Ontario Criminal


Breathalyzer

REFUSAL TO PROVIDE SAMPLE

R. v. Hamilton

Accused should have been given opportunity to provide sample

Accused charged with failing to provide sample into approved screening device. On accused’s first attempt to provide sample he put his lips to mouthpiece but did not blow. On accused’s second and third attempts he blew for insufficient period of time. Following accused’s fourth attempt, during which he did not blow continuously, accused was arrested. Accused immediately asked for one more chance to provide sample, but was refused. Accused argued that failure by officer to provide “last chance” warning in circumstances raised reasonable doubt as to whether refusal was unequivocal. Accused found not guilty. Accused’s refusal was not unequivocal. Accused was not told that his fourth chance was his last chance. Accused had been warned of consequences of failure/refusal but did not know exercise was over until his arrest. Accused’s offer to provide proper sample was made immediately and was genuine. Given that officer and device remained immediately available, it would have only taken few seconds of officer’s time to determine if accused’s offer to provide sample was in fact genuine. Accused should have been given opportunity to provide sample, and fact that he was not, meant there was reasonable doubt.

(Apr. 26, 2012, Ont. C.J., Selkirk J., File No. 11-0850) 100 W.C.B. (2d) 768 (10 pp.).

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