Refusal to Give a Sample

From Criminal Law Notebook
Jump to: navigation, search

General Principles

The offence under 254(5) states:

Failure or refusal to comply with demand
(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.


This is a single offence that can be committed in several different ways.[1]

Evidence of failure to give sample
(2) Unless a person is required to give a sample of a bodily substance under paragraph 254(2)(b) [ roadside screening test ] or subsection 254(3) [ demand breath sample within 3 hours ], (3.3) [ demand breath sample outside 3 hours ] or (3.4) [ demand urine or blood sample ], evidence that they failed or refused to give a sample for analysis for the purposes of this section or that a sample was not taken is not admissible and the failure, refusal or fact that a sample was not taken shall not be the subject of comment by any person in the proceedings.
Evidence of failure to comply with demand
(3) In any proceedings under subsection 255(1) in respect of an offence committed under paragraph 253(1)(a) [ impaired operation ] or in any proceedings under subsection 255(2) or (3) [ impaired driving causing bodily harm or death ], evidence that the accused, without reasonable excuse, failed or refused to comply with a demand made under section 254 is admissible and the court may draw an inference adverse to the accused from that evidence.
R.S., 1985, c. C-46, s. 258; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 61; 1992, c. 1, s. 60(F); 1994, c. 44, s. 14(E); 1997, c. 18, s. 10; 2008, c. 6, s. 24.
[annotation(s) added]


The offence can be committed in two ways, either by refusing or failing to comply with the demand.[2]

There remains conflicting case law on whether the offence is a specific or general intent offence.[3]However, the more recent case law has largely fallen on the side of refusal being a general intent offence and so requires no more than a recklessness or knowledge of the mens rea.[4]

  1. R v Angrignon (2002), 2002 SKQB 477 (CanLII), 32 M.V.R. (4th) 196 (Sask. Q.B.), per Allbright, J. at p. 199: ("...s. 254(5) creates the single offence of non-compliance which may be committed either by failure or refusal, and the subsection creates only one offence, the gravamen of which is non-compliance with a demand under the subsection.")
  2. R v MacNeil (1978) 41 CCC (2d) 46 (ONCA), 1978 CanLII 2464 (ON CA) at para 6-7
  3. R v Butler, 2013 ONSC 2403 (CanLII) at para 42
    Specific intent cases:
    R v Lewko, 2002 SKCA 121 (CanLII), (2002), 169 CCC (3d) 359 (Sask. C.A.)
    R v Sullivan, [2001] O.J. No. 2799 (C.J.)(*no CanLII links)
  4. R v Buffalo [2002] AJ 1641 (QB)(*no CanLII links)
    R v White, 2005 NSCA 32 (CanLII), [2005] NSJ 62 (NSCA)
    R v Warnica (1980) 56 CCC (2d) 100 (NSCA), 1980 CanLII 2897 (NS CA), per MacKeigan CJNS
    R v Porter, 2012 ONSC 3504 (CanLII) at para 34
    Butler, supra at para 43-45

Valid Demand to Comply

See also Breath Sample Demand.

There is no requirement to have evidence as to the extent of chances available to a person who changes their mind.[1] Moreover, where the refusal is unequivocal there is no obligation for a "last chance" warning.[2]

There is no requirement that the police officer explain all the consequences of non-compliance to a valid demand.[3]

It is unclear whether the authority to make a demand under s. 254(3) includes the authority to have the accused taken to the location of the device or whether the accused must choose to accompany them.[4] However, a failure or refusal to accompany the officer to the device may not amount to a full refusal.[5]

  1. R v Kitchener, 2012 ONSC 4754 (CanLII) at para 23
    R v McNab, [2001] O.J. No. 4738 (S.C.J)(*no CanLII links)
    R v Gutierrez, [2001] O.J. No. 3659 (S.C.J.)(*no CanLII links)
  2. R v Kitchener, 2012 ONSC 4754 (CanLII) at para 31 citing R v Woods, 2005 SCC 42 (CanLII) at 45
  3. R v Danychuk, [2004] O.J. No. 615 (C.A.), 2004 CanLII 12975 (ON CA) at para 2
  4. see R v Mandryk, 2012 ONSC 3964 (CanLII)
  5. ibid.

