View source for Refusal (Offence)

[[fr:Omission ou refus d’obtempérer (infraction)]]{{Currency2|July|2021}}
{{LevelZero}}{{HeaderOffences}}
{{OffenceBox 
|OffenceTitle=Refusal
|OffencePage=Refusal
|Section=320.15 
|Act={{OBCCC}} 
|CrownElection={{OBHybridElection}}
|Jurisdiction={{OBJurisdictionAll-Under14}} 
|Bail={{OBBailAll}}
|SummaryDisp= {{OBDispAll}} 
|SummaryMin= {{OBMinNone}} 
|SummaryMax= {{OBTwoYLess}} 
|IndictableDisp= {{OBDispSame}} 
|IndictableMin= {{OBMinNone}} 
|IndictableMax= {{OBTime|10 years}} }}

==Overview==
{{seealso|Conveyance Offences}}
{{OverviewVIII.1|refusal}}

; Pleadings
{{PleadingsHeader-N}}
{{PleadingsHybridList-N|s. 320.15 {{DescrSec|320.15}} | Yes | {{Yes-IfCrown}} | {{No-Under14}} }}
{{PleadingsEnd}}

{{PleadingsHybridElection-Under14|s. 320.15 {{DescrSec|320.15}} }}

; Release
{{ReleaseHeader}}
|s. 320.15 {{DescrSec|320.15}} || {{ReleaseProfile-Hybrid}} 
|-
{{ReleaseEnd}}

{{ReleaseOptions-Hybrid|s. 320.15 {{DescrSec|320.15}} }}

:''<u>Reverse Onus Bail</u>''
{{ReverseOnusCirc}}

:''Fingerprints and Photos''
{{IDCriminalAct|s. 320.15 {{DescrSec|320.15}} }}

; Publication Bans
{{GeneralPubBan}}

; Offence Designations
{{DesignationHeader}} 
|- 
|s. 320.15 {{DescrSec|320.15}} || {{XMark}} <!--wire--> || {{XMark}} <!--DO-->||{{XMark}} <!--SPIO--> || {{XMark}} <!--consent--> || {{OKMark-10Years}} 
{{DesignationEnd}}
{{SeeBelowForAncillary}}

==Offence Wording==
{{quotation3|
; Failure or refusal to comply with demand
320.15 (1) 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 {{AnnSec3|320.27}} or 320.28 {{AnnSec3|320.28}}.

; Accident resulting in bodily harm
(2) Everyone commits an offence who commits an offence under subsection (1) {{AnnSec3x|320.15(1)A}} and who, at the time of the failure or refusal, knows that, or is reckless as to whether, they were involved in an accident that resulted in bodily harm to another person.

; Accident resulting in death
(3) Everyone commits an offence who commits an offence under subsection (1) {{AnnSec3x|320.15(1)A}} and who, at the time of the failure or refusal, knows that, or is reckless as to whether, they were involved in an accident that resulted in the death of another person or in bodily harm to another person whose death ensues.

; Only one conviction
(4) A person who is convicted of an offence under this section is not to be convicted of another offence under this section with respect to the same transaction.

{{LegHistory|2018, c. 21}}, s. 15.
{{Annotation}}
|{{CCCSec2|320.15}}
|{{NoteUp|320.15|1|2|3|4}}
|{{Terms-
|[[Definition of Bodily Harm|"bodily harm" (s. 2)]]
}}
}}

{{quotation2|
; Punishment
320.19 (1) Everyone who commits an offence under subsection 320.14(1) {{AnnSec3x|320.14(1)}} or 320.15(1) {{AnnSec3x|320.15(1)A}} is liable on conviction on indictment or on summary conviction
:(a) to the following minimum punishment, namely,
::(i) for a first offence, a fine of $1,000,
::(ii) for a second offence, imprisonment for a term of 30 days, and
::(iii) for each subsequent offence, imprisonment for a term of 120 days;
:(b) if the offence is prosecuted by indictment, to imprisonment for a term of not more than 10 years; and
:(c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than two years less a day.

{{removed|(2) and (3)}}
; Minimum fine — subsection 320.15(1)
(4) Despite subparagraph (1)(a)(i) {{AnnSec3|320.19(1)(a)(i)}}, everyone who commits an offence under subsection 320.15(1) {{AnnSec3x|320.15(1)A}} is liable, for a first offence, to a fine of not less than $2,000.

