Refusal to Comply with Demand
The offence of failure or refusal to comply with demand is outlined in section 320.15(1) of the Criminal Code.
An individual commits the offence of failure or refusal to comply with demand when they refuse to provide a suitable breath sample to a police officer when the officer makes a lawful demand for one.
Person A is driving while intoxicated and stopped at a RIDE check. The police officer notices that the accused looks intoxicated and smells of alcohol. The officer makes a demand for a roadside breath sample. Person A refuses to blow into the machine and is subsequently charged.
Person A is driving while intoxicated and is pulled over by a police officer. The police officer notices person A is slurring his speech and has red eyes. The officer makes a demand for a roadside breath sample. Person A blows into the breathalyser but does not provide a suitable sample. Person A is given several chances to provide a sample and is eventually charged with refusal when a suitable sample is not provided.
R. v. Armstrong,  ONSC 52
In R. v Armstrong, the offender was convicted of one count of refusal to comply with demand. The offender was found asleep in the front seat of her car in a parking lot and appeared visibly intoxicated when awoken. After an officer made a demand for a breath sample, the offender refused and was subsequently charged.
R. v. Chaly,  ONCA 35
In R. v. Chaly, the offender was charged with one count of refusal and one count of impaired driving after being stopped by police on suspicion of impaired driving. The offender refused to provide a breath sample at the roadside as well as at the police station.
Offence Specific Defences
When it comes to operation while impaired or refusal charges, there are very specific rules as to when breathalyzer samples must be taken. Roadside breath samples must be taken almost immediately after the officer develops reasonable suspicion that the accused is intoxicated. If these specific timelines are not met, the accused may launch a Charter challenge arguing their rights have been infringed upon and ask that certain evidence be excluded.
An accused person who was unable to provide a suitable breath sample due to a legitimate medical issue such as reduced lung capacity may present medical evidence to show that they were incapable of providing the breath sample when the demand was made.