REASONABLE GROUNDS - THE LAWFULNESS OF A DEMAND MUST BE DETERMINED AT THE TIME OF THE DEMAND

Mr. Rezansoff was convicted at trial for refusal to provide a breath sample. His appeal was allowed and an acquittal was entered.  The Crown appealed to the Saskatchewan Court of Appeal.  They actually did not agree with either of the earlier judgments, and gave their own interpretation of how demands for breath samples are to be conducted:

In our view, the summary conviction appeal judge erred in law by conflating the lawfulness of the arrest and the lawfulness of the demand.  The lawfulness of the demand must be determined at the time of the demand and the lawfulness of the arrest must be determined at the time of the arrest.  Driving while impaired and refusing a breath sample are two separate offences.  One does not necessarily follow the other.  Neither the trial judge nor the summary conviction appeal judge directed their minds to the lawfulness of the demand as a component of a distinct offence. A plain reading of s. 254(3) suggests the precise point at which a peace officer must have reasonable grounds to believe a person is committing or, at any time within the three preceding hours, has committed an offence under s. 253 as a result of the consumption of alcohol does not matter as long as the peace officer has the reasonable grounds to believe at the time of making the demand. R. v. Rezansoff, 2014 SKCA 80