September 30, 2026
Background: T.C. faced a charge of refusing to provide a breath sample. A member of the public called 911 reporting that a vehicle had driven into a snow bank. Emergency services responded, including fire, paramedics and police. After the completion of a medical examination, police detected signs of impairment, including the smell of alcohol on T.C.’s breath. The police made a demand that T.C. provide breath into an Approved Screening Device (ASD), which would determine whether grounds existed (if the result was a “fail”) to arrest T.C. for the offence of driving with a blood alcohol concentration above the legal limit (“Over 80”). T.C.’s response was “No”, he would not.
Defence Strategy: The Crown argued that T.C.’s outright refusal to comply with an ASD demand was clear and must be found guilty. Mr. Fedorowicz challenged the Crown’s case on two fronts. First, it was argued that the Crown had failed to establish that the officer actually had an ASD available at the time of the demand — a foundational requirement for a valid refusal charge pursuant to the decision of the Supreme Court in R. v. Breault. Second, he argued that T.C.’s response was not an unequivocal refusal, raising the issue of whether the client understood he was being asked to blow into an ASD versus an approved instrument, and whether his “no” reflected genuine non-compliance or confusion about what was being demanded.
Result: Not Guilty. The Court found the Crown had not established that an ASD was available, and left open the question of whether the refusal was unequivocal.