Trial for failure to comply with a breath demand and impaired care or control of a motor vehicle. Issue of whether the mens rea of refusal was established. Accused testified that she “tried as hard as she could” to provide samples, but suffered from anxiety and was unable to do so.

Held: Acquittal.

The mens rea of s. 254(5) is the subject of diverging authority. Court here adopted the test as outlined in Soucy, 2014 ONCJ 497 that requires proof that the accused failed or refused intentionally, or “on purpose”. “The guiding principle, regardless of the ever-emerging complexities of impaired driving law, is that the Crown must prove beyond a reasonable doubt that Stephanie Bax intentionally committed a crime.” The accused’s evidence raised a reasonable doubt that she refused or failed “on purpose”, and thus was not guilty.

D. Aytenfisu – Defence Counsel