ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
JEGENATION MURUGESU
D. Hogan, for the Crown
K.. Marynick, for Mr. Murugesu
HEARD: 7 July 2026
S.A.Q. AKHTAR J.
APPLICATION FOR STAY OF DRIVING PROHIBITION
Factual Background and Overview
1On the night of 17 February 2025, on Parliament Street, near Richmond Street in Toronto, police stopped the applicant as he was driving his vehicle with high beams despite facing oncoming traffic.
2When police approached the applicant's car, he lowered his window slightly and then raised it as he pulled over. When the car came to a stop and one of the officers approached it on foot, that officer noticed that the window was lowered only a couple of inches and the officer requested the applicant fully lower the window. The applicant lowered his window more but not fully. The officer noticed that he was slow in responding to questions.
3The officer discussed the observations with his partner and determined that there were grounds to make an Approved Screening Device (ASD) demand. Reasonable grounds to suspect are required prior to making an ASD demand pursuant to s. 320.27(1) of the Criminal Code, R.S.C., 1985, c. C-46. When the officer returned to the car with the ASD he further noted that the applicant’s eyes were glassy. His partner, at trial, also agreed that he saw glassy eyes when he observed the applicant and that there was a delay in his responses when he was answering questions.
4The officers demanded a breath sample at about 11:00 p.m. When the applicant was provided with an opportunity to give a breath sample, the first three attempts led to him biting the mouthpiece and/or starting to blow into the mouthpiece but then stopping. There were three more attempts which involved no airflow from the applicant because he placed his mouth or teeth on the mouthpiece without blowing. After the sixth attempt the applicant was arrested at 11:08 p.m. for refusing to provide a breath sample.
5On 16 March 2026, Lipson J. found the applicant guilty of failing to provide a breath sample contrary to s. 320.15(1) of the Criminal Code, and sentenced him to pay a $2000 fine and imposed the mandatory one year driving prohibition mandated by the Criminal Code.
6The applicant appeals his conviction and, before this court, seeks a stay of the driving prohibition pending his appeal hearing.
The Grounds of Appeal
7The applicant appeals on two grounds:
The judge erred in finding that the officers had the required grounds to make a lawful demand for a breath sample.
The trial judge's reasons were insufficient.
The Test for Granting a Stay of a Driving Prohibition
8Section 320.25(1) of the Criminal Code allows this court to order a stay of a driving prohibition. That section does not provide any statutory criteria but the courts have applied the factors found in ss. 679 and 683(5) of the Criminal Code which deal with the granting of bail pending appeal and with stays of fines, probation orders, and other sentences pending appeal: R. v. Won, 2012 ONSC 775, 29 M.V.R. (6th) 121, at paras. 6-7; R. v. Boodram, 2015 ONSC 3821, 86 M.V.R. (6th) 273, at paras. 13-14.
9That section provides that bail shall be granted if the appeal is not frivolous, the relief is in the interests of justice and that denying the application is not necessary in the public interest.
10I follow the interpretation of the section set out by my colleague Code J. In R. v. Won, at paras. 6-7: and Quigley J. in R. v. Boodram, at paras. 13-14, in relation to stays of driving prohibition where they state that the applicant must satisfy the court of three criteria:
The appeal has arguable merit;
The driving prohibition will cause a hardship and is not merely an inconvenience; and
The applicant does not present a danger to the public.
11The frivolous argument analysis is informed by the same threshold used in cases of bail pending appeal.
12The requirement that an appeal is not frivolous is discharged by the applicant showing that there is an arguable ground of appeal: R. v. DiGuiseppe, 2008 ONCA 223, at para. 11. This is a low bar. However, a weak appeal is not strengthened by an isolated arguable point and may still be found to fail the frivolous argument threshold: R. v. R. B., 2014 ONCA 722, at para. 21.
13In seeking to satisfy this element, the applicant “must be able to point to a viable ground of appeal that would warrant appellate intervention if established”: R. v. Manasseri, 2013 ONCA 647, 313 O.A.C. 55, at para. 38; R. v. M.W., 2024 ONCA 866, 312 C.C.C. (3d) 132.
Is the Appeal Arguable?
14I accept that when dealing with whether a ground of appeal is frivolous, the applicant needs only to overcome a low threshold.
15Here, the applicant argues that the trial judge erred in finding that the officer had the required grounds - reasonable suspicion - to make a lawful demand. When dealing with this ground, it is noteworthy that the applicant, at trial, did not make a Charter application to exclude the evidence of refusal on this ground. Instead, he argued that the officer had not made a lawful demand because the Crown had not proven this requirement beyond a reasonable doubt.
16I must confess that I find the applicant’s argument difficult to understand.
17On review of the reasons it is clear that the judge did make a finding that the officer had reasonable suspicion.
18The applicant appears to be arguing that since the officer initially indicated that “just based on now noticing the high beams, the gas cap, and the – his, I guess, manipulation of the window, not fully rolling it down, I had some suspicions that there – there may have been some sort of impairment”, this was not sufficient to constitute reasonable suspicion.
19As noted, the officer testified that after asking the applicant if he had consumed any alcohol or drugs, he discussed the matter with his partner and concluded there was a reasonable suspicion of alcohol and that a demand should be made.
20The trial judge, at this stage, asked the officer to clarify his grounds for the demand and the officer repeated the above factors but explained that on his second approach to the car with the ASD he noticed the applicant’s glassy eyes.
