Refusal (Offence)
| This page was last substantively updated or reviewed July 2021. (Rev. # 96206) |
| Refusal | |
|---|---|
| s. 320.15 of the Crim. Code | |
| Election / Plea | |
| Crown Election | Hybrid summary proceedings must initiate within 12 months of the offence (786(2)) |
| Jurisdiction | Prov. Court Sup. Court w/ Jury (*) |
| Summary Dispositions | |
| Avail. Disp. | Discharge (730) Suspended Sentence (731(1)(a)) |
| Minimum | None |
| Maximum | 2 years less a day |
| Indictable Dispositions | |
| Avail. Disp. | same as summary |
| Minimum | None |
| Maximum | 10 years incarceration |
| Reference | |
| Offence Elements Sentence Digests | |
Overview
Offences relating to refusal are found in Part VIII.1 of the Criminal Code concerning "Offences Relating to Conveyances".
- Pleadings
| Offence Section |
Offence Type |
Crown Election | Defence Election s. 536(2) |
Preliminary Inquiry |
|---|---|---|---|---|
| s. 320.15 [refusal] | Hybrid Offence(s) | Yes |  (* only if Crown proceeds by Indictment) |
 (under 14 years max)
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Offences under s. 320.15 [refusal] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.
- Release
| Offence(s) | Appearance Notice by Peace Officer s. 497 |
Summons by Judge or Justice s. 508(1), 512(1), or 788 |
Release by Peace Officer on Undertaking s. 498, 499, and 501 |
Release By a Judge or Justice on a Release Order s. 515 to 519 |
Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act |
|---|---|---|---|---|---|
| s. 320.15 [refusal] | |
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When charged under s. 320.15 [refusal] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.
- Reverse Onus Bail
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
- while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
- "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
And, regardless of Crown election, if the offence alleged was one:
- where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
- where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
- where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
- Fingerprints and Photos
A peace officer who charges a person under s. 320.15 [refusal] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.
- Publication Bans
For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.
- Offence Designations
| Offence(s) | Wiretap Eligible s. 183 |
Dangerous Offender Designated Offence s. 752 |
Serious Personal Injury Offence s. 752 |
AG Consent Required | Serious Criminality Offence s. 36 IRPA |
|---|---|---|---|---|---|
| s. 320.15 [refusal] | |
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(10 years max)
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See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Offence Wording
- 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 [testing for presence of alcohol or drug] or 320.28 [sample and evalution of breath and/or blood].
- Accident resulting in bodily harm
(2) Everyone commits an offence who commits an offence under subsection (1) [refusal to provide a sample] 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) [refusal to provide a sample] 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.
2018, c. 21, s. 15.
[annotation(s) added]
- Punishment
320.19 (1) Everyone who commits an offence under subsection 320.14(1) [impaired operation] or 320.15(1) [refusal to provide a sample] 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.
[omitted (2) and (3)]
- Minimum fine — subsection 320.15(1)
(4) Despite subparagraph (1)(a)(i) [punishment for impaired and refusal – indictable penalty], everyone who commits an offence under subsection 320.15(1) [refusal to provide a sample] is liable, for a first offence, to a fine of not less than $2,000.
[omitted (5)]
2018, c. 21, s. 15.
[annotation(s) added]
- Punishment in case of bodily harm
320.2 Everyone who commits an offence under subsection 320.13(2) [dangerous operation causing bodily harm], 320.14(2) [impaired operation causing bodily harm], 320.15(2) [refusal where collision results in bodily harm] or 320.16(2) [fail to stop at accident resulting in bodily harm] 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.
2018, c. 21, s. 15.
[annotation(s) added]
- Punishment in case of death
320.21 Everyone who commits an offence under subsection 320.13(3) [dangerous operation causing death], 320.14(3) [impaired operation causing death], 320.15(3) [refusal where collision results in death] or 320.16(3) [fail to stop at accident resulting in death] 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.
2018, c. 21, s. 15.
