I. INTRODUCTION
[1] The central issue in this appeal is whether the mens rea for failing to comply with a breath demand contrary to s. 320.15(1) of the Criminal Code requires proof that the accused intended to fail to provide a suitable sample or merely proof that the accused knew a demand had been made.
[4] The appeal judge identified three competing lines of authority on the culpable state of mind required to ground a conviction under s. 320.15(1). The first says the Crown must prove that the accused intentionally failed to provide a suitable sample (see R v Lewko, 2002 SKCA 121, 169 CCC (3d) 359). The second says the Crown must prove only that the accused knew a demand had been made and the fact that a failure occurred (see Sweet and R v Bradley, 2022 NBQB 31, 91 MVR (7th) 230).
[7] For the reasons that follow, I would grant leave, allow the appeal, and order a new trial. In my view, the mens rea for failing to comply with a breath demand contrary to s. 320.15(1) of the Criminal Code requires proof that the accused intended to fail to provide a suitable sample.
II. BACKGROUND
A. The trial decision
IV. ANALYSIS
A. The required mens rea
[27] Determining whether the mens rea for failing to provide a breath sample under s. 320.15(1) is satisfied by proof of intention or knowledge is an exercise in statutory interpretation (R v A.D.H., 2013 SCC 28 at paras 19–21, [2013] 2 SCR 269).
[28] Under the modern principle of statutory interpretation, words used in legislation are considered “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27 at para 21, quoting E.A. Driedger, Construction of Statutes, 2d ed (Toronto: Butterworths, 1983) at 87; Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42 at para 26, [2002] 2 SCR 559; Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 117, [2019] 4 SCR 653; Piekut v Canada (National Revenue), 2025 SCC 13 at para 42, 502 DLR (4th) 1). A court is required to interpret statutory language “according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole” (Canada Trustco Mortgage Co. v Canada, 2005 SCC 54 at para 10, [2005] 2 SCR 601; R v Downes, 2023 SCC 6 at para 24, 423 CCC (3d) 279; Piekut at para 43).
[29] The text, context, and purpose of legislation do not have to be addressed separately or in a formulaic way in the interpretive exercise, “since these elements are often closely related or interdependent”(Piekut at para 43; Bell ExpressVu at para 31; Chieu v Canada (Minister of Citizenship and Immigration), 2002 SCC 3 at para 28, [2002] 1 SCR 84). For this reason, aspects of my contextual analysis also contain textual elements relevant to the interpretation of s. 320.15(1).
[32] In my view, the mens rea for failing to provide a breath sample contrary to s. 320.15(1) of the Criminal Code requires proof that the accused intended to fail to provide a suitable sample. I come to this conclusion for three main reasons: (i) this interpretation embodies basic criminal law principles, which form an important part of the legislative context; (ii) it is supported by textual analysis; and (iii) it is justifiable from a purposive perspective. Respectfully, the rationale for the contrary conclusion set out in in Sweet and Bradley is not persuasive.
[38] The competing lines of authority were summarized by Paciocco J. (as he then was) in R v Soucy, 2014 ONCJ 497, 316 CCC (3d) 153. As already noted, the Lewko position requires the Crown to prove that the accused intentionally failed to provide a suitable breath sample. A person who “fails to provide an appropriate sample despite genuinely attempting to do so, will not have committed the actus reus of the offence” (at para 29). The Lewko position has been adopted in various cases (see for example: R v Nahnybida, 2018 SKCA 72 at para 64, 365 CCC (3d) 209; R v Slater, 2015 ONCJ 155 at paras 25–35, 76 MVR (6th) 345; R v Burgess, 2021 NSPC 34 at para 15; R v Sullivan, 2001 CarswellOnt 5652 at para 16 (WL) (Ct J); R v Greenshields, 2014 ONCJ 35 at paras 8–11; R v Fan, 2018 ONCJ 924 at paras 35–37).
