An RCMP officer stopped a car being driven by Mr. Candido. The officer began speaking to Mr. Candido and smelled alcohol from Mr. Candido’s breath. Mr. Candido was asked to come to the police vehicle and blow into an ASD. Mr. Candido insisted he was following the instructions, but he failed to provide a breath sample six times, at which point the officer concluded that Mr. Candido was trying to deceive the machine and arrested him for failing to provide a breath sample. He was convicted at trial, where the trial judge stated:
This is a case of constructive refusal because apparently throughout Mr. Candido indicated he was trying his best and wanted to blow, but after six attempts it was given up, and he was -- he was charged with a refuse to provide samples in a screening device.
His conviction was upheld after a summary conviction appeal, and his appeal of that decision was dismissed, R. v. Candido, 2015 SKCA 104. He sought leave to appeal to the Supreme Court of Canada but that application was also dismissed, Candido v. R., 2016 CanLII 13736
It is interesting to note that the Court of Appeal said he was "asked" to come to the police vehicle and blow. Officers on the roadside need to remember that they are not "asking" for a breath sample - it is a "demand" for a breath sample. It is also interesting to note that Mr. Candido did not have a prior criminal record, so his sentence at the end of all the proceedings was the minimum: a $1000 fine and a one-year driving prohibition.