In Canada, the offence of failure comply demand accident refers to situations where a driver is involved in a motor vehicle accident that results in bodily harm and then refuses or fails to obey a lawful police demand for a breath, blood, urine, or saliva sample. Under Section 320.15(2) of the Criminal Code (UCR Code 9275), this is a hybrid offence, meaning it can be prosecuted either summarily or by indictment depending on the seriousness of the case. This law is designed to prevent drivers from avoiding responsibility for impaired driving by refusing testing after an accident where someone has been injured, especially when drug or alcohol impairment is suspected.
The Legal Definition
Everyone commits an offence who, in case of an accident or collision resulting in bodily harm, fails or refuses to comply, without reasonable excuse, with a demand made under section 320.27 (breath demand) or 320.28 (drug or alcohol demand by qualified technician).
This definition, found in Section 320.15(2) of the Criminal Code, applies specifically when there has been an accident or collision that causes bodily harm to any person. If, in that context, a police officer makes a valid demand under section 320.27 (for breath testing) or 320.28 (for drug or alcohol testing by a qualified technician) and the person fails or refuses to comply without reasonable excuse, a separate criminal offence is committed.
In plain language, this means that after an injury-causing accident, a driver cannot simply say “no” or ignore a lawful demand to provide a sample to test for alcohol or drugs. The Crown does not have to prove that the driver was actually impaired to obtain a conviction under Section 320.15(2); it is enough to prove that there was an accident causing bodily harm, that a proper demand was made under section 320.27 or 320.28, and that the driver refused or failed to comply without a legally acceptable reason. The phrase “without reasonable excuse” is crucial: some rare situations (such as a genuine medical inability to provide a sample) may amount to a defence.
Penalties & Sentencing Framework
- Offence type: Hybrid (can proceed by summary conviction or indictment).
- Mandatory minimum penalty: None.
- Maximum penalty on summary conviction: Up to 2 years less a day imprisonment and/or a fine.
- Maximum penalty on indictment: Up to 10 years imprisonment.
Because failure or refusal to comply with a demand after an accident causing bodily harm is a hybrid offence, the Crown prosecutor chooses whether to proceed by summary conviction (for relatively less serious cases) or by indictment (for more serious circumstances). The potential sentence increases significantly when the Crown elects to proceed by indictment, with a maximum of up to 10 years in prison. This higher range reflects Parliament’s view that refusing testing in the context of bodily harm is comparable in seriousness to impaired driving causing bodily harm.
On a summary conviction, courts are limited to a maximum penalty of up to 2 years less a day in jail and/or a fine. This path is generally used where the injuries are less severe, the person has little or no prior record, and the overall circumstances are less aggravated. On an indictable proceeding, the sentencing judge has a much broader range, up to 10 years’ imprisonment, which is reserved for cases involving significant bodily harm, clear attempts to evade responsibility, or a history of impaired or refusal-related offences.
There is no mandatory minimum penalty written into Section 320.15(2) itself for this offence, which gives judges flexibility to tailor the sentence to the specific offender and circumstances. However, in practice, courts take this offence seriously because refusing a demand after an injury collision is often viewed as an attempt to prevent police from obtaining evidence of impairment. Sentencing judges routinely consider factors such as the degree of bodily harm, whether drugs or alcohol were strongly suspected, the offender’s prior record (especially for impaired driving or related offences), cooperation with police, and any demonstrated remorse or rehabilitation efforts.
