Do I Have to Provide a Breath Sample in Ontario?

Breath demands under the Criminal Code

Canadian impaired-driving law gives police statutory authority to make breath demands in defined circumstances. Section 320.27 includes roadside screening powers, while section 320.28 addresses demands for samples for analysis in specified circumstances.

The legality of a particular demand depends on the statutory provision being used and the facts known to police at the time. Different demands have different legal requirements.

Mandatory alcohol screening

The Criminal Code permits mandatory alcohol screening in circumstances set out in section 320.27. This means an officer who is lawfully in the course of exercising powers relating to a person who has operated a motor vehicle may, where the statutory requirements are met and an approved screening device is in the officer’s possession, demand an immediate breath sample without first needing individualized suspicion of alcohol consumption.

This roadside screening power is different from the evidentiary breath-testing process that may follow.

What happens after a roadside result?

A roadside screening result, combined with the applicable statutory framework and other evidence, can lead to further investigation. Police may make a demand for evidentiary breath samples where the legal requirements are satisfied.

The later samples are typically the evidence used to establish blood alcohol concentration for a BAC-based prosecution. Timing, procedure, and the legal basis for the demand can therefore matter.

Refusing or failing to comply

Section 320.15 makes it a criminal offence to knowingly fail or refuse, without reasonable excuse, to comply with a demand made under sections 320.27 or 320.28. A refusal allegation can therefore become a separate criminal charge.

For a first offence under section 320.15(1), section 320.19 sets a minimum fine of $2,000. Other consequences may also follow, including provincial driving sanctions.

What is a reasonable excuse?

The statute recognizes a “reasonable excuse,” but whether an excuse is legally sufficient is highly fact-specific. Medical circumstances, communication issues, the nature of the demand, the person’s conduct, and other evidence may be relevant depending on the case.

A person charged with refusal should not assume that an explanation will automatically amount to a legal defence. The evidence must be reviewed carefully.

Legal review of a refusal allegation

A defence lawyer may examine whether a demand was legally authorized, whether it was communicated clearly, whether the accused understood that a demand had been made, whether the alleged conduct amounted to a failure or refusal, and whether a reasonable excuse is supported by the evidence.

If you have been charged with refusing or failing to provide a breath sample, contact LZZ Defence for advice based on your circumstances. This article is not legal advice.