R. v. Mohamed, 2026 ONSC 3052

CITATION: R. v. Mohamed, 2026 ONSC 3052

COURT FILE NO.: CR-25-10000054-00AP

DATE: 20260526

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

NUR MOHAMED

Satomi Aki, for the Crown, Respondent

Neill Fitzmaurice, for Nur Mohamed, Appellant

HEARD: March 19, 2026

R.F. GOLDSTEIN J.

Background

1On September 23, 2023, Nur Mohamed, the Appellant, was driving a Hyundai Elantra near Wilson Road and Clayson Road in Toronto. At 11:30 am his Hyundai rear-ended one car, which, in turn, rear-ended another. Constable Haji arrived on the scene. He spoke to the Appellant. He formed the opinion that the Appellant was impaired. He demanded that the Appellant provide a breath sample for a roadside screening device. The Appellant did so. He failed. Constable Haji arrested him. Constable Haji then gave the Appellant his right to counsel, and read the standard breath demand. Constable Haji asked the Appellant if he wished to speak to counsel. He did not. The Appellant instead asked Constable Haji if he could simply be released from the scene. Constable Haji said that if he did that, he would interpret it as a refusal to comply with a breath demand and charge him accordingly. The Appellant asked to be released from the scene multiple times. Constable Haji warned the Appellant that if he did not accompany him to the station he would be charged with refusing to provide a breath sample. In the end, that is what happened.

2The Appellant was charged with two counts of assault causing bodily harm, one count of impaired driving, and one count of refusing to provide a sample of his breath. On January 21, 2025, the trial judge, Madam Justice Doorly of the Ontario Court of Justice, dismissed all counts other than the count of failing to provide a breath sample. She convicted the Appellant of that count.

3The Appellant’s counsel, Mr. Fitzmaurice, makes three arguments:

The trial judge erred in finding that on the facts of the case the Appellant did not commit the actus reus of refusing to comply with a breath demand;
The trial judge erred in finding that the Appellant’s statements were voluntary; and,
The trial judge erred in finding that the Crown had proven the offence despite not properly particularizing the information.

4Respectfully, I find that all three arguments must fail.

Standard Of Review On An Appeal

5The standard of review for questions of fact or credibility is “palpable and over-riding error”. Where a palpable and over-riding error has been identified, it must be one that affects the result or goes to the outcome of the case. The standard of review for questions of law is correctness: R. v. Kruk, 2024 SCC 7, 433 C.C.C. (3d) 301 at paras. 96-98. On issues of mixed fact and law, an appellant must demonstrate a legal error, such as applying an incorrect standard, failure to consider a legal element, or an error in principle: R. v. Tiffin, 2008 ONCA 306 at para. 36. “Where the legal question cannot be separated from the facts, a trial judge’s decision is subject to a more stringent standard; that is the trial judge’s interpretation of the evidence overall will not be overturned absent a palpable and over-riding error”: Tiffin at para. 36.

The trial judge did not err in finding that the Appellant’s conduct amounted to a refusal to provide a breath sample

6The gravamen of the Appellant’s argument is that Constable Haji created the situation at the roadside. Constable Haji misunderstood his authority. He could have compelled the Appellant to attend at the station, using force if necessary. Constable Haji could have simply ignored the Appellant, forced him to go to the station, and then let the process unfold. The refusal was not, therefore, clear, and unequivocal.

7I disagree. Although Mr. Fitzmaurice has couched this issue as one of law, and therefore reviewable on a standard of correctness, it is one of mixed fact and law. The trial judge did not err in finding that the Appellant’s actions amounted to an unequivocal refusal. She correctly instructed herself on the law, and there were no palpable and over-riding factual errors.

8 Section 320.15(1) of the Criminal Code states:

320.15 (1) Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under section 320.27 or 320.28.

9As the trial judge correctly observed, the Crown can prove the offence in one of two ways: either by refusing to comply with the demand, or by refusing to accompany a police officer to the station for the purpose of taking the sample: R. v. MacNeil (1978), 1978 2464 (ON CA), 41 C.C.C. (2d) 46, 1978 CarswellOnt 1203, [1978] O.J. No. 653, at para. 6. That meant a proper interpretation of s. 320.15. In these circumstances the trial judge was required to grapple with the only real issue that was before her: whether there was a refusal to accompany that, in law, amounted to a refusal to provide a sample of breath.

