Conviction appeal on charge of refusal to provide a screening breath sample. Issue as to whether trial judge erred in finding that the accused’s words of refusal could be used to incriminate, given that the 10(b) right was suspended at the roadside

Held: Appeal dismissed.

“The appellant calls the difference between a refusal and a failure on the test an ‘artificial distinction’. This argument is an apples and oranges situation. The use of a ‘fail’ result would be use of conscripted evidence … By comparison, the fact of refusal is the actus reus of the offence of refusal. The only conscription there emanates directly from the Code itself as a matter of law, absent a Charter restriction on the law itself.”

S. Prithipaul – Defence Counsel