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Refusal to Comply with a Breath Demand Laws in Canada

If you have been charged with Refusal to Comply with a Breath Demand in Canada, it’s not too late, contact us to speak with a lawyer.

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What is a refusal to comply with a breath demand charge?

Refusing to provide a breath sample is a criminal offence in Canada, as defined in Section 320.15(1) of the Criminal Code. This offence occurs when an individual, without reasonable excuse, fails or refuses to comply with a lawful demand made by a peace officer to provide a breath sample for analysis. The demand can be made if the officer has reasonable grounds to suspect that the person has alcohol or drugs in their body and has operated a conveyance within the preceding three hours.

This offence is classified as a hybrid offence, meaning the Crown can choose to prosecute it either summarily or by indictment, depending on the circumstances of the case. If prosecuted summarily, the maximum penalty includes a fine of up to $5,000 and/or imprisonment for up to two years less a day. If prosecuted by indictment, the maximum penalty is imprisonment for up to 10 years. The purpose of this law is to support the enforcement of impaired driving laws by ensuring that individuals suspected of impaired driving cooperate with law enforcement efforts to gather evidence.

Examples

Some examples of a refusal to comply with a breath demand charge may include the following:

  • Declining to provide a breath sample by refusing to blow into a roadside screening device at a checkpoint;
  • Failing to provide a breath sample at a police station using an approved instrument;
  • Refusing to comply with a breath demand after a traffic accident;
  • Claiming a medical condition without justification to avoid providing a sample; and
  • Deliberately failing to follow instructions to give a proper sample.

Defences

The defences available to refusal to comply with a breath demand charges are entirely dependent on the facts of your case.

However, some defences to refusing to comply with a breath demand charges may include:

  • Having a legitimate reason for refusing, such as a medical condition or inability to understand the demand;
  • Challenging the validity of the traffic stop;
  • Questioning the accuracy or reliability of the approved screening device or approved instrument;
  • Arguing that the police did not properly inform the accused of the consequences of refusing a breath demand; and
  • In rare cases, arguing that the refusal was necessary due to an urgent situation or emergency.

Punishment

The punishments for refusing to comply with a breath demand in Canada are the same as those for an impaired driving charge. As a hybrid offence, the Crown can prosecute summarily or by indictment.

If summarily convicted, the maximum penalties are:

  • A fine of up to $5,000
  • Imprisonment for up to two years less a day
  • Or both

If convicted by indictment, the maximum penalty is:

  • Imprisonment for up to 10 years

Regardless of the mode of prosecution, a conviction also results in a mandatory driving prohibition:

Provinces and territories may also impose administrative penalties, such as:

  • License suspensions
  • Vehicle impoundment
  • Mandatory education or rehabilitation programs

In summary, refusing to comply with a breath demand is treated as seriously as impaired driving itself, as it hinders law enforcement’s ability to detect and prevent impaired driving.

Overview of the Offence

According to s. 320.15(1) of the Criminal Code:

Everyone commits an offence who, knowing that a demand has been made under section 320.27 or 320.28, fails or refuses to comply, without reasonable excuse, with the demand as soon as practicable.

The Guilty Act (Actus Reus)

The actus reus (guilty act) of the offence of failing or refusing to comply with a demand for a breath sample consists of two main elements. First, there must be a lawful demand made by a peace officer under section 320.27 or 320.28 of the Criminal Code. These sections allow an officer to demand a breath sample if they have reasonable grounds to suspect that a person has alcohol or drugs in their body and has operated a conveyance within the preceding three hours.

Second, the individual must fail or refuse to comply with the demand without a reasonable excuse. This means that the person must have either actively refused to provide a breath sample or failed to do so by not following the officer’s instructions or not providing a suitable sample. The refusal or failure to comply must be intentional, and not due to factors beyond the individual’s control, such as a genuine medical condition or physical inability to provide a sample.

It is important to note that the offence is complete once the individual refuses or fails to comply with the demand. The Crown does not need to prove that the individual was actually impaired or had a blood alcohol concentration (BAC) above the legal limit. The act of refusing or failing to comply with a lawful demand is sufficient to establish the actus reus of this offence.

Additionally, the refusal or failure to comply must occur as soon as practicable after the demand is made. This means that the individual must comply with the demand within a reasonable time frame, considering factors such as the availability of an approved instrument or the need to travel to a police station.

