Toronto Criminal Lawyer

Refusal Is a Criminal Offence

Many people are surprised to learn that refusing to provide a breath sample when lawfully demanded by police is itself a criminal offence in Canada. Under section 320.15 of the Criminal Code, everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under sections 320.27 or 320.28. This means that refusing a breath test carries the same criminal consequences as being found guilty of impaired driving.

This was a deliberate legislative choice. Parliament recognized that if refusal carried only minor consequences, many impaired drivers would simply refuse to provide samples, undermining the entire enforcement framework. By making refusal a standalone criminal offence with penalties equivalent to impaired driving, the law removes any incentive to refuse.

The offence of refusal applies to both the roadside approved screening device (ASD) and the more formal breathalyzer test conducted at the police station on an approved instrument. Understanding the distinction between these two devices — and the legal framework governing each — is important for anyone stopped by police on suspicion of impaired driving.

Approved Screening Device vs. Approved Instrument

Canadian impaired driving law involves two distinct types of breath testing, each governed by different provisions of the Criminal Code and subject to different legal thresholds.

The approved screening device (ASD) is a portable device used at the roadside. Under section 320.27 of the Criminal Code, a police officer who has reasonable suspicion that a driver has alcohol in their body may demand that the driver provide a breath sample into an ASD. Following amendments that took effect in December 2018, police may also make a mandatory alcohol screening demand of any driver lawfully stopped, without needing to demonstrate reasonable suspicion first. This mandatory screening power significantly broadened police authority to test drivers.

The ASD provides a pass, warn, or fail result. It does not produce a specific blood alcohol concentration (BAC) reading that is admissible at trial. Instead, it serves as a screening tool. A fail result on the ASD provides police with reasonable grounds to demand a formal breath test on an approved instrument.

The approved instrument (commonly referred to as the "breathalyzer," though this is technically a brand name) is located at the police station or a designated facility. Under section 320.28, police may demand that a person provide breath samples into an approved instrument if they have reasonable grounds to believe the person's ability to operate a motor vehicle is impaired by alcohol or that the person's BAC exceeds the legal limit. The approved instrument produces specific BAC readings that are admissible as evidence at trial.

Refusing either type of test — the roadside ASD or the station breathalyzer — constitutes a criminal offence under section 320.15.

Penalties for Refusal

The penalties for refusing a breathalyzer are identical to those for impaired driving or driving with a BAC over 80 mg of alcohol in 100 ml of blood. Parliament intentionally aligned these penalties to ensure that there is no advantage to refusing.

For a first offence, the mandatory minimum penalty is a $1,000 fine. The court may also impose a driving prohibition of at least one year. In practice, additional consequences typically include participation in an alcohol education or treatment program as a condition of licence reinstatement, installation of an ignition interlock device, and significantly increased insurance rates.

For a second offence, the mandatory minimum penalty is 30 days imprisonment, along with a driving prohibition of at least two years. For a third or subsequent offence, the mandatory minimum is 120 days imprisonment and a driving prohibition of at least three years.

Beyond the Criminal Code penalties, a conviction for refusal will result in a criminal record with all of its associated consequences for employment, travel, volunteering, and immigration status. Ontario's administrative penalties under the Highway Traffic Act — including immediate licence suspension and vehicle impoundment — also apply. For a detailed overview of impaired driving consequences, see our guide on impaired driving charges in Toronto.

The Reasonable Excuse Defence

Section 320.15 specifies that the offence of refusal is committed "without reasonable excuse." This means that if a person had a legitimate reason for failing to provide a sample, they may have a defence. However, the case law establishes a high threshold for what constitutes a reasonable excuse.

Courts have recognized the following types of reasonable excuses in limited circumstances:

• Physical inability: A genuine medical condition that makes it physically impossible to provide a sufficient breath sample may constitute a reasonable excuse. This might include severe asthma, chronic obstructive pulmonary disease, or a recent chest injury. The inability must be genuine and supported by medical evidence. Courts are skeptical of claims of inability that are not corroborated.
• Failure to understand the demand: If the person genuinely did not understand the demand — due to a language barrier, cognitive impairment, or the manner in which the demand was communicated — this may constitute a reasonable excuse. However, the standard is high, and a subjective misunderstanding will not suffice if the demand was clearly communicated.
• Lack of a lawful demand: If the police demand itself was not lawfully made — for example, if the officer did not have the requisite reasonable grounds — then the obligation to comply may not exist. This is technically a challenge to the validity of the demand rather than a "reasonable excuse," but the practical effect is the same.

What does not constitute a reasonable excuse includes: wanting to speak to a lawyer before deciding whether to comply, being afraid of needles (for blood demands), wanting to wait until you feel more sober, or disagreeing with the officer's assessment of your sobriety. The right to counsel under section 10(b) of the Charter does not override the obligation to comply with a breath demand. While you have the right to be informed of your right to counsel, the Supreme Court of Canada has held that the right to actually consult counsel is suspended for the limited purpose of complying with a breath demand, because of the time-sensitive nature of breath testing.

What Happens at the Roadside

Understanding the typical sequence of events during a roadside stop can help put the legal framework in context. When police stop a vehicle and suspect that the driver may have consumed alcohol, the interaction generally unfolds as follows:

The officer will ask questions — often beginning with whether you have been drinking. As discussed in our guide on the right to remain silent, you are generally not required to answer these questions. However, you are required to provide your licence, registration, and insurance upon request.

If the officer forms a reasonable suspicion that you have alcohol in your body — or exercises the mandatory screening power — they will make a demand for a breath sample on an ASD. This demand must be made in clear terms, and you must be given a reasonable opportunity to comply. Reasonable opportunity generally means a few minutes and, if you are having difficulty with the device, a chance to try again.

If you fail the ASD or if the officer has independent reasonable grounds to believe you are impaired, you will be arrested and transported to a police station for a breath test on an approved instrument. At the station, you will be given an opportunity to contact a lawyer. After you have exercised your right to counsel, the breath demand will be made, and you must comply.

At every stage, refusal or failure to comply without reasonable excuse is a criminal offence carrying the same penalties as impaired driving itself.

Defending Against a Refusal Charge

While a refusal charge is serious, it is not indefensible. Several legal issues can arise that may provide grounds for a successful defence:

• Validity of the demand: If the police demand was not lawfully made — for example, if the officer lacked reasonable grounds or the mandatory screening provisions were improperly applied — the obligation to comply may not have arisen.
• Right to counsel violations: While the right to counsel is limited in the breath demand context, police must still inform you of your right to counsel upon arrest. Failure to do so, or failure to provide a reasonable opportunity to consult counsel at the station, may result in evidence being excluded.
• Charter breaches: Broader Charter issues — including arbitrary detention under section 9 or unreasonable search under section 8 — may provide grounds for excluding evidence or challenging the legality of the stop itself.
• Reasonable excuse: Where a genuine medical condition or communication barrier prevented compliance, the reasonable excuse defence may apply.

Every case turns on its specific facts. The legal issues surrounding breath demands are technical and fact-specific, and a qualified criminal defence lawyer can identify potential vulnerabilities in the Crown's case that may not be apparent to the accused person.

If you are facing charges related to impaired driving or breath test refusal, learn more about the arrest process in Ontario, your obligations during police encounters, and how the first court appearance works. For information specific to impaired driving, visit the Criminal Code provisions on impaired driving.