be made “immediately”, subject only to unusual circumstances. The unusual circumstances, recent consumption of alcohol, that justified the delay in obtaining the ASD breath samples did not justify a delay in the making of the ASD demand. The formal demand read by PC Ramzy from his notebook at 9:30 p.m. standing alone did not meet the immediacy requirement of s. 320.27(1)(b).

[195] However, despite these conclusions, I am not satisfied that the trial judge erred in finding that the immediacy requirements of s. 320.27(1)(b) were met. The demand made at 9:30 p.m. was not the only ASD demand made to Mr. Hansraj. PC Ramzy made an informal demand at 9:15 p.m. immediately after forming reasonable suspicion that Mr. Hansraj had alcohol in his body.

[196] Formal language is not required for an ASD demand to be made. “A demand need not be in any particular form, provided it is made clear to the driver he or she is required to give a sample of his or her breath forthwith. This can be accomplished through words or conduct, including the “tenor [of the officer’s] discussion with the accused.[citations omitted] What is crucial is the words used be sufficient to convey to the detainee the nature of the demand”.[citations omitted]. R. v. Torsney, 2007 ONCA 67, at para. 6.

[197] At trial, the Crown and defence agreed that breath demands need not be formal and that words were exchanged at the roadside about what was to follow. The defence argued that the interaction between PC Ramzy and the Appellant at 9:15 p.m. was insufficient to constitute an informal demand because it failed to convey to the Appellant sufficient information for him to understand that he was to be breath tested.

[198] The trial judge rejected the defence argument that when PC Ramzy initially spoke with the Appellant about his consumption of alcohol that what PC Ramzy said failed to convey to him that he would be required to provide samples of his breath. The trial judge concluded that what PC Ramzy conveyed to the Appellant communicated to him not only that he would have to provide samples into a screening device, but also that he would have to provide the samples in 15 minutes because of the potential that residual mouth alcohol would affect the accuracy of the results.

[199] The trial judge accepted PC Ramzy’s evidence that when he spoke with Mr. Hansraj about his alcohol consumption he told him that he was questioning him, not to trick him, but because he was going to have to provide a breath sample and he wanted to time the breath test 15 minutes after his last drink to ensure accuracy. The trial judge found as a fact that “from that point forward Mr. Hansraj would have understood exactly what was going on, and when. There was going to be breath testing, but it had to wait until his last drink had dissipated”.

[200] The Appellant submitted that the trial judge misapprehended the evidence and failed to recognize that the officer testified that he delayed the demand because he did not have the device. I disagree. The trial judge did not misunderstand PC Ramzy’s evidence that he delayed the demand because he did not have the ASD device. This submission does not consider the full context of the evidence. PC Ramzy formed reasonable suspicion to make a demand, but at the same time, determined that he could not obtain the ASD sample for 15 minutes due to concerns about residual mouth alcohol. Justice Rose articulated his findings of fact at para. 26 in a way that was responsive to the issues raised by trial counsel who argued that the Applicant’s s. 10(a) right was violated because PC Ramzy did not tell the Appellant the reason for his detention at the time of his initial detention, that it was unclear what PC Ramzy said to the Appellant , and that what PC Ramzy said to the Appellant was insufficient to amount to a constructive ASD demand and was insufficient to convey the reason for his detention to the Appellant. Trial counsel conceded that a residual mouth alcohol based prolongment of a person’s detention without right to counsel was generally permissible, counsel’s more focused point was that the suspension of the accused’s Charter rights was not justified where testing could not have happened anyways because the ASD was not present.

[201] The trial Judge’s findings at para. 26 make clear that he did not accept the defence position that what PC Ramzy told the Appellant was insufficient to convey to him the reason for his detention. The trial judge’s findings of fact establish that PC Ramzy made an informal demand at 9:15 p.m..

[202] Relying on Quansah, the leading authority at the time, the trial judge found that because of the residual mouth alcohol issue, the officer could legally delay making the demand. He rejected the argument that the wait for the ASD rendered unlawful an otherwise lawful delay for the dissolving of the Appellant’s mouth alcohol. The trial judge did not have the benefit of the Supreme Court’s reasons in Breault, and not surprisingly the old legal test from Quansah, impacted the way he formulated his reasons. Based on Quansah, he held that the formal demand, made at 9:30 p.m. complied with the immediacy requirements of s. 320.27(1)(b). That was enough to establish the legality of the demand. It was not necessary for the trial judge to add that the informal demand also met the immediacy requirements.

[203] Nonetheless, Justice Rose’s factual findings establish there was an informal demand made immediately at 9:15 p.m. that clearly communicated to the Appellant that he would be required to provide a sample of his breath into a screening device after a 15 minute waiting period necessary to ensure the accuracy of the result due to the potential of residual mouth alcohol. The trial judge’s reasonable findings of fact are entitled to deference and clearly demonstrate that he made findings of fact that establish that an ASD demand, an informal one, was made “immediately” as required by s. 320.27(1)(b).

[204] I recognize that in Breault the Supreme Court found the demand deficient because the officer did not have the ASD device with him at the time the demand was made. The Court explained at para. 65:

When a detained driver has to respond to a demand to provide a breath sample, the driver must be able to know whether the demand is valid and whether refusing will result in criminal liability. [Citation omitted] In a context where the driver is unable to retain and instruct counsel, it cannot legitimately and realistically be expected that the driver will agree in advance to comply and will then be capable of determining when the delay in the delivery of an ASD justifies a refusal. [Emphasis added]

[205] Later at paragraph 50, the Court held that the relevant period for the explicit immediacy requirement is the period between the making the demand and the moment when the breath sample can be provided. As emphasized in McCorriston, courts must have regard for the specific circumstances in which a demand was made.

