Mr.

Adam Ralph Hiebert faces trial on a charge of refusing an Approved Roadside Screening
Device (ASD) on April 24, 2010, at or near the Town of Selkirk. The trial of the matter took
place on September 27, 2011 at which time the Court reserved judgement to todays date after
hearing full argument from counsel.

[2]
The issue devolves into a relatively simple one: whether or not, under all of
the circumstances, an accused that had clearly refused a first request for an ASD
breath test should have been allowed another. If not, he is guilty, and if so, he
should be acquitted.
[3]
Put more simply, when is it unfair for an accused not to be given a
second chance to take the ASD test?
[4]
I have carefully reviewed the evidence in this short trial and am convinced
that the accused, who remained detained at roadside throughout, ought to have
been given a second chance, and that the refusal by the arresting officer to do so, at
roadside when the accused then agreed to take the test shortly after the first refusal,
constitutes a failure to comply with the intent and purpose of the s. 264 so as to
render the accuseds prior refusal not a criminal act.
[5]

The facts are relatively simple. There is no credibility issue. In summary:

[6]
Constable Gabel, an RCMP officer of some 41/2 years, was on a routine
late evening patrol, with his partner, Constable Bennet, in his marked police
vehicle. While on Main Street in the Town of Selkirk at approximately 10:10 p.m.
Constable Gabel noted a motor vehicle traveling at an estimated 70 KPH in a
50KPH zone. He stopped the vehicle without incident. The accused was the lone
occupant and driver.
[7]
Constable Gabel immediately noted an empty beer can on the back floor of
the accuseds vehicle. The accused is a young man. The accused on request
produced a valid drivers license, but no registration. There was a smell of alcohol
from the vehicle interior. The accused was asked to step out of his vehicle at which
point the officer noted the strong smell of alcohol emanating from the accuseds
person. The accused was displaying no other indicia of impairment, other than
the smell of alcohol from his person, which constituted the grounds, along with the
overall circumstances, for Constable Gabel to make an ASD demand.
[8]
I find the demand was made properly on the basis of reasonable suspicion
of alcohol in the body or on the breath of the accused, and the overall evidence
supports the making of that demand. I have no difficulty in so finding. The test for
the making of the demand is consumption of alcohol alone, and not its amount or
behavioural consequence. (R. v. Gilroy (1987), 3 M.V.R. (2d) 123, 70 A.R. 318
(C.A.). Furthermore, as the ASD was to be administered roadside at all times, I do

not find the 5 minute delay in obtaining the ASD device and its subsequent
availability at roadside to be unreasonable and still within the time parameters of
the forthwith requirement.
[9]
I find that waiting for an ASD device to arrive, which it did within 5
minutes, is not in any way unreasonable or illegal. In R. v. Higgens 1994 6405 (MB
CA), (1994), 88 CCC (3rd) 232, the device was brought to the officer within 5
minutes at which time the demand was made. This was found to be a valid
demand. See also R. v. Misasi reflex, (1993), 79 CCC (3rd) 339 to the same effect.
To like effect is R. v. Payne (1994) 24 W.C.B. (2d) 248, which held that the fact
that an ASD is not on the person of the police officer or in his vehicle when the
demand is made does not, of itself, take the demand outside s. 254(2). The
determination of whether the test if administered forthwith is a not a question of
the number of seconds elapsed from demand to test, but rather is a question of the
circumstances of each case. It was held that the outer limit of forthwith will
ordinarily be 30 minutes.
[10] A demand was made of the accused for an ASD test while he was seated in
the back of the police vehicle, at 10:25 p.m. The accused stated, No, I am not
willing. The refusal demand was read. The accused responded, No, I will not
provide a sample.
[11] The accused was warned that refusing the ASD had the same consequences,
upon conviction, as a charge of impaired driving or driving over the legal blood
alcohol limit. The accused still refused. He was then arrested, at 10:31 p.m. for
refusal and so charged. It should be noted that Constable Gabel did not have an
ASD with him, and had immediately requested it from the nearby police
detachment. All of the interaction with the accused regarding the taking of the ASD
occurred while waiting for the actual instrument to arrive. Constable Gabel had
called for backup and an ASD arrived in approximately 5 minutes thereafter, (the
exact time is not clear) at approximately 10:37 p.m., in the company of a Constable
Jestings of the RCMP.
[12]
Constable Gabel went on to testify that Constable Jestings, upon arrival with the ASD,
was told of what had transpired. Constable Jestings went to speak to the accused who was still
seated in the rear of the police vehicle, under arrest for refusing the ASD. Constable Gabel
testified that after a few minutes, Constable Jestings emerged from the vehicle to advise him that
the accused was now willing to take the ASD test. Constable Gabel refused, as the felt that the
refusal was already complete. Constable Jestings was not called as a witness. The accused
testified to similar, effect that he was convinced by Constable Jestings to take the test, after being
made more clearly aware of the consequences of a refusal.

