ISSUE
Can an individual request the opportunity to provide an approved screening device [“ASD”] sample at a police station or at a later time after having refused to comply with a roadside ASD demand?
BRIEF ANSWER
Individuals can change their mind about complying with an ASD demand after an initial refusal if their reconsideration is part of the “same transaction” as their refusal. If an individual requests the opportunity to provide a sample as part of the same transaction as their refusal, the actus reus of the refusal offence cannot be established.
The length of time of such a transaction is context dependent but it is the same time window during which a police officer can lawfully compel a breath sample as set out by the statutory immediacy requirement. The statutory immediacy requirement sets out that an ASD must be provided immediately, subject to the operational time it takes an officer to ready the equipment and instruct the suspect.
An arrest for refusal to comply is a factor that will be considered in determining whether the same transaction window has passed, but it will not be determinative. The presence of any unusual circumstances which would extend the statutory immediacy window will also extend the time period an individual has to reconsider their refusal.
This same transaction window likely does not allow an individual the right to refuse to comply with a roadside ASD demand and later change their mind while at the police station. Reconsideration at that point would likely fall outside of the “same transaction” as an officer would be barred by the statutory immediacy requirement from lawfully compelling a breath sample at that time.
CASE LAW
In the case of R v. Doiron, 2023 BCPC 127, a roadside ASD demand was made after the accused was pulled over and exhibited signs of alcohol impairment. The accused was warned of the consequences of failing to provide a consistent long breath, and after six failed attempts, the accused was deemed to be refusing to provide a breath sample and was arrested. After speaking with counsel, the accused requested the opportunity to provide a sample into a second ASD while at the police station. This request was denied, because the officers determined the refusal offence had already been established.
The Court stated that “[t]here is no “right to blow” into an ASD once a subject has been deemed to be failing to comply.”[1] Given the circumstances, the Court held that the officer was correct in concluding that the accused purposefully failed to provide a proper sample. The Court concluded that the accused’s assertion of his “right to blow” into a second device was not a sincere effort to comply. As such, the accused was found guilty of refusing to comply.
In R v. Khandakar, 2024 ONCA 620 [“Khandakar”], the Ontario Court of Appeal considered the length of the time during which an individual subjected to a roadside breath demand could change their mind about refusing to provide a breath sample. In this case, the Court explicitly extended the Domik principle to the context of ASD demands. The Domik principle holds that an initial refusal will not constitute a criminal offence where the individual later agrees to provide a breath sample as part of the same transaction.[2]
In applying this principle to ASD demands, the Court specifically addressed that the Domik “same transaction” test is not incompatible with the statutory requirement that drivers must immediately provide a breath sample. The Court acknowledged that police officers can, and very often do, give individuals multiple chances to comply while remaining within the bounds of the statutory immediacy requirement.
However, the Court concluded that the maximum length of an ASD demand transaction must be informed by the immediacy requirement. This means that the “same transaction” window is the same as the maximum length of time that police have to legally obtain a breath sample.
As set out by the Supreme Court of Canada in R v. Breault, 2023 SCC 9, the immediacy requirement is interpreted to mean that a breath sample be provided immediately and without delay. There is some operational flexibility built into this requirement as the officer must ready the equipment and instruct the suspect on what to do. This case also recognized that the statutory immediacy window can be further extended if there are unusual circumstances which would justify increased flexibility. Examples of such include situations where ensuring the safety of the public or peace officers is urgent, and where the reliability of the result could be affected.
If an individual changes their mind sufficiently soon enough after their refusal, such that it is part of the same transaction and the police could still have lawfully obtained a breath sample under the immediacy requirement, the actus reus of the refusal offence will not have been established. However, if the individual’s change of mind occurred too late to be considered part of the same transaction as their refusal because police are no longer able to lawfully compel a breath sample at that time, the actus reus of the offence can be established.
The Court in Khandakar refused to find that the length of the same transaction window is capped by a police officer’s decision to arrest for the refusal offence. The Court stated that “[d]ifferent officers will inevitably draw the line at different points, based on their particular training and individual choices, and persons subjected to demands will have no way to predict exactly how much leeway they will be given to reconsider their initial decision to refuse to comply.”[3] Therefore, while the timing of the police decision to arrest for the refusal offence may be a relevant factor in considering whether the accused’s change of mind occurred within the same transaction window, it will not be determinative.
In R v. Tomasone, 2025 ONCJ 30, the Court held there was not a lawful demand or a criminal refusal. In this case, the accused was initially pulled over for driving while prohibited. The accused was informed of his rights and stated that he wanted to exercise his right to counsel right away. Immediately after, the police officer took steps to investigate the accused’s sobriety and issued an ASD breath demand. The accused initially refused to provide a sample, stating that he first wanted to speak to a lawyer. After informing the accused of the consequences for failing to comply and a subsequent refusal, the officer charged the accused with the refusal offence. After this occurred, the accused asked to take the test.
The Court held that the confusing circumstances in this case served to extend the statutory immediacy window. The Court stated that the need to implement the demand immediately, and the corresponding suspension of the right to counsel would have been confusing for the accused, given that he had already been read his rights and requested counsel.[4] As such, there was no criminal refusal in this case, because the accused’s offers to provide a breath sample after his initial refusal were part of the same transaction.
Conclusion
The case authority establishes that individuals can change their mind about complying with an ASD demand after an initial refusal if their reconsideration is part of the “same transaction” as their refusal. The length of time of such a transaction is contextual and fact specific and is the same period of time during which a police officer can lawfully compel a breath sample under the statutory immediacy requirement. The courts will consider the presence of any unusual circumstances which would extend the statutory immediacy window and allow an individual time to reconsider their refusal. However, the longer an individual refuses to provide a breath sample the less likely it is for a court to determine that the individual’s reconsideration forms part of the same transaction.
[1] R v. Doiron, 2023 BCPC 127 at para 46.
[2] R v. Domik, [1979] O.J. No. 1050, aff’d [1980] O.J. No. 462 (C.A.).
[3] R v. Khandakar, 2024 ONCA 620 at para 60.
[4] R v. Tomasone, 2025 ONCJ 30 at para 53.
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