10Having properly instructed herself on the law, the trial judge then analyzed the facts. The interaction between the Appellant and Constable Haji was captured in its entirety on the officer’s body worn camera. The trial judge concluded that the Appellant had a choice either to be released at the scene or to go to the station. Her conclusion is amply supported by the evidence. Constable Haji told the Appellant that if he refused to accompany him that he would treat it as a refusal to blow and the Appellant would be charged accordingly. The Appellant indicated that he understood, but that he wanted to be released at the scene, that he would take a Form 10, and that he would show up at court. He did not say this once or twice, but repeatedly. Contrary to the Appellant’s submission, this was not a situation created by Constable Haji. It was a situation created by the Appellant, who repeatedly asked to be released from the scene, and was repeatedly warned of the consequences.

11Whether Constable Haji properly understood his authority is beside the point. Section 498(1) of the Criminal Code states that a peace officer who has arrested someone without a warrant and has not taken them before a justice, shall release the person unless the officer intends to issue a summons, issues an appearance notice, or obtains an undertaking from the person. Subsection 498(1.1) of the Criminal Code sets out the circumstances under which a peace officer shall not release an arrested person:

(1.1) The peace officer shall not release the person if the peace officer believes, on reasonable grounds,

(a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to

(i) establish the identity of the person,

(ii) secure or preserve evidence of or relating to the offence,

(iii) prevent the continuation or repetition of the offence or the commission of another offence, or

(iv) ensure the safety and security of any victim of or witness to the offence; or

(b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

12The only possible application of the subsection under these circumstances would be the need to preserve evidence. It is obvious from MacNeill that securing evidence does not include securing and preserving a human being to provide a breath sample. If the law required that a police officer force a person to go to the police station to give a breath sample, then the offence could never be committed by refusing to accompany the officer.

13Respectfully, the Appellant argument amounts to an assertion that Constable Haji was required to use reasonable force. I cannot agree that the law under these circumstances always requires a police officer to use force when there are other alternatives. There is no doubt that Constable Haji had the authority to force the Appellant to attend the station, as Code J. pointed out in R. v. Mandryk, 2012 ONSC 3964 at para. 49. That does not mean, however, that Constable Haji was compelled to do so.

14The Appellant also relies on Mandryk to show that the actus reus in this case was not complete, and therefore that the Appellant should not have been convicted. I cannot accept this argument either. The central problem in Mandryk was the interplay between the right to counsel and the refusal to comply with the breath demand. Police officers observed indicia of alcohol from Mandryk. They made a demand for him to blow into a roadside screening device. He failed. They arrested Mandryk for “over 80” and advised him of his right to counsel. Mandryk said he wanted to speak to a lawyer. The officers would not permit a call to counsel while at the roadside but did agree to facilitate one at the station. The officers then made the standard demand that Mandryk accompany them to the station for a breathalyzer test. The officers and Mandryk had a “lengthy” conversation. Like Constable Haji, they thought that they could not compel him to come to the station. They released him at the scene and charged him with “over 80”. Justice Code noted that the roadside demand – which is invariably repeated at the station by the breathalyzer technician – is mainly informational. As usual, Justice Code conducted a detailed, thorough, and informative analysis of the law. He ultimately concluded that where an accused wished to speak to counsel, an initial refusal to comply was only provisional. The refusal only becomes final after the accused has spoken to counsel. Because Mandryk refused prior to speaking to counsel, and never accessed counsel, there was no final and definitive refusal to comply.

15I cannot agree that Mandryk applies. Mandryk, unlike the Appellant, was charged with “over 80”. The Crown could never have proven “over 80” without the breath samples. The Crown can always attempt to make out a case of impaired without reference to breath samples. More importantly, however, unlike Mandryk the Appellant did not wish to speak to counsel. He was interested in being released from the scene. He fully understood the consequences of refusing to provide a breath sample. He did not ask for counsel to assist, even when the officer offered to give him time to consider his position. Mandryk wished to speak to counsel. The police did not give him the opportunity to do so. That is quite different from the situation here.

Mandryk was argued before the trial judge, and she referred to it. She found, however that the Appellant’s refusal was unequivocal. This finding was open to her on the evidence and is entitled to deference. The Appellant’s refusal, considering all of the circumstances – especially his decision not to speak to counsel – was not provisional, unlike the refusal in Mandryk. I see no error by the trial judge. This ground of appeal fails.

