What is the test for refusing to blow a breath sample?

[61] In considering this issue I also note the comments in Regina v. Dolphin, [2004] O.J. No. 433, where the court stated as follows: “Refusal to provide an adequate sample is proven where the accused declines to blow into the device. Failure to provide an adequate sample may be proven from the inference to be drawn from proof that the accused appeared to blow into a device that was in good working order and failed to register an adequate sample. Refusal cases are normally proven by direct evidence from the attending officers. Failure cases are often based on the combination of inferences and direct observations of the attending officers. In failure cases the inference from the failure to register an adequate sample by a device is difficult to overcome if the crown proves that the device was in good working order. In contrast, direct evidence from the officers that an accused appeared not to be blowing properly is inherently less reliable. As such it must be carefully evaluated. The crown relies on the decision of Regina v. Lazarska, [2002] O.J. No. 2587, to support his proposition that the court is entitled to rely on the opinion of the officer operating the device as to the adequacy of the sample supplied by the person being tested. I agree that this evidence is admissible. However, as with all opinion evidence the weight to be afforded that opinion depends on the reliability of the foundation for that opinion. Generally the officer’s opportunity to make the observations upon which he relies is put at issue in a case where the accused attempts to blow into the device. In some respects the opinion of the operator as to adequacy is similar to tainted identification evidence. The observations of the operator are influenced by the device. When the device suggests to the operator that an inadequate sample of breath has been provided, it generates a circumstance similar to showing a single photograph to an eyewitness in an identification case. In both situations the suggestion constitutes a significant intrusion into the observation process. The natural instinct of the operator will be to look for and find fault with the blowing technique of the person being tested. Honest witnesses can be unreliable in this environment. The court must also carefully assess the opportunity of the operator to make the observations that form the foundation of the opinion. Considering the fact that most such tests are performed at night in the back of a police car over a relatively short period of time when the officer’s attention is divided between the device and the accused, the court must take care when it assesses the reliability of that evidence.”