Yes and no. The fail reading would be used to inform the officer as to whether or not they were going to then move forward to make a subsequent demand for a breath sample, but it's not just that reading that the officer is getting. The other things that the officer is collecting at the roadside, such as their observations of that person, are important. Those are all being collected without access to counsel. When we're putting that into evidence, it is very problematic for me.
In B.C., as my colleague has pointed out, we do have these administrative schemes in place where officers don't require, really, any kind of suspicion to issue an ASD demand where samples are obtained. There's no viable mechanism to dispute the grounds for these samples.
What we're seeing time and time again is that people are providing samples at the roadside in a context where they otherwise shouldn't be and they're not being provided access to counsel. They're getting very harsh penalties as a result.
Again, it is problematic. In my view, it is contrary to our charter rights.