Refusal to Comply

The refusal to comply with the demand for a breath sample must be unequivocal.[1]

In a refusal case (as opposed to a "failing" case), it is irrelevant whether or not the breathalyzer was functioning properly. [2] However, in a fail case, it may be a valid defence to show that the device or instrument was not properly functioning.[3]

It is possible to refuse by body language such as turning away and closing eyes.[4] Or refuse by silence.[5]

Evidence should show that the device was working properly. This should include evidence that the device had been previously tested including the mouthpiece for obstructions. [6]

A refusal which is equivocal and closely followed by an offer, then the offence is not made out.[7]

It has been found that a reasonable excuse is not made out on the basis of officially induced error from an accused accepting the bad advice from duty counsel to refuse the breathalyser.[8]

In assessing the totality of the circumstances, the judge may consider the evidence of the accused's silence in response to a lawful demand.[9]

A unlawful refusal of the screening device will still amount to an offence even if the device is not at the scene.[10]

  1. R v Desharnais 1988 ABCA 167 (CanLII)
    R v Cunningham (1989), 97 A.R. 81 (C.A.), 1989 ABCA 163 (CanLII)
  2. R v Ealey, (1992), 101 Sask. R. 199 (Sask. Q. B.), 1992 CanLII 7862 (SK QB) per Hunter, J.
  3. R v Kosa (1992) 42 MVR (2d) 290 (ONCA)(*no CanLII links)
    c.f. R v Young [2007] OJ 1776(*no CanLII links)
  4. R v Page [1982] AJ 920, Page, 1982 ABCA 230 (CanLII)
  5. R v Lawson [2011] BCJ 1262 (SC), 2011 BCSC 876 (CanLII) per Adair J
  6. see R. v. Dolphin, 2004 MBQB 252 (CanLII) at para 12 – police failed to give evidence of the testing of the machine
  7. R v Sagh (1981), 62 CCC (3rd) 521(Alta. C.A.), 1981 CanLII 1210 (AB QB)
  8. R v Hizsa, 2011 ABPC 358 (CanLII) at paras 34-41
  9. R v Lawson, 2011 BCSC 876 (CanLII)
  10. R v Degiorgio, 2011 ONCA 527 (CanLII)

Failure to Comply

A failure to comply with the demand arises where a suspect makes either genuine or faked attempts at providing a sample.

Feigning or Faking Attempts
When an accused may be feigning his attempts to provide a sample, the "totality of the circumstances including any explanation advanced at the time of the attempt or in court must be considered."[1]

An intention to fake a sample must be proven by the Crown beyond a reasonable doubt.[2]

  1. R v Butler, 2013 ONSC 2403 (CanLII) at para 41
    R v Bijelic, 2008 CanLII 17564 (ON SC), [2008] O.J. No. 1911 (S.C.J.) at para 30
    R v Porter, 2012 ONSC 3504 (CanLII), [2012] O.J. No. 2841 (S.C.J.) at para 30 – 31
  2. R v Sceviour, 2010 NLCA 47 (CanLII) at para 14

Change of Mind

A refusal almost immediately followed by a change of heart may not amount to a full refusal.[1]

A shorter turn around time of 5 minutes can be seen as equivocal.[2]

Where there is a full refusal and after 15 minutes an offer to take the test, then the offence is made out. The two events are entirely separate.[3]

Where there is an unequivocal refusal, there is no requirement on the officer to offer a second chance at giving the ASD test.[4]

  1. R v Cunningham, 1989 ABCA 163 (CanLII), (1989), 49 CCC (3rd) 521
  2. R v Hiebert, 2012 MBPC 5 (CanLI)
  3. R v Butt (1983), 44 Nfld. & PEIR 297(*no CanLII links)
  4. R v Komenda, 2012 BCSC 536 (CanLII) citing numerous cases on the issue
    c.f. R v Domik (1979), 2 M.V.R. 301 (Ont. H.Ct.J.), aff’d [1980] O.J. No. 710 (Q.L.) (C.A.)(*no CanLII links)

Reasonable Excuse

See also: Reasonable Excuse

Once the crown proves the essential elements beyond a reasonable doubt, the burden shifts to the accused to establish on a balance of probabilities that there is a reasonable excuse for failing to provide a breath sample.[1]

