Criminal Law - Motor Vehicles Offences - Impaired Driving - Refusal to Provide Breath Sample
The accused was charged with refusing or failing to provide a breath sample into an ASD contrary to s. 320.15(1) of the Criminal Code. An RCMP officer, patrolling alone early in the morning, observed a vehicle coming from the direction of a local bar and decided to check the driver for licensing, registration and sobriety. After the accused stopped her vehicle, the officer asked her for licence and registration. The accused was flustered and said that she had left them at home. The officer asked her where she was coming from and whether she had anything to drink. The accused replied that she had been at the local bar but she had not had anything to drink there, but had consumed one drink earlier in the evening. The officer formed a reasonable suspicion that the accused had alcohol in her body and decided to detain her to have her provide an ASD sample. She told the accused “stay here and I’ll be right back,” went to her vehicle and called another officer to ask him to bring an ASD and administer the test, as she was not trained to use the machine. She then returned to the accused’s vehicle and informed her then that she was being detained for impaired operation of a vehicle. The officer told the accused that she was going to read a demand a breath demand and get her to blow in the ASD when the other officer arrived. However, the test could not be administered because the ASD had expired, and the officer had to return to the detachment to get another one. Upon his return, the accused was instructed on how to blow and then made seven unsuccessful attempts to provide a sample. In the police vehicle’s recording, the accused could be heard saying that she was trying, becoming frustrated and upset and continuing to protest her innocence. The officer then arrested her on the charge. The defence argued that the first officer’s demand was not prompt. After the officer formed her reasonable suspicion, she waited about four minutes before making the formal demand and the accused’s opportunity to provide a breath sample was delayed unnecessarily when the second officer caused another inexcusable delay of about five minutes by failing to bring a functioning ASD. Consequently, the demand was not lawful as it did not comply with the immediacy requirements of s. 320.27(b) of the Code and the accused was not legally compelled to provide a sample. Alternatively, if the breath demand were lawful, the Crown had not proven that the accused intentionally refused or failed to supply a sample.
HELD: The court found that the ASD demand was not lawful and the accused could not be convicted of refusal or failure to comply with it. It had not been made as soon as the officer formed her reasonable suspicion that the accused had alcohol in her body. Further, it determined on the alternative ground that the accused had not intentionally failed to provide a sample based on its assessment of her credibility in light of her testimony and the recording of her attempts to provide a sample.