[39] The Porter position requires the Crown to prove only that the accused had knowledge or awareness of the prohibited act of failing to provide a suitable sample. On this mens rea standard, “it is no answer that the accused tried their best to furnish a sample unless they prove, on the balance of probabilities, that they had a ‘reasonable excuse’ for failing” (Soucy at para 30, quoting Porter at para 38). The Porter position has also been adopted in various cases (see for example: R v Spracklin, 2013 ABPC 55 at paras 74–75, 551 AR 323; R v Mercado, 2013 ABPC 330 at paras 63–64, 578 AR 366; R v Botan, 2019 ABPC 261 at paras 19–21, 56 MVR (7th) 67; R v Lemay, 2013 ABPC 144 at paras 101–105, 563 AR 300; R v Pletsas, 2014 ONSC 1568 at para 67; R v Vethavanam, 2013 ONCJ 266 at para 45; R v Doiron, 2023 BCPC 127 at paras 39–42; and R v Malik Sher, 2023 ONCJ 554 at para 79).
[43] I recognize several courts have reasoned that the addition of the word “knowing” in the 2018 amendments indicates Parliament’s attempt to settle the debate as to the mens rea for failing to comply with a breath demand in favour of the Porter position (see for example: R v Di Luciano, 2024 ONSC 3254 at paras 69–70; R v MacKintosh, 2025 NSSC 51 at paras 62–64; R v McKinnon, 2020 ABPC 86 at paras 21–22, 13 Alta LR (7th) 312; R v Daytec, 2021 ABPC 48 at paras 55–58; R v Turnbull, 2022 ABQB 42 at para 25, 51 Alta LR (7th) 242; Bradley at paras 157–184; Sweet at paras 80–81). However, as discussed below, the better approach to the interpretative exercise is to examine the required mental element in terms of the differences between knowledge and intention, not general or specific intent.
b. The mens rea is subjective
[44] Before reviewing the differences between knowledge and intention, I will explain why I agree with the parties that the mens rea of the offence created by s. 320.15(1) is subjective and disagree with the contrary interpretation expressed in Bradley and Sweet that the 2018 amendments point to an objective mens rea.
[46] The presumption of subjective fault is a principle of statutory interpretation forming part of the context that must be considered under the modern principle (see A.D.H. at para 28). Parliament must be taken to “know that this presumption will likely be applied unless some contrary intention is evident in the legislation” (A.D.H. at para 26). It is not an absolute rule, but rather captures what was assumed to be present in the mind of Parliament when enacting the provision (see A.D.H. at para 26; Zora at para 33). The presumption of subjective fault will only be overridden by “clear expressions of a different legislative intent” (A.D.H. at paras 27–29; Zora at para 33).
[47] In general terms, a subjective mens rea focuses on what the accused person actually had in their own mind at the time the offence is alleged to have been committed (see A.D.H. at para 3; R v Zora, 2020 SCC 14 at para 29, [2020] 2 SCR 3; R v Hundal, [1993] 1 SCR 867 at 882). Subjective fault assesses whether the accused intended the consequences of their conduct or, knowing or being wilfully blind to the probable consequences of their conduct, proceeded recklessly in the face of risk (R v Creighton, [1993] 3 SCR 3 at 58; R v Sault Ste. Marie, [1978] 2 SCR 1299 at 1309–1310; Hundal at 882; R v Martineau, [1990] 2 SCR 633 at 645). Ultimately, “[w]hat is vital is that this accused given his personality, situation and circumstances, actually intended, knew or foresaw the consequence and/or circumstance as the case may be. Whether he ‘could’, ‘ought’ or ‘should’ have foreseen or whether a reasonable person would have foreseen is not the relevant criterion of liability” (Hundal at 882–883, emphasis in original; Zora at para 29).
[49] In Sweet, the Court adopted the conclusion in Bradley that the mens rea for failing to provide a breath sample under s. 320.15(1) is objective. Respectfully, there are two aspects of the reasoning in Bradley on this point that I find unpersuasive.