[206] In this case, PC Ramzy immediately made an informal demand at 9:15 p.m. upon forming reasonable suspicion. Mr. Hansraj, was not called on to respond to the demand until 9:30 p.m. and he knew he was not required to respond to the demand until 9:30 p.m. PC Ramzy told him he would not have to respond for 15 minutes. PC Ramzy read the formal demand, at the expiry of the 15 minutes, with the ASD in hand. This distinguishes the circumstances in Breault, where the accused was called upon to respond to a demand when there was no ASD present and refused. In Breault, the accused could not have provided the sample at the time of his refusal. Here, Mr. Hansraj when called to respond could immediately provide the sample as required.

[207] I agree with the trial judge’s conclusion that had the ASD been present at 9:15 p.m. it would not have been used until 9:30 p.m. when the residual mouth alcohol concern had been eliminated from the procedure. The accused was clearly informed that he was not being asked to respond to the demand until 9:30 p.m. In this case, “The availability of the device was necessary but not sufficient for the ASD test, which could only proceed after the 15 minute wait”. Immediately at 9:30 p.m. after the 15 minute wait period, PC Ramzy made the formal demand, the device was available, and the Appellant was required and able to respond immediately. He did so and registered a fail. There were no delays beyond the 15 minute period required to ensure an accurate result.

[208] This was not a case where delay in delivery of the device left Mr. Hansraj unable to immediately comply with a demand and as a result left uncertainty about whether he was required to comply at all. See for example R. v. Westgaard, 2025 SKCA 53.

[209] Having regard to Justice Rose’s factual findings, I am satisfied that he did not err in law in concluding that the immediacy requirements of s. 320.27(1)(b) were met. I am satisfied that the demand was a lawful demand that complied with the immediacy requirements of s. 320.27(1)(b) and the trial judge correctly concluded that there was no violation of s. 9 even though the device was not present when PC Ramzy made the demand.

[210] The trial judge did not err in failing to explicitly address the defence argument that there was a corresponding violation of s. 10(b) of the Charter. His finding that there was a lawful ASD demand that met requirements of s. 320.27(1)(b), and no violation of s. 9, resulted in an implicit finding that there was no s. 10(b) violation because the right to counsel was suspended in accordance with well established legal principles. See R. v .Thomsen, (1988) 1988 CanLII 73 (SCC), 1 S.C.R. 640, at p. 653, and Woods, at para. 30. The evidence did not establish that the right to counsel could have been facilitated privately at the roadside during the 15 minute wait period, something not addressed with the officer during his evidence, and only briefly referred to by counsel during submissions.

[211] I am satisfied that the trial judge did not err in concluding that the 15 minute delay was necessary to obtain a reliable ASD sample and that the implicit and explicit immediacy requirements of s. 320.27(1)(b) were met. I am satisfied there was no violation of the Appellant’s rights under s. 8, 9, or s. 10(b) of the Charter associated to the s. 320.27(1)(b) demand.

I. The Trial Judge did not Err in Admitting the Evidence Under Section 24(2)

[212] The trial judge found a violation of Mr. Hansraj’s s.10(b) right to counsel because he was arrested at 9:32 p.m. but was not read his right to counsel until 9:43 p.m., a delay of 11 minutes. He concluded that the delay that flowed from PC Ramzy speaking with his fellow officers about what to do with Mr. Hansraj’s passenger, Mr. Osman, between 9:32 p.m. and 9:43 p.m. did not justify the delay in providing Mr. Hansraj his rights to counsel and constituted a violation of s. 10(b) of the Charter.

[213] In assessing whether the breath test results should be excluded under s. 24(2) of the Charter as a result of the violation, the trial judge considered the three part test in R. v. Grant, 2009 SCC 32 and concluded that the breath evidence should not be excluded.

[214] In respect of the first prong of the Grant test, at para. 33, the trial judge found that the violation was not a serious violation. He concluded that PC Ramzy “was perfectly credible in his evidence” and the conduct that attracted Charter scrutiny was his decision to participate in the decision about what to do with the passenger, Mr. Osman, instead of reading Mr. Hansraj the informational component. He held that that period was brief, but PC Ramzy should have read rights to counsel before speaking with the other officers. The brevity of the delay lead the trial judge to conclude that it was a technical violation.

[215] Referencing R. v. Nguyen, 2021 ONCJ 142, the trial judge noted that he had previously found a pattern of Charter violations when the police in York Region failed to implement right to counsel of choice. However, the trial judge was not satisfied that the breach in this case was part of a wider institutional failure. He concluded that “the first limb of the test from R. v. Grant (supra) does not pull toward exclusion of the breath tests, but rather inclusion of the evidence”.

[216] In respect of the second prong of the Grant test, at para 35, citing R. v. Rover, 2018 ONCA 745, the trial judge held that the impact on Mr. Hansraj’s protected interests was that for 11 minutes he did not know that he had the right to speak with a lawyer before he provided breath samples. He concluded that the effect on Mr. Hansraj’s Charter protected interests was “minimal” and that the second limb of the test from Grant “also pulls in favour of admission of the breath evidence”.

[217] In respect of the third prong of the Grant test, at para. 36, the trial judge concluded there was a strong public interest in the adjudication of the case on the merits and that the breath test results were reliable evidence in a jurisdiction that has a problem with drinking and driving. He concluded that the third prong of the Grant test “strongly favours admission of the evidence”.

[218] The trial judge concluded that the application of the three part test from Grant established that the evidence should not be excluded and that admitting rather than excluding the evidence would bring the administration of justice into disrepute. As a result, he held that the breath test results were admissible.

[219] The Appellant submitted the trial judge erred in his s. 24(2) analysis and that a proper application of the Grant test required exclusion. He submitted:

• In respect of the seriousness of the breach, the misconduct falls on the more serious end of the spectrum because it demonstrated a failure to adhere to basic, well-known and settled Charter standards. The Appellant submitted the trial judge erred in characterizing the breach as technical and in failing to find that the breach was institutional. The Appellant cited 91 Ontario impaired driving cases where there was a delay in the provision of the right to counsel to support the assertion that the seriousness of the breach was exacerbated because the conduct is systemic not isolated.