The Guilty Mind (Mens Rea)

The mens rea (guilty mind) required for the offence of refusing to comply with a demand for a breath sample is knowledge that a demand has been made under section 320.27 or 320.28 of the Criminal Code. This knowledge requirement is satisfied if the individual has been clearly informed of the demand and understands its nature and purpose. The officer making the demand must convey the information in a manner that is reasonably understandable to the individual, considering factors such as language barriers or cognitive impairments.

It is not necessary for the Crown to prove that the individual knew they were committing an offence by refusing or failing to comply with the demand. The offence is one of strict liability, meaning that once the actus reus and the required mens rea (knowledge of the demand) are established, the individual can be found guilty unless they can raise a valid defence.

One such defence is reasonable excuse, which is explicitly mentioned in the text of the offence. If the individual can demonstrate that they had a legitimate reason for refusing or failing to comply with the demand, they may be able to avoid conviction. Examples of reasonable excuses may include genuine medical conditions that prevent the individual from providing a suitable breath sample, or situations where complying with the demand would result in serious harm or danger to the individual or others.

Punishments

In Canada, the punishments for refusing to provide a breath sample are outlined in the Criminal Code and are the same as those for an impaired driving charge. The offence is a hybrid offence, meaning that the Crown prosecutor can choose to proceed either summarily or by indictment, depending on the severity of the case and the accused’s prior record.

If the Crown elects to proceed summarily, the minimum penalty is a fine of $2,000 for a first offence, with a maximum fine of $5,000. The maximum term of imprisonment for a summary conviction is two years less a day. For a second offence, the minimum penalty is 30 days imprisonment, and for a third or subsequent offence, the minimum penalty is 120 days imprisonment.

If the Crown proceeds by indictment, there is no minimum penalty, but the maximum penalty is imprisonment for up to 10 years.

Regardless of whether the charge is prosecuted summarily or by indictment it also results in a mandatory driving prohibition. The minimum prohibition is one year for a first offence, two years for a second offence, and three years for a third or subsequent offence. The court may also order the offender to participate in an ignition interlock program. In addition to these criminal penalties, provinces and territories may impose administrative penalties, such as immediate roadside suspensions, vehicle impoundment, and mandatory education or treatment programs.

Frequently Asked Questions

What does it mean to refuse to comply with a breath demand in Canada?

Refusing to comply with a breath demand in Canada means that an individual, without a reasonable excuse, fails or refuses to provide a breath sample when lawfully requested to do so by a police officer. The refusal can be either explicit, such as verbally stating that one will not provide a sample, or implicit, like not cooperating with the officer’s instructions or providing an insufficient sample. It is important to note that simply remaining silent or not responding to the officer’s demand can also be considered a refusal.

What are the legal consequences of refusing a breath test in Canada?

The legal consequences of refusing a breath test in Canada are severe and can have lasting impacts on an individual’s life. Refusing to comply with a lawful breath demand is a criminal offence under the Criminal Code of Canada, and the penalties are the same as those for impaired driving.

If charged and convicted, an individual faces a mandatory minimum fine of $2,000 for a first offence, along with a driving prohibition of at least one year. Repeat offenders face even harsher penalties, including mandatory jail time and longer driving prohibitions. In addition to the criminal penalties, those who refuse a breath test may also face administrative consequences, such as immediate roadside license suspensions and vehicle impoundment. These penalties can vary by province or territory. Furthermore, a criminal record resulting from a conviction for refusing a breath test can have long-term consequences, such as difficulties with employment, travel, and insurance.

Can I be charged with a criminal offence for refusing a breath demand?

Yes, you can be charged with a criminal offence for refusing a breath demand in Canada. Under Section 320.15(1) of the Criminal Code, it is an offence to fail or refuse to comply with a lawful demand for a breath sample made by a police officer, without a reasonable excuse. Refusing to provide this sample is a criminal offence, even if you are not actually impaired.

Is refusing a breath test worse than failing one in Canada?

In Canada, refusing a breath test is considered just as serious as failing one, and in some cases, it may be viewed as worse. When you refuse a lawful breath demand, you are essentially obstructing a police officer’s ability to gather evidence and determine your level of impairment, which is a criminal offence under the Criminal Code.

The penalties for refusing a breath test are the same as those for impaired driving, including fines, driving prohibitions, and possible imprisonment for repeat offenders. However, refusing a breath test can also be interpreted as an attempt to evade detection and may be seen as an aggravating factor in sentencing. If you refuse a breath test, you also lose the opportunity to provide evidence that could potentially challenge the officer’s suspicion of impairment. In contrast, if you fail a breath test, you may still have the opportunity to challenge the accuracy or reliability of the test results in court.

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