[51] Canadian courts have identified particular words that tend to be indicative of a particular standard of fault. For example, the words “wilful”, “knowing”, “knowledge”, “intent” and “reckless” suggest a subjective standard of fault (A.D.H. at para 49; Zora at para 38; Creighton at 58; Sault Ste. Marie at 1303). Meanwhile, words such as “dangerous”, “negligence”, “due diligence”, “careless”, “reasonable”, and “duty” tend to indicate an objective standard of fault (A.D.H. at paras 58, 73; Zora at para 41). Here, as recognized in Bradley, the word “knowing” is indicative of a subjective standard, suggesting the need for an accused to have subjective knowledge that a demand has been made.
[52] However, the fact that the word “knowing” in the text of s. 320.15(1) does not relate to the failure to comply and the absence of the word “wilfully” in relation to that failure, is not determinative of an objective mens rea. The absence of express words indicating a subjective intent in relation to the act element of an offence (here, the failure to comply), does not, on its own, displace the presumption of subjective fault. This was made clear in Zora, where the Supreme Court was interpreting former s. 145(3) of the Criminal Code, which created the offence of failing to comply with a condition of an undertaking or recognizance:
[38] In evaluating whether there is an expression of legislative intent that displaces the presumption of subjective fault, courts look both to the words included in the provision as well as the words that were not (A.D.H., at para. 42). It is true that s. 145(3) does not contain express words indicating a subjective intent, like “wilful” or “knowing”. However, this absence cannot, on its own, displace the presumption. In fact, it is precisely when the words and context are neutral that the presumption of subjective mens rea operates with full effect.
(Emphasis added)
[53] See also R v Mtonga, 2021 ONSC 1482 at para 47, 69 CR (7th) 342; R v Tikhonov, 2014 ONCJ 347 at para 14.
[56] In Bradley, it was noted that there are several categories of offences where there is a duty of care between the accused and victim requiring an objective mens rea. Among the examples cited are the offences of failing to provide the necessaries of life to a child (involving the breach of a duty to do so) and carelessly storing firearms (involving the breach of a duty to store firearms safely). The Court reasoned that since a person has a duty to comply with a lawful breath demand, and a failure to comply is a breach of that duty, the offence is therefore “duty-based”, attracting an objective mens rea. It was held that “[a] person to whom a lawful demand has been made is expected to do what a reasonable person would do in the same circumstances. That is, follow the instructions given and blow into a machine until the officer determines that a suitable sample has been provided” (at para 152). On this basis, the Court concluded that the mens rea is objective and that “it matters not what was in the mind of the specific accused” (at para 156).
[57] This type of reasoning was rejected in Zora. In relation to the offence of failing to comply with a condition of an undertaking or recognizance, the majority of the Court of Appeal found the words “bound to comply” and “fails” indicated that the accused had a legal obligation to meet an objectively determined standard of conduct, and that the offence therefore required objective mens rea (at para 39). The Supreme Court disagreed, explaining that not all compliance obligations create duty-based offences involving objective fault:
[43] The Minister saying that a provision that establishes a criminal offence imposes a responsibility or duty in a general sense does not make it the type of duty-based offence at issue in Naglik. The wording in s. 145(3) speaks only of being bound to comply and failing to do so. This wording does not displace the presumption of subjective intent. All criminal prohibitions impose obligations to act or not in particular ways and inflict sanctions when people fail to comply. If accepted, the Crown’s argument and the Court of Appeal’s conclusion would make all compliance obligations into “duties” and all crimes into dutybased offences. However, the duty-based offences discussed in A.D.H. are a far more limited category and are directed at legal duties very different from the obligation of an accused to comply with the conditions of a judicial order.
