Failure to Comply with Demand

In Canada, the offence of failure or refusal to comply with a demandsection 320.15 of the Criminal Code, police can lawfully require a driver to provide a breath, blood, or bodily fluid sample under specific conditions. If a person refuses or fails to comply with that lawful demand, without a reasonable excuse, they can be charged with this offence. It is a hybrid offence, meaning the Crown can proceed either summarily or by indictment. This page explains, in plain English, how failure to comply demand Canada cases are defined, prosecuted, defended, and sentenced.

The Legal Definition

“Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under section 320.27 or 320.28.”

“Everyone commits an offence who commits an offence under subsection (1) and who, at the time of the failure or refusal, knows that, or is reckless as to whether, they were involved in an accident that resulted in bodily harm to another person.”

In plain terms, section 320.15 makes it a crime to refuse or fail to comply with a lawful police demand for breath, blood, or other bodily samples connected to impaired driving investigations under sections 320.27 or 320.28 of the Criminal Code. The key elements are:

• The person knew a demand had been made (for example, an officer clearly required a breath sample), and
• The person failed or refused to comply,
• Without reasonable excuse, and
• The demand itself was made under the impaired driving investigative powers in sections 320.27 or 320.28.

The second quoted subsection creates a more serious form of the same offence where the refusal happens in the context of an accident causing bodily harm. If, at the time of refusing, the person knew or was reckless as to whether they had been involved in an accident that resulted in bodily harm to another person, the moral blameworthiness and potential sentence increase significantly.

Sections 320.27 and 320.28 give police powers to demand roadside breath tests, evidentiary breath samples at the station, blood samples in hospital, or other bodily samples, in clearly defined circumstances. The offence under section 320.15 exists to support the impaired driving regime: if people could simply refuse tests without consequences, proving impaired driving would often be impossible. The law therefore treats failure to comply demand Canada situations as serious attempts to frustrate impaired driving enforcement.

Penalties & Sentencing Framework

• Offence type: Hybrid (prosecutable summarily or by indictment).
• Maximum penalty – Summary conviction: Up to 18 months’ imprisonment, a fine, or both.
• Maximum penalty – Indictable conviction: Up to 10 years’ imprisonment.
• Mandatory minimum penalty: None specified in section 320.15 itself.

Because it is a hybrid offence, the Crown decides whether to proceed summarily (usually for less serious or first-time situations) or by indictment (for more serious circumstances, such as where there is bodily harm or significant aggravating factors). The chosen mode of proceeding determines the maximum available sentence but does not dictate what the actual sentence will be.

Although section 320.15 does not list a mandatory minimum penalty in its text, courts sentence these cases in the context of impaired driving law. Refusing a lawful demand is often treated as at least as serious as, and sometimes more serious than, an impaired driving conviction, because the refusal can be seen as an attempt to avoid providing objective evidence of impairment. Where bodily harm results from an associated accident, the upper range of sentencing—especially on indictment—becomes more realistic, reflecting the combination of harm and refusal.

On a summary conviction, the maximum is up to 18 months in jail, a fine, or both. In practice, sentencing will consider factors like prior impaired or refusal convictions, the circumstances of the stop, the driver’s level of cooperation (apart from the refusal itself), and any risk or harm to the public. On an indictable proceeding, the theoretical maximum rises to 10 years, particularly relevant in cases involving bodily harm. While the typical sentence will often be far below the maximum, the possibility of a lengthy prison term underscores how seriously the law treats refusal to comply with impaired-driving-related demands.

Common Defenses

• Reasonable excuse for non-compliance

  The Criminal Code itself says that the offence only occurs when the person fails or refuses to comply “without reasonable excuse.” A reasonable excuse is a fact-based, legally acceptable reason why the person could not or should not comply in the circumstances. For example, a serious medical condition that makes blowing into a breathalyzer impossible, or a genuine inability to understand the demand due to a language barrier or cognitive limitation, may be raised as reasonable excuse if supported by evidence. The court will analyze whether the excuse is credible, objectively reasonable, and directly connected to the failure or refusal. The burden is on the Crown to prove guilt beyond a reasonable doubt, including disproving a raised reasonable excuse where it is properly grounded in the evidence.

