This blog focuses exclusively on the offence of refusing or failing to provide police with a breath sample to detect alcohol and introduces some of the common issues and defences that arise during litigation of such charges. This is not an exhaustive discussion.
The law is subject to change, and so is the way in which our courts will interpret the law. Speak to one of our lawyers at the firm of Aitken Robertson to find out more.
The individual circumstances of each case will matter greatly to any defence. Long has this been the reality for charges of refusing or failing to provide a breath sample, as described in 1997 by the Honourable Justice Vaillancourt J.:
“Each case will turn on its own facts and circumstances. At some point, an accused will lose the opportunity to comply with the demand. An accused who is playing games and seeing how far he can push the envelope might discover to his dismay that he has passed the point of no return. I find that Mr. Chance was definitely pushing the outer limits in the case at bar but that he did put his offer forward just before he reached that point of no return. Accordingly, the charge of refusal to provide a sample will be dismissed.” (R. v. Chance,  OJ No. 4939; 32 MVR (3d) 70., at paragraph 36.
At the end of this blog, you should:
- have a general understanding of the legal framework for refusing or failing to provide a breath sample;
- have some familiarity with the breath testing instruments;
- understand a common circumstance that leads to failing or refusing to provide breath samples; and
- know some of the principle ideas underpinning the defences.
What is the law of failing or refusing?
The law of failing or refusing to provide a breath sample received amendment on December 18, 2018, when changes came into force as a result of An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, S.C. 2018, c. 21., (“Act to Amend”).
The wording of the law prohibiting refusal or failing to provide a sample has changed slightly from older provisions, and both provisions are reproduced below:
Before December 18, 2018
Failure or refusal to comply with demand
254 (5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.
After December 18, 2018
Failure or refusal to comply with demand
The effect of the addition of “knowing that a demand has been made” will be discussed below. For now, it is enough to say that this addition creates uncertainty for the defences that applied prior to December 18, 2018.
Concerning only the new provision, section 320.27 of the Criminal Code establishes testing procedures for the presence of alcohol and drugs by breath testing and urine- sample collection and testing. Section 320.28 establishes testing procedures for the presence of alcohol or drug by blood sample collection and testing. This blog exclusively focuses on breath sample collection for detecting alcohol.
It has been an offence to refuse a breath sample demand for as long as there have been breath sample devices. The history of breath sample collection dates back to 1969, as explained by the Supreme Court of Canada in Regina v. St-Onge Lamoureux,  3 SCR 187:
In 1969, Parliament made it a criminal offence for a person to operate or have the care of a vehicle while his or her blood alcohol level exceeded .08, and made it mandatory under the Criminal Code to provide breath samples for analysis for the purpose of determining whether that offence had been committed. Among other things, the relevant provisions required a person stopped by the police to provide breath samples and created a mechanism by which those samples would be analyzed by designated technicians using approved devices. Parliament also introduced presumptions (of accuracy and identity) that would apply if certain conditions were met and would make it easier for the prosecution to prove that a person had operated or had the care of a vehicle while his or her blood alcohol level exceeded the legal limit.
St-Onge Lamoureux at paragraph 5
The posting of this blog comes after a substantial change in the legal regime for drinking and driving. On the one hand, the core idea of a breath demand and prohibiting refusal for valid breath demand remain unchanged for charges after December 18, 2018. On the other hand there have been fundamental changes to the legal regime, such as the elimination of a standard of belief to warrant some kinds of police demands for breath samples.
The scope of the drastic changes to the legislation are constitutionally suspect, and so it is uncertain for how long the legal regime will remain in force and effect. For example, one of the drastic changes is the criminalization of impairment or having an illegal blood alcohol concentration (BAC) after operating a motor vehicle – explained below:
For the whole history of Canadian law, up and until December 18, 2018, the offence of driving with an excessive BAC was criminalized only during the moments in time when the driver was actually driving or was in care and control of a vehicle. It was inevitable that breath samples received by police were taken anywhere from minutes to hours after the alleged offence.
For this reason, the Criminal Code prior to December 18, 2018, created “presumptions” for the breath sample readings taken by police within two hours after an alleged offence. So long as certain preconditions were met, including the requirement that at least one sample was taken within two hours of the alleged offence, then the presumption would apply to the readings.
The result of these presumptions was to create a legal fiction, that the readings taken after the alleged offence were presumed to be the readings at the actual time of the alleged offence. If the samples were taken more than two hours after the alleged offence, the prosecution could not rely on the presumptions and instead the prosecution would have to connect the breath readings to the time of driving or care and control of the vehicle using other means.
