Case information

Criminal law — Offences — Mens rea — Refusal to provide breath sample— What is the mens rea element for the offence of refusing to provide a breath sample under s. 320.15 of the Criminal Code — Will knowledge that a breath demand has been made suffice to prove mens rea?

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Mr. Emereuwa was driving a vehicle that struck an RCMP vehicle. The RCMP officer made a mandatory demand under s. 320.27(2) of the Criminal Code for Mr. Emereuwa to provide a sample of his breath into an approved screening device. He failed to provide an adequate breath sample in ten attempts. He was charged with failing to provide a breath sample. At trial, he testified that he had a cough suppressant under his tongue that was difficult to remove, he intended to comply with the demand, and he did his best to follow instructions but the instructions were unclear. The trial judge convicted Mr. Emereuwa. She held that the mens rea element for the offence requires proof of knowledge that a demand had been made. The Court of King’s Bench dismissed an appeal. It held that where Crown counsel proves that the accused knew a demand had been made and the accused failed or refused to provide a sample, a trier of fact invariably may infer intent to thwart providing a breath sample. The Court of Appeal allowed an appeal, set aside the conviction, and ordered a new trial. It set out a third articulation of the mens rea element of the offence, holding that Crown counsel must prove intent to fail to provide a suitable sample.