E79| Actus reus, ASD refusal & a roadside flip-flop.

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In this episode, Mike discusses the Ontario Court of Appeal decision R. v. Khandakar, 2024 ONCA 620 where the driver of a vehicle changed their mind and wanted to provide an ASD breath sample after being arrested for refusing to do so. Just when does an unequivocal refusal to provide an ASD sample constitute the actus reus for a refusal charge? How much time does a driver have to change their mind?

Criminal Code provisions:

• s. 320.15 (1) Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under section 320.27 or 320.28.
• s. 320.27 (1) If a peace officer has reasonable grounds to suspect that a person has alcohol ... in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person ...  (b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose ...

Trial court ruling
First level appeal ruling
BC's Alco-Sensor FST Operator's Manual

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