After December 18 2018, the law made it an offence to have an excessive BAC up to two hours after ceasing to operate or have care and control of a vehicle. It remains to be seen if the expanded scope of this law will survive legal challenges under the Canadian Charter of Rights and Freedoms. But until the new laws are successfully challenged, there is no longer a need to rely on a legal fiction to establish an illegal BAC.
Before there can be a failure or refusal, there has to be a demand – what are these demands?
The Act to Amend that came into effect on December 18, 2018, altered nearly every law concerning drinking and driving, including what demands police can make to effect enforcement.
The power for police to make demands to provide breath samples changes depending on the circumstances.
If the police are stopping a motorist to check sobriety at the roadside, then police can make a demand to provide a sample into an ‘approved screening device’ (ASD) if they have that device in their presence. Otherwise, police have to come to the opinion that the motorist has alcohol in their blood before having most of the grounds necessary to make a demand of breath for ASD testing.
If the police form a level of opinion known as “reasonable and probable grounds to believe” that a driver has more than 80 milligrams of alcohol in 100 millilitres of blood, or is impaired by alcohol or drugs, and that the driver has operated a motor vehicle within two hours, then police can make a demand of a driver to provide samples of breath into an “approved instrument”.
What are these breath machines for detecting alcohol?
The machines for testing breath are identified in the Criminal Code:
254.01 The Attorney General of Canada may, by order, approve
- a device that is designed to ascertain the presence of alcohol in a person’s blood;
- equipment that is designed to ascertain the presence of a drug in a person’s body;
- an instrument that is designed to receive and make an analysis of a sample of a person’s breath to determine their blood alcohol concentration; and
- a container that is designed to receive a sample of a person’s blood for analysis.
The roadside testing device, which is the ASD, is governed by section 254.01(a). The machine for determining blood alcohol concentration for criminal prosecution is the ‘approved instrument’, which is governed by section 254.01(c).
Approved Screening Device (ASD)
The ASD is the handheld device that police use to detect the presence of alcohol in a testing subject’s body. It is technically true that the ASD has the capability of measuring and providing a numerical value for BAC, but the reading cannot be used for criminal prosecution.
Reflecting the fact that the ASD cannot be used for proving BAC in a criminal prosecution, most if not all ASDs in use by Ontario police do not provide a reading above .49 BAC. A breath sample into an ASD may register a reading of up to .05 BAC, but above that value numerical readings are not given.
Instead, all readings between .05 and .099 (between 50 milligrams and 99 milligrams of alcohol in 100 millilitres of blood) will display a “warn” message, and readings of .100 (100 milligrams of alcohol in 100 millilitres of blood) and above will display a ‘fail’ message. The extra 20 milligrams of leeway incorporated into the “fail” range is intended to avoid readings below the criminal limit, if the accused is subsequently tested with the approved instrument.
This is because there is always a delay between a failure of an ASD and when an accused is tested with the Approved Instrument, and during this delay the body may absorb enough alcohol to bring the BAC below 80 milligrams if the ASD failures were set to 80 milligrams and above.
For the driver who fails the ASD, the distinction between the ASD and the approved instrument is mostly artificial. The subject who fails the approved screening device will inevitably be demanded to provide at least two breath samples into an approved instrument. In most circumstances, failing the ASD is merely the first step in a tightly connected sequence of events leading to a charge of having an illegal BAC.
If a driver “fails” the ASD, or police believe the driver is impaired, then police will invariably demand that the driver submit to at least two samples of breath into an approved instrument. At present, the most commonly used approved instrument in Ontario is the Intoxilyzer 8000c made by an American company called CMI, Inc. The Intoxilyzer 8000c receives breath samples to produce a numerical value approximating the blood alcohol concentration in 100 millilitres of blood.
In criminal proceedings, certain data is produced by the machine and disclosed as evidence to the accused and their counsel. This includes the calibration checks, self- breath test (conducted by the officer conducting the tests, who is designated a “qualified breath technician,” diagnostic checks (electrical), and of course the testing results from the specific subject’s tests.
These tests are required to be completed each time the machine is powered on by the qualified breath technician. Although there are some calibration and quality assurance procedures for the ASD, there are significantly more calibration and quality assurance procedures for the Intoxilyzer 8000c.
A common scenario
It’s a Saturday night and you are coming home from the game. There’s a lot of traffic up ahead, so you pull a U- turn to take another route. About 30 seconds later, you notice a police car following you and without reason or warning you see the emergency lights turn on.
There are two honks. You stop promptly at the side of the road. Your heart is pounding. Red, blue and white flashing lights are in the background. “Licence, insurance and ownership, please.” You aren’t told why you were pulled over.
“Have you been drinking?” You respond, “I had two beer at the game,” but you omit the other thought that came to mind – “why are beers at the game 10 dollars each?!” Moments later you are told you must provide a sample of your breath into some “device.”
