In Canada, failure or refusal to comply with demand, accident resulting in bodily harmhybrid offence, meaning the Crown can proceed either summarily or by indictment. This page explains how failure comply bodily harm Canada offences work, what penalties apply, and what legal defences may be available.
The Legal Definition
“Everyone commits an offence who commits an offence under subsection (1) and who at the time of committing the offence knows that, or is reckless as to whether, the accident resulted in bodily harm to another person.”
This wording comes from section 320.15(2) of the Criminal Code of Canada. Subsection (1) addresses the basic offence of failing or refusing to comply with a lawful demand made under sections 320.27 or 320.28 (for example, a demand for a breath sample at the roadside, a blood sample, or a standardized field sobriety test). Subsection (2) adds an aggravating element: at the time of the refusal, the driver knows, or is reckless as to whether, the accident caused bodily harm to another person.
In plain English, a person commits this offence if:
- They were lawfully required by police to provide a sample (breath, blood, urine, or to perform a sobriety test) in the context of an impaired driving investigation; and
- They refused or failed to comply with that demand (without a lawful or reasonable excuse); and
- At that time, they knew someone was injured in the accident, or they consciously ignored a significant risk that someone was injured (recklessness); and
- The injury qualifies as bodily harm, meaning any hurt or injury that interferes with a person’s health or comfort and is more than merely transient or trifling.
The reference to knowing or being reckless about bodily harm is important. The Crown does not need to prove the driver intended the injury or even caused the accident, only that there was an accident resulting in bodily harm and that the driver was aware (or wilfully blind) to that fact when they refused the demand. The offence is focused on the refusal itself, particularly where that refusal could conceal evidence of impaired driving in a collision with injuries.
Penalties & Sentencing Framework
- Offence type: Hybrid (Crown may elect summary or indictable)
- Mandatory minimum penalty: None prescribed in section 320.15(2)
- Maximum penalty on summary conviction: Fine (typically in the range of several hundred to $1,000 or more) and/or custody of up to two years less a day
- Maximum penalty on indictable conviction: Up to 10 years’ imprisonment
Because this is a hybrid offence, the Crown’s election between summary and indictable has major consequences for exposure to punishment. For a less serious incident (for example, relatively minor injuries, limited prior record, strong mitigating factors), the Crown may proceed by summary conviction, where the maximum punishment is lower and the matter stays in provincial court. For more serious cases (significant injuries, aggravating driving behaviour, prior impaired or refusal convictions), the Crown may choose to prosecute by indictment, exposing the accused to a potential sentence of up to 10 years in prison.
Section 320.15(2) does not itself set out a mandatory minimum penalty. However, sentencing judges must consider the broader impaired driving framework and the fact that the refusal occurred in the context of an accident with bodily harm. Courts treat this as especially blameworthy because the refusal may prevent proof of impaired driving where someone has already been hurt. Even in the absence of a statutory minimum, custodial sentences (jail) are common in more serious cases, particularly on indictable prosecutions or where the accused has a prior impaired, over 80, or refusal record.
Sentencing is always individualized. Judges look at factors such as the nature and extent of the bodily harm, the level of recklessness or disregard shown by the accused, whether there were children or vulnerable persons involved, the accused’s prior driving and criminal record, their level of cooperation with police after the initial refusal, and any remorse or rehabilitation efforts (e.g., treatment programs). They also weigh general deterrence—sending a message that drivers cannot avoid impaired driving liability simply by refusing tests when a crash has caused injuries. This makes conviction under section 320.15(2) a significant entry in a person’s criminal record, with serious long-term consequences.
Common Defenses
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Lawful Excuse: Challenging the legality of the officer’s demand
A key line of defence in failure comply bodily harm Canada cases is to challenge whether the police demand was lawful in the first place. For a demand under sections 320.27 or 320.28 to be valid, the officer must meet specific statutory criteria. For example, depending on the type of test, officers may need a reasonable suspicion of alcohol or drug consumption, or reasonable grounds to believe the driver committed an impaired-driving offence. They must also comply with procedural requirements such as making the demand within prescribed time frames, using approved screening devices, and having jurisdiction over the incident. If the defence can show that the officer lacked the required grounds, used an improper device, gave an unclear or defective demand, or otherwise failed to follow the statutory scheme, the demand may be found unlawful. Because the offence under section 320.15(2) depends on a failure to comply with a lawful demand, an unlawful or defective demand can lead to an acquittal.
