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The Rights You Have When Interacting With the Police
In Canada, there are rights guaranteed to us when interacting with police. This includes the right to counsel and the right to be free from unreasonable search and seizure. These rights, codified in the Charter, reflect a fundamental and core principle of Canadian law: although the state possesses significant powers to investigate crime and enforce the law, the powers of the state are not unlimited. Liberty, privacy, dignity, and autonomy remain core values within our criminal justice system that are upheld in moments of unreasonable state intrusion.
The Exception: When The Law Requires Compliance
Impaired driving investigations provide an example of the balance between individual rights and the restrictions of those rights due to concerns of public safety. When it comes to impaired driving investigations, there is an important exception contrary to popular belief. If a police officer makes a lawful demand for a breath sample, simply refusing to provide one can result in a criminal charge.
Under section 320.15(1) of the Criminal Code, a person commits an offence where, knowing that a lawful demand has been made, they fail or refuse, without a reasonable excuse, to comply with that demand. Depending on the circumstances and the legal authority relied upon, police may require a driver to provide a breath sample or other bodily sample as part of an impaired-driving investigation. Refusing to comply with a valid demand can therefore result in a criminal charge. The type of testing is set out in s. 320.27(1) and includes samples of breath and bodily substances as well as physical coordination tests.
The Consequences
Section 320.19 of the Criminal Code sets out the punishments for DUI offences, including those in forms of penalties and fines. However, Section 320.19(4) has a special provision, which states that every person who commits the offence of refusing a breath sample, is liable for a first offence, to a fine not less than $2,000. This is a striking increase to the minimum fine for a first impaired driving conviction, which under section 320.14(1) is $1,000. What does this tell us? The legislative intent of imposing a harsher minimum fine for a refusal to comply showcases how seriously the law treats a failure to comply charge. This is to discourage individuals from denying lawful requests made by police officers for a breath sample.
A second offence carries a mandatory minimum of 30 days’ imprisonment, while a subsequent third offence carries a minimum of 120 days’ imprisonment. This also comes with a mandatory prohibition order under section 320.24(1), where the court shall make an order prohibiting the offender from operating that type of conveyance in question during a certain period outlined by legislative guidelines. This can also include ignition interlock requirements. Further, like any other criminal charge, this comes with the possibility of a permanent criminal record. In other words, a DUI charge can have severe consequences for an individual and drastically alter their lives.
The Possible Defences
While section 320.15(1) of the Criminal Code makes it an offence to fail or refuse to comply with a breath demand, the availability of a defence is more complicated than simply providing a reason for saying no. The statutory language itself places important limits on criminal liability: the accused must know that a demand has been made, the demand must be legally valid, there must be a failure or refusal to comply, and that failure or refusal must occur without reasonable excuse. Also, the Code does not provide an exhaustive definition of what constitutes a “reasonable excuse.” This allows the court to consider the circumstances surrounding the refusal and determine, on a case-by-case basis, whether the accused had a legally sufficient reason for failing to comply.
The Supreme Court of Canada’s decision in R. v. Breault illustrates the importance of asking whether the police demand itself was legally valid to begin with. In the case, police stopped the accused after receiving information that an intoxicated person was operating an ATV (all-terrain vehicle) on forest trails. Although officers observed signs of alcohol consumption, they did not have an approved screening device (ASD) with them. An officer nevertheless demanded that the accused provide a breath sample, and the accused refused three times. The accused’s stance was that he was not operating the ATV. The Supreme Court ultimately upheld his acquittal, concluding that the demand was invalid because the statutory requirement that the sample be provided “forthwith” could not ordinarily be satisfied when the officer did not have immediate access to an ASD. The judge concluded that the Crown failed to show any unusual circumstance that would account for the absence of an ASD. In simple terms, the demand made by the officer was invalid, which rendered the refusal by the accused invalid as well. Breault therefore demonstrates an important distinction: the fact that a person refused to provide a breath sample does not, standing alone, establish the offence. There are other factors at play, including the Crown’s obligation must first establish that there was a valid demand with which the accused was legally required to comply.
The Simple Answer: Can You Refuse To Take A Breath Test?
The simple answer is that, if police make a lawful breath demand, refusing to comply can itself be a criminal offence. This is an important exception to the broad protective measures Canadians are usually granted when interacting with police. While the Charter protects against compelled self-incrimination and unreasonable state power mechanisms, Parliament has given police specific powers in the impaired-driving context to require drivers to provide samples.
More importantly, refusing is not a way to avoid an impaired-driving charge simply because police are unable to obtain evidence. A refusal charge solely focuses on the failure to comply with a lawful demand, meaning the Crown does not necessarily have to prove that you were impaired or over the legal limit. A person could therefore face criminal consequences for refusing even where a breath sample might have shown that they were within the legal limit.
The circumstances in which police may lawfully demand a breath sample are also broader than many drivers realize. Depending on the type of demand, police may not need proof that a driver is impaired and, under Canada’s mandatory alcohol screening regime, may not even need individualized suspicion of alcohol consumption. The takeaway is simple: a lawful breath demand is not a request you can simply decline, as a breath test is one of those rare situations where refusal to comply can be prosecuted as a crime of its own. There may be exceptions or circumstances that can be brought forward by your defence team; however, this depends on the circumstances of your case.
Conclusion
If an officer has reasonable grounds to make a demand under s.320.15(1) and this was done in accordance with legislative schemes such as the Criminal Code of Canada and Charter of Rights and Freedoms, you may have to endure significant repercussions from the prosecution of this charge. Our team at Karapancev Law understands that individuals dealing with criminal charges can face repercussions that extend far beyond the courtroom, affecting their livelihood, relationships, reputation, future, and overall well-being. We recognize the drastic weight that a criminal charge carries and approach every case with consideration for both the legal issues at stake and the individual experiences behind them. If you are facing a refusal to comply charge, please contact our legal team, and we can help with questions and next steps to make this process easier for you.
