Accused acquitted of refusing to provide breath sample on basis that constable had no reasonable grounds to demand sample

Constable stopped vehicle after seeing it weaving, detected odour of alcohol emanating from accused’s breath, and formed reasonable suspicion that accused had alcohol in his body. Constable testified that he asked accused to accompany him to cruiser, produced Approved Screening Device (ASD), and demanded that accused provide breath samples into “approved instrument,” which he was not able to do despite trying for 15 minutes. Counsel for both parties agreed that if constable’s intention was to conduct roadside screening, he should have commanded accused to provide breath sample into “approved screening device”. Accused was acquitted of refusing to provide breath sample on basis that at time of demand, constable did not have reasonable grounds to demand sample into “approved instrument”. Crown appealed acquittal. Appeal dismissed. Trial judge made no legal error in requiring appellate intervention in acquitting accused. Trial judge clearly identified that it was essential element of offence that lawful demand was made upon accused.

R. v. Egbeobawaye (2019), 2019 CarswellOnt 2573, 2019 ONSC 1370, Mulligan J. (Ont. S.C.J.); affirmed (2018), 2018 CarswellOnt 7075, 2018 ONCJ 297, Marcella Henschel J. (Ont. C.J.).