[58] Duty-based offences, such as failing to provide the necessaries of life, are offences based on a failure to perform specific “legal duties arising out of defined relationships” (A.D.H. at para 67; Zora at para 39). Whether an offence is duty-based requiring objective fault depends on several characteristics, including the nature of the relationships to which the duty attaches, the level of risk to the public when the duty is not met, whether the duty must be defined according to a uniform, societal standard of conduct, and whether applying such a uniform standard is possible and appropriate in the circumstances (Zora at para 44).
[61] As these criticisms illustrate, Bradley (and Sweet which adopts it) are not persuasive authority for the proposition that the presumption of subjective fault was displaced by the 2018 amendments and that the mens rea for failing to comply with a breath demand contrary to s. 320.15(1) is now objective. I agree with the parties that it is subjective.
c. Knowledge does not establish the complete mens rea
[64] For true crimes, the mental element presumptively requires not only an intention to commit a prohibited act, but also knowledge of or wilful blindness to the relevant factual circumstances (Sault Ste. Marie at 1309; see also La Presse inc. at para 66; A.D.H. at para 23; R v Williams, 2003 SCC 41 at para 27, [2003] 2 SCR 134; R v Latouche (2000), 190 DLR (4th) 73 (WL) (CMAC) at para 20). I agree with Paciocco J.’s articulation of the concepts of intention and knowledge set out in Soucy. Intention is a mental state that relates to the act element of an offence, while knowledge is a mental state that relates to the factual conditions or pre-requisites to an offence – such as the existence of a breath demand. As he explains, this understanding of these concepts is rooted in the Supreme Court’s decision in Sault Ste. Marie:
[42] With respect, I am also of the view that the position adopted in R. v. Porter, supra, that general intent can be proved by showing “knowledge or awareness” is wrong. As I understand the law, the mentes reas of “intention” and “knowledge” are distinct mens rea concepts that play different roles in the criminal law. “Intention” is a mens rea or required mental state that relates to the act element of offences, such as the act or omission of refusing or failing to provide a sample. Meanwhile knowledge is a mens rea or required mental state that relates to the factual conditions or prerequisites to an offence, such as the existence of a valid demand made under section 254. The respective role played by these mental states was made clear in the classic statement relating to subjective mens rea found in R. v. City of Sault Ste. Marie [1978] 2 S.C.R. 1299 at 1309-1310. There, Justice Dickson (as he then was) explained that:
“Where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them.” [Emphasis by PJM]
[65] Intention and knowledge therefore generally apply to different aspects of subjective mens rea which, taken together, establish the mental element of a criminal offence. As stated in Sault Ste. Marie, the Crown must prove that the accused who committed the prohibited act did so intentionally or recklessly (the mental state associated with the act element of the offence), with knowledge of the facts constituting the offence (the mental state associated with the circumstances).
[66] At common law, knowledge of the facts constituting the offence alone could not establish the complete mental element of a criminal offence without a clear expression of legislative intent to that effect. This is why, in my respectful view, it is difficult to see how s. 320.15(1) can reasonably be interpreted in accordance with the conclusion in Bradley and Sweet that “[t]he offence requires only knowledge of a demand and the fact of non-compliance” (Bradley at para 168, emphasis in original; see also Sweet at para 79). Such an interpretation would be contrary to a fundamental legal norm of criminal law established almost 50 years ago in Sault Ste. Marie.
[70] Section 320.15(1) can readily be understood in a manner consistent with the traditional expression of the mental element necessary to ground criminal culpability set out in Sault Ste. Marie. Under that section, an offence is committed by a person who, “knowing that a demand has been made, fails or refuses to comply”. On a plain reading, the requirement of knowledge relates to the existence of the demand – a factual prerequisite for the offence – not to the prohibited act of failing to comply (see Bradley at para 140). This is entirely in accordance with the role of knowledge as a mental state as explained in Soucy and Sault Ste. Marie.
