The appellant was convicted at trial of refusing to comply with a breath demand under ss. 254(3) and (5) of the Criminal Code after police interpreted statements made during a roadside conversation as a refusal to accompany them to the station for breath testing.
The appellant had been arrested, advised of his right to counsel, and requested to speak to a lawyer before the officers continued discussing the breath demand with him.
The appeal court held that the accused’s statements during the brief roadside discussion were tentative and formed part of a single ongoing exchange occurring while he sought legal advice.
Relying on authorities such as R. v. Jumaga, the court concluded that a definitive refusal cannot be established where the accused has requested counsel and has not yet been given a reasonable opportunity to obtain legal advice.
The trial judge erred in treating the roadside discussion as constituting the actus reus of refusal.
The conviction was set aside and an acquittal entered.
