Refusal to Provide Breath Sample


The Demand to Provide a Sample of Breath

          Section 254(3) of the Criminal Code
If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

                    (a)    to provide, as soon as practicable,

(i)   samples of breath, that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, or

                    (b)     if necessary, to accompany the peace officer for that purpose.

All that section 254(3) requires is that a valid breath demand is made by a peace officer with reasonable grounds to do so and that the demand is made as soon as practicable.

R. v. Wylie, 2013 ONCA 673 (CanLII), 51 M.V.R. (5th) 1, at para. 10.

Refusal to Provide a Breath Sample

A charge of refusal to provide a breath sample requires the Crown to prove three things: 

(1)   that a proper/lawful demand was made;

(2)   that the accused person failed or refused to comply with the demand to provide a              sample of his breath; and

(3)    that the accused had the requisite mens rea.
Once the Crown has proven all three of these elements, an accused may escape liability if he or she proves, on a balance of probabilities, that he or she had a “reasonable excuse” for not complying with the demand.
R. v. Degiorgio, 2011 ONCA 527 (CanLII), 279 O.A.C. 386, at para. 43; see also R. v. Goleski, 2015 SCC 6 (CanLII), 72 M.V.R. (6th); R. v. Pletsas, 2014 ONSC 1568 (CanLII), at para. 67; R. v. Porter, 2012 ONSC 3504 (CanLII), at paras. 29-38.

An accused can unequivocally refuse to provide a breath sample at any point during an investigation.  There is no requirement that a police officer must wait until an accused is brought before the breath technician to charge an individual with refusal.

R. v Green, 2017 ONSC 119 (CanLII), at para. 26.

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