The appellant appealed a conviction for refusing to comply with an approved screening device breath demand under s. 254(5) of the Criminal Code.
The trial judge found that the accused intentionally failed to provide a proper breath sample despite repeated instructions.
On appeal, the appellant argued that the trial judge provided insufficient reasons, misplaced the onus of proof regarding proper operation of the device, and misapprehended expert evidence concerning the effects of blocking the device’s exhaust vent.
The appeal court held that although the reasons were sufficient, the trial judge misapprehended the expert evidence and incorrectly concluded that it did not align with the officers’ testimony.
This misapprehension was material to the finding that the accused feigned attempts to provide a breath sample and therefore refused the demand.