• It was an error in principle for the trial judge to conclude that the impact was minimal because the Appellant spoke to counsel before providing the breath samples. The Appellant relies on Justice Paciocco’s finding in Davis that “eventual compliance with s. 10(b) obligations did not dispel the damage that the initial breach of Mr. Davis’s s. 10(b) informational rights caused to his Charter-protected interest”. The Appellant submitted that the subsequent access with counsel did not remedy the psychological impact to the Appellant of not being made immediately aware that he would have access to a lawyer who could assist them. R. v. Davis, 2023 ONCA 227, at paras. 38, 41, and 65.

• Finally, the Appellant submitted that the trial judge erred when he improperly concluded that both the first and second factors “pulled towards admission” because in R. v. Zacharias, 2023 SCC 30, at para. 75, Justices Rowe and O’Bonsawin cautioned that it is an error to conclude that either of the first two factors point towards admission finding “the first two branches never favour admission – at most, they can weakly favour exclusion”. The Appellant submitted that to conclude otherwise “is clearly wrong in law and undermines the exclusionary force of both the first and second Grant factors.

[220] I would not give effect to this ground of appeal. The trial judge did not err in law in admitting the breath test results under s. 24(2) of the Charter.

[221] In assessing the seriousness of a breach, Grant requires an examination of the police conduct and a determination of where it fits on a spectrum from mere technical breach at one end of the spectrum to bad faith violation at the other. This assists in identifying whether conduct is so serious that the Court must dissociate itself from it. “At one end of the scale is conduct that constitutes a wilful or reckless disregard of Charter rights, a systemic pattern of Charter-infringing conduct, or a major departure from Charter standards. At the other end of the scale are less serious Charter breaches, including breaches that are inadvertent, technical, or minor or those that reflect an understandable mistake”. The more severe the state’s Charter-infringing conduct, the greater the need for courts to dissociate themselves from it. (citations omitted). R. v. Beaver, 2022 SCC 54, at para. 120. [Emphasis added]

[222] The informational component of the right to counsel is an important lifeline to persons who have been detained or arrested. It was important that Mr. Hansraj be “immediately” informed of his right to counsel so that he knew he was not entirely at the mercy of the police while detained and was entitled to a lifeline to the outside world, through which he could learn whether he was lawfully detained and of his legal rights and obligation relating both to his liberty and the investigation. As counsel ably argued, the immediacy requirement of the informational component was pressing because a 15-minute waiting period, while his right to counsel was suspended, had already occurred.

[223] However, the caselaw does not support the assertion that a breach of the informational component of s. 10(b) must be characterized as a serious breach in every case. Context and consideration of the totality of the circumstances matters.

[224] Recently in R. v. McGowan-Morris, 2025 ONCA 349, Justice Trotter writing for the Court of Appeal held he would not characterize a breach of the informational component of s. 10(b) as serious and described the 10-minute delay as “extremely brief”.

[225] In McGowan-Morris the accused and three others were stopped by police to conduct a Cannabis Control Act (CCA) investigation. The trial judge concluded that there was a breach of s. 10(b) because the police did not provide right to counsel upon detention and right to counsel was not suspended during the CCA investigation. Five minutes after the officer detained the vehicle and the occupants, one of the occupants fled the vehicle. Firearms were discovered shortly thereafter. Justice Trotter observed that arguably there no breach at all because the officer was waiting for back-up to arrive and was concerned for his safety. However, the case was not argued on that basis at trial. In respect of the second prong of Grant, Justice Trotter held the impact of the breach was minimal at best because the breach did not have any causal connection to the discovery of the evidence, the evidence existed independent of the breach and was unquestionably reliable.

[226] In Rover, relied upon by the Appellant, the Ontario Court of Appeal spoke of the importance of the right to counsel and emphasized that access to counsel is a lifeline for a detainee. Rover involved an implementational breach. Factually, the nature and seriousness of the violation was of an entirely different magnitude than the violation at issue in this case.

[227] In Rover, the accused was arrested prior to a search warrant being obtained and executed on his home. At the time of arrest, when provided the rights to counsel, he asked to speak to a lawyer. The police put him in the cells and delayed contacting his lawyer for six hours while they applied for, obtained, and executed a search warrant. The court found that it was routine practice for the police to delay the implementation of the right to counsel for an indeterminate period when executing warrants to search a place for drugs believed to be connected to the accused person. The decision to delay access to counsel occurred without the officers turning their mind to the specific circumstances of the case. During the period of delay, the accused was not told why he was not being allowed to speak to counsel or when he would be allowed to speak to counsel.

[228] In this case, there was no direct evidence about the psychological impact on Mr. Hansaraj caused by the approximately 11 minute delay in his being provided with his right to counsel. The impact and evaluation of the harm done by the informational delay in this case, while important, is not akin to Rover where there was “significant psychological pressure brought to bear on the appellant by holding him without explanation and access to counsel for hours” Rover, at para. 45

[229] The Court in Rover made clear that constitutional breaches that are the direct result of systemic or institutional police practices render the police conduct more serious for the purposes of s. 24(2). The trial judge in this case, who was sat regularly in the jurisdiction, considered and rejected that the violation was institutional in nature. He made a factual finding that is entitled to deference.

[230] The Appellant placed significant reliance on R. v. Davis, 2023 ONCA 227, which is factually very similar. However, in my view, rather than supporting the defence assertion that the trial Judge erred in his analysis, it constitutes a strong reminder that the trial judge’s factual findings underpinning the s. 24(2) analysis are entitled to deference.

[231] Mr. Davis was stopped by police for a sobriety investigation. When the officer spoke with him, he admitted consuming alcohol. He failed an ASD test and was arrested, searched, and placed in the rear of the police car. He was advised of his right to counsel eight minutes after arrest. He spoke to duty counsel at the police station, and subsequently provided breath samples with readings that “moderately exceeded” the legal limit.