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Reasonable Excuse for Non-Compliance: Medical emergencies or physical incapacity
Even where the demand itself is lawful, the Criminal Code recognizes that a person may have a reasonable excuse for failing to comply. In the context of an accident causing bodily harm, medical emergencies are common. For example, if the driver is injured, in shock, unconscious, or undergoing urgent medical treatment, they may be physically or medically unable to blow into a device or provide a bodily fluid sample. Other legitimate reasons might include a diagnosed respiratory condition that prevents sustained exhalation into a breathalyzer, or circumstances where compliance would significantly endanger the person’s health as assessed by medical staff. The defence must usually provide some evidentiary foundation—medical records or testimony—to support the claimed incapacity. Courts distinguish between genuine inability or emergency and mere reluctance or inconvenience; only the former will typically amount to a reasonable excuse.
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Charter Rights Violations: Right to counsel and unlawful search and seizure
The Canadian Charter of Rights and Freedoms can play a central role in defending these charges. Two common Charter issues are the right to counsel and the protection against unreasonable search and seizure. If the accused was detained for investigative purposes and not promptly informed of their right to retain and instruct counsel without delay, or was denied a reasonable opportunity to speak with a lawyer before being required to provide a sample (in circumstances where that right had arisen), the defence may argue a breach of section 10(b) of the Charter. Similarly, if the demand for a bodily sample is viewed as an unreasonable search or seizure contrary to section 8, the court may find a violation. Where such breaches are established, the defence can seek exclusion of evidence under section 24(2) of the Charter, or in some narrow cases argue that the accused’s non-compliance should not attract criminal liability because it arose in an unconstitutional context. While a Charter breach does not automatically result in an acquittal, it can significantly weaken the Crown’s case and may lead to the charge being stayed or dismissed.
Real-World Example
Imagine a driver runs a red light and collides with another vehicle, breaking the other driver’s arm and causing visible bleeding. Witnesses call 911. Police and paramedics arrive; the injured person is taken to hospital. The officer notices that the at-fault driver smells of alcohol and has slurred speech. Believing the driver may be impaired and aware there has been an accident with bodily harm, the officer lawfully demands a roadside breath sample under the impaired-driving provisions. The driver, upset and worried, refuses to blow despite multiple clear explanations and warnings. They are arrested for failure or refusal to comply with demand, accident resulting in bodily harm.
In court, the Crown would not need to prove the driver’s actual blood alcohol concentration. Instead, they must show: (1) a lawful demand for a sample was made; (2) the driver failed or refused to comply without a lawful or reasonable excuse; and (3) at that time, the driver knew or was reckless as to the fact that the accident caused bodily harm. Evidence of the injury, ambulance attendance, and the driver’s awareness of the injured person would be crucial, as would testimony about how the demand was given and the nature of the refusal. If the Crown proves these elements beyond a reasonable doubt, the driver can be convicted even though no breath sample was ever obtained.
Record Suspensions (Pardons)
A conviction for this offence becomes part of the individual’s permanent criminal record and can affect employment, immigration, travel, and driving-related licensing consequences. However, under Canada’s record suspension (pardon) regime, it may be possible to have the record set aside after a waiting period, provided the person has completed their sentence and remained crime-free.
Because section 320.15(2) is a hybrid offence, the applicable waiting period depends on how the Crown proceeded and how the conviction was recorded:
- If prosecuted summarily: the typical waiting period to apply for a record suspension is 5 years after completion of all parts of the sentence (including any jail, probation, fines, or driving prohibitions).
- If prosecuted by indictment: the waiting period is generally 10 years after full completion of the sentence.
The record is not cleared automatically when the waiting period ends. The individual must submit a formal application to the Parole Board of Canada, provide documentation (court records, proof of sentence completion, police checks), and demonstrate good conduct. Even with a record suspension, foreign border officials (for example, in the United States) may still consider the underlying conduct in assessing admissibility, especially because impaired-driving related offences involving bodily harm are treated as serious. Legal advice is strongly recommended before applying.
Related Violations
- Refusal to Provide a Breath Sample
- Impaired Driving Causing Bodily Harm
- Failure to Stop After an Accident