Common Defenses
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Reasonable excuse for non-compliance (e.g., medical inability to provide sample)
A key element of Section 320.15(2) is that the refusal or failure must be “without reasonable excuse.” A reasonable excuse is not simply inconvenience, dislike of the process, or fear of self-incrimination. Instead, courts require evidence of a genuine, objective reason that made it impossible or unreasonable to comply with the demand. One common example is a medical inability to provide the required sample. For instance, if the person has a serious respiratory condition that prevents them from providing breath samples, or is physically unable to perform the coordination required for a drug evaluation, this may amount to a reasonable excuse. Similarly, if the person is heavily injured in the accident and in urgent medical distress at the time of the demand, attending to their health may take priority over compliance. The accused bears an evidentiary burden to show a factual foundation for the excuse, often through medical records or expert evidence, and courts assess whether a reasonable person in the same circumstances would have been unable to comply. -
Lack of knowledge that a demand was made
Another potential defence is that the accused did not understand, or was not aware, that a valid legal demand was actually made under section 320.27 or 320.28. To secure a conviction, the Crown must prove beyond a reasonable doubt that a proper demand was communicated. If, for example, the driver was unconscious, heavily sedated in hospital, or otherwise incapable of understanding the officer, they may not have had a real opportunity to comply. Similarly, if the officer’s words were unclear, not delivered in a language the person understands, or not framed as a legal demand with the necessary information (such as identifying the type of sample, the legal basis, and the immediacy of the requirement), the defence may argue that no proper demand occurred. In such cases, the focus is on whether a reasonable person in the accused’s position would have recognized that a binding legal demand was being made. If not, the “refusal” may not meet the legal threshold under Section 320.15(2). -
Charter rights violation (e.g., section 8 or 10(b) breaches in demand process)
The Canadian Charter of Rights and Freedoms protects individuals from unreasonable search and seizure (section 8) and guarantees the right to be informed promptly of the reasons for arrest or detention and to retain and instruct counsel without delay (section 10(b)). Breath, blood, and bodily sample demands are recognized as intrusions on bodily integrity and privacy. If the police do not comply with the Charter—for example, by making a demand without the necessary legal grounds, failing to properly inform the person of their right to counsel, or unreasonably delaying access to a lawyer—then any evidence of the refusal itself may be subject to exclusion under section 24(2) of the Charter. In some cases, a serious Charter breach can undermine the lawfulness of the demand, so the accused’s failure to comply cannot ground a conviction. Courts balance the seriousness of the Charter breach, its impact on the accused’s rights, and society’s interest in adjudicating the case on the merits. If the defence establishes a breach, the Crown may lose crucial evidence of the refusal or of the lawfulness of the demand.
Real-World Example
Imagine John is involved in a car accident that results in bodily harm to another driver. Police arrive at the scene, suspect that John may be impaired by drugs, and, based on their observations, lawfully detain him. An officer makes a clear demand under section 320.28 for John to provide a bodily fluid sample (such as blood or saliva) for drug analysis and explains the legal consequences of refusing. John, who is conscious, physically capable, and not in medical distress, refuses to provide any sample, telling the officer that he does not want to “get in more trouble” and does not trust the testing process. In this scenario, unless John can show a reasonable excuse, his refusal is likely to meet all the elements of the offence.
The police would document the accident, the bodily harm suffered by the other driver, their grounds for suspecting impairment, the content and timing of the demand, and John’s refusal. The Crown would then rely on this evidence to prove beyond a reasonable doubt that a lawful demand under section 320.28 was made, that bodily harm occurred, and that John refused to comply without reasonable excuse. The court would consider factors such as the seriousness of the injuries, any prior record John may have, and his behaviour at the scene when deciding on an appropriate sentence. If the Crown elected to proceed by indictment, and the injuries were serious, John could face a significant jail term, up to a maximum of 10 years.
Record Suspensions (Pardons)
A conviction for failure or refusal to comply with a demand after an accident causing bodily harm will create a criminal record. This can have long-term consequences for employment, immigration, travel (especially to the United States), and insurance. However, individuals may eventually apply for a record suspension (commonly referred to as a pardon) through the Parole Board of Canada, provided they meet all eligibility criteria.
Because Section 320.15(2) is a hybrid offence, the waiting period depends on how the Crown proceeded and the sentence imposed. As a general guideline, for hybrid offences, the typical waiting period is 5 years after completion of the entire sentence (including jail, probation, and fines) when the matter is dealt with by summary conviction, and 10 years after completion of sentence when the offence is prosecuted by indictment. Completion of sentence includes not only any period of incarceration but also payment of all fines and surcharges, and the expiry of any probation or driving prohibitions. A record suspension is never guaranteed; the Parole Board reviews the applicant’s conduct since the offence, their criminal history, and whether granting a suspension would bring the administration of justice into disrepute. However, for many people, obtaining a record suspension is an important step in moving past a conviction for this type of driving-related offence.
Related Violations
- Impaired Driving Causing Bodily Harm
- Failure to Stop at the Scene of an Accident
- Operation While Impaired