{{removed|(5)}}
{{LegHistory|2018, c. 21}}, s. 15.
{{Annotation}}
|{{CCCSec2|320.19}}
|{{NoteUp|320.19|1|4}}
}}

{{quotation3|
; Punishment in case of bodily harm
320.2 Everyone who commits an offence under subsection 320.13(2) {{AnnSec3|320.13(2)}}, 320.14(2) {{AnnSec3|320.14(2)}}, 320.15(2) {{AnnSec3x|320.15(2)A}} or 320.16(2) {{AnnSec3|320.16(2)}} is liable on conviction on indictment or on summary conviction
:(a) to the following minimum punishment, namely,
::(i) for a first offence, a fine of $1,000,
::(ii) for a second offence, imprisonment for a term of 30 days, and
::(iii) for each subsequent offence, imprisonment for a term of 120 days;
:(b) if the offence is prosecuted by indictment, to imprisonment for a term of not more than 14 years; and
:(c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than two years less a day.

{{LegHistory|2018, c. 21}}, s. 15.
{{Annotation}}
|{{CCCSec2|320.2}}
|{{NoteUp|320.2}}
|{{terms-
|[[Definitions_for_General_Documents,_Legal_Documents_and_Financial_Instruments#Legislative_and_Court_Documents|"indictment" (s. 2)]]
}}
}}
{{quotation2|
; Punishment in case of death
320.21 Everyone who commits an offence under subsection 320.13(3) {{AnnSec3|320.13(3)}}, 320.14(3) {{AnnSec3|320.14(3)}}, 320.15(3) {{AnnSec3|320.15(3)}} or 320.16(3) {{AnnSec3|320.16(3)}} is liable on conviction on indictment to imprisonment for life and to a minimum punishment of,
:(a) for a first offence, a fine of $1,000;
:(b) for a second offence, imprisonment for a term of 30 days; and
:(c) for each subsequent offence, imprisonment for a term of 120 days.

{{LegHistory|2018, c. 21}}, s. 15.
{{Annotation}}
|{{CCCSec2|320.21}}
|{{NoteUp|320.21}}
}}

===Draft Form of Charges===
{{seealso|Draft Form of Charges}}
{{DraftHeader}}
|-
| 320.15(1)
| failure or refusal to comply with breath screening demand
|"{{ellipsis1}}, did fail [or refuse] to comply with a lawful demand by a peace officer under s. 320.27 of the ''Criminal Code'' to immediately provide samples of his 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 without reasonable excuse contrary to section 320.15(1) of the ''Criminal Code''.
|-
| 320.15(1)
| failure or refusal to comply with breath sample demand
|"{{ellipsis1}}, did fail [or refuse] to comply with a lawful demand by a peace officer under s. 320.28 of the ''Criminal Code'' to immediately provide samples of breath that, in a peace officer's opinion, are necessary to enable a proper analysis to be made by means of an approved instrument without reasonable excuse contrary to section 320.15(1) of the ''Criminal Code''.
{{DraftEnd}}

==Proof of the Offence==
{{ElementHeader}}
{{ElementLeft}}

{{Proving|driving while prohibited|320.15}}<ref>
{{CanLIIRx|Cummins|jfz8b|2021 ONCJ 291 (CanLII)}}{{perONCJ|Schwarzl J}}{{atL|jfz8b|2}}
</ref>
{{InitialElements}}
# {{box}} the police made a lawful demand;
# {{box}} the culprit knew a lawful demand had been made;
# {{box}} the culprit did not comply with the lawful demand.

{{ElementEnd}}

{{reflist|2}}

==Interpretation of the Offence==
{{seealso|Refusal to Give a Sample (Until December 13, 2018)}}

A refusal to give a sample must be "clear and unequivocal."<Ref>
{{CanLIIRx|Kavusa|g7flt|2014 ABQB 360 (CanLII)}}{{perABQB|Moreau J}}
</ref>

; Factors of Analysis
When considering the totality of the circumstances to determine if there was a refusal, the court can consider factors including:<Ref>
{{CanLIIRP|Hiebert|g1p3j|2013 MBQB 240 (CanLII)|297 Man R (2d) 84}}{{perMBQB|Rempel J}}{{atL|g1p3j|26}}
</ref>
# the time line from the moment of the traffic stop through to the arrest and then the subsequent acquiescence (if it followed the arrest);
# the reasonableness of the efforts of the police to explain the nature of the demand and the refusal warning before the arrest and any further explanations or comments of the police or the accused that may have followed after the arrest; and
# the degree of understanding that the accused seemed to demonstrate to the police in response to both the demand and the refusal warning.

