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In Canada, the offence of failure or refusal to comply with a demand, accident resulting in bodily harm (alcohol and drugs)9273, this charge arises where a driver who has been in a collision that causes bodily harm refuses or fails to provide a lawful breath, blood, or bodily fluid sample demanded by police. The offence is set out in section 320.15(2) of the Criminal Code and is a hybrid offence, meaning the Crown can choose to proceed either summarily or by indictment. In legal and practical terms, this is one of the more serious driving offences in Canada because it not only involves an injury-causing accident, but also an alleged attempt to frustrate impaired driving investigations. People researching failure comply demand Canada laws should understand that a conviction can carry mandatory minimum penalties and a maximum sentence of up to 14 years in prison.
The Legal Definition
320.15(2) — 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 simple terms, this provision adds an extra layer of seriousness to the basic refusal offence in subsection 320.15(1). First, the Crown must prove that the accused already committed the basic offence: failing or refusing, without reasonable excuse, to comply with a lawful police demand for a breath, blood, or bodily substance sample under sections 320.27 or 320.28. On top of that, the Crown must show that at the time of that failure or refusal, the accused either knew they were in an accident causing bodily harm or were reckless about whether such an accident had occurred.
The wording ties this charge directly to the broader impaired driving regime in Part VIII.1 of the Criminal Code. The requirement that the refusal occur when the person knows or is reckless about an accident causing bodily harm means this offence is reserved for cases where a collision has caused injuries that go beyond trivial bumps or scrapes. “Bodily harm” takes its definition from section 2 of the Code: any hurt or injury that interferes with a person’s health or comfort and that is more than transient or trifling. Taken together, section 320.15(2) targets drivers who, in a bodily-harm accident context, refuse testing and thus obstruct the state’s ability to measure impairment.
Penalties & Sentencing Framework
- Offence classification: Hybrid (Crown may elect summary or indictable)
- Maximum penalty (indictable): Up to 14 years imprisonment
- Maximum penalty (summary): Up to 2 years less a day imprisonment and/or a fine up to $5,000
- Mandatory minimum – first offence: Fine of at least $1,000
- Mandatory minimum – second offence: At least 30 days imprisonment
- Mandatory minimum – third or subsequent offence: At least 120 days imprisonment
The sentencing framework for section 320.15(2) closely mirrors other serious impaired driving causing bodily harm offences. Under section 320.2, when the Crown elects to proceed by indictment, the court may impose up to 14 years of imprisonment. This is significantly higher than the 10‑year maximum for the basic refusal offence without bodily harm, signalling Parliament’s view that refusing testing in an injury collision is closer in gravity to other violent or serious bodily harm crimes. When the Crown proceeds summarily, the maximum is “two years less a day” and/or a $5,000 fine, which keeps the case in provincial court but still allows for substantial jail time.
Mandatory minimum penalties play a central role. Whether the case is indictable or summary, the minimums are the same: a $1,000 fine for a first conviction, 30 days in jail for a second, and 120 days for each subsequent conviction. These minimums apply across the suite of impaired and refusal offences and are triggered not only by past refusals but also by previous convictions for related impaired driving and dangerous operation offences, as set out in section 320.26. As a result, someone with a prior impaired driving conviction can face the elevated “second offence” minimum even if this is their first refusal charge.
Sentencing judges must still tailor the sentence within the statutory range, guided by section 718 of the Criminal Code. In bodily harm impaired driving and refusal cases, appellate courts have consistently stressed denunciation and general deterrence as primary objectives. The courts view this behaviour as endangering the public twice over: first by the dangerous driving leading to injury, and second by obstructing evidentiary testing. While factors such as rehabilitation prospects, age, employment, and family responsibilities are considered, they cannot reduce the punishment below the mandatory minimums and will be carefully weighed against the seriousness of the harm and the broader need to deter impaired‑related driving conduct.
Common Defenses
- Reasonable excuse for non‑compliance
- Challenging the validity of the initial demand
- Lack of knowledge or recklessness about the accident and bodily harm
- Charter challenges to investigative procedures
1. Reasonable excuse for non‑compliance. The core defence written directly into section 320.15 is the phrase “without reasonable excuse.” This is not a mere technicality: if the accused can show, on a balance of probabilities, that they had a reasonable excuse for not providing the sample, they are entitled to an acquittal. Courts have accepted excuses where the person is genuinely physically or medically incapable of complying — for example, severe lung disease preventing adequate breath samples, or a medical emergency making it unsafe to draw blood. However, excuses such as fear of needles, anxiety about the procedure, a general objection to police authority, or simply not wanting to incriminate oneself have consistently been rejected. The accused must demonstrate a real, objective impediment, not just reluctance.
