The accused, an NFL football player, was stopped by police and required to provide a sample of breath into an ASD. It took 4 minutes for the ASD to arrive. The accused did not provide an adequate sample of breath. A second ASD was brought to the scene, and he still did not provide a sufficient sample. He was charged with refusal.
The court did not accept that a well-conditioned football player could not provide an adequate sample.
The accused argued that because of his unique personal circumstances that he had a phone and was an NFL player who had immediate access to American lawyers who in turn had connections with Canadian lawyers, he should have been allowed access to a lawyer before providing a sample. The court referred to this as the 'Big Shot' argument.
The court pointed out that although an assessment as to whether or not the accused would have had a reasonable opportunity to 'consult' with counsel needed to include all the circumstances, it did not include those particular to a detainee that would only be available to those of privilege and wealth. The court also pointed out that even if it did, there was no reasonable opportunity for the accused to contact and consult with counsel in the given time period. R. v. Westerman, 2012 ONCJ 9