TORONTO CRIMINAL and DUI LAWYERS
1. What is a breath demand?
A breath demand is a demand requiring a person to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device.¹
A breath demand is also a demand requiring a person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device.²
A breath demand is also a demand, made as soon as practicable, requiring a person to provide, as soon as practicable, the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of an approved instrument.³
¹ “Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026 ) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.27(1), 320.27(1)(b).
² “Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026 ) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.27(2).
³ “Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026 ) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.28(1), 320.28(1)(a), 320.28(1)(a)(i).
⁴ “Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026 ) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.27(1), 320.27(1)(b), 320.27(2), 320.28(1), 320.28(1)(a), 320.28(1)(a)(i).
3. What is a peace officer?
A peace officer includes a mayor, warden, reeve, sheriff, deputy sheriff, sheriff’s officer and justice of the peace; a member of the Correctional Service of Canada who is designated as a peace officer pursuant to Part I of the Corrections and Conditional Release Act, and a warden, deputy warden, instructor, keeper, jailer, guard and any other officer or permanent employee of a prison other than a penitentiary as defined in Part I of the Corrections and Conditional Release Act; a police officer, police constable, bailiff, constable, or other person employed for the preservation and maintenance of the public peace or for the service or execution of civil process, a designated officer as defined in section 2 of the Integrated Cross-border Law Enforcement Operations Act, when participating in an integrated cross-border operation, as defined in section 2 of that Act, or engaging in an activity incidental to such an operation, including travel for the purpose of participating in the operation and appearances in court arising from the operation; an officer within the meaning of the Customs Act, the Excise Act or the Excise Act, 2001, or a person having the powers of such an officer, when performing any duty in the administration of any of those Acts; an officer authorized under subsection 138(1) of the Immigration and Refugee Protection Act; a person designated as a fishery guardian under the Fisheries Act when performing any duties or functions under that Act and a person designated as a fishery officer under the Fisheries Act when performing any duties or functions under that Act or the Coastal Fisheries Protection Act; the pilot in command of an aircraft registered in Canada under regulations made under the Aeronautics Act, or leased without crew and operated by a person who is qualified under regulations made under the Aeronautics Act to be registered as owner of an aircraft registered in Canada under those regulations, while the aircraft is in flight; and officers and non-commissioned members of the Canadian Forces who are appointed for the purposes of section 156 of the National Defence Act, or employed on duties that the Governor in Council, in regulations made under the National Defence Act for the purposes of this paragraph, has prescribed to be of such a kind as to necessitate that the officers and non-commissioned members performing them have the powers of peace officers.⁵
⁵ “Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026 ) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 2.
4. When can a breath demand be made?
A breath demand can be made when a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in the person’s body and that the person has, within the preceding three hours, operated a conveyance.⁶
A breath demand can also be made when a peace officer has in his or her possession an approved screening device and, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, encounters a person who is operating a motor vehicle.⁷
A breath demand can also be made when a peace officer has reasonable grounds to believe either of the following things:
1. that a person has operated a conveyance while the person’s ability to operate it was impaired to any degree by alcohol; or⁸
2. that a person has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood.⁹
⁶ “Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026 ) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.27(1), 320.27(1)(b).
⁷ “Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026 ) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.27(2).
⁸ “Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026 ) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.28(1), 320.28(1)(a), 320.28(1)(a)(i).
⁹ “Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026 ) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(1)(b), 320.28(1), 320.28(1)(a), 320.28(1)(a)(i).
5. What is an approved screening device?
An approved screening device is a device that is designed to ascertain the presence of alcohol in a person’s blood and that is approved by the Attorney General of Canada as a device that is designed to ascertain the presence of alcohol in a person’s blood.¹⁰
¹⁰ “Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026 ) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.11, 320.39, 320.39(a).
6. What is an approved instrument?
An approved instrument is an instrument that is designed to receive and make an analysis of a sample of a person’s breath to determine the person’s blood alcohol concentration and is approved by the Attorney General of Canada as an instrument that is designed to receive and make an analysis of a sample of a person’s breath to determine the person’s blood alcohol concentration.¹¹
¹¹ “Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026 ) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.11, 320.39, 320.39(c).
7. What is a “conveyance” in this context?
A conveyance is defined as a motor vehicle, a vessel, an aircraft, or railway equipment.¹²
¹² “Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026 ) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.11.
8. What is a “motor vehicle” in this context?
A motor vehicle is defined as a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment.¹³
¹³ “Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026 ) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 2.