{{reflist|2}}

==Participation of Third Parties==
{{seealso|Role of the Victim and Third Parties|Testimonial Aids for Young, Disabled or Vulnerable Witnesses}}

; Testimonial Aids
{{3rdPTestimonyAids}}

; On Finding of Guilt 
{{VictimHeader}} <!-- Sections / Notice of Agree / Notice of Restitution / Notice of VIS --> 
|s. 320.15 {{DescrSec|320.15}} || || || 
|- 
{{VictimEnd}}

<!--
{{606Notice5Y|XX}}
{{606NoticeSPIO|XX}}
-->
{{RestitutionNotice}}

{{VISNotice}}

==Sentencing Principles and Ranges==
{{seealsoSentencing}}

; Maximum Penalties
{{SProfileMaxHeader}}
{{SProfileMax|s. 320.15 {{DescrSec|320.15}} | {{Summary}} | {{twoyearsless}} }}
{{SProfileMax|s. 320.15 {{DescrSec|320.15}} | {{Indictment}} | {{Max10Years}} }}
{{SProfileEnd}}

{{MaxPenaltyHybrid|s. 320.15 {{DescrSec|320.15}} |'''{{Max10Years}}'''|'''{{twoyearsless}}'''}}

; Minimum Penalties
{{NoMinimumPenalties|s. 320.15 {{DescrSec|320.15}}}}

; Available Dispositions
{{SProfileAvailHeader}}
|s. 320.15 {{DescrSec|320.15}} || any || {{SProfileAll}}
|-
{{SProfileEnd}}

{{AllDispositionsAvailable}}

; Consecutive Sentences
{{NoConsecutive}}

{{quotation2|
; Earlier and subsequent offences
320.26 In determining, for the purpose of imposing a sentence for an offence under subsection 320.14(1) {{AnnSec3|320.14(1)}} or 320.15(1) {{AnnSec3|320.15(1)A}}, whether the offence is a second, third or subsequent offence, any of the following offences for which the offender was previously convicted is considered to be an earlier offence:
:(a) an offence under any of subsections 320.14(1) to (3) {{AnnSec3|320.14(1) to (3)}} or section 320.15 {{AnnSec3|320.15}}; or
:(b) an offence under any of sections 253 {{AnnSec2|253}}, 254 {{AnnSec2|254}} and 255 {{AnnSec2|255}}, as those sections read from time to time before the day on which this section comes into force.

{{LegHistory10s|2018, c. 21}}, s. 15.
{{Annotation}}
|{{CCCSec2|320.26}}
|{{NoteUp|320.26}}
}}

===Principles===

{{Reflist|2}}

===Factors===
{{quotation2|
; Aggravating circumstances for sentencing purposes
320.22 A court imposing a sentence for an offence under any of sections 320.13 to 320.18 {{AnnSec3|320.13 to 320.18}} shall consider, in addition to any other aggravating circumstances, the following:
:(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.

{{LegHistory10s|2018, c. 21}}, s. 15.
|{{CCCSec2|320.22}}
|{{NoteUp|320.22}}
}}

===Ranges===

==Ancillary Sentencing Orders==
{{seealso|Ancillary Orders}}
	
; Offence-specific Orders<!--
{{AOrderHeader}}
|-
| [[DNA Orders]] ||s. 320.15 {{DescrSec|320.15}}||
* {{SecondDNA(AorB)Hybrid|s. 320.15 {{DescrSec|320.15}}}}
|-
| [[Driving Prohibition Orders|Driving Prohibition]] - Min. 1 year (1st time), 2 years (2nd time), 3 years (3rd time) || || 
|-
| [[Forfeiture Orders|Forfeiture of Vehicle]] || ||
{{AOrderEnd}}
-->
; General Sentencing Orders
{{GeneralSentencingOrders}}

; General Forfeiture Orders
{{GeneralForfeitureOrders}}
==Record Suspensions and Pardons== 
{{RecordSuspension|s. 320.15 {{DescrSec|320.15}} }}

==History==
{{seealso|List of Criminal Code Amendments|Table of Concordance (Criminal Code)}}

==See Also==
* [[Driving Prohibition Orders]]
; References
* [[Pre-Trial and Trial Motions Checklist]]

{{OffencesNavBar/MotorVehicles}}