77
Fail or Refuse
Screening
Demand: Section
320.15(1)
5
I. Introduction ............................................. 78
II. Legislation .............................................. 78
III. Elements of the Oence ................................... 79
A. A Valid Demand .................................... 79
B. Actus Reus: Refusal or Failure to Comply ................ 86
C. Mens Rea .......................................... 87
IV. Reasonable Excuses ....................................... 89
A. Burden of Proof ..................................... 90
B. Language Barriers ................................... 91
C. Intoxication Is Not a Reasonable Excuse ................. 91
D. What Fact Patterns Fall Under “Reasonable Excuse”? ....... 92
E. Charter Violations and Mistakes of Law Are
Not Reasonable Excuses .............................. 92
F. Advice by a Lawyer Not to Blow ........................ 93
G. Risk to Life or Health, or Medical Excuse ................ 93
H. Mental Health Issues ................................ 94
I. No Operation Is No Excuse . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
V. Issues with the Information ................................. 95
VI. The Admissibility of Roadside Statements to Incriminate the
Accused in Refusal Cases .................................. 96
VII. Inference from Failing or Refusing to Provide .................. 98
VIII. Charter Defences Specic to Refusal Cases—Unlawful Arrest ..... 99
IX. Conclusion .............................................. 99
© 2023 Emond Montgomery Publications. All Rights Reserved.
78 Impaired Driving and Other Criminal Code Driving Oences
I. Introduction
Evidence about the accused’s blood alcohol concentration or blood drug concen-
tration is central to most cases of drinking and operating or drugged operating.
That evidence can only be obtained by analyzing samples of the accused’s breath
or blood. Some evidence may also be obtained from other bodily fluids such as
urine and saliva. The most common way to obtain these samples is through a law-
ful demand made by the police and complied with by the accused. If a person were
free to refuse to provide such samples, the courts would be deprived of essential
evidence. Accordingly, section 320.15 of the Criminal Code1 makes it a criminal
oence to fail or refuse to comply with a lawful demand without reasonable excuse.
Throughout this book, we will refer to this as the “refusal oence.” The penalties
for failing or refusing to comply are equal to or greater than the penalties for the
oence the demand was related to.
This chapter addresses a number of topics connected to failing or refusing to pro-
vide a sample. It sets out the legislation, then addresses the elements of the oence.
It then addresses what constitutes a reasonable excuse and addresses a series of issues
that commonly arise in fail- or refuse-to-provide prosecutions.
II. Legislation
The Oence: Section 320.15(1)
320.15(1) Everyone commits an oence who, knowing that a demand has been
made, fails or refuses to comply, without reasonable excuse, with a demand made under
section 320.27 or 320.28.
Section 320.15(1) is very similar to its predecessor.
Old Oence: Section 254(5)
254(5) Everyone commits an offence who, without reasonable excuse, fails or
refuses to comply with a demand made under this section.
The substantive change between these sections is the introduction of the language
“knowing that a demand has been made,” which was likely intended to clarify the
mens rea for the oence. As we will see, a jurisprudential debate still exists about what
the mens rea is.
1 RSC 1985, c C-46.
© 2023 Emond Montgomery Publications. All Rights Reserved.
