Ontario Criminal


Breathalyzer

Refusal to provide sample
Officer was not obliged to afford accused further opportunity to comply with screening device demand

Police officer pulled over accused’s vehicle and made Approved Screening Device (ASD) demand, explaining and demonstrating procedure of providing suitable breath samples. After three failed attempts to provide suitable breath sample, officer cautioned accused about consequences of failing to provide suitable sample. Accused told officer that he could not provide suitable sample because of heart condition, and also mentioned claustrophobia. Officer allowed accused to step out of vehicle before fifth attempt. Officer advised accused on sixth attempt that it was his last chance. After sixth failure, officer contacted paramedics who performed some checks before releasing him at scene. Accused was convicted of refusing to provide breath sample. Accused appealed. Appeal dismissed. Officer was not obliged to afford accused further opportunity to comply after administration of medical attention. Officer did not conclude that accused’s excuses were legitimate enough to warrant medical attention but rather, based on his observations, concluded accused was merely seeking excuse for not blowing into ASD. Officer acted out of abundance of caution rather than any belief that complaints were legitimate. Information that accused did not have heart problems conveyed by paramedics negated any obligation to offer accused last chance to provide sample. In first three attempts, accused sucked in air rather than blowing out into ASD and in other three, he placed mouth on mouthpiece but did not blow in. There was ample evidence to support trial judge’s conclusion that accused intentionally failed to comply with officer’s repeated demands. Officer advised on sixth attempt that he was being given last chance to blow. Accused’s refusal to blow into ASD was final and unequivocal. Accused’s failure to request another chance showed he was not particularly interested in being given one. Trial judge did not misapprehend evidence in concluding that accused failed to comply with ASD demand.

R. v. Camalalingham (Jan. 25, 2016, Ont. S.C.J., André J., Brampton SCA(P) 612/14) 127 W.C.B. (2d) 231.

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