9. What is “operation” in this context?
To operate means, in respect of a motor vehicle, to drive the motor vehicle or to have care or control of the motor vehicle;¹⁴ in respect of a vessel or aircraft, to navigate the vessel or aircraft, to assist in the vessel or aircraft’s navigation or to have care or control of the vessel or aircraft;¹⁵ and in respect of railway equipment, to participate in the direct control of the railway equipment’s motion, or to have care or control of the railway equipment as a member of the railway equipment’s crew, as a person who acts in lieu of a member of the railway equipment’s crew by remote control, or otherwise.¹⁶
¹⁴ “Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026 ) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.11.
¹⁵ “Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026 ) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.11.
¹⁶ “Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026 ) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.11.
10. Is a peace officer required to declare to the accused the peace officer’s legal basis to make a breath demand for an approved screening device?
A peace officer is not required to declare to the accused the peace officer’s legal basis to make a breath demand for an approved screening device.¹⁷
¹⁷ “R. v. Jerlo, 2025 ONCJ 586 (CanLII)” https://www.canlii.org/en/on/oncj/doc/2025/2025oncj586/2025oncj586.html at para 32.
11. Is a peace officer required to declare in the peace officer’s testimony in Court the peace officer’s legal basis to make a breath demand for an approved screening device?
A peace officer is not required to declare in the peace officer’s testimony in Court the peace officer’s legal basis to make a breath demand for an approved screening device.¹⁸
¹⁸ “R. v. Jerlo, 2025 ONCJ 586 (CanLII)” https://www.canlii.org/en/on/oncj/doc/2025/2025oncj586/2025oncj586.html at para 32.
12. What happens when a peace officer makes a breath demand for an approved screening device using the wrong legal basis?
As long as a peace officer’s basis to make a breath demand for an approved screening device is lawful for any reason, the peace officer’s breath demand for an approved screening device is lawful.¹⁹ Even when the peace officer wrongly bases a breath demand for an approved screening device upon a mistaken belief that a situation suffices to make the breath demand for an approved screening device lawful, when the peace officer is still dealing with a situation in which the breath demand for an approved screening device is lawful for another reason, the breath demand for an approved screening device is lawful.²⁰
¹⁹ “R. v. Jerlo, 2025 ONCJ 586 (CanLII)” https://www.canlii.org/en/on/oncj/doc/2025/2025oncj586/2025oncj586.html at para 32, read in context with “Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026 ) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.27(1), 320.27(1)(b), 320.27(2).
²⁰ “R. v. Jerlo, 2025 ONCJ 586 (CanLII)” https://www.canlii.org/en/on/oncj/doc/2025/2025oncj586/2025oncj586.html at paras 36-43, read in context with “Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026 ) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.27(1), 320.27(1)(b), 320.27(2).
13. When can a peace officer make a mandatory alcohol screening demand?
A peace officer can make a mandatory alcohol screening demand when the following criteria are met: the demand’s subject is operating a motor vehicle; the peace officer is in the lawful exercise of the peace officer’s duties under an Act of Parliament or an Act of a provincial legislature or arising at common law; the peace officer possesses an approved screening device on hand; and the demand is immediate.²¹
²¹ “R. v. Rahmanian, 2024 ONCJ 411 (CanLII)” https://www.canlii.org/en/on/oncj/doc/2024/2024oncj411/2024oncj411.html at paras 9, 11, read in context with “Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026 ) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.27(2).
14. What are “reasonable grounds to suspect”?
Although reasonable grounds to suspect and reasonable and probable grounds to believe are similar because they both must be grounded in objective facts, reasonable suspicion is a lower standard, engaging the reasonable possibility, rather than probability.²² As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate the reasonable suspicion standard with the more demanding reasonable and probable grounds standard.²³
A police officer can form reasonable grounds to suspect that an accused has alcohol in the body, and can therefore be subjected to a lawful breath demand for an approved screening device, by observing the accused’s behaviour and speech and proximity to alcohol.²⁴
²² “R. v. Chehil, 2013 SCC 49, ²⁰¹³ 3 S.C.R. 220” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13264/index.do at para 27.
²³ “R. v. Chehil, 2013 SCC 49, ²⁰¹³ 3 S.C.R. 220” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13264/index.do at para 27.
²⁴ See, e.g., “R. v. Rajasekeran, 2024 ONCJ 228 (CanLII)” https://www.canlii.org/en/on/oncj/doc/2024/2024oncj228/2024oncj228.html at paras 1-3, 19.
