Refusal to Give a Sample (Until December 13, 2018)

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2019. (Rev. # 92782)

General Principles

The offence under 254(5) states:

254
[omitted (1), (2), (2.1), (3), (3.1), (3.2), (3.3), (3.4), (3.5), (3.6) and (4)]

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.
[omitted (6)]
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.

– CCC (CanLII), (DOJ)

Note up: 254(5)

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

258
[omitted (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) [taking samples of breath or blood within 3 hrs], (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) [impaired driving causing bodily harm] or (3) [impaired driving causing death], evidence that the accused, without reasonable excuse, failed or refused to comply with a demand made under section 254 [taking samples of breath/blood] is admissible and the court may draw an inference adverse to the accused from that evidence.
[omitted (4), (5), (6) and (7)]
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]

– CCC (CanLII), (DOJ)

Note up: 258(2) and (3)

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 SKQB 477 (CanLII), 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 CanLII 2464 (ON CA), (1978) 41 CCC (2d) 46 (ONCA), per Dubin JA, at paras 6 to 7
  3. ↑ R v Butler, 2013 ONSC 2403 (CanLII), 44 MVR (6th) 281, per Durno J, at para 42
    Specific intent cases:
    R v Lewko, 2002 SKCA 121 (CanLII), 169 CCC (3d) 359, per Bayda CJ
    R v Sullivan, [2001] OJ 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), per Chipman JA
    R v Warnica, 1980 CanLII 2897 (NSCA), (1980) 56 CCC (2d) 100 (NSCA), per MacKeigan CJ
    R v Porter, 2012 ONSC 3504 (CanLII), OJ No 2841, per Code J, at para 34
    Butler, supra, at paras 43 to 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), OJ No 3857, per Di Tomaso J, at para 23
    R v McNab, [2001] OJ No 4738 (S.C.J)(*no CanLII links)
    R v Gutierrez, [2001] OJ No 3659 (SCJ)(*no CanLII links)
  2. ↑ Kitchener, supra, at para 31 citing R v Woods, 2005 SCC 42 (CanLII), [2005] 2 SCR 205, per Fish J at 45
  3. ↑ R v Danychuk, 2004 CanLII 12975 (ON CA), [2004] OJ No 615 (CA), per Blair JA, at para 2
  4. ↑ see R v Mandryk, 2012 ONSC 3964 (CanLII), 291 CCC (3d) 182, per Code J
  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]

An 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), 89 AR 161, per curiam
    R v Cunningham, 1989 ABCA 163 (CanLII), (1989), 97 AR 81 (CA), per Côté JA (2:1)
  2. ↑ R v Ealey, 1992 CanLII 7862 (SKQB), 101 Sask R 199 (Sask. Q. B.), per Hunter J
  3. ↑ R v Kosa (1992) 42 MVR (2d) 290 (ONCA)(*no CanLII links)
    cf. R v Young [2007] OJ 1776(*no CanLII links)
  4. ↑ R v Page, 1982 ABCA 230 (CanLII), [1982] AJ 920, per Harradence JA
  5. ↑ R v Lawson, 2011 BCSC 876 (CanLII), [2011] BCJ 1262 (SC), per Adair J
  6. ↑ see R v Dolphin, 2004 MBQB 252 (CanLII), 189 Man R (2d) 178, per Scurfield J, at para 12 – police failed to give evidence of the testing of the machine
  7. ↑ R v Sagh, 1981 CanLII 1210 (AB QB), 62 CCC (3rd) 521(Alta. C.A.), per Wachowich J
  8. ↑ R v Hizsa, 2011 ABPC 358 (CanLII), per Fradsham J, at to 41 paras 34 to 41{{{3}}}
  9. ↑ Lawson, supra
  10. ↑ R v Degiorgio, 2011 ONCA 527 (CanLII), 275 CCC (3d) 1, per LaForme JA

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), 44 MVR (6th) 281, per Durno J, at para 41
    R v Bijelic, 2008 CanLII 17564 (ONSC), [2008] OJ No 1911 (SCJ), per Hill J, at para 30
    R v Porter, 2012 ONSC 3504 (CanLII), [2012] OJ No 2841 (SCJ), per Code J, at paras 30 to 31
  2. ↑ R v Sceviour, 2010 NLCA 47 (CanLII), 258 CCC (3d) 196, per Rowe JA, 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), 49 CCC (3rd) 521, per Côté JA (2:1)
  2. ↑ R v Hiebert, 2012 MBPC 5 (CanLI), 274 Man R (2d) 25, per Sandhu J
  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
    cf. R v Domik (1979), 2 MVR 301 (Ont. H.Ct.J.), aff’d [1980] OJ No 710 (CA)(*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), 44 MVR (6th) 281, per Durno J, at para 39
    R v Moser, 1992 CanLII 2839 (ON CA), 7 OR (3d) 737, per Brooke JA, at 18 paras , 18{{{3}}} and 42
    R v Rai, 2005 CanLII 14143 (ONSC), 17 MVR (5th) 296 (SCJ), per Hill J
    R v Malicia, [2004] OJ No 6016 (SCJ)(*no CanLII links)
  2. ↑ R v Westerman, 2012 ONCJ 9 (CanLII), per Durno J, at para 16
    Butler, supra, at para 42
  3. ↑ R v Goleski, 2011 BCSC 911 (CanLII), 18 MVR (6th) 31, per Leask J appealed to 2014 BCCA 80 (CanLII), per Frankel JA
  4. ↑ R v Davidson, 2003 SKPC 101 (CanLII), 235 Sask R 188, per Halderman J, at para 15
    R v Nadeau, 1974 CanLII 1538 (NB CA), (1974) 19 CCC (2d) 199 (N.B.C.A.), per Hughes CJ, at p. 201
  5. ↑ R v Taylor, 1993 CanLII 1603 (BCCA), , (1993) BCJ No 365 (CA), per Southin JA
    R v Weir, 1993 CanLII 3153 (NSCA), , (1993) NSJ No 58 (CA), per Freeman JA
  6. ↑ R v Hizsa, 2011 ABPC 358 (CanLII), per Fradsham J at 34-41
  7. ↑ R v Dawson, 1996 CanLII 11036 (NL CA), 438 APR 176, per Cameron JA
  8. ↑ Dawson, ibid., at para 12
  9. ↑ R v Prout, 1971 CanLII 391 (ON SC), 5 CCC (2d) 272 (Ont. Co. Ct.), per Jacob J
  10. ↑ R v Burkitt, [1972] 6 WWR 251 (Man. Co. Ct.) (*no CanLII links)
  11. ↑ R v Pye (1993), 46 MVR (2d) 181 (Alta. Q.B.)(*no CanLII links)
    R v Wall (1982), 17 MVR 87 (Nfld. Dist. Ct.)(*no CanLII links)
  12. ↑ R v Gorrill (1980), 39 NSR (2d) 533; 71 APR 533; 7 MVR 141 (Co. Ct.)(*no CanLII links)
  13. ↑ R v Schwartz, 2009 ABPC 120 (CanLII), 473 AR 233, per Malin J
  14. ↑ R v Chomokowski, 1973 CanLII 1489 (MB CA), 11 CCC (2d) 562, [1973] 5 WWR 184, per Hall JA
  15. ↑ R v Pea, 2008 CanLII 89824 (ON CA), 79 WCB (2d) 262, per Gillese JA
    R v Suter, 2015 ABPC 269 (CanLII), 94 MVR (6th) 91, per Anderson J

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)).

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