You don’t trust the officer – the officer still has not explained to you for what reason you were stopped. The officer then says he can smell alcohol on your breath, so he is demanding that you provide a sample of your breath into a roadside breathalyzer device. You wonder to yourself if you should speak to someone, maybe a lawyer?
Driver: Can I call a lawyer first?
Officer: You can call a lawyer afterward.
Driver: Why can’t I call a lawyer before?
Officer: Because you are required to provide a sample right now, it’s the law.
Driver: What law?
Officer: Are you going to provide a sample?
You are told you cannot call a lawyer and you have to provide a sample of breath right now. You ask about why you can’t call a lawyer and the officer merely responds, “you have to provide a sample.” You think to yourself, “why can’t I speak to a lawyer before I have to provide you anything from my body?!?”
Echoing through your mind is, “how is this legal?” What trust you had in this officer has entirely disappeared. The officer’s demeanor changes and gets aggressive. More words are exchanged and moments later you are told:
Officer: “That’s it. I am charging you with failure to provide. Turn around, I am arresting you.”
Were you lawfully arrested?
Yes, you were lawfully arrested. The officer was correct despite the fact that you have a right to speak to a lawyer immediately on arrest or detention, established in section 10(b) in the Charter of Rights and Freedoms (“Charter”). The scope of this blog does not include a full explanation of why you have the right to speak to a lawyer immediately on arrest or detention. The whole of section 10 of the Charter reads as follows:
Arrest or detention
- Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
- to retain and instruct counsel without delay and to be informed of that right; and
- to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
A simplified reason for why police can “suspend” the section 10(b) Charter right in the above scenario, is that the ASD cannot be used to prove criminal levels of alcohol concentration. Because a prosecution cannot use against you the results of the Approved Screening Device to prove the criminal charge of having too much alcohol in your blood, the highest court has decreed that your Charter right under Section 10(b) can be suspended (notwithstanding the device results can be used for the Highway Traffic Act charge of driving with more than 50 milligrams of alcohol per 100 millilitres of blood and other alcohol related Highway Traffic Act charges).
Principle ideas underpinning the defences
Not all failures are refusals, and not all refusals result in conviction. The circumstances that led police to charge for failing to provide a breath sample will have practical significance to each case. The law does not distinguish between failures and refusals, but there are practical differences to the approach to litigation.
The act of failing to provide a sample includes attempted samples. For example, some accused are alleged to have released breath outside the corner of their mouths while attempting to provide a sample. Other examples of common police accusations against subjects include failing to blow while holding puffed-out cheeks, failing to blow sufficient breath to produce a reading, as well as many other variations of disingenuous attempts to alter the breath samples.
Other circumstances are variations on refusing to provide a sample. The above scenario is an example of refusing to provide a sample. The detained individual does not make any attempt to provide a sample. You might have astutely noticed that the officer in the scenario advises that the detainee is going to be charged for failing to provide a sample.
This difference is not a legal distinction for the purpose of litigation, despite the practical difference between failing and refusing to provide breath samples. Refusing to provide a sample of breath focuses the litigation on the reason why the demand for a breath sample was refused; some reasons have been found reasonable and worthy of acquittal. The above scenario is drawn from common experiences for our clients.
Interacting with police is often intimidating even if police do not intend to intimidate. Of course, the investigation into drinking and driving is inherently adversarial and the roadside process involves conscripted (forced under penalty of law) breath samples. As described above, anxiety is sometimes heightened when the motorist feels uneasy about the breath demand and is subsequently told they have no recourse to obtain advice from a lawyer before providing a sample of breath into the roadside machine.
As a practical matter, it is difficult for the court to distinguish between cases of refusing to avoid prosecution and refusing because of some other reason. The key distinction is mental (i.e. moral) culpability. Contrary to the law that requires a motorist to provide a sample pursuant to a roadside breath demand before speaking to a lawyer, there have been some cases where a court has reasonable doubt about the accused’s mental culpability and the court acquits the accused – in these circumstances the court does not believe beyond a reasonable doubt that the accused intended to refuse to provide a sample.
Failing to provide a sample of breath focuses the litigation on the reason for the failure; although some detainees are accused of disingenuous attempts to blow, not all failures to provide breath samples are intended.
Sometimes there are medical or psychiatric explanations for failures to produce breath samples, and if established in court and believed by the court, the failure to provide a breath sample will not be criminal.
Uncertainty After December 18, 2018
Already mentioned, the laws concerning this offence have changed. While the approach to, “failing to provide a sample of breath,” is not likely to change, there is uncertainty to what effect, if any, there will be as a result of adding to the law the element of “knowing that a demand has been made”. You should contact Aitken Robertson’s lawyers for more information in the event you have been charged with refusing or failing to provide a breath sample.