[71] In what would be a departure from this understanding of knowledge as a mens rea concept, the Crown contends that it operates differently in s. 320.15(1). It submits that this section requires the Crown to prove only that the accused knew that a breath demand had been made and that proof of an intention to fail to comply with the demand is not required. The Crown says that the accused’s subjective knowledge that a demand was made and the fact of a failed sample are sufficient in every case to infer that the accused was reckless in their response to the demand, and therefore criminally culpable. It says that, properly interpreted, s. 320.15(1) requires only knowledge of the demand and the fact of non-compliance as found in Bradley and Sweet
[72] I am not persuaded by this argument. As a starting point, the existence of the word “knowing” in a Criminal Code provision does not always mean that proof of intention to perform the prohibited act is not required….
[74] Thisidea that knowledge imports intention has been the subject of criticism, in part because knowledge that one is failing does not establish one’s intention to fail….
[77] As I see it, this argument does not support the conclusion that knowledge of the existence of the breath demand is the only necessary mental element of the offence because it also presupposes the existence of a reckless state of mind in relation to the prohibited act of failing to comply. As articulated by the Crown, the accused’s culpable state of mind in relation to the prohibited act is not absent, nor is it established by knowledge of the demand alone. It is inferred from the fact that the accused failed to provide a suitable sample after having knowledge of the demand.
[80] In my view, the mens rea of the offence under s. 320.15(1) requires proof that the accused had subjective knowledge that a breath demand was made. But that is not enough to establish the mens rea for the entire offence. The mens rea of the prohibited act of failing to comply with the demand is satisfied by proof that the accused intended or was reckless in bringing about a failure, not by knowledge or awareness of the fact the demand was made (see Soucy at para 43). This interpretation of s. 320.15(1) accords with the traditionally understood role of knowledge as a mental state that relates to the factual conditions or pre-requisites to an offence and intention as a mental state that relates to the act element of an offence.
[81] How, then, can the failure to comply with a breath demand be proved? In appropriate cases, intention or recklessness can be proven by applying the principle that a person who foresees that a consequence is substantially certain to result from an act intends that consequence. In Slater, Nordheimer J. (as he then was) explained that where a person tries multiple times to provide a breath sample without success, it can be inferred that they intend that result in the absence of other evidence to the contrary or evidence otherwise giving rise to a reasonable doubt:
[12] The decision in Sullivan is consistent with what I say is the proper reading of both Lewko and Porter and, that is, that, absent evidence to the contrary, or evidence that raises a reasonable doubt, proof of the requisite mens rea for the offence will be met by the application of the general principle that a person, who does something that has predictable consequences, usually intends or means to cause those consequences. Put more directly, evidence that a person who tries multiple times to provide a breath sample, and in each instance fails to provide a sample, gives rise to an inescapable inference that s/he is intending that result, absent some other evidence being present that would suggest an absence of such an intent, or at least raise a reasonable doubt about it.
[82] The same principle was applied in Lewko, where the Court relied on an inference arising from the circumstances of the case to conclude the requisite intent had been proven….
[87] As this discussion illustrates, an interpretation of s. 320.15(1) requiring proof that the accused intended to fail to comply with a breath demand better embodies criminal law principles than an interpretation requiring only proof that the accused knew a demand was made. As such, this interpretation is justifiable because it complies with accepted legal norms forming part of the context in which s. 320.15(1) must be interpreted (see Sullivan at §2.9; Alex at para 32). It also applies an understanding of the mens rea concept of knowledge that is consistent with the presumption that common law terms and concepts retain their common law meaning when used in legislation (Holmes at para 31; Sullivan at §17.14).