The trial judge did not err in finding that the Appellant’s statements were voluntary

16The Appellant argues that the Appellant’s statements were induced. They were, therefore, involuntary, and inadmissible. As Mr. Fitzmaurice put it in his factum, “this argument required a preliminary determination of whether the voluntariness rule applied to statements that constituted the actus reus of the offence.” The trial judge was not prepared to rule on the question of whether “the law regarding the actus reus of a refusal has expanded to include procedural fairness and protections against self-incrimination…” The main point made by the Appellant at trial – and on appeal – was that Constable Haji had unintentionally created an inducement to give a statement by telling him that he would be released at the scene if he refused. It was, argues the Appellant, a quid pro quo: “if the Appellant made a particular statement he would be released, and thereby avoid the risk of imprisonment, loss of employment, and complications relating to his vehicle.” The statement was therefore involuntary and inadmissible.

17I disagree. It was not necessary for the trial judge to deal with Mr. Fitzmaurice’s argument that the law has expanded, because she found that there was no inducement and, therefore, that the Appellant’s statements were voluntary. She determined that it was not necessary to rule on the question “because the statement of the accused was made voluntarily. He had a choice. He could go to the station or he could be released on the scene, but he was advised that he may well be released at the station depending on the results. He chose to prioritize release at the scene.” The trial judge’s interpretation of the law was correct, and her factual findings were amply supported in the record.

18Since Mr. Fitzmaurice has squarely raised the issue on appeal as to whether the law has changed, I will deal with it. I find that the law has not changed. No voir dire is necessary. The actus reus exception still applies. Questions of inducements or threats are better dealt with as a question of mens rea, as I will explain.

19Traditionally, refusal statements have been admissible as the actus reus of the offence of refusing to provide a breath sample: R. v. Stapleton, 1982 3331 (ON CA), [1982] O.J. No. 49, 66 C.C.C. (2d) 231 (C.A.). In his factum, Mr. Fitzmaurice argues that, based on developments in the case law, “there is no longer an exception to the voluntariness rule for statements that constitute the actus reus of the offence.”

20In my view, the law has not changed since Stapleton. I recently dealt with this issue in R. v. Hauth and Walbourne, 2026 ONSC 1877 in a different context. Hauth and Walbourne was not strictly the same situation here, as it dealt with the admissibility of compelled statements where the accused had allegedly lied to regulatory investigators. Nonetheless, I found that the actus reus exception was alive and well in Canadian law. The actus reus exception is applicable here.

21The first and best articulation of the actus reus exception is still that set out by Justice Martin in Stapleton at paras. 4-7:

… it is not necessary to establish on a voir dire the voluntariness of the accused's refusal to comply with the demand. The confession rule is inapplicable because the accused's statement is not introduced to incriminate him in respect of an offence that he is alleged to have committed but the words of refusal constitute the actus reus of the offence charged…

22Mr. Fitzmaurice argues that the focus of the voluntariness inquiry in Canadian law has shifted from a concern over the reliability of the statement – as articulated in Ibrahim v. The King – to a concern for procedural fairness. For this proposition – and to this limited extent I agree with him – he points to R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151 and R. v. Oickle, 2000 SCC 38. To state the obvious, however, neither case engaged the actus reus exception to the voluntariness rule.

23Mr. Fitzmaurice, in his factum, notes that no court has considered whether the holding in Stapleton remains good law despite the developments in Oickle and Hebert. By implication, he is inviting this court to do so. In my view Stapleton remains good law and has been confirmed by subsequent decisions of the Ontario Court of Appeal. Absent a Charter violation, the actus reus exception applies.

24I start with R. v. Hanneson, 1990 6623 (ON CA), 49 C.C.C. (2d) 467, 1989 CarswellOnt 102 (Ont.C.A.). Hanneson was a police officer. An arrestee accused him and other officers of assault during an arrest. Internal police investigators compelled statements from the officers. At Hanneson’s criminal trial, the Crown sought to introduce the statements. The Crown argued the statements were part of a continuing cover-up of the crime by the police officers. The Court of Appeal, relying on Stapleton, found that the actus reus exception applied. Appellant’s counsel also argued that there was a breach of the s. 10(b) right to counsel because the officer was detained but had not been given his rights. The Court of Appeal agreed that there had been a breach. The Court, however, went on to find that a Charter breach did not insulate a detainee from liability for subsequent criminal acts – such as threatening, bribing, or assaulting the officers while in custody. The law, obviously, has developed since Hanneson, a case decided early in the Charter era, but the basic principle has not changed.

