Toronto Breath Sample Refusal Lawyers (Failure to Comply, s.320.15)

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Refusing the breath test feels like a way out at the curb. It is not. Failing or refusing to comply with a lawful demand is its own criminal charge under section 320.15 of the Criminal Code, it carries a minimum $2,000 fine, and it can be proven without a single breath reading. There is a harder truth too, one most people learn only after they are charged. If you had a reason for not blowing, the law expects you to prove that reason, with evidence. The Crown does not have to disprove your excuse. Refusal files are won at the demand stage far more often than at the excuse stage, and that is exactly where our review starts. This page walks through the law as it stands in July 2026, what these charges cost, and where refusal files are actually won.

By Fadi Matthew Kazandji, Founding Partner, Kazandji Law. Serving Toronto. Updated July 2026.

One Sentence Creates the Charge. Three Parts Decide It.

Section 320.15(1) of the Criminal Code makes it an offence to fail or refuse to comply, without reasonable excuse, with a lawful demand made under section 320.27 or section 320.28, knowing that the demand has been made. That is the entire offence. One sentence, and it reaches every kind of demand police can make in an impaired driving investigation: the roadside screening breath sample, physical coordination testing, the evidentiary breath samples at the station, a drug evaluation, and blood.

Pull the sentence apart and you get three working parts. First, there must be a lawful demand. Not a suggestion or a request, a demand the statute actually authorized on the facts of your stop. Second, the Crown must prove you knew the demand had been made and that you failed or refused to comply with it. Third, the failure or refusal must have been without reasonable excuse.

Each part is a battleground. A demand made without its statutory footing is not a lawful demand at all. Knowledge sounds automatic until you meet the file where the driver was concussed, or in a panic, or barely follows English and heard the demand once, read at speed. And reasonable excuse is a fight of its own, with a twist buried in it that surprises nearly every client who walks into our office. We get to that twist below.

Fix one more thing early: refusal stands alone. It is laid, prosecuted and punished on its own, whether or not an impaired driving or over 80 count ever accompanies it, and on plenty of Toronto paperwork it is the only charge. The drinking and driving side is covered on our Toronto impaired driving page. This page is about what happens when the allegation is that you said no.

Nothing in that sentence requires a breath reading, a bad driving pattern or any sign of impairment. The Crown can lose the impaired count and still win the refusal count, which is why treating the refusal as an afterthought is the most expensive mistake people make with these files. It also explains a pattern duty counsel sees every weekend: a driver who was sure the case against them was weak pleads guilty to the refusal, because nobody explained it was its own complete charge.

The Four Moments a Toronto Demand Can Be Born

A refusal charge cannot exist without a demand, and in this city a demand is born at one of four moments. Each moment has its own statutory preconditions, so each can be attacked on its own terms. Mapping your file to the right moment is the first thing we do, because the defence issues nearly pick themselves once you know which demand you are actually dealing with.

Toronto adds its own texture. TPS runs RIDE programs through the year, traffic units patrol the expressways at night, and downtown collisions bring police and paramedics to the same scene at the same time. Any of those encounters can produce a demand, which means any of them can produce a refusal charge.

Moment one: the screening demand at any lawful stop

Since December 2018, an officer who has lawfully stopped you and who has an approved screening device in their possession can demand a roadside breath sample without suspecting anything. That is mandatory alcohol screening under s.320.27(2), and it is why refusal charges are now born at completely ordinary Toronto stops. A plate check on the DVP, a seatbelt pullover on Kingston Road, a RIDE line downtown on a Saturday night. You do not need to look impaired for the demand to be valid, and you do not get to phone anyone before answering it.

But the power has hard edges. The stop itself must be lawful. And in R. v. Breault, 2023 SCC 9, the Supreme Court of Canada confirmed that an immediate screening demand must be tied to a device that is actually available. Where the demand ran ahead of the equipment, that gap can sit at the centre of the defence.

Screening happens on the spot. The reading never becomes evidence of your blood alcohol level at trial; its job is to justify the next stage of the investigation. If the officer had to leave to fetch a device, or made the demand while the unit carrying it was still en route, the timeline itself becomes the defence, and timelines are provable.

Moment two: the suspicion demands at the roadside

Where an officer reasonably suspects you have alcohol or a drug in your body and that you operated a vehicle within the preceding three hours, s.320.27(1) opens a wider menu: a screening breath sample, physical coordination tests, or a sample analyzed by approved drug screening equipment. Note what is missing there. The no-suspicion power exists for alcohol only. There is no mandatory drug screening at an Ontario roadside, so a drug-related demand needs real suspicion behind it, and we audit whether that suspicion actually existed. Refusing any of these demands is charged under the same refusal section. If drugs were part of your stop, our Toronto drug DUI page covers that side in depth.