[232] In respect of the eight minute delay, the arresting officer could not account satisfactorily for the delay because he had no notes describing his activities during that period. There was evidence contradicting his explanation of what happened during the delay. This factored into the appeal. In his reasons, Justice Paciocco observed that the trial judge’s conclusion that the breach was serious was made “in a trial where it was shown that the arresting officer demonstrated a lack of interest in the delay that had occurred in giving Mr. Davis his informational rights by not recording what had transpired during that period, and where his testimony about what he was doing during that delay was difficult to reconcile with other evidence”. Davis, at para. 52.

[233] At trial in Davis the Crown conceded that the eight minute delay in providing the informational component violated the accused’s s. 10(b) right to counsel but argued that the evidence should not be excluded under s. 24(2) of the Charter. The Crown’s primary argument was that since Mr. Davis spoke to counsel before he provided the evidential breath samples, he enjoyed s. 10(b)’s implementational right, rendering the breach merely technical.

[234] The trial Judge held the breach was not merely technical, commenting that the requirement to provide the right to counsel immediately is a well established concept and a duty easily complied with. He found the impact was moderate because the immediacy requirement is what supports the suspension of Charter rights at the roadside. The trial judge in Davis found the third prong of Grant favoured admission but held that the administration of justice was best served by making it clear that police failure to comply with s. 10(b) requirements will be taken seriously. The trial judge excluded the evidence and acquitted Mr. Davis.

[235] The Crown brought a summary conviction appeal. The summary conviction appeal judge dismissed the appeal and in so doing held that:

• The trial judge’s characterization of the breach as serious was not wrong in principle and was not an unreasonable decision. In reaching the decision the trial judge correctly considered and applied the legal principles and values. The finding was properly owed deference. (at para. 17.)

• The trial judge elected to characterize the impact of the breach on the respondent as moderate. “Reasonable people can certainly differ about such an assessment. Some would no doubt see the impact as minimal while others might see it as being even more impactful than the trial judge found it to be.”(at para. 17) [Emphasis added]

• “The test in Grant is considered every day by judges across the country, each of whom bring widely disparate background and life experiences to bear on the analysis. Inevitably, just as reasonable people may differ, different judges may reach different conclusions regarding the same set of facts. However, it is not the role of an appellate court to substitute its view of things for that of the trial judge. Rather, it is the role of an appellate court to determine whether the decision of the trial judge was correct in law and reasonable in the circumstances of the case.”( at para. 17). [Emphasis added]

• The conclusion that the impact on the accused was moderate was available to the trial judge on the facts of the case and on the applicable law. It is not an unreasonable decision or wrong in principle and was owed deference. There was no palpable or overriding error in the analysis nor was there any misapprehension of the evidence.

[236] The Crown appealed the summary conviction appeal ruling to the Ontario Court of Appeal. There were four issues before the Court of Appeal. The first was whether the summary conviction appeal judge erred in failing to analyze whether the breath samples were “obtained in a manner” that violated Mr. Davis’s rights. The Court of Appeal concluded there was no error because it was not an issue raised at trial, and was not an issue the trial judge should have raised on his own.

[237] The second issue was whether the appeal judge erred in making unreasonable findings which impacted upon the first Grant inquiry, the seriousness of the breach. The focus of this issue was whether the summary conviction appeal judge erred in making a factual finding that the breach was systemic without an adequate evidentiary basis, and a finding that the officer showed “wilful disregard” in the absence of such a finding by the trial judge. The Court of Appeal was not satisfied that the summary conviction appeal judge made such a finding without an evidential foundation, and in any event, concluded the systemic finding did not play a material role in the summary conviction appeal judge’s reasoning.

[238] The third issue was whether the summary conviction appeal judge erred in treating the s. 10(b) breach as “automatically serious”. The Crown argued that the appeal judge’s refusal to apply the “fresh start” doctrine sent a message that such breaches are inevitably serious, and effectively created a bright line rule for the exclusion of breath samples following any s. 10(b) informational breach. Justice Paciocco gave short shrift to the argument and made clear that the decision does not establish that every s. 10(b) informational breach must be found to be serious and require exclusion of the evidence. Justice Paciocco responded to the issue in two short paragraphs finding that there was no merit to the argument and stating at para. 60 “As I have explained, the appeal judge denied the Crown’s appeal after deferring to the trial judge’s characterization of the seriousness of the breach, which was made in all of the circumstances of the case. The appeal judge’s decision does not establish a bright line rule.” [Emphasis added]

[239] The final issue was whether the appeal judge committed errors in characterizing the impact of the breach as moderate and ignoring mitigating factors including the absence of a causal relationship between the breach and the evidence and the fact that the police did not seek to obtain evidence from the Appellant during the delay. Justice Paciocco found the summary conviction appeal judge did not err in failing to mention the absence of causal connection in his reasons because the Crown did not rely on the absence of causal connection at trial as a factor mitigating the impact of the breach, and the trial judge’s failure to consider the absence of the causal connection was not raised as a ground of appeal at trial. As a result, Justice Paciocco did not entertain the issue but added the following at para. 65:

Second, because causation is not a realistic factual concern where purely informational breaches of s. 10(b) occur, to treat the absence of causation as mitigating the impact of the breach on the Charter-protected interests of the accused would systemically and artificially devalue the vitality of informational rights. It is therefore not generally instructive to consider causation relating to purely informational breaches of s. 10(b), since a purely informational breach is not apt to “cause” the discovery of evidence in any case. Informational breaches turn on what the accused is told, not on what the accused does during the investigation or the investigative steps that the police undertake. Unlike a breach by the police of their implementational obligation to facilitate communication between a detainee and counsel, which can realistically result in the accused producing evidence that may not otherwise have been obtained, it is difficult to see how the simple failure to comply with purely informational right can lead to the discovery of evidence. Given that an absence of causation is inherent in all informational breaches of s. 10(b), and that it can be perilous to the integrity of s. 10(b)’s informational rights to use the absence of causation as a mitigating factor, it is neither surprising nor concerning that the appeal judge did not do so.

