R. v. KHANDAKAR, 2024 ONCA 620, AUGUIST 20, 2024.

FACTS:  The accused was convicted of the offence of failing to comply with an ASDS demand, contrary to section of the Criminal Code.  The evidence at the trial established that the accused initially refused to comply with the demand, but changed his mind and agreed to do so.  At that point the investigating officer said it “was too late”.

The accused was acquitted at trial, and the acquittal was upheld by the summary conviction appeal court.  The Crown was granted leave to appeal to the Ontario Court of Appeal.

The Court of Appeal described the issues raised as follows (at paragraph 1):

This Crown summary conviction appeal raises the question of how long persons subjected to roadside breath screening demands have to change their minds about refusing to provide a breath sample before they commit a criminal offence.

HELD:  The appeal was allowed and a new trial was ordered.  The Court of Appeal held that “in ASD refusal cases the duration of the ‘transaction’ is constrained by the requirement that ASD tests be conducted ‘immediately’. In other words, when someone initially refuses to provide an ASD breath sample, the maximum time within which they can change their mind cannot exceed the time within which a compelled breath sample can lawfully be obtained by the police. This latter time is determined by the operational requirements of the ASD test process and by any ‘unusual circumstances’ that extend the statutory ‘immediacy’ window” (at paragraph 2).

The Court of Appeal concluded that in this case “both the trial judge and the summary conviction appeal judge erred in law by not considering the constraints arising from the statutory immediacy requirement when applying Domik to the facts of this case. I would therefore allow the appeal and order a new trial” (at paragraph 4).

A Summary:

The Court of Appeal summarized its application of R. v. Domik to the present legislation, in the following manner (at paragraphs 61 to 63):

In summary, I would hold that the Domik “same transaction” principle applies in all refusal cases, both those involving ASD demands and those involving intoxilyzer demands. However, the maximum duration of the “same transaction” is context-specific. In ASD demand cases, the Domik “same transaction” window should be understood as co-extensive with the maximum time that the police have in the circumstances of a particular case to obtain a breath sample “immediately”.

Accordingly, a trial court applying Domik in an ASD demand refusal case must consider whether the accused’s change of mind occurred at a time where the police could still have lawfully obtained a breath sample, having regard both to the operational time required to collect a sample “immediately”, and the presence of any “unusual circumstances”: Breault, at paras. 32, 51-60. If a trial judge determines that the accused’s change of mind occurred sufficiently soon after the initial refusal to form part of the “same transaction”, such that the police could still have lawfully obtained the breath sample, this will lead to the conclusion that the actus reus of the refusal offence has not been established. This will be so even if the initial refusal was expressed unequivocally. The timing of the police decision to arrest the accused for the refusal offence may be a relevant factor when considering whether the accused’s change of mind occurred within the co-extensive bounds of the statutory immediacy requirement and the Domik “same transaction” window, but it will not be determinative.

However, if the court concludes that the accused’s change of mind occurred too late to have been part of the “same transaction” as the initial refusal, taking into account the statutory immediacy requirement, the court must still consider whether the evidence as a whole, including the evidence of the accused’s subsequent conduct, gives rise to a reasonable doubt about whether the initial refusal was unequivocal.