The three-hour window in this power is real and checkable. So is the basis for the suspicion, which has to be something the officer can articulate, not a feeling. Both live or die on the notes and the video.

Moment three: the instrument demand at the station

Where police have reasonable grounds to believe an impaired driving offence was committed, s.320.28 authorizes the evidentiary demand: breath samples on the approved instrument at the station, taken by a qualified technician. This is the stage where your right to counsel has real teeth, and where rushed, delayed or hollow access to a lawyer becomes a live Charter issue. Refusing at the station carries the same consequences as refusing at the curb, and people do it more often than you would think, usually out of frustration.

By this stage you should already have been told why you are under arrest and given a real opportunity to reach counsel in private. The order of those steps matters, the timing matters, and the booking video usually shows both.

Moment four: the hospital and the blood demand

Collisions push these files into hospital rooms. The Code allows blood demands where breath testing is impracticable, so after a serious crash the demand often arrives at a bedside, delivered to someone who is injured, sedated or in shock. The alleged refusal can be a few words spoken in the worst hour of a person's life. Refusals born at this moment also collide with the aggravated forms of the offence, which change the stakes entirely. We cover those in the crash section below.

Which moment produced your charge sets the defence agenda. A screening refusal turns on the stop and the device. A station refusal turns on grounds and counsel access. A hospital refusal turns on knowledge, medical reality and the wording of a demand made to a patient. The statute reads as one offence. The files do not.

A Refusal Almost Never Sounds Like the Word No

The flat no exists, but it is the minority file. Most Toronto refusal charges are messier than that, and the mess is where the defence lives.

There is the walk-away, where a driver turns toward the house or reaches for a phone and the officer treats the movement as an answer. The stall, where someone keeps asking questions, wants the demand repeated, wants to see paperwork, wants a spouse called first, until the officer decides time is up. The lawyer-first ultimatum, where a driver announces that nothing happens until counsel is reached, which feels responsible and is treated as a refusal at the roadside stage. And the failed attempts file, where a person blows five or six times, the device keeps rejecting the sample, and the officer concludes the failures were deliberate.

The law draws lines through all of it. Repeated attempts that never produce a usable sample can be treated as a failure to comply, but genuine inability is a different thing from gamesmanship, and device logs, video and medical records usually decide which story a court accepts. A moment of hesitation followed by agreement is not automatically a final refusal. An officer who moves on after a single no, without giving any real opportunity to comply, hands the defence something to work with.

And knowledge stays the Crown's to prove. A demand delivered in rapid English to a driver who speaks little of it, or recited to a person just pulled from a crumpled car, invites exactly the doubt the presumption of innocence exists to protect.

Officers work from scripts, and the scripts help us. The demand is usually read in fixed words, the response is supposed to be noted verbatim, and the gap between what the notes say and what the video shows is often where a refusal case starts to wobble. Silence is not automatically a refusal either. An ambiguous answer, a question back, or a request to try again all sit in contested territory, and how long the officer waited before recording you as a refusal is a fact we press on hard. We have seen charges built on a shrug and charges built on twenty minutes of argument. They are not the same file, and they should not be defended the same way.

The Burden Nobody Warns You About

Start with what has to be proven against you beyond a reasonable doubt: a lawful demand, your knowledge of it, and your failure or refusal to comply. So far, ordinary criminal law, and if any of those three collapses the charge collapses with it.

The surprise is the excuse. Under the predecessor refusal provision, the Supreme Court of Canada held in R. v. Goleski, 2015 SCC 6, that the accused bears the burden of establishing the factual foundation of a reasonable excuse on a balance of probabilities. In plain terms, once the demand and the refusal are proven, the court will not presume you had a good reason. You have to prove the facts behind your reason, on the civil standard, with evidence.

That one point should reorganize your week. If asthma made the screening device impossible, if a panic condition took over at the roadside, if a chest injury from the collision meant you physically could not blow, the version of that story that wins is built from records, not memories. The chart from the emergency visit. The prescription history behind the inhaler. A letter from the treating physician. Photographs of the medication that was in the glovebox. Gathered early, while dates still line up, not assembled for the first time in a courtroom a year later.

Keep the order of operations straight, because it matters at trial. The Crown goes first and must prove the demand, the knowledge and the refusal beyond a reasonable doubt. Only if it does are you called on to establish the excuse, and only to the civil standard. A refusal trial is really two trials stacked on top of each other, and preparing only for the second one is how people lose the first. Judges also see the difference immediately between an excuse documented in week one and an excuse assembled the month before trial. Build accordingly.