[240] In my view, the intention of this paragraph was to explain why the summary conviction appeal judge did not err in failing to refer to causation. It does not establish that the absence of a causal relationship between the s. 10(b) breach and the evidence obtained is irrelevant in the assessment of the impact of the breach. McGowan-Morris post-dated Davis and is an informational breach case. At para. 115, Justice Trotter, stated as follows:

Turning to the second Grant factor, the impact of the brief s. 10(b) breach on the respondent’s Charter protected interests was minimal at best. Although I accept that the evidence was “obtained in a manner” that infringed the respondent’s Charter rights, it did not contribute to the discovery of the evidence in any meaningful way. There was no causal connection. I consider this to be an important mitigating factor in evaluating the impact of the breach. See Beaver, at para. 125, Pileggi, at para. 120. [Emphasis added]

[241] As is clear from McGowan-Morris, the absence of a causal relationship between the evidence obtained and the breach remains a relevant and important consideration under the second prong of the Grant analysis.: Any other conclusion would be inconsistent to the subsequent findings of the Court of Appeal in McGowan-Morris. In my view, while explicitly referenced by the trial judge, the absence of a causal nexus between the breach and the evidence obtained is an important factor supportive of the trial judge’s conclusion that the impact on the Appellant’s Charter protected interests was minimal.

[242] At para. 69, of Davis Justice Paciocco concluded by emphasizing that categorical approaches should not be taken to s. 24(2), and that the assessment must be conducted on a case by case basis by individual judges, adding: “In this regard I fully accept that not all judges would have found the informational breach in this case to be serious, or its impact to have been moderate, and I recognize that not all judges would have found the balancing of factors to require the exclusion of the evidence. That, however, is not a basis for allowing the appeal”.

The Trial Judge Did Not Err in Fact or in Law in His Section 24(2) Analysis

[243] Justice Rose did not err in characterizing the breach as a technical breach, or in concluding that it was not systemic in nature. The facts in this case are very different than in Davis. This was not a situation where the police officer could not account for the time between the arrest and the provision of rights to counsel or where evidence contradicted PC Ramzy’s explanation for the delay. The trial judge found PC Ramzy to be “perfectly credible”. PC Ramzy was faced with public safety considerations posed by the passenger, Mr. Osman, and the competing need to ensure Mr. Osman’s Charter rights were respected. He made a “mistake” in prioritizing the competing interests.

[244] PC Ramzy was rightly concerned about Mr. Osman’s rights and public safety issues. Mr. Osman was drinking with Mr. Hansraj. His car was parked immediately beside Mr. Hansraj’s. PC Ramzy testified that he had to ensure the passenger’s safety because the passenger had also been drinking and he had to make sure he did not go onto road while drunk and was not in care and control of the other vehicle. PC Ramzy explained that he chose to speak to the passenger and other officers prior to providing rights to counsel to the Appellant because he did not want to unnecessarily detain the passenger. He said he was trying to balance taking care of the first person, and the passenger, who might also be arrested for drinking and driving.

[245] Although there were other officers on the scene, PC Ramzy explained in cross-examination that he dealt with the passenger because the other officers did not “see the whole thing from beginning to an end” and he wanted to ensure they were not improperly holding Mr. Osman. It is understandable why PC Ramzy would conclude that he should participate in the decision making about what should happen to Mr. Osman. He was best positioned to make an informed decision about whether there was any basis or necessity to continue to detain Mr. Osman.

[246] The trial judge did not conclude that PC Ramzy wilfully or carelessly disregarded the Appellant’s s. 10(b) Charter rights. Rather he found that during the period of delay PC Ramzy erred by speaking with the other officers about what to do with Mr. Osman rather than immediately reading the Appellant his right to counsel. Having regard to the circumstances and the brevity of the delay, Justice Rose found that the violation was a technical violation. This was a reasonable finding of fact open to the trial judge. There was no palpable and overriding error. The trial judge’s finding is entitled to deference.

[247] I would add that in these circumstances it would have been open to the trial judge to find there was no unjustified delay in the provision of the right to counsel because of the public safety concerns surrounding Mr. Osman. I would also note that while the trial judge found the total delay was 11 minutes this included the time to search the Appellant incident to arrest before placing him in the police car. The Appellant was arrested at 9:35:23 p.m. and was placed in the police car at 9:43:03 p.m.. Arguably it would have been appropriate for the trial judge to deduct the period necessary to search the Appellant incident to arrest for officer safety reasons. Had that period been deducted, the delay in provision of rights to counsel was approximately 7.5 minutes rather than 11 minutes, during which PC Ramzy was assessing how to ensure Mr. Osman’s safety and the public’s safety and seeking to ensure that Mr. Osman’s rights were respected.

[248] While the police must comply with their obligation to inform a detainee of the right to counsel immediately so that a detainee understands that they will have access to counsel to be informed of their rights, the reality and difficulty of the challenges faced by police officers who in real time must balance competing interests that engage public safety, their own safety, and sometimes the competing Charter interests of other detainees cannot be forgotten. Police officers are required to make important decisions with little time for reflection. Where an officer makes a good faith mistake, as in this case, it mitigates the seriousness of a breach.

[249] The Appellant argued that the seriousness of the breach is exacerbated by a survey of 91 impaired driving cases over the last 8 years which show that such conduct is not an isolated incident. He argues the cases reveal the existence of a serious problem with many officers failing to immediately advise detainees of their rights upon arrest. The Appellant provided a list of 91 reported cases decided between 2015 and 2023 involving breaches of the informational component of the right to counsel. The delays ranged from 2 to 16 minutes. Eight of the cases were from York Region.

