Following an ASD demand, the accused asked a range of questions about the process he was facing. What would happen to his car? Would it be towed? Would his licence be suspended and for how long? What were the various penalties? What type of reading would the instrument provide? What was the difference between a refusal and impaired conviction? The questions lasted for 14 minutes. Police concluded that the accused was stalling and charged him with refusal.
Unfortunately, the officers could not recall exactly what was said and their notes were described as 'regrettably somewhat sparse'. Although police concluded that the accused was stalling, there was little reference to what the accused said to support their conclusion.
The appellate court held that the evidence was too imprecise and general to convict. Although one could conclude that the officers felt that the appellant was filibustering and unequivocally refusing, it was impossible for the fact finder to reach that conclusion on the general and equivocal evidence offered. Accepting every word of the officers’ testimony as accurate leads only to this conclusion: the appellant asked a lot of questions, some of which were repetitive, over a period of 14 minutes.
Without some ultimatum that made it clear that no further questions would be answered and the time arrived to provide a sample, the appellant could not be taken to have unequivocally refused.
R. v. Sangha, 2011 ABQB 656