Excuses That Hold Up, and Excuses That Never Do

The recognized lane is narrow. A genuine medical or physical inability to provide a sample, or circumstances that truly prevented compliance, sit at its core. Lung conditions that make sustained blowing impossible. Facial or chest injuries from the very collision that brought police to the scene. A documented panic condition that made the moment unmanageable. Courts examine these claims hard, and they examine the paper behind them harder.

The list of things that never qualify is longer and more familiar. Disagreeing with the officer about whether the stop was fair. Distrusting the machine. Wanting to wait for a callback from a lawyer before deciding. Wanting a parent or spouse present. Being certain you were sober. Each of these feels legitimate in the moment. None of them is a reasonable excuse in law, and people talk themselves into a criminal charge at the roadside on exactly these theories.

Courts also test excuse claims against the record. If you told no one at the roadside about the asthma, never mentioned the panic attack at the station, and first raised the condition months later, expect the Crown to say so. That timing problem is fixable only one way: documentation that starts now. The reverse is also true. A clean contemporaneous record, an ambulance chart, a note from the emergency physician, a prescription filled the same week, can turn a case the Crown thought was a sure thing into one it quietly resolves.

Deciding if your circumstances fit the narrow lane is a legal judgment, one that turns entirely on the facts and on the evidence available to prove them. Have that conversation with counsel before your first appearance, not after a plea.

If There Was a Crash, the Charge Changes Shape

Parliament built aggravated forms of the refusal offence for collision cases. Under s.320.15(2), refusing while knowing that you were involved in an accident that caused bodily harm to another person, or while reckless about that, is its own more serious offence, and the exposure climbs sharply. Where the accident resulted in a death, s.320.15(3) applies and the exposure rises again. These are not sentencing footnotes. They are separate charges that change the character of the entire prosecution.

Post-collision files are also the hardest refusal files on their facts. The demand often happens at a hospital, the driver may be medicated or in shock, and the alleged refusal can be a sentence fragment spoken during treatment. What the driver actually knew about the accident and the harm becomes a real, triable issue, and the medical context feeds the excuse analysis and the knowledge analysis at the same time.

One structural rule helps. Under s.320.15(4), a person convicted of a refusal offence is not to be convicted of another offence under the same section for the same transaction. Where police have layered multiple refusal counts out of a single encounter, that rule becomes genuine leverage in resolution discussions, and we use it.

An aggravated count also changes the posture of everything around the file. Release conditions get heavier, Crown screening positions get firmer, and resolution discussions start from a different floor. The aggravated provisions exist precisely because Parliament wanted no advantage in refusing after a serious crash, and Crowns prosecute them that way. If your refusal charge comes out of a collision with injuries, treat the first week as decisive and speak to counsel before you give a statement to anyone, including your own insurer.

What Refusing Actually Costs

Parliament set the refusal floor deliberately above the drinking floor. A first refusal conviction starts at a $2,000 fine, while a first conviction for a low reading over 80 starts at $1,000, so saying no usually buys a worse minimum than blowing and failing would have. The over 80 side of that comparison lives on our Ontario over 80 defence page. Here is the refusal ledger in one place.

Two rows deserve emphasis. The roadside consequences arrive the day of the stop, long before a court decides anything, because Ontario treats a refusal exactly like a fail. And the conviction itself creates a criminal record, with everything that follows for employment screening, insurance and travel. Those consequences routinely outlast the fine.

Then there is the quiet cost: insurance. A refusal conviction sits on the same shelf as an impaired conviction when renewal time comes, and drivers who need a vehicle for work feel that arithmetic for years. If you hold a G1 or G2 or drive commercially, the provincial layers stack differently again, which is a conversation to have with counsel rather than a chart to guess from. None of this is an argument for despair. It is the argument for defending the charge properly instead of pleading to get it over with.

From the Roadside to 10 Armoury Street

Most people charged with refusal in Toronto are released at the scene or from the station on an undertaking, often with conditions, and handed a first court date. Where police hold someone for bail instead, the hearing runs through the Toronto Regional Bail Centre at 2201 Finch Avenue West, and counsel should be moving before that hearing starts. Our bail lawyers page explains how that process works.

The charge itself proceeds at the Ontario Court of Justice at 10 Armoury Street, and routine appearances are frequently virtual. The early dates are administrative. The case is decided in the work between them: disclosure requests for the officer notes, in-car and booking video, screening device records and instrument logs; a Crown pre-trial to test resolution positions; Charter applications where the stop, the demand or the counsel stage went wrong; and a trial date where the file deserves one.