[250] Relying on Davis, the Appellant argued that it is not an error in principle for the Court to consider the frequency of breaches as established in reported cases when determining the prevalence and seriousness of a breach. In Davis, the Appellant provided the summary conviction appeal court with 56 cases to support the assertion that the informational breach was systemic. Although Justice Paciocco, at para. 55, concluded that it was not an error in principle to consider the frequency of a type of breach in reported caselaw when determining the prevalence of that kind of breach, the issue did not figure prominently in the appeal. In Davis, the trial judge did not make a finding that there was a systemic problem in his jurisdiction. At issue was whether the summary conviction appeal judge had erred in making a finding that the breach was systemic in the absence of proper evidentiary record. The Court of Appeal concluded that the summary conviction appeal judge characterized the breach as systemic based on the implications of the trial judge’s reasoning. Justice Paciocco held while this was enough to answer the alleged error, he also concluded that the summary conviction appeal judge’s findings that there was a systemic breach did not play a material role in his reasoning.

[251] In this case, the trial judge was not presented with the 91 cases now relied upon by the Appellant and was not asked to make a finding that the breach was systemic for the reasons the Appellant now advances.

[252] I agree with the Crown submission that without an understanding of the number of arrests as a backdrop, it is difficult to gage the significance of the referenced multijurisdictional cases and whether they support a finding that a breach is systemic in nature. I am well familiar with the high number of impaired driving/80 plus charges laid annually in York Region, a large percentage of which are resolved without a trial and are never reported. Eight cases constitutes a very small fraction of the total charges laid against accused persons for drinking and driving related offences in York Regional over the course of eight years, which, regrettably, would number in the thousands.

[253] In any event, as I have indicated above, the trial judge considered whether the breach was systemic, and having regard to the context of this case, found the breach was situational and was not part of a wider systemic breach. This finding was reasonable and entitled to deference.

[254] On the second prong, for the reasons set out above, the trial judge’s conclusion that the effect on Mr. Hansraj’s Charter protected interests was minimal was also reasonable.

[255] The trial judge’s finding that the third prong “strongly” supported admission having regard to societies interest in the adjudication of the case on the merits, and the reliable nature of the breath tests in a jurisdiction that has a problem with drinking and driving, was entirely reasonable and in keeping with similar findings by the Supreme Court of Canada in McColman, at para. 73 (SCC).

[256] As for the submission that the trial judge erred in law by stating that the first two Grant factors “pulled in favour of admission”, the trial judge did not have the benefit Zacharias, which was decided after the decision in this case was rendered. In my view, to find reversible error on this basis would be to overly parse the trial judge’s language. Prior to Zacharias, trial and appellate courts alike frequently used similar language to express when a factor minimally favoured exclusion.

[257] What is clear is that the trial judge properly considered the three prong test in Grant to assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to i.) the seriousness of the Charter-infringing state conduct; ii.) the impact of the breach on the Charter protected interests of the accused, and iii.) societies interest in the adjudication of the case on it merits, and after doing so reasonably concluded that exclusion of the evidence rather than admission would bring the administration of justice into disrepute. There was no error in law, and his ultimate findings are in keeping with the s. 24(2) analysis in cases such as McGowan-Morris, Davis, and the Supreme Court of Canada in McColman.

J. The Trial Judge Did Not Err in Concluding that the Appellant was In Care and Control

[258] In assessing this ground of appeal it is helpful to review the overarching principles established by the majority of the Supreme Court of Canda in R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157 applicable where the accused is alleged to have been in care and control of a motor vehicle.

[259] In Boudreault, the accused, after a night of drinking went to the home of a woman he met at a bar. When she asked him to leave the apartment, he was too drunk to drive, so she called him a taxi - twice. After the second call, the woman asked him to wait for the taxi outside. To avoid the winter cold, he decided to wait for the taxi in his truck. He started the motor, turned on the heat, and fell asleep. He was asleep when the taxi arrived, and the taxi driver called the police. Mr. Boudreault was arrested and charged with having care or control of a motor vehicle while impaired and over 80. He was manifestly impaired. His blood alcohol concentration was more than three times the legal limit.

[260] Mr. Boudreault was acquitted by the trial judge who found that Mr. Boudreault posed no realistic risk of danger because though intoxicated, he knew what he was doing and took all the necessary precautions. He was aware of the gravity of driving while impaired and had a concrete and reliable plan to get home. The taxi was on the way and but for the taxi driver calling the police, the plan would have prevented him from driving.

[261] The Crown appealed the acquittals, and the Quebec Court of Appeal ordered a new trial. Mr. Boudreault appealed to the Supreme Court of Canada to restore his acquittals.

[262] Justice Fish writing for the majority of the Supreme Court of Canada held that a realistic risk of danger is an essential element of “care or control” within the meaning of s. 253(1) of the Criminal Code, the predecessor to s. 320.14 of the Criminal Code. The majority judgment outlined that the offence requires proof of: (1) an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk, as opposed to a remote possibility of danger to persons or property.

[263] The majority held that the risk of danger must be realistic and not just theoretically possible, but need not be “probable, or even serious or substantial”.

[264] Justice Fish explained at para. 35, that to require that the risk be “realistic” is “to establish a low threshold consistent with Parliament’s intention to prevent a danger to public safety. To require only that the risk be “theoretically possible” is to adopt too low a threshold since it would criminalize unnecessarily a broad range of benign and inconsequential conduct”.

[265] The majority found that while an intention to set the vehicle in motion obviously creates a realistic risk of danger, an accused who satisfies the court that he or she had no intention to set the vehicle in motion will not necessarily escape conviction. The majority explained at paras. 41 and 42:

…An inebriated individual who is found behind the wheel and has a present ability to set the vehicle in motion – without intending at that moment to do so – may nevertheless present a realistic risk of danger:

In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways. First, an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.

