The charge of “refusal” or “failure to provide a sample” means that when demanded by a police officer, either at the roadside or at the police station to provide a breath sample, you “refused”….

In Canada, refusing a lawful demand is an offence under the Criminal Code. The charge refers to a person either being unwilling or unable to provide a breath sample. The breath demand can be either for a sample demanded at the roadside to blow into the roadside screening device (“ASD”) or into the machine at the police station or R.I.D.E. truck, which is known as an Intoxilyzer.

The key to defending these types of cases is to examine the lawfulness of the demand and the circumstances of the detainee’s purported refusal. Breath demands can be unlawful for a variety of reasons including the lack of grounds in making them or the failure to make them in a timely fashion. In such circumstances the prosecution fails because a detainee is under no obligation to comply with an unlawful demand.

A good illustration of this type of defence strategy can be found in the case of R. v. Klotz, [2017] O.J. No. 4137 [link] where it was successfully argued that the fact that the roadside breath test was done in the back of the police cruiser violated the detainee’s right to be secure from arbitrary detention which thereby effectively invalidated the breath testing procedure.

The lesson to be learned once again is that factual guilt and legal proof are two very different things.