15. When can a peace officer not make a breath demand despite having the requisite reasonable grounds to suspect?
A lawful breath demand for an approved screening device can only be made when the peace officer making the breath demand for the approved screening device has an approved screening device in the peace officer’s possession,²⁵ although there is no need for the accused to be shown the approved screening device²⁶ or for the Crown to prove, through anything beyond the peace officer’s evidence in Court, that the device was an approved screening device.²⁷ Peace officers must have an approved screening device immediately available when making the breath demand for an approved screening device.²⁸
Therefore, when a peace officer lacks an approved screening device, the peace officer cannot make a breath demand for the approved screening device.
²⁵ “R. v. Breault, 2023 SCC 9, ²⁰²³ 1 S.C.R. 340” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19817/index.do at paras 61-67.
²⁶ “R. v. Enwright, 2024 ONCJ 176 (CanLII)” https://www.canlii.org/en/on/oncj/doc/2024/2024oncj176/2024oncj176.html at paras 21-24.
²⁷ “R. v Priestly-Campbell, 2023 ONSC 3906 (CanLII)” https://www.canlii.org/en/on/onsc/doc/2023/2023onsc3906/2023onsc3906.html at paras 5-11.
²⁸ “R. v. Khandakar, 2024 ONCA 620” https://coadecisions.ontariocourts.ca/coa/coa/en/item/22605/index.do at para 37.
16. When does a peace officer have an approved screening device in the peace officer’s possession?
Although a trier of fact must consider all of the circumstances in determining whether a peace officer had an approved screening device in the peace officer’s possession, unchallenged evidence from a peace officer that the peace officer had an approved screening device in the peace officer’s possession may support a finding that the peace officer had an approved screening device in the peace officer’s possession and that as a result the peace officer could use the mandatory alcohol screening demand²⁹ or another type of lawful breath demand for an approved screening device.³⁰
In order to have an approved screening device in a peace officer’s possession for the purpose of a lawful breath demand involving an approved screening device, a peace officer must know where the approved screening device is, have control over the approved screening device, and be able to use the approved screening device when the approved screening device is needed for use.³¹ The peace officer can have an approved screening device in the peace officer’s possession when the approved screening device in in the peace officer’s cruiser and the peace officer is nearby engaging in a traffic stop.³² The key issue in determining whether a peace officer is too far away from the approved screening device for the approved screening device to be in the peace officer’s possession has been determined to be whether the peace officer is able to retrieve the approved screening device within approximately one minute.³³ A peace officer has an approved screening device in the peace officer’s possession when the approved screening device is in the peace officer’s pocket.³⁴
²⁹ “R. v Priestly-Campbell, 2023 ONSC 3906 (CanLII)” https://www.canlii.org/en/on/onsc/doc/2023/2023onsc3906/2023onsc3906.html at para 11, read in context with “Criminal Code, RSC 1985, c C-46” (5 June 2026 ) https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html (accessed 19 July 2026) at s 320.27(2).
³⁰ Such as is described in “Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026 ) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.27(1), 320.27(1)(b).
³¹ “R v Morrison, 2020 SKPC 28 (CanLII)” https://www.canlii.org/en/sk/skpc/doc/2020/2020skpc28/2020skpc28.html at paras 183-184.
³² “R. v. Davy, 2024 YKTC 26 (CanLII)” https://www.canlii.org/en/yk/yktc/doc/2024/2024yktc26/2024yktc26.html at paras 1, 3, 6-11, 46; cf, “R. v. Campbell, 2022 ONCJ 571 (CanLII)” https://www.canlii.org/en/on/oncj/doc/2022/2022oncj571/2022oncj571.html at paras 3, 8.
³³ “R v Mackenzie Wright, 2023 SKKB 236 (CanLII)” https://www.canlii.org/en/sk/skkb/doc/2023/2023skkb236/2023skkb236.html at paras 83-86, 92, “R v Wright, 2025 SKCA 52 (CanLII)” https://www.canlii.org/en/sk/skca/doc/2025/2025skca52/2025skca52.html at paras 2, 4, “Brayden Wright v. His Majesty the King, et al., 2026 CanLII 252 (SCC)” https://www.canlii.org/en/ca/scc-l/doc/2026/2026canlii252/2026canlii252.html.