21The judge dealt with the officer’s observation of the glassy eyes after he had already made his decision to make a demand - but before the demand had been made - at para. 12 of his judgment. The judge specifically referred to R. v. Adams, [2009] O.J. No. 6027 (S.C.J.) as being binding authority for the principle that observations made after forming the intention to make a demand properly form part of the grounds when the demand is made.
22In that case, at para. 20, Parfett J. remarked:
The trial judge -- erroneously in my view -- confined himself to the evidence available to Kemp when he decided to make the demand under s. 254(2) of the Code instead of reviewing the whole of the evidence available at the time that Kemp actually made the demand.
23Accordingly, the Parfett J. found that the officer had a subjective belief that the applicant had alcohol in his system based on his testimony and an objective basis for doing so based on the surrounding facts including the glassy eyes which the officer noticed on his walk back to the car.
24Far from being an error, as alleged by the applicant, the trial judge was “required to consider the whole of the evidence at the time the demand is made in order to assess whether it was objectively reasonable”: Adams, at para. 21.
25Nor can it be inferred from the evidence that the officer did not use the evidence of glassy eyes before making the actual demand. Although the applicant now argues that this is the case, I see nothing in the transcript that suggests it.
26In his submissions to this court, counsel for the applicant indicated that he “stayed away from the point” because the evidence, as it was, assisted him. It does not.
27The judge in this case was entitled to use the officer’s observation of the glassy eyes on his return to the applicant’s vehicle to conclude that the officer had used it as part of his grounds before he made the actual demand. It was open to counsel for the applicant, at trial, to cross-examine the officer on this point and demonstrate that the officer had not considered it as part of the ASD demand so that counsel could undermine the grounds used to make the demand. However, counsel chose not to do so for tactical reasons. His failure to do so left the judge with clear evidence to conclude a demand had been lawfully made.
28This leads into the applicant’s argument that the judge used a “balance of probabilities” analysis to find reasonable suspicion. This argument is misconceived. It appears to be based on counsel’s position that the judge was required to find beyond a reasonable doubt that the officer used all of the factors indicated including the glassy eyes.
29This is incorrect in law. The judge had to find beyond a reasonable doubt that a lawful demand had been made. All the judge had to do was accept the officer’s evidence that he had reasonable suspicion based on the officer’s testimony and the whole of the surrounding circumstances. He was not obliged and, in fact, would have been in error in applying a “beyond a reasonable doubt” standard to each piece of the evidence. Once the judge accepted the officer’s belief - as he did - and determined the whole of the evidence provided the officer with reasonable suspicion, the judge was entitled to find beyond a reasonable doubt that a lawful demand had been made.
30For these reasons, I find this ground of appeal to be frivolous.
31Turning to the second ground, that the trial judge’s reasons were insufficient, I start by noting that trial judgments do not need to be perfect but simply explain why the losing party lost and permit meaningful appellate review: R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, at para. 20; R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 32: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 18-20.
32I have reviewed the judge’s reasons and they were thoughtful and thorough dealing with all of the issues raised by the parties and providing explanations of why he accepted and rejected their positions.
33I find this ground of appeal to be frivolous.
Is There Hardship?
34When seeking to satisfy this ground the applicant must show that the hardship that would be suffered would be undue hardship. If it were otherwise, this threshold would be meaningless as there is always some hardship occasioned to someone who has lost their licence to drive.
35This brings home the point of this threshold: driving is not a right but a privilege. The prohibition mandated by the Criminal Code exists for a reason: to ensure public safety from an offender who has committed an offence that could result in serious injury or death to others. Accordingly, there is a need for the threshold to be undue, rather than “some”, hardship.
36In Won, at para. 8(iv), Code J. observed that in order to satisfy this ground the applicant must provide evidence of:
(a) An applicant’s daily routine – both when he had his driver’s licence and when his licence was suspended in order to evaluate how any hardship will result if a stay is not granted.
(b) How the applicant coped while their licence was administratively suspended for 90 days; and
(c) The applicant’s drinking habits.
37In this case, the applicant argues that the prohibition impacts on his work and family life.
38He submits that as they only own one vehicle and he is the only licensed driver he suffers hardship that falls within the “undue hardship” criterion.
39According to the applicant, his children must now rely on “the bus system” and when he drives he can help by “occasionally picking them up and dropping them off if they need to be at school at odd hours”. He adds that "errands and appointments have become difficult to manage without access to a personal vehicle”.
40Moreover, he too must now take public transport and his employer says that if he fails to arrive at work on time his employment may be terminated.
41This is hardly undue hardship. The mere fact that he and his family must now take public transport may make life more inconvenient but it certainly does not satisfy the threshold justifying a stay.
42It goes without saying that a vast number of Toronto citizens use public transport and it can hardly be said that they are suffering an undue hardship. Failure to arrive on time at work does not require the applicant to be using a car: he should simply leave at the appropriate time to get to work on time as most Torontonians do. Use of taxis or Ubers to assist taking his family to designated places does not qualify as undue hardship but an inconvenience that may require some payment.
43I find that the applicant has failed to persuade me that the prohibition has resulted in a hardship that warrants a stay in the driving prohibition. Even if I had not found the appeal to fail to pass the frivolous appeal threshold, I would dismiss the application on this ground – that the applicant is not facing undue hardship.
44For these reasons the application is dismissed.
S.A.Q. Akhtar J.
Released: 23 July 2026
CITATION: R. v. Murugesu, 2026 ONSC 4244
COURT FILE NO.: CR-26-10000027-00AP
DATE: 20260723
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
JEGENATION MURUGESU
APPLICATION FOR STAY OF DRIVING PROHIBITION
S.A.Q. Akhtar J.