Ontario Criminal



Conviction upheld where officer afforded accused dozens of opportunities to provide adequate sample

Accused appealed her conviction for impaired operation and refusal to provide breath samples. Accused submitted that there was no evidence that she intentionally refused or failed to provide suitable breath samples upon request. Trial judge found, upon reviewing video of breath room, that accused made approximately 53 attempts to provide suitable sample of her breath into machine. In most, accused blew for one or two seconds and then stopped. Breath technician exhorted accused to blow for longer period. Accused told officer that she was doing her very best. Breath technician then terminated process and advised accused that she would be charged with Refuse to Provide Sample. Breath technician then advised accused that first sample she provided registered 164 milligrams of alcohol in 100 millilitres of blood. Accused submitted trial judge erred in finding beyond reasonable doubt that accused had intentionally refused to provide breath sample. Appeal dismissed. Review of video of breath room revealed that officer afforded accused dozens of opportunities to provide adequate sample of her breath. On numerous occasions, accused blew for very short periods even after being admonished by officer. Officer tested machine to confirm that it was working properly and demonstrated to accused how to provide breath sample. It was therefore open to trial judge to find that accused had intentionally failed to provide breath sample into machine. Officer advised accused she could take as much time as she needed to provide sample, he made it clear to her, on more than one occasion, that failure to do so would result in criminal charge. After cautioning her, officer gave accused number of opportunities to provide suitable sample but on each occasion, she stopped blowing after short period. Given extraordinary number of opportunities which officer provided to accused to blow into machine, he was under no legal obligation to give her additional opportunity to blow after advising her that she would be charged with refuse. It was clear that accused’s impairment was not bar to providing suitable breath sample into machine. Accused succeeded in providing suitable sample into machine and could have done so on second occasion had she chosen to do so.

R. v. Erskine (Sep. 30, 2015, Ont. S.C.J., André J., File No. Brampton 11-3679) Decision at 111 W.C.B. (2d) 820 was affirmed.  125 W.C.B. (2d) 147.

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