Timelines have teeth. Under the Jordan framework, provincial court prosecutions are presumptively capped at 18 months from charge to the end of trial, and delay beyond that ceiling can end the case. We track every refusal file against that clock from the first appearance.

Expect the rhythm to feel slow at the start. The first appearance is minutes long, disclosure arrives in waves, and nothing about the early process tells you how the case will end. The decisions that matter come later: whether a Charter application gets filed, whether the Crown position moves at the pre-trial, and whether the file is one to resolve or one to run. Each of those calls should be made on the full record, not on the first stack of paper. Bring every new document to your lawyer as it arrives. Small pieces of paper decide these cases more often than big speeches do.

One more Toronto practicality: read your undertaking. Many include conditions that bite immediately, and a condition breached while you wait for trial creates a brand new criminal charge on top of the refusal. Go through it with counsel in the first week and apply to vary anything unworkable.

How Refusal Charges Get Beaten

There is no single magic argument in a refusal file. There is a sequence of pressure points, and a proper defence walks all of them in order.

• The stop. If the detention was unlawful, everything downstream is at risk. The Supreme Court of Canada revisited roadside stop powers in R. v. McColman in 2023, and stop lawfulness remains a live, winnable issue.
• The device. An immediate screening demand needs a screening device that was actually available. Where the demand ran ahead of the equipment, Breault gives the defence its opening.
• The demand. Was it worded as the statute requires, and did you actually understand it? Language barriers, injuries, hearing problems and plain confusion all cut against proof of knowledge.
• The counsel stage. At the station, the right to counsel is not a formality. Where access to a lawyer was delayed, discouraged or hollow, exclusion of the resulting evidence under the framework from R. v. Grant becomes the remedy we pursue.
• The refusal itself. Was there truly a final refusal, or a hesitation the officer refused to wait out? Recanted refusals and single-answer files are vulnerable.
• The record fight. Disclosure is a right, not a favour. Gaps in the notes, missing video and incomplete device records become arguments instead of footnotes.
• The excuse case. Built early, documented properly, and run with the burden in mind rather than improvised at trial.

Which pressure point carries your file is something we can only assess by going through the paper, and that assessment is what the free consultation is for. For the province-wide picture of how these charges work beyond the city, our Ontario breath sample refusal page covers it.

At trial, most refusal cases come down to the officer in the witness box. The notes get compared to the video, the wording of the demand gets read back slowly, and the timeline gets rebuilt minute by minute. Cross-examination is not theatre. It is the tool that turns a clean-looking paper case into a reasonable doubt, and refusal files, built as they are on a few minutes of roadside interaction, are unusually sensitive to it. That is also why we tell clients not to feel doomed by what the paperwork says. The synopsis is the officer's version, written in the officer's words. It is the starting point of the case, not the verdict.

Charter routes also combine. An unlawful stop can taint the demand, a counsel breach can taint everything after the arrest, and the remedy analysis looks at the pattern rather than each misstep in isolation. Files that survive one attack often fall to the accumulation, which is why we plead every viable route instead of betting the case on a single point.

Why Toronto Drivers Call Kazandji Law

Refusal files reward early, detailed work. The demand gets analyzed against the statute, the video gets watched before memories harden, and the medical file gets opened in week one, not month six. That is how we run them.

Our head office is at 180 John Street, Unit 320, a short walk from the 10 Armoury Street courthouse where Toronto refusal charges are heard. Clients north of the city are served from our Thornhill office at 7191 Yonge Street, Suite 310, which covers Markham and York Region matters, and we also meet clients at our North York and Oakville offices. One firm, four offices, and a founding partner who treats a refusal charge as the criminal prosecution it is, not a traffic ticket with paperwork.

Fee conversations are direct, the first consultation is free, and you will know exactly what we see in your file before you decide anything. Recent outcomes are collected on our results page.

When you call, have your paperwork nearby if you can: the undertaking or appearance notice, the suspension documents, and anything medical that touches your ability to blow. If you have nothing in hand, call anyway. The conversation is confidential, it costs nothing, and it will leave you knowing your next three steps instead of guessing at them. If you were charged last night, do not wait for the first appearance to get advice.

Toronto Breath Sample Refusal FAQ

Short answers to the questions Toronto drivers ask us most about refusal charges. Every answer is general information; your facts control your case.

This page is legal information, not legal advice about your specific situation. Refusal law changes, and every file turns on its own facts. Figures and procedures above reflect the Criminal Code and Ontario government materials as reviewed in July 2026. Kazandji Law, 180 John Street, Unit 320, Toronto, ON M5T 1X5. Call 647-588-3234 to speak with a lawyer about your own case.