³⁴ “R. v. Tandon, 2026 ONCJ 343 (CanLII)” https://www.canlii.org/en/on/oncj/doc/2025/2025oncj586/2025oncj586.html at paras 42-46.
17. What are “reasonable grounds to believe”?
The standard of reasonable grounds to believe is a standard of credibly-based probability, not the equivalent of a prima facie case, balance of probabilities, or any other numerical formula.³⁵ The standard of reasonable grounds to believe only requires a credibly-based probability.³⁶ The standard of reasonable grounds to believe is a practical, non-technical standard based on factual and practical considerations of everyday life on which reasonable and prudent people act.³⁷ The standard of reasonable grounds to believe defies precise definition or quantification into percentages and is neither a scientific nor a metaphysical exercise.³⁸ The standard of reasonable grounds to believe requires a judge to consider whether there is an objective basis which is based upon compelling and credible information.³⁹ The standard of suspecting on reasonable grounds is lower than the standard of reasonable grounds to believe.⁴⁰
A police officer can form reasonable grounds to believe that an accused was involved in an offence relating to impaired operation, and can therefore be subjected to a lawful breath demand for an approved instrument, by gathering a complaint of poor driving, evidence that the accused had been the driver observed, the accused’s admission of recent alcohol consumption, and the peace officer’s personal observations of the accused’s lack of sobriety.⁴¹
³⁵ “R. v. Hayatibahar, 2026 ONCA 507” https://coadecisions.ontariocourts.ca/coa/coa/en/item/24338/index.do at paras 57-58.
³⁶ “R. v. McNeill, 2020 ONCA 313” https://coadecisions.ontariocourts.ca/coa/coa/en/item/18763/index.do at para 32.
³⁷ Cf, “R. v. Hayatibahar, 2026 ONCA 507” https://coadecisions.ontariocourts.ca/coa/coa/en/item/24338/index.do at paras 57-58.
³⁸ “R. v. Hayatibahar, 2026 ONCA 507” https://coadecisions.ontariocourts.ca/coa/coa/en/item/24338/index.do at paras 57-58.
³⁹ “Charkaoui v. Canada (Citizenship and Immigration), ²⁰⁰⁷ 1 S.C.R. 350, 2007 SCC 9” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do at para 39.
⁴⁰ “R. v. Poirier, 2016 ONCA 582” https://coadecisions.ontariocourts.ca/coa/coa/en/item/15004/index.do at para 45
⁴¹ See, e.g., “R. v. Maiato, 2025 ONCJ 186 (CanLII)” https://www.canlii.org/en/on/oncj/doc/2024/2024oncj228/2024oncj228.html at paras 1, 5-7, 17, 28-29, 52, 54, read in context with “Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026 ) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.28(1), 320.28(1)(a), 320.28(1)(a)(i).
18. When must a breath demand be made immediately?
A breath demand for an approved screening device must be immediate.⁴²
⁴² “R. v. Rajasekeran, 2024 ONCJ 228 (CanLII)” https://www.canlii.org/en/on/oncj/doc/2024/2024oncj228/2024oncj228.html at para 25 provides a concise discussion of this point.
19. What is the standard of immediacy for a breath demand?
When the breath demand for an approved screening device is based upon a reasonable suspicion, the peace officer must make the breath demand for an approved screening device as soon as the peace officer forms the reasonable suspicion that the person has alcohol in the body,⁴³ although unusual circumstances can extend this immediacy.⁴⁴
The standard of immediacy for a breath demand for an approved screening device is not identical to a standard of instantaneousness.⁴⁵
Peace officers can give to an accused multiple chances to comply with a breath demand for an approved screening device while still remaining immediate in gathering the breath sample for the approved screening device.⁴⁶
When the breath demand for an approved screening device is based upon a mandatory alcohol screening demand, the peace officer can delay in making the breath demand for an approved screening device for approximately one minute while the police officer and the accused have a brief initial conversation.⁴⁷
The fact that an accused is being assessed by EMS is an unusual circumstance justifying delaying a breath demand for an approved screening device.⁴⁸
⁴³ “R. v. Khandakar, 2024 ONCA 620” https://coadecisions.ontariocourts.ca/coa/coa/en/item/22605/index.do at paras 37-38
⁴⁴ “R. v. Khandakar, 2024 ONCA 620” https://coadecisions.ontariocourts.ca/coa/coa/en/item/22605/index.do at paras 1-2, 37-38, 40.
