REFUSAL - DOES THE CROWN HAVE TO PROVE POLICE WERE IN A POSITION TO TAKE AN ASD SAMPLE FORTHWITH?
Friday, December 9, 2011 at 8:34PM The officer made an ASD demand and the accused immediately refused. The officer testified that he did not have an ASD with him and had the accused agreed to provide a sample, he would have had to wait for one to arrive. The accused argued that since the officer was not in a position to take the sample forthwith, it was not a valid demand. The Court of Appeal did not agree and in doing so, effectively overruled some earlier cases that supported the defence's argument. The Court held that the offence is made out when the accused unambiguously refuses. There is no obligation on the Crown to then demonstrate that the sample could have been taken forthwith. Questions of whether the instrument was available, and if not available, how long it would have taken to arrive, are irrelevant. R. v. Degiorigo, 2011 ONCA 527