[Emphasis added]

[266] Justice Fish recognized the close relationship between impaired judgment of someone who is under the influence of alcohol or drugs and a realistic risk of danger. He stated as follows at para. 13:

Impaired judgment is no stranger to impaired driving, where both are induced by the consumption of alcohol or drugs. Absent evidence to the contrary, a present ability to drive while impaired, or with an excessive blood alcohol ratio, creates an inherent risk of danger. In practice, to avoid conviction the accused will therefore face a tactical necessity of adducing evidence tending to prove that the inherent risk is not a realistic risk in the particular circumstances of the case.

[267] At para 52, Justice Fish discussed the impact of a “plan” when assessing the risk of danger and held that it will be dependent on two considerations: first whether the plan itself was objectively concreate and reliable; and second, whether it was in fact implemented by the accused. “A plan may seem watertight, but the accused’s level of impairment, demeanour or actions may demonstrate that there was nevertheless a realistic risk that the plan would be abandoned before its implementation. Where judgment is impaired by alcohol, it cannot be lightly assumed that the actions of the accused when behind the wheel will accord with his or her intentions either then or afterward”. [Emphasis added].

[268] The Supreme Court emphasized, at paras. 12 and 45, that while a conviction will normally ensue where the accused is found inebriated behind the wheel of a motor vehicle with nothing to stop him or her from setting it in motion either intentionally or accidentally, a conviction is not automatic and will not be appropriate absent a “realistic risk of danger in the particular circumstances of the case”. The use of a vehicle for a “manifestly innocent purpose” should not attract the stigma of a criminal convict. (Boudreault, at para. 49)

[269] The existence of a realistic risk of danger is a matter of fact. Justice Fish referencing R. v. Szymanski (2009), 2009 CanLII 45328 (ON SC), 88 M.V.R. (5^th) 182 (Ont. S.C.J), indicated that the trial judge must examine all the relevant evidence and may consider a number of factors.

[270] Ultimately, in Boudreault, the majority held that the trial judge, applying the correct legal test, found there was no realistic risk of danger that the Appellant would set the vehicle in motion. The majority found that the trial judge’s conclusion on the facts “however surprising or unreasonable” did not give rise to a question of law alone, and as a result the majority restored the acquittals, because under s. 676(1)(a) of the Criminal Code, the Crown could only appeal the acquittals on a question of law alone.

[271] Turning to the facts of this case, and the trial judge’s analysis, in respect of whether the Crown established the Appellant was in care and control, the trial judge proceeded on the basis that the statutory presumption of care and control in s. 320.35 of the Criminal Code - that a person in the driver’s seat of a car is presumed to have been operating a car unless they establish that they were not in the driver’s seat for the purpose of setting the vehicle in motion - was rebutted. The trial judge accepted Mr. Hansraj’s evidence that at the time he was approached by PC Ramzy, he was in the driver’s seat of the car for the purposes of drinking beer with Mr. Osman, not for the purpose of setting the vehicle in motion.

[272] The trial judge correctly identified that because the Appellant had rebutted the statutory presumption, pursuant to Boudreault, the question was whether Mr. Hansraj’s occupancy of the driver’s seat presented a realistic risk of danger to public safety.

[273] The Appellant submits that the trial judge erred in law by finding the Crown had proven that the Appellant was in care and control because he accepted the appellant’s evidence that he did not intend to drive and failed to address whether there was a real risk that Mr. Hansraj would change his mind and set the vehicle in motion. The Appellant submits that the trial judge’s findings were general in nature, not specific to the accused. He submits that the trial judge found that “an impaired person” in the driver’s seat of a running car with a passenger could easily have set the car in motion but failed to particularize his findings to the risk of danger posed by the accused. He submits a generic conclusion of risk in such circumstances was insufficient to support the trial judge’s finding that the Appellant was in care and control/operating the vehicle especially where the trial judge had accepted the Appellant’s evidence that he was not in the drivers seat for the purpose of setting the appeal in motion.

[274] There is no merit to this ground of appeal. The trial judge clearly and explicitly found that the Appellant posed a realistic risk of danger to persons or property after carefully considering all the relevant factors. The trial judge conducted a detailed factual analysis specific to the Appellant. He considered the non-exhaustive list of factors identified by Justice Durno in Szymanski, referenced by the Supreme Court, and linked them to the Appellant and the circumstances of the case at paras. 40 and 41:

a) The trial judge held that level of impairment is a factor relevant to unpredictability of behaviour, whether an accused may exercise bad judgment, the time it would take to become fit, and the likelihood that he or she would be presented with an opportunity to change their mind during that time. He held that Mr. Hansraj’s level of impairment was an inculpatory factor because he was drunk, something that would impede his higher cognitive skills.

b) He found that the car was on and running, held immobile only by the emergency brake and the flat surface of the parking lot. He considered this factor to be an inculpatory factor because the Appellant’s car was in a state of readiness and all that needed to happen was for the parking brake to be released and the car put in motion.

c) In respect of the location of the vehicle, the trial judge held that the fact that the car was in a parking lot, not a highway, was exculpatory.

d) He concluded that it was inculpatory that Mr. Hansraj had not reached his final destination. Although he had a general plan with three options for getting home – calling his uncle, calling an Uber, or staying with Mr. Osman, he had not reached his final destination, and he had no fixed plan for getting home. He was in circumstances where the additional option of driving his running car was immediately available to him.

e) In respect of Mr. Hansraj’s attitude, the trial judge found it was exculpatory that he was cooperative with PC Ramzy because it suggested that he may not have made bad decisions. However, the trial judge concluded that this finding was tempered by the fact that the very decision to use his car as a drinking spot was a bad decision. Mr. Hansraj did not use the car for an innocuous purpose such as sheltering from the cold. Drinking in the driver’s seat of a car is not innocuous.

f) The trial judge found there was no evidence that Mr. Hansraj drove impaired, an exculpatory factor.

g) He found Mr. Hansraj had no stated intention to drive, an exculpatory factor.

h) The trial judge found there was no evidence that Mr. Hansraj failed to take the benefit of alternate means to leave the scene which was an exculpatory factor.

i) It was exculpatory that Mr. Hansraj had a cell phone with him to call his uncle or an uber.

