After an ASD demand the accused asked about the consequences of refusing and was told that the penalties were the same as impaired driving or driving while over 80. The officer asked the accused if he was willing to provide a sample. The accused said he was not and then was arrested. While still at the roadside, the accused asked for a second chance to provide a sample but the officer did not respond.
The first issue was whether the words, "Are you willing to provide a breath sample?", changed the original breath demand into an inquiry rather than a demand. The court held that when looking at the entire context the comments did not alter the meaning of the original breath demand.
The second issue was whether or not the officer should have given the accused a second chance. In Ontario there is a line of authority that suggest an officer is obligated to give the accused a second chance where it is 'fair and convenient'. However, in British Columbia when the refusal is unequivocal the offence is made out and the officer does not have to give the accused a second chance. The court was careful to distinguish between cases where the refusal is unequivocal and those where it is less clear(feigned attempts). R. v. Komenda, 2011 BCPC 0245