It is of some debate whether an explanation for not providing a sample is a reasonable excuse or a failure to prove the mens rea.[2]

The burden of proving there was no reasonable excuse is simply on raising a doubt.[3]

For a reasonable excuse to exist there must be something in the circumstances that renders "compliance with the demand either extremely difficult or likely to involve a substantial risk to the health of the person on whom the demand has been made".[4]

An offer to provide a sample through other means such as a blood sample is not sufficient to be a “reasonable excuse”.[5]

A person who refuses the breathalyser on the basis of advice from the duty counsel phone call cannot amount to a reasonable excuse. [6]

An accused may be permitted to refuse to provide a sample where the officer has shown some "malice to the person whose breath was to be tested or if he had threatened some unfairness or illegality". [7] The basis of the belief of the threat must be reasonable.[8]

Reasonable excuses have been found when:

  • The technician had dirty hands and refused to clean them prior to administering the test.[9]
  • the accused had been previously assaulted by police and was reasonably fearful of further violence[10]
  • rough handling by police[11]
  • reasonable fear that an unsatisfactory result would incur violence by police[12]

Reasonable doubt about intention to refuse to provide a sample for the screening device has been found on the basis of the accused nervousness and anxiety.[13]

An honestly held religious belief cannot be used as a reasonable excuse.[14]

Reliance on poor legal advice is generally not a defence of officially induced error.[15]

  1. R v Butler, 2013 ONSC 2403 (CanLII) at para 39
    R v Moser, 1992 CanLII 2839 (ON CA), (1992), 7 O.R. (3d) 737 (C.A.) at para 15, 18 and 42
    R v Rai, 2005 CanLII 14143 (ON SC), (2005), 17 M.V.R. (5th) 296 (S.C.J.)
    R v Malicia, [2004] O.J. No. 6016 (S.C.J.)(*no CanLII links)
  2. R v Westerman, 2012 ONCJ 9 (CanLII) at para 16
    R v Butler, 2013 ONSC 2403 (CanLII) at para 42
  3. R v Goleski, 2011 BCSC 911 (CanLII) appealed to 2014 BCCA 80 (CanLII)
  4. R v Davidson, 2003 SKPC 101 (CanLII), at para 15
    R v Nadeau (1974) 19 CCC (2d) 199 (N.B.C.A.), 1974 CanLII 1538 (NB CA) at p. 201 per Hughes C.J.
  5. R. v. Taylor, 1993 CanLII 1603 (BC CA), (1993) BCJ No. 365 C.A.
    R. v. Weir, 1993 CanLII 3153 (NS CA), (1993) NSJ No. 58 C.A
  6. R v Hizsa, 2011 ABPC 358 (CanLII) at 34-41
  7. R v Dawson, 1996 CanLII 11036 (NL CA)
  8. Dawson at para 12
  9. R v Prout, 1971 CanLII 391 (ON SC), (1971), 5 CCC (2d) 272 (Ont. Co. Ct.)
  10. R v Burkitt, [1972] 6 W.W.R. 251 (Man. Co. Ct.) (*no CanLII links)
  11. R v Pye (1993), 46 M.V.R.(2d) 181 (Alta. Q.B.)(*no CanLII links)
    R v Wall (1982), 17 M.V.R. 87 (Nfld. Dist. Ct.)(*no CanLII links)
  12. R v Gorrill (1980), 39 N.S.R.(2d) 533; 71 A.P.R. 533; 7 M.V.R. 141 (Co. Ct.)(*no CanLII links)
  13. R v Schwartz, 2009 ABPC 120 (CanLII)
  14. R v Chomokowski (1973), 11 CCC (2d) 562, [1973] 5 W.W.R.184 (Man. C.A.), 1973 CanLII 1489 (MB CA)
  15. R v Pea, 2008 CanLII 89824 (ONCA)
    R v Suter, 2015 ABPC 269 (CanLII)

Other Issues

Where the suspect offers to give a blood sample instead of giving a breath sample in the ASD or breathalyser, the officer is at liberty to seek a voluntary blood sample. The officer may only demand a blood sample in place of a breathalyser sample if the officer believes that the "suspect is incapable of providing breath samples".

The officer may also demand that that the suspect perform a physical coordination test in place of a roadside demand (s. 254(2)(a)).