• Unlawful or invalid demand

  Another key defense is that the original police demand was not lawful or valid under sections 320.27 or 320.28. Those sections impose specific preconditions and procedures before an officer can demand a breath, blood, or bodily substance sample. For instance, depending on the type of demand, the officer may require reasonable grounds to suspect or believe that the person has alcohol or drugs in their body, or that an offence has been committed. If the officer did not have those grounds, made the demand outside the permitted time frame, or failed to comply with required procedures, the demand may be invalid. Since section 320.15 only criminalizes failure or refusal to comply with a lawful demand under those sections, an accused person can argue that no offence was committed because the demand itself was not authorized by law. Courts will carefully examine the officer’s observations, timing, and actions against the statutory requirements.

• Charter rights violations

  Section 320.15 operates within a highly Charter-sensitive area of law. Refusal charges often arise from roadside stops, detentions, and demands for bodily samples, all of which engage the Canadian Charter of Rights and Freedoms. Common Charter issues include alleged breaches of section 8 (unreasonable search or seizure) and section 10(b) (right to counsel without delay). For example, if an officer makes a demand but unreasonably delays in allowing the driver to contact a lawyer, or misinforms them about their right to counsel, the defence may argue that the accused’s constitutional rights were breached. Where a Charter breach is established, the remedy may include exclusion of evidence under section 24(2), or in some cases a stay of proceedings. Even in a refusal case (where there is no actual breath or blood reading to exclude), serious rights violations can affect the overall fairness of the process and may lead a court to dismiss the charge.

Real-World Example

Imagine a driver stopped at a late-night sobriety checkpoint. An officer lawfully pulls the vehicle over as part of an impaired driving program and observes a faint smell of alcohol. Relying on their powers under section 320.27, the officer demands that the driver provide a roadside breath sample. The driver, frustrated and impatient, refuses, insisting that they “have rights” and do not need to blow, despite understanding the officer’s demand. There is no medical issue or other legitimate obstacle to providing the sample. In this scenario, the driver could be charged with failure or refusal to comply with a demand under section 320.15.

From a policing perspective, the refusal undermines the ability to investigate possible impaired driving. From the court’s perspective, the focus will be on whether the demand was lawful, whether the driver clearly knew about it, and whether they had any reasonable excuse for not complying. If the checkpoint was properly authorized, the demand met the statutory conditions, and no reasonable excuse exists, a conviction is likely. The case would then move to sentencing, where the hybrid nature of the offence (summary vs. indictable) and any aggravating factors—such as prior impaired-related history—would inform the penalty.

Record Suspensions (Pardons)

A conviction for failure or refusal to comply with a demand creates a permanent criminal record unless a record suspension (often informally called a pardon) is obtained. Because this is a hybrid offence, it is legally treated as an indictable offence for many collateral purposes unless the Crown proceeds summarily. Record suspension eligibility is governed by federal legislation and depends on how the Crown proceeded and the sentence imposed. Generally, for summary conviction matters, an individual may apply for a record suspension after a waiting period of approximately 5 years from the completion of all aspects of the sentence (including any jail, probation, and fines). For indictable versions of the offence, the waiting period is longer. During the waiting period, the person must remain crime-free and demonstrate good conduct.

A record suspension, once granted, does not erase the conviction but separates it from active criminal records checks for most purposes. This can significantly reduce the impact of a failure-to-comply-demand conviction on employment, volunteering, travel, and professional licensing. However, because impaired-driving-related offences are viewed as serious public safety matters, applicants should expect that their full driving and criminal history will be carefully scrutinized by the Parole Board of Canada when assessing eligibility and suitability for a record suspension.

Related Violations

• Impaired Driving
• Over 80 (driving with blood alcohol concentration over the legal limit)
• Failure to Stop at Accident Scene