[13] The accused testified and essentially did not dispute that he was given all of
his rights and the explanation for his detention and demand for the ASD was given

as the arresting officer so testified. It is clear to me that the accused had no

problem understanding the demand, but had difficulty comprehending the
consequences. But the police have no obligation to explain the consequences of a
demand to an accused in terms of penalties or possible criminal sanctions. If
the light bulb is not on the police have no obligation to turn it on, as a general
principle.
[14]
The accused was subsequently transported to the Selkirk detachment at
10:54 p.m., where he spoke to legal counsel. At 11:23 p.m. he once again offered to
take the ASD, which was declined by Constable Gabel. That is not in issue. That
request for a second chance was clearly far too late.
[15] The Crown takes the position that as the offence of refusal was unequivocal,
clear and complete, there should have not be a second chance and that the
accused should be convicted. That is, the offence of refusing the ASD was proven,
in all its elements.
[16] The Defence takes the position that, as the accused was still at roadside at
the time of his change of mind and as the ASD was available the administration
would still have been forthwith, the accused should have been given a second
chance. The accused having a rapid change of mind in and of itself shows that
the initial refusal was not fully informed and unequivocal.
[17] As I have found that the ASD demand was lawful the only issues remaining
are: (1) determining the equivocal or unequivocal nature of the refusal of the
accused to take the ASD test, and (2), whether he should have been given, under
these circumstances, a second chance, even if the initial refusal was unequivocal.
[18] On the first issue, I do find the refusal of the accused to be fully informed,
clear and unequivocal. The testimony of the police witnesses clearly indicates this
and I accept that testimony. The very responses of the accused to the warnings and
explanations give by Constable Gabel show the accuseds clear understanding and
his clear and freely given refusal.
[19] The only live issue remaining in this case then is whether there should have
been a second chance, or change of mind as it is sometimes referred to in the
case law, even after a clear, complete and unequivocal refusal.
[20] In determining whether an accused, where he initially refused a demand and
later changed his mind, is guilty of an offence, the court ought not to minutely
dissect a single conversation or take a single sentence out of context. It would seem
that whether there has been a refusal depends on consideration of all the
circumstances of each individual case, including the time elapsed and whether it
can be said the accuseds offer to take the test was severable from his earlier words

to the contrary: R. v. Cunningham reflex, (1989), 49 CCC (3rd) 521:

However, refusal followed by an almost immediate change of heart may not be
seen as a clear refusal, therefore not grounding, not giving right to arrest.

[21] Where the original refusal was not unequivocal and was closely followed by
an offer to provide a sample, then the offence is not made out. (R. v. Sagh (1981),
62 CCC (3rd) 521(Alta. C.A.)
[22] Where, however, the accused unequivocally refuses and only changes his
mind 15 minutes later, at which time the technician advised him that it was too
late, the charge was made out. The two events were sufficiently separate (in time)
as to constitute different transactions. (R. v. Butt (1983), 44 Nfld. & PEIR 297)
[23] Every case is unique, and every case turns on its particular fact situation and
circumstances.
[24] The accuseds initial refusal, although unequivocal, was followed shortly in
time thereafter by a change of mind. The accused was still at roadside. Only a few
minutes (approximately 5 minutes) had passed since the refusal/arrest and the
change of mind. The ASD could only have been administered some time after the
demand, upon the eventual arrival of the device at roadside. The change of mind
was actually stimulated, not by the accused, but by another conversation that the
accused had with another police officer, other than the one that had initially made
the demand. The accused had difficulty with understanding the consequences of a
refusal, this was explained to him, and the change of mind occurred shortly
thereafter. There was, in my mind, a single transaction, which is different from the
situation in R. v. Butt (supra).
[25] Under these particular and singular circumstances I do feel that the accused
ought to have been given a second chance. There was no prejudice to the
investigation. The investigation was still at roadside, where a roadside device that
could still have been administered forthwith by law was available very shortly after
the refusal. Given that any time lapse would have been entirely the fault of the
accused, because of the initial refusal, a subsequent ASD test would have still been
forthwith in the circumstances of this case.
[26]

The accused is therefore acquitted.