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In Canada, the offence of failure or refusal to comply with demand (alcohol and drugs)section 320.15(1) of the Criminal Code and is recorded under UCR Code 9263. Although the statute does not give it a simple label like “summary” or “indictable only,” it is treated as a very serious criminal offence, comparable in gravity to impaired driving itself, