Breath Sample Refusal
Challenging Breath Sample Refusal Charges With Smart, Aggressive Defence.
Channdeep Nagi brings extensive experience in defending individuals charged with motor vehicle-related offences, including Refusing to Provide a Breath Sample (Refusal). Refusal is a serious charge under the Criminal Code of Canada and carry significant consequences—such as long-term driving prohibitions, criminal records, and, for non-citizens (including permanent residents), potential inadmissibility to Canada.
In addition to the criminal penalties, a Dangerous driving conviction can also result in automatic licence suspensions under Ontario’s Highway Traffic Act. The impact on your life can be immediate and severe. That’s why it is critical to seek legal advice without delay.
At CSN Law PC, we offer a free and confidential consultation to help you understand your rights and options from the outset.
What Sets Us Apart?
Our firm lives by the motto:
“We Stand For Those Penalized Without Proper Legal Process. At Csn Law, We Dissect The Circumstances, Fight Procedural Flaws, And Advocate Fiercely To Ensure Your Rights Were Respected At Every Turn.”
We don’t just handle cases—we strategically build powerful defences. From the moment we’re retained, we:
- Thoroughly review disclosure
- Listen to your full story
- Identify legal and factual defences early
- Move fast to preserve key evidence (e.g., CCTV footage), which may be lost over time
We have a strong record of success, whether it’s having charges withdrawn, dismissed, or winning at trial. At CSN Law PC, we fight smart—and we fight hard.
The Offence of Refusal Under the Criminal Code of Canada
The offence of Refusal to Comply with a Demand is codified in the Criminal Code of Canada under Part VIII.1 – Offences Relating to Conveyances. This part of the Code deals primarily with offences associated with the operation of motor vehicles, vessels, aircraft, and railway equipment, including those involving impaired driving and related testing requirements.
Statutory Authority – Section 320.15
The specific provision dealing with refusal is found under Section 320.15 of the Criminal Code. The relevant subsection reads as follows:
320.15 (1) – Failure or refusal to comply with demand
Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under section 320.27 (which authorizes testing for the presence of alcohol or drugs) or section 320.28 (which governs the taking and evaluation of breath or blood samples).
Nature of the Offence: Hybrid and Crown Election
The offence of refusal is classified as a hybrid offence, meaning the Crown has discretion to proceed either by summary conviction or by indictment. This classification impacts both the procedural rights of the accused and the potential penalties upon conviction.
- If the Crown proceeds by indictment, the accused has the right to elect one of the following trial modes:
- Trial in the Ontario Court of Justice before a judge alone;
- Trial in the Superior Court of Justice before a judge alone;
- Trial in the Superior Court of Justice before a judge and jury.
If the Crown proceeds summarily, the matter will be tried in the Ontario Court of Justice without a jury.
Elements of the Offence – What the Crown Must Prove
To obtain a conviction for refusal to comply with a demand under section 320.15, the Crown must prove each of the following elements beyond a reasonable doubt:
1. Care and Control:
The accused had care or control of a motor vehicle, vessel, aircraft, or railway equipment at the relevant time.
2. Lawful Demand:
A peace officer made a valid and lawful demand under either section 320.27 (roadside screening) or section 320.28 (approved instrument, blood samples, Drug Recognition Evaluation).
3. Knowledge of the Demand:
The accused was aware that the demand had been made.
4. Refusal or Failure to Comply
The accused failed or refused to comply with the demand without a reasonable excuse.
5. Clear and Unequivocal Refusal:
The refusal must have been clear, unequivocal, and intentional. Passive resistance or confusion may not amount to a criminal refusal unless it meets this threshold.
Defences and Trial Considerations
The determination of guilt often hinges on the totality of the circumstances surrounding the accused’s failure to comply. Courts will carefully assess:
- Whether the police clearly and adequately communicated the demand;
- The context and clarity of the accused’s response (verbal and non-verbal);
- Any language barriers, cognitive limitations, or medical conditions that may have interfered with the accused’s understanding;
- Whether the accused made any effort to comply, or asked questions indicating uncertainty or confusion;
- Whether a reasonable excuse exists that may justify the failure to comply (e.g., medical inability to provide a breath sample).
A trial is often required to determine whether the refusal was willful and unjustified or whether it was the result of misunderstanding or inability.
Penalties and Sentencing – Section 320.19
Section 320.19 of the Criminal Code prescribes the penalties applicable to offences under both section 320.14(1) (impaired operation) and section 320.15(1) (refusal to comply with demand). The penalties vary depending on the nature of the Crown’s election and whether the offender has any prior convictions under this regime.
Minimum Penalties – Subsection 320.19(1)(a):
- First Offence:
- Minimum fine of $1,000 for impaired or refusal;
- For refusal specifically, the minimum fine is $2,000 under subsection 320.19(4).
- Second Offence:
- Mandatory minimum of 30 days’ imprisonment.
- Third or Subsequent Offence:
- Mandatory minimum of 120 days’ imprisonment.
Maximum Penalties:
- Indictment:
- Up to 10 years’ imprisonment.
- Summary Conviction:
- Up to 2 years less a day of imprisonment.
In addition to the above, a conviction for refusal results in mandatory driving prohibitions under the Criminal Code and potential further licensing consequences under provincial legislation, such as Ontario’s Highway Traffic Act.
Conclusion
A charge under section 320.15 is a serious criminal matter that may result in a permanent criminal record, loss of driving privileges, and substantial fines or jail time. These cases often involve nuanced factual determinations, particularly around whether the refusal was clear, deliberate, and unjustified.
If you are facing a charge of refusal, it is critical to seek legal advice from an experienced criminal defence lawyer who can assess the specific facts of your case, explore potential defences, and ensure your rights are fully protected.