25In R. v. Kerr, 2023 ONSC 3638, 427 C.C.C. (3d) 480, my colleague Schreck J. analyzed the state of the actus reus exception in light of developments in s. 10(b) jurisprudence – including R. v. Cobham, 1994 69 (SCC), [1994] 3 S.C.R. 360 – relied on by the Appellant. He concluded that a statement could be excluded where it was actus reus of the offence if it were causally connected to a breach of the Charter. Admissibility would then be determined under s. 24(2) of the Charter.

26In R. v. Ha, 2010 ONSC 433, a case relied on by Justice Schreck in Kerr, the accused was arrested for production of marijuana. She then attempted to bribe the police officers. A Charter breach resulted in the exclusion of the marijuana evidence and the dismissal of the production charges. The Charter breach, however, was not causally connected to the statements constituting the bribery offence. Those statements constituted the actus reus of the offence of bribery. Relying on Hanneson, the Court of Appeal found that the statements should not have been excluded.

27R. v. Rivera, 2011 ONCA 225, 104 O.R. (3d), 561, was also relied on by Justice Schreck in Kerr. The Court in that case found at paras. 101-102 that Stapleton still applied, that Hanneson and Ha remained good law, and that a voluntariness voir dire was not necessary absent a violation of the right to counsel. Rivera has not been overturned.

28In my respectful view, there is nothing in Oickle or Hebert or any subsequent confession case that leads me to believe that Rivera is no longer binding authority both on this court as a summary conviction appeal court, and on the Ontario Court of Justice as a trial court. That makes sense: as noted, Oikle and Hebert did not engage the actus reus exception. They dealt with purely incriminatory statements.

29Mr. Fitzmaurice’s argument is, however, not without merit in this sense: I agree with him that an induced statement (or a statement resulting from threats or intimidation) ought not to be used to incriminate an accused person even where it constitutes the actus reus of the offence (leaving aside the compelled statement situation I dealt with in Hauth and Walbourne). That would operate unfairly against an accused person. How to reconcile, then, the requirement of a fair trial with the lack of necessity for a voluntariness voir dire? The answer is found in basic concepts of criminal law.

30Every criminal offence requires a prohibited act (the actus reus) and an intention to commit it – the mens rea. In the case of a refusal to provide a breath sample, the elements would include a refusal or actions that amount to a refusal, coupled with an intention to refuse to provide a sample. The Crown must prove both elements beyond a reasonable doubt. Without getting into the question of excuses, defences, or justifications that might apply, if the Crown cannot prove beyond a reasonable doubt that the accused person intended to refuse, then that person must be found not guilty. By proceeding in this manner, it eliminates the need for a voir dire. At the same time, it keeps the burden of proof and the standard of proof where it belongs – on the Crown to prove the offence beyond a reasonable doubt.

31In effect, that is what the trial judge did – as has every other trial judge considering a refusal case (or, for example, an obstruct police case). The trial judge – correctly in my respectful view – refused to hold a voluntariness voir dire and instead analyzed whether the Crown had proven the elements of the offence beyond a reasonable doubt. She found that there was no inducement. She made no error of law, and her findings of fact are amply supported by the record. This ground of appeal fails.

The trial judge did not err in finding that the information properly particularized

32This issue was also squarely before the trial judge. She rejected the argument that the Crown had failed to particularize. She was correct to do so. As she noted, the offence can be committed in two ways: a refusal to accompany or a refusal to blow into the breath machine. The particularized offence noted a refusal. It was open to the Crown to prove that refusal by one of the two ways. If the matter were before a jury, the jury would be instructed that some of them could find that the refusal was by words, and others could find that the refusal was by action. There would be no need for the jury to be unanimous as to the route, as long as they were unanimous as to the destination. The same principle applies here. Of course, particularization serves as a means of giving the accused notice of the case to be met. There could be no prejudice here as the case to be met was obvious. The trial judge did not err. This ground of appeal also fails.

Disposition

33The appeal is dismissed.

R.F. Goldstein J.

Released: May 26, 2026