2. Challenging the validity of the initial demand. Another frequent defence is to argue that the police had no lawful basis to make the demand under sections 320.27 or 320.28. Those provisions require that the officer has, at minimum, “reasonable grounds to suspect” recent alcohol or drug consumption in connection with driving (for roadside screening) or “reasonable grounds to believe” impairment or an over‑limit blood concentration (for evidentiary breath/blood demands). If an officer lacked these grounds, failed to make the demand “as soon as practicable,” or otherwise did not comply with the statutory procedures, the demand itself may be unlawful. If the demand was not lawful, the refusal to comply with it cannot be a crime, and the charge under section 320.15(2) may fail.
3. Lack of knowledge or recklessness regarding the accident. Because section 320.15(2) requires that, at the time of the refusal, the accused knew or was reckless as to being involved in an accident that caused bodily harm, the defence can focus on this mental element. For instance, in some unusual circumstances, a driver might be unaware that contact with another vehicle or person caused any injury — perhaps in a very minor impact or where visibility and environmental conditions obscure what happened. If the defence can raise a reasonable doubt that the accused did not know about the accident and was not wilfully blind or reckless to that possibility, the enhanced bodily-harm version of the offence is not made out (although the Crown might still proceed on the basic refusal charge under subsection (1)). Courts are, however, wary of self‑serving claims of ignorance in situations where the collision and injuries would have been obvious to any reasonable driver.
4. Charter challenges to investigative procedures. The defence can also argue that the way police carried out the investigation violated the accused’s constitutional rights under the Canadian Charter of Rights and Freedoms. Common arguments include unreasonable search or seizure under section 8 (for intrusive bodily substance demands), arbitrary detention under section 9, or breaches of the right to counsel under section 10(b) if the accused is not promptly informed of the right to speak to a lawyer and given a reasonable chance to do so. If a court finds a Charter breach, it may exclude key evidence, such as the officer’s observations or the circumstances surrounding the demand and refusal, under section 24(2) of the Charter. While a refusal itself is an action by the accused, undermining the lawfulness of the demand and the overall investigative context can significantly weaken the Crown’s case.
Real-World Example
Imagine a driver who rear‑ends another car at a city intersection. The collision is enough to cause whiplash and a broken wrist to the other motorist, clearly qualifying as bodily harm. Police arrive and notice the first driver smells of alcohol, has slightly slurred speech, and admits having “a few drinks” earlier. Based on these observations, the officer makes a lawful demand for a roadside breath sample, and later, at the station, for evidentiary breath tests. The driver, worried about the results and aware of the injured person being treated by paramedics, refuses to blow into the machine and will not provide a blood sample when later requested. In this scenario, the officer’s demand is grounded in reasonable suspicion (and likely reasonable belief) of impairment, and the injuries are beyond transient or trifling. If the driver cannot show a valid medical or other reasonable excuse for the refusal, they could be charged and eventually convicted under section 320.15(2). The court would see this as not just impaired‑related driving but also a deliberate attempt to obstruct the evidentiary process in the context of an injury‑causing accident.
Record Suspensions (Pardons)
Because failure or refusal to comply with a demand causing bodily harm is a hybrid offence with an indictable maximum of 14 years, it is treated as a serious criminal record entry. Under the federal Criminal Records Act, record suspension (pardon) eligibility depends on whether the offence is handled as a summary or indictable matter and on the actual sentence imposed. Generally speaking, individuals convicted of hybrid impaired driving–related offences must wait 5 years after completion of all sentence components (including any probation and driving prohibitions) if the conviction is treated as a summary offence, and 10 years if it is treated as indictable. The waiting period only begins after all fines, surcharges, jail time, and probation conditions are fully satisfied. Because driving offences involving bodily harm and refusal are viewed as serious public safety matters, applicants should expect the Parole Board of Canada to closely scrutinize their driving history, rehabilitation efforts, and any subsequent incidents before granting a record suspension. For anyone searching for failure comply demand Canada information, it is important to understand that even once a record suspension is obtained, it can be revoked if there are further serious offences.
Related Violations
- Operation While Impaired (Criminal Code, s. 320.14)
- Failure to Stop After an Accident (Criminal Code, s. 320.16)
- Dangerous Operation of a Conveyance (Criminal Code, s. 320.13)