2. Textual analysis
[91] In this section, the phrase “knowing that a demand has been made” is a non-restrictive clause. A non-restrictive clause is set off by commas and says something about a preceding subject but does not limit or restrict the subject’s meaning. In contrast, a restrictive clause limits the possible meanings of the subject and is not set off by commas (See Canadian Guide to Legal Style, 2nd ed (Kingston, Ont: Thomson Reuters, 2019) at §3.4.6). A helpful example of the distinction between a restrictive and non-restrictive clause is found in H.W. Fowler, Fowler’s Dictionary of Moden English Usage, 4th ed (Oxford: Oxford University Press, 2015) at 705:
Leech and Svartvik (1975) cite the following pair of sentences to bring out the distinction: [1] Children who learn easily should start school as early as possible; [2] Children, who learn easily, should start school as early as possible. ‘In [1] the relative clause is restrictive and tells us what kind of children ought to start school early. In [2], where the relative clause is non-restrictive, the speaker is talking about all children in general… The clause does not in any way limit the reference of children’
[92] While restrictive clauses are essential to the grammatical and logical completeness of a sentence, “[n]on-restrictive clauses, by contrast, are so loosely connected with the essential meaning of the sentence that they might be omitted without changing the essential meaning” (Bryan Garner, Garner’s Dictionary of Legal Usage, 3d ed (Oxford: Oxford University Press, 2011) at 888). Put another way, a non-restrictive clause “could be omitted without obscuring the identity of the noun to which it refers or otherwise changing the intended meaning of the rest of the sentence” (The Chicago Manual of Style, 17th ed (Chicago: University of Chicago Press, 2017) at §6.27; see also R v Plummer (2006), 214 CCC (3d) 84 (Ont CA) at para 21).
[93] Since a non-restrictive clause modifies the subject that precedes it, the phrase “who, knowing that a demand has been made” modifies “everyone”. It does not, however, modify the subsequent phrase “fails or refuses to comply”. The phrase “knowing that a demand has been made” can readily be omitted without changing the essential meaning of the section, which is that “[e]veryone commits an offence who… fails or refuses to comply, without reasonable excuse, with a demand…”. On a grammatical reading of the section, the inclusion of the words “knowing that a demand has been made” has no impact on the gravamen of the offence, which is a failure to comply.
3. Purposive analysis
[95] In general terms, “legislative purpose refers not only to the material goals the legislature hoped to achieve but also to the reasons underlying each feature implementing the scheme” (Sullivan at §9.26). A purposive analysis of s. 320.15(1) also supports the interpretation that an intent to fail to comply is required.
[100] When interpreting s. 320.15(1), it is therefore important to balance the broader purpose of protecting the public from impaired drivers embodied in Bill C-46 with other fundamental interests embodied in the Criminal Code. It cannot lightly be concluded that Parliament intended to go about promoting public safety by diluting the mental element of s. 320.15(1) to make prosecution easier. To do so risks eroding other fundamental principles of criminal law, such as the presumption of innocence and the fact that offenders ought to be held accountable for conduct only to the extent that they are morally blameworthy (see A.D.H. at para 27).
[102] I am unable to conclude that by adding the words “knowing that a demand has been made” when enacting s. 320.15(1), Parliament intended to change the requisite mens rea for failing to comply with a breath demand to eliminate the need for the Crown to prove an intention to fail and instead require only proof of the fact that a demand had been made. This would be a substantive change in the law and, as explained above, would require an interpretation constituting a material departure from the traditional understanding of knowledge and intention as mens rea concepts and how subjective recklessness may be proven.
[104] Accepting that the broader legislative purpose behind Bill C-46 was to promote public safety by restructuring the impaired driving related provisions, that purpose is not a decisive factor in the interpretation of s. 320.15(1), which must be read in harmony with relevant legal norms underlying the Criminal Code.
4. Conclusion on the required mens rea
[105] For these reasons, the mens rea for failing to provide a breath sample contrary to s. 320.15(1) of the Criminal Code requires proof that the accused intended to fail to provide a suitable sample. This conclusion is supported by a contextual interpretation of s. 320(1) that respects fundamental criminal law principles, and it is supported by textual and purposive analysis.
V. CONCLUSION
[114] For the reasons set out above, the mens rea for failing to provide a breath sample contrary to s. 320.15(1) of the Criminal Code requires proof that the accused intended to fail to provide a suitable sample. I would grant leave, allow Mr. Emereuwa’s appeal, and order a new trial.