[annotation(s) added]
Draft Form of Charges
| Pre-ambles | ||
|---|---|---|
| "THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR | ||
| "THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR | ||
| "AND FURTHER at the same time and place aforesaid, he [or she]..." | ||
| Code Section | Subject of Offence | Draft Wording |
| 320.15(1) | failure or refusal to comply with breath screening demand | "..., 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 | "..., 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. |
Proof of the Offence
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Proving driving while prohibited under s. 320.15 should include:[1]
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- ↑ R v Cummins, 2021 ONCJ 291 (CanLII), per Schwarzl J, at para 2
Interpretation of the Offence
A refusal to give a sample must be "clear and unequivocal."[1]
- Factors of Analysis
When considering the totality of the circumstances to determine if there was a refusal, the court can consider factors including:[2]
- 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.
- ↑ R v Kavusa, 2014 ABQB 360 (CanLII), per Moreau J
- ↑ R v Hiebert, 2013 MBQB 240 (CanLII), 297 Man R (2d) 84, per Rempel J, at para 26
Participation of Third Parties
- Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).
A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.
- On Finding of Guilt
| Offence(s) | Victim Notice of Agreement s. 606(4.1) [SPIO] |
Victim Queried for Interest in Agreement s. 606(4.2) [5+ years] |
Victim Notice for Restitution s. 737.1 |
Victim Notice of Impact Statement s. 722(2) |
|---|---|---|---|---|
| s. 320.15 [refusal] |
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".
Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.
Sentencing Principles and Ranges
- Maximum Penalties
| Offence(s) | Crown Election |
Maximum Penalty |
|---|---|---|
| s. 320.15 [refusal] | summary election | Two years less a day |
| s. 320.15 [refusal] | indictable election | 10 years incarceration |
Offences under s. 320.15 [refusal] are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is Two years less a day.
- Minimum Penalties
These offences have no mandatory minimum penalties.
- Available Dispositions
| Offence(s) | Crown Election |
Discharge s. 730 |
Suspended Sentence s. 731(1)(a) |
Stand-alone Fine s. 731(1)(b) |
Custody s. 718.3, 787 |
Custody and Probation s. 731(1)(b) |
Custody and Fine s. 734 |
Conditional Sentence (CSO) s. 742.1 |
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| s. 320.15 [refusal] | any | |
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All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).
- Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.
- Earlier and subsequent offences
320.26 In determining, for the purpose of imposing a sentence for an offence under subsection 320.14(1) [impaired operation] or 320.15(1) [refusal to provide a sample[1]], 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) [impaired operation – simpliciter, causing harm, causing death] or section 320.15 [refusal to provide a sample]; or
- (b) an offence under any of sections 253 [operation while impaired], 254 [taking samples of breath/blood] and 255 [operation while impaired and procedure – punishment], as those sections read from time to time before the day on which this section comes into force.
2018, c. 21, s. 15.
[annotation(s) added]
Principles
- ↑ Found elsewhere in this same page.
Factors
- Aggravating circumstances for sentencing purposes
320.22 A court imposing a sentence for an offence under any of sections 320.13 to 320.18 [all conveyance offences] 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.
2018, c. 21, s. 15.
Ranges
Ancillary Sentencing Orders
- Offence-specific Orders
- General Sentencing Orders
| Order | Conviction | Description |
|---|---|---|
| Non-communication order while offender in custody (s. 743.21) | any | The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them. |
| Restitution Orders (s. 738) | any | A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403. |
| Victim Fine Surcharge (s. 737) | any | A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100). |
- General Forfeiture Orders
| Forfeiture | Conviction | Description |
|---|---|---|
| Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) | any | Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences. |
| Fine in Lieu of Forfeiture (s. 462.37(3)) | any | Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration. |
| Forfeiture of Weapons or Firearms (s. 491) | any | Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner. |
| Forfeiture of Offence-related Property (s. 490.1) | any | Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences. |
Record Suspensions and Pardons
Convictions under s. 320.15 [refusal] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".
History
See Also
- References