[275] The trial judge observed that applying the factors from Szymanski is not a mathematical exercise and each factor is not of equal weight. He concluded that the fact that the car’s engine was running, Mr. Hansraj was drinking beer in the driver’s seat and had done nothing to implement his plan to return home “loomed large”. These factors lead him to conclude “rather easily” that “there was a realistic risk of danger to the public, in this case to Mr. Hansraj’s passenger Mr. Osman.

[276] In support of his assertion that the trial judge failed to particularize the risk of danger, the Appellant places emphasis on the italicized statements isolated within para. 42 of the reasons:

…It is unnecessary to identify the particular risk, but I would find that there was a realistic risk that an impaired person in the driver seat of a running car with a passenger could easily have set the car in motion. All that was required was three actions: releasing the parking brake by his right hand, depressing the clutch using the pedal at his feet and putting the car in gear by means of the shifter, also at his right hand. Those are among the simplest tasks to move a car.

[277] The reasons for judgment must be read as a whole. The impugned passage cannot be read in isolation. Immediately before the passage relied upon by the Appellant, the trial judge outlined in detail the various factors that impacted his assessment of the risk posed by the Appellant. Immediately after the passage at issue, the trial judge concluded by stating: “Based on that finding, I have no difficulty in finding that Mr. Hansraj was in care or control of the Subaru at 9:15 p.m. the night of his arrest”.

[278] When read in context it is clear that the trial judge carefully considered the risk of danger posed by the Appellant. His detailed analysis unfolded exactly as directed by the Supreme Court of Canada. He considered the relevant factors particularized to the Appellant and the circumstances of the case. The trial judge’s reasons make clear that he found that the Appellant posed a realistic risk of danger of setting the vehicle in motion and endangering the public because he was drunk and was sitting in the driver’s seat of a running vehicle, that he could very easily set in motion. His reasons make clear that he concluded that while the Appellant had a plan to get home, he had taken no steps to implement the plan and his higher cognitive skills, were impaired by alcohol. His reasons make clear that he concluded that the Appellant’s judgment was impaired and there was a very real risk that in his drunken state he would change his mind about getting someone else to drive him home and decide to drive home because he was already in the driver’s seat of his car, and it was running. He posed a realistic of risk of danger to other persons or property. This was a reasonable finding that was well supported by the evidence.

[279] As outlined above, the Supreme Court of Canada clearly recognized that even where a person does not have a present intention to drive and has a “alternate plan” there may be a realistic risk of danger. Where judgment is impaired by alcohol, it cannot be lightly assumed that the actions of the accused when behind the wheel will accord with his or her intentions either then or afterward. The trial judge’s acceptance that the Appellant had rebutted the presumption in s. 320.25 is not inconsistent with his finding that there was a realistic risk of danger.

[280] Justice Rose found as a fact and for good reason that the Appellant posed a realistic risk of danger. His finding of fact is entitled to deference. This was hardly a situation where the Appellant was using his vehicle for a “manifestly innocent purpose”. He was using a running vehicle as a place to consume large amounts of alcohol, something that raises obvious public safety concerns. This ground of appeal is dismissed.

K. Conclusion

[281] The Appellant has not established that the verdict was unreasonable or cannot be supported by the evidence and has not established that the trial judge committed reversible legal error The appeal against conviction is dismissed.

Justice Marcella Henschel

Released: January 6, 2026

CITATION: R. v. Hansraj, 2026 ONSC 106

COURT FILE NO.: SCA 22-12

DATE: 20260106

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

Respondent

– and –

TARIQ HANSRAJ

Appellant

REASONS FOR JUDGMENT ON

SUMMARY CONVICTION APPEAL

Justice Marcella Henschel

Released: January 6, 2026

1In s. 320.11of the Criminal Code, operate means (a) in respect of a motor vehicle, to drive it or have care or control of it.

2These requirements were subsequently reiterated in R. v. MacDonald, 2014 SCC 3, at para. 37, wherein the Supreme Court of Canada identified the factors to be considered in determining when a safety search is “reasonably necessary”, and therefore justifiable. The Supreme Court held that the several factors must be weighed to balance the police duty against the liberty interest in question. “1. The importance of the performance of the duty to the public good (Mann, at para. 39); 2. The necessity of the interference with individual liberty for the performance of the duty (Dedman, at p. 35; Clayton, at para. 21, 26, and 31); and 3. The extent of the interference with individual liberty (Dedman, at p. 35).

3Under the version of the HTA in force on June 6, 2022, in s. 1 “driver” means a person who drives a vehicle on a highway. “Highway” includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof. Section 48(1) of the HTA provided that “A police officer, readily identifiable as such, may require the driver of a motor vehicle to stop for the purpose of determining whether or not there is evidence to justify making a demand under section 320.27 or 320.28 of the Criminal Code. Section 48(18) provided that for the purposes of s. 48 “driver” included “a person who has care or control of a motor vehicle”. Section 216(1) of the HTA provided that “A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a vehicle….to stop and the driver of a vehicle, when signaled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop. These provisions were the same as those in force on April 5, 2006 when Dillon was decided. In R. v. Hajivasilis, 2013 ONCA 27, Justice Doherty concluded that most privately owned parking lots are not “highways” as defined by the HTA. Notably, on November 19, 2024, s.48(18) was amended to broaden the definition of “driver” to include anyone with care, charge, or control of a motor vehicle “while the vehicle is on or off a highway”, extending the reach of s. 48 to private property. Section 216(8) was amended to provide that “driver” includes a person who has care, charge or control of a vehicle and includes a person with care, charge or control of a vehicle that has recently travelled from or off the highway.