Impaired Driving & DUI Charges in Toronto consist of a range of different types of offences. One of these is “Refuse or Fail to Provide a Breath Sample”.
Failure or refusal to comply with demand
Section 320.15 of the Criminal Code of Canada sets out the offence of Refusal/Failure to Comply with a Breath Demand.
The section reads “[e]veryone 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 or 320.28.”
Potential strategies to defend these charges
Some of the following are strategies that might be invoked in defending against a Refuse / Failure to Provide Breath Sample charge:
1) Arguing that the demand made by the police was unlawful
2) Arguing that the refusal was equivocal
3) Arguing that there was a reasonable excuse in the failure to provide the sample
4) Arguing that the Crown has failed to prove that the failure or refusal was intentional
5) Making an argument on the Charter of Rights and freedoms, pointing out that one ore more of the accused’s rights were violated in the investigation, and that the evidence of the failure / refusal to comply with the breath demand should be excluded
Intent to Refuse or Not Comply
A grey area with respect to this criminal offence is what state of mind the Crown has to prove in order to establish that the offence has been committed. Generally speaking, most criminal offences require the Crown to prove beyond a reasonable doubt that the accused intentionally committed the offence (ie, not by accident; not by carelessness; not by mistake). This is known as the “mens rea” (latin for guilty mind).
In 2018, the Canadian government tweaked the wording of this particular offence, and there are different interpretations as to what the Crown Attorney must prove for the mens rea of the offence.
As highlighted above, the offence reads as follows:
[e]veryone 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 or 320.28
There are two lines of cases that interpret the mens rea requirement differently. One line of cases suggests that the Crown must prove an “intentional” refusal or failure (see, for example, R. v. Sabetti, 2021 ONCJ 593, at para 67. By contrast, another line of cases suggest that the only state of mind that the Crown has to establish is that the accused had “knowledge” that a lawful demand was made (see, for example, R v Cummins, 2021 ONCJ 291, at para 4)
The law, however, is always evolving, and retaining a Toronto DUI Lawyer to review the current state of the law as it relates to this issue and others is important in order to ensure you are leaving no stone unturned in your defence.
Approved Screening Demands – Can they be random?
An Approved Screening Device (“ASD”) is a device that police are equipped with to test for the existence of alcohol in individuals’ bodies. Under s. 320.27(1)(b) of the Criminal Code of Canada, the police have the power to make these demands. The section reads as follows:
320.27 (1) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug:
- (b)to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose;
Under s. 320.27(2) of the Criminal Code, if a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.
This means that the police need not provide you, or have, any reason to require you to perform an ASD test. Failure to comply with their demand could trigger a Failure to Comply with Demand charge.
Sentencing Options and Penalties
General
The sentencing and penalty scheme for Drinking and Driving / Impaired Charges can be complicated, nuanced and case dependent. Every case may trigger different punishments, depending on a host of factors, including:
- Whether the accused has a criminal record, particularly for a DUI Charge
- Whether there was an accident that preceded the alleged refusal
- Whether there was any evidence of bad driving
The starting point, however, is that there are minimum punishments associated with all Drinking and Driving Charges in Canada.
Minimum Punishments for Refuse Breath Sample Charges – First Offenders
According to s. 320.19(4) of the Criminal Code of Canada, there is a minimum fine of $2,000 for anyone convicted of this charge for a first time offence. Note, additionally, that for any fine imposed as a sentence, there is an automatic 30 % Victim Fine Surcharge tacked onto the fine, unless the offender can establish that the surcharge would cause undue hardship. Also note that, unlike a traffic violation, a fine that is the result of a criminal charge, like a Drinking and Driving Charge, results in a permanent criminal record.
In addition to the minimum fine, there is also a minimum driving prohibition. A driving prohibition is a federal (Canada wide) restriction on an offender’s ability to operate a motor vehicle. The minimum prohibition is 12 months on a first offence, according to s 320.24(1) and (2) of the Criminal Code.
Minimum Punishments for Refuse Breath Sample Charges – Repeat Offenders
If you have a prior DUI related record, such as for Impaired Driving or Excess Blood Alcohol Level, the stakes are higher: the minimum fine of $2,000 turns into a minimum jail sentence of 30 days for a second offence, and a minimum jail sentence of 120 days for each subsequent offence (see section 320.2 of the Criminal Code).
The driving prohibition increases in length for repeat offenders as well: a minimum period of 2 years for a second-time offender and a minimum of three years for subsequent offences.
Note that these are just minimums – a Court can increase the sentence above the minimums.
Aggravating circumstances for sentencing purposes
An aggravating factor in sentencing is a factor that tends to increase sentence (or punishment) severity. Section 320.22 of the Criminal Code outlines factors that a court must take into account as aggravating for Impaired Driving or DUI Offences. The following is an excerpt from the Criminal Code of each factor:
(a) the commission of the offence resulted in bodily harm to, or the death of, more than one person;
(b) the offender was operating a motor vehicle in a race with at least one other motor vehicle or in a contest of speed, on a street, road or highway or in another public place;
(c) a person under the age of 16 years was a passenger in the conveyance operated by the offender;
(d) the offender was being remunerated for operating the conveyance;
(e) the offender’s blood alcohol concentration at the time of committing the offence was equal to or exceeded 120 mg of alcohol in 100 mL of blood;
(f) the offender was operating a large motor vehicle; and
(g)the offender was not permitted, under a federal or provincial Act, to operate the conveyance.
Collateral Consequences of Refuse Breath Sample Convictions
There are a host of collateral consequences that flow from a conviction for a Refuse Breath Sample, or other DUI, charge, on top of the consequences that directly relate to the sentence. Some of these include:
- Restrictions on your licence, such as the requirement that a period of Ignition Interlock be completed
- Insurance premium increases
- Time and costs associated with provincial government requirements for Impaired Driving offenders, such as completing counselling (the Back on Track program)
- Immigration consequences for individuals who are not citizens in Canada, including Permanent Residents (including the real risk of being deported)
- Loss of employment due to restrictions on licences
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