⁴⁵ “R. v. Khandakar, 2024 ONCA 620” https://coadecisions.ontariocourts.ca/coa/coa/en/item/22605/index.do at paras 31-32.
⁴⁶ “R. v. Khandakar, 2024 ONCA 620” https://coadecisions.ontariocourts.ca/coa/coa/en/item/22605/index.do at para 47.
⁴⁷ “R. v. Tandon, 2026 ONCJ 343 (CanLII)” https://www.canlii.org/en/on/oncj/doc/2026/2026oncj343/2026oncj343.html at paras 41, 48-49, read in context with “Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026 ) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at at s 320.27(2).
⁴⁸ “R. v. Allen, 2025 ONCJ 350 (CanLII)” https://www.canlii.org/en/on/oncj/doc/2025/2025oncj350/2025oncj350.html at paras 30-32.
20. What is the standard of “demand made as soon as practicable” in the context of a breath demand?
For a breath demand to be made as soon as practicable, the breath demand must have been made within a reasonably prompt time under the circumstances,⁴⁹ which is not identical to as soon as possible and is based upon whether the police acted reasonably, in the context of the entire sequence of events.⁵⁰ The breath demand can be given as soon as practicable by any police officer upon developing reasonable grounds, including by the qualified breath technician after receiving grounds from the arresting officer.⁵¹ Determining what giving to an accused a breath demand as soon as practicable means in given circumstances seems to take into account, when applicable, whether the non-arresting police officer who eventually gave the breath demand to the accused after a briefer elapsed time than passed before the accused received the first and excessively delayed breath demand made some effort upon learning about the delay in giving the breath demand to ensure that the accused would receive a breath demand within a more reasonable time.⁵²
⁴⁹ See, e.g., “R. v. Ara, 2024 ONCJ 211 (CanLII)” https://www.canlii.org/en/on/oncj/doc/2024/2024oncj211/2024oncj211.html at paras 3, 41-42.
⁵⁰ See, e.g., “R. v. Ara, 2024 ONCJ 211 (CanLII)” https://www.canlii.org/en/on/oncj/doc/2024/2024oncj211/2024oncj211.html at paras 3, 41-42.
⁵¹ See, e.g., “R. v. Najev, 2021 ONCJ 427 (CanLII)” https://www.canlii.org/en/on/oncj/doc/2021/2021oncj427/2021oncj427.html at paras 79-81.
⁵² “R. v. Coates, 2022 ONSC 3262 (CanLII)” https://www.canlii.org/en/on/onsc/doc/2022/2022onsc3262/2022onsc3262.html at paras 26-27, 140-144, 148.
21. What is the offence of failure or refusal to comply with a breath demand?
The offence of failure or refusal to comply with a breath demand is that, knowing that a demand has been made, the accused fails or refuses to comply, without reasonable excuse, with a demand for the accused’s breath.⁵³
⁵³ “Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026 ) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.15(1), 320.28(1), 320.28(1)(a), 320.28(1)(a)(i).
22. What are the essential elements of the offence of failure or refusal to comply with a breath demand?
The essential elements of the offence of failure or refusal to provide a sample are that a lawful demand was made, that the accused knew that the demand was made, and that the accused failed or refused to produce the required sample.⁵⁴
⁵⁴ “R. v. Arudselvam, 2022 ONCJ 445 (CanLII)” https://www.canlii.org/en/on/oncj/doc/2022/2022oncj445/2022oncj445.html at paras 1, 90.
23. What is the Actus Reus of the offence of failure or refusal to comply with a breath demand?
The Actus Reus of the offence of failure or refusal to comply with a breath demand is that the accused, having been subjected to a lawful demand, either failed or refused to comply with a breath demand.⁵⁵
⁵⁵ “R. v. Khandakar, 2024 ONCA 620” https://coadecisions.ontariocourts.ca/coa/coa/en/item/22605/index.do at paras 17-18.
24. What is the Mens Rea of the offence of failure or refusal to comply with a breath demand?
The Mens Rea of the offence of failure or refusal to comply with a breath demand is, depending upon the authority trusted, either that the accused intentionally failed or refused to provide a breath sample, or that the accused knew that the accused’s conduct would have the result of not providing a breath sample,⁵⁶ although when there is no dispute that the accused was intentionally refusing to provide breath, this uncertainty need not be resolved.⁵⁷
⁵⁶ “R. v. Khandakar, 2024 ONCA 620” https://coadecisions.ontariocourts.ca/coa/coa/en/item/22605/index.do at paras 17, 19.
⁵⁷ “R. v. Khandakar, 2024 ONCA 620” https://coadecisions.ontariocourts.ca/coa/coa/en/item/22605/index.do at paras 17, 19.
25. What is a demand for breath which is not made immediately?
When the only breath demand (or demands) which an accused receives for an approved instrument does not occur as soon as was practicable, the accused has never received a lawful breath demand for an approved instrument.⁵⁸ A breath demand for an approved screening device which is not made immediately is not lawful.⁵⁹
⁵⁸ See, e.g., “R. v. Coates, 2022 ONSC 3262 (CanLII)” https://www.canlii.org/en/on/onsc/doc/2022/2022onsc3262/2022onsc3262.html at paras 139, 147-148.
⁵⁹ See, e.g., “R. v. McNair, 2024 ONCJ 217 (CanLII)” https://www.canlii.org/en/on/oncj/doc/2024/2024oncj217/2024oncj217.html at paras 129-130, 136, 139.
26. When is a demand not made?
The failure by a police officer to document in notes the precise warnings which the accused received about the consequences for not submitting to testing may contribute towards the Court’s finding that a reasonable doubt remains about whether the accused received a proper demand from police (that is, a demand which was unmistakably a demand), leading to the accused’s acquittal of failure or refusal to comply with a breath demand.⁶⁰
⁶⁰ See, e.g., “R. v. Massalida, 2022 ONCJ 451 (CanLII)” https://www.canlii.org/en/on/oncj/doc/2022/2022oncj451/2022oncj451.html at paras 120-127.
27. When is a demand refused?
When the accused is alleged to have failed or refused to provide a sample, the burden is upon the Crown to prove that the accused’s refusal or failure was unequivocal,⁶¹ or the accused must be acquitted of failure or refusal to provide a sample.⁶² The Court can assess the accused’s action’s equivocalness even when the accused does not testify,⁶³ and the accused has no burden to provide evidence that the accused’s action was equivocal.⁶⁴ In this context, to be unequivocal is to be clear and unambiguous and to leave no doubt.⁶⁵ When the accused is alleged to have failed or refused to provide a sample, whether the accused’s refusal to provide a sample was unequivocal relates to the actus reus and mens rea of the offence of failure or refusal to provide a sample.⁶⁶
⁶¹ “R. v. Enwright, 2024 ONCJ 176 (CanLII)” https://www.canlii.org/en/on/oncj/doc/2024/2024oncj176/2024oncj176.html at paras 5-6.
⁶² “R. v. Enwright, 2024 ONCJ 176 (CanLII)” https://www.canlii.org/en/on/oncj/doc/2024/2024oncj176/2024oncj176.html at para 7.
⁶³ “R. v. Enwright, 2024 ONCJ 176 (CanLII)” https://www.canlii.org/en/on/oncj/doc/2024/2024oncj176/2024oncj176.html at paras 5-7, 60.
⁶⁴ “R. v. Enwright, 2024 ONCJ 176 (CanLII)” https://www.canlii.org/en/on/oncj/doc/2024/2024oncj176/2024oncj176.html at paras 5-7, 60.
⁶⁵ “R. v. Arudselvam, 2022 ONCJ 445 (CanLII)” https://www.canlii.org/en/on/oncj/doc/2022/2022oncj445/2022oncj445.html at paras 2, 23.
⁶⁶ “R. v. Khandakar, 2024 ONCA 620” https://coadecisions.ontariocourts.ca/coa/coa/en/item/22605/index.do at paras 1, 3.
28. What is the significance of an accused’s not knowing that the accused has received a demand for a breath sample?
When the accused does not know that the accused has received a breath demand, then the accused’s failure or refusal to comply with a breath demand lacks the mens rea required to convict the accused of failure or refusal to comply with a breath demand.⁶⁷
⁶⁷ “R. v. Massalida, 2022 ONCJ 451 (CanLII)” https://www.canlii.org/en/on/oncj/doc/2022/2022oncj451/2022oncj451.html at paras 111-113.
29. When is an accused’s refusal to comply with a breath demand not final?
An initial refusal to comply with a breath demand is not criminal if the accused later agrees to provide a breath sample as part of the same transaction.⁶⁸ In such circumstances, the accused has not committed the Actus Reus (the act) of the offence of failure or refusal to comply with a breath demand.⁶⁹
If a trial judge determines that the accused’s change of mind occurred sufficiently soon after the accused’s initial refusal as to form part of the same transaction, such that the police could still have lawfully obtained the breath sample, the actus reus of the refusal to comply with a breath demand has not been established even if the initial refusal to comply with a breath demand was expressed unequivocally.⁷⁰
Peace officers can give to an accused multiple chances to comply with a breath demand for an approved screening device while still remaining immediate in gathering the breath sample for the approved screening device,⁷¹ but the statutory and constitutional requirement of immediacy when collecting a breath sample for an approved screening device must inform and limit the maximum duration of the same transaction.⁷² The maximum duration of the same transaction is not determined by a peace officer’s decision to charge an accused for failing to comply with a breath demand for an approved screening device,⁷³ although such is a factor to be taken into account,⁷⁴ but is determined by the maximum time that a peace officer has in the case’s circumstances to obtain a breath sample for an approved screening device immediately.⁷⁵
Whether the accused’s mind changed about refusing to comply with a breath demand is a distinct question from whether the accused unequivocally refused to comply with a breath demand.⁷⁶ If the Court concludes that the accused’s change of mind occurred too late to have been part of the same transaction as the initial refusal, the Court must still consider whether the evidence as a whole, including the evidence of the accused’s subsequent conduct, gives rise to a reasonable doubt about whether the initial refusal to comply with a breath demand was unequivocal.⁷⁷
⁶⁸ “R. v. Khandakar, 2024 ONCA 620” https://coadecisions.ontariocourts.ca/coa/coa/en/item/22605/index.do at paras 1-3, 31-33.
⁶⁹ “R. v. Khandakar, 2024 ONCA 620” https://coadecisions.ontariocourts.ca/coa/coa/en/item/22605/index.do at paras 1-3, 31-33.
⁷⁰ “R. v. Khandakar, 2024 ONCA 620” https://coadecisions.ontariocourts.ca/coa/coa/en/item/22605/index.do at paras 1-3, 31-33, 62.
⁷¹ “R. v. Khandakar, 2024 ONCA 620” https://coadecisions.ontariocourts.ca/coa/coa/en/item/22605/index.do at para 47.
⁷² “R. v. Khandakar, 2024 ONCA 620” https://coadecisions.ontariocourts.ca/coa/coa/en/item/22605/index.do at paras 50-51.
⁷³ “R. v. Khandakar, 2024 ONCA 620” https://coadecisions.ontariocourts.ca/coa/coa/en/item/22605/index.do at paras 52-60.
⁷⁴ “R. v. Khandakar, 2024 ONCA 620” https://coadecisions.ontariocourts.ca/coa/coa/en/item/22605/index.do at paras 1-3, 62.
⁷⁵ “R. v. Khandakar, 2024 ONCA 620” https://coadecisions.ontariocourts.ca/coa/coa/en/item/22605/index.do at paras 1-3, 61.
⁷⁶ “R. v. Khandakar, 2024 ONCA 620” https://coadecisions.ontariocourts.ca/coa/coa/en/item/22605/index.do at paras 1-3, 31-33.
⁷⁷ “R. v. Khandakar, 2024 ONCA 620” https://coadecisions.ontariocourts.ca/coa/coa/en/item/22605/index.do at para 63.
30. When can an accused lawfully refuse to comply with a breath demand despite knowing that the accused received a breath demand but neither having nor claiming to have a reasonable excuse?
Because elements of the offence of failure or refusal to provide a sample are that a lawful demand was made, that the accused knew that the demand was made, and that the accused failed or refused to produce the required sample,⁷⁸ an accused who does not receive a lawful breath demand can lawfully refuse to despite knowing that the accused received a breath demand but neither having nor claiming to have a reasonable excuse.
⁷⁸ “R. v. Arudselvam, 2022 ONCJ 445 (CanLII)” https://www.canlii.org/en/on/oncj/doc/2022/2022oncj445/2022oncj445.html at paras 1, 90.
31. What is the significance of an accused’s being subjected to an unlawful test on an approved screening device?
When the lawfulness of an accused’s breath demand for an approved instrument is entirely based upon the accused’s having been subjected to a test on an approved screening device, the accused’s having been subjected to an unlawful test on an approved screening device means that the accused’s breath demand for an approved instrument is unlawful and the accused’s refusal to comply with a breath demand for an approved instrument is not unlawful.⁷⁹
When test on an approved screening device was done with no warrant, the Crown bears the burden of proving that the test on the approved screening device was lawful on a balance of probabilities.⁸⁰ Proof on a balance of probabilities means that the trier of fact must scrutinize the relevant evidence with care in order to determine whether it is more likely than not that an alleged event occurred.⁸¹
⁷⁹ “R. v. Coutts, 2020 ONSC 3477 (CanLII)” https://www.canlii.org/en/on/onsc/doc/2020/2020onsc3477/2020onsc3477.html at paras 24-34.
⁸⁰ For a concise summary of this point, citing the Supreme Court of Canada, see “R. v. Ortega, 2015 ONCJ 58 (CanLII)” https://www.canlii.org/en/on/oncj/doc/2015/2015oncj58/2015oncj58.html at para 36.
⁸¹ “F.H. v. McDougall, ²⁰⁰⁸ 3 S.C.R. 41, 2008 SCC 53” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6211/index.do at para 49.
32. What is a reasonable excuse to refuse to comply with a breath demand?
A reasonable excuse is some circumstance that makes compliance with the breath demand either extremely difficult or likely to involve a substantial risk to the accused’s health.⁸² Once an accused has established that an air of reality exists to a reasonable excuse to the charge of failing to provide a breath sample, the Crown has the burden of disproving that reasonable excuse beyond a reasonable doubt.⁸³
The inquiry into whether there is an evidential foundation for a defence is referred to as the air of reality test.⁸⁴ The correct approach to the air of reality test is whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit.⁸⁵ When there is an air of reality to a defence, the defence should go to the trier of fact.⁸⁶ A defence which lacks an air of reality should be kept from the trier of fact even when the defence lacking an air of reality represents the accused’s only chance for an acquittal.⁸⁷ A defence possesses an air of reality if a properly instructed jury acting reasonably could acquit the accused on the basis of the defence.⁸⁸ The air of reality test imposes a burden on the accused that is merely evidential, rather than persuasive.⁸⁹ The air of reality test is concerned only with whether a defence should be submitted to the trier of fact for consideration.⁹⁰
The air of reality test does not assess whether the defence is strong, but assesses whether the evidence discloses a real issue to be decided by the trier of fact.⁹¹
Whether there is an air of reality to a defence is a question of law subject to appellate review.⁹² It is an error of law to put to the trier of fact a defence lacking an air of reality and it is an error of law to keep from the trier of fact a defence that has an air of reality.⁹³
In applying the air of reality test, a trial judge considers the totality of the evidence and assumes the evidence relied upon by the accused to be true.⁹⁴ The evidential foundation can be indicated by evidence emanating from the examination in chief or cross-examination of the accused, of defence witnesses, or of Crown witnesses, can also rest upon the case’s factual circumstances, or upon any other evidential source on the record.⁹⁵ There is no requirement that the evidence supporting the air of reality be adduced by the accused.⁹⁶
⁸² “R. v. Cummins, 2021 ONCJ 291 (CanLII)” https://www.canlii.org/en/on/oncj/doc/2021/2021oncj291/2021oncj291.html at paras 1-2, 4, 15.
⁸³ “R. v. Martin, 2023 ONCJ 219 (CanLII)” https://www.canlii.org/en/on/oncj/doc/2023/2023oncj219/2023oncj219.html at paras 63, 68, 72.
⁸⁴ “R. v. Cinous, ²⁰⁰² 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 50.
⁸⁵ “R. v. Cinous, ²⁰⁰² 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 49.
⁸⁶ “R. v. Cinous, ²⁰⁰² 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 51.
⁸⁷ “R. v. Cinous, ²⁰⁰² 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 51.
⁸⁸ “R. v. Cinous, ²⁰⁰² 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 2.
⁸⁹ “R. v. Cinous, ²⁰⁰² 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 52.
⁹⁰ “R. v. Cinous, ²⁰⁰² 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 52.
⁹¹ “R. v. Cinous, ²⁰⁰² 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 54.
⁹² “R. v. Cinous, ²⁰⁰² 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 55.
⁹³ “R. v. Cinous, ²⁰⁰² 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 55.
⁹⁴ “R. v. Cinous, ²⁰⁰² 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 53.
⁹⁵ “R. v. Cinous, ²⁰⁰² 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 53.
⁹⁶ “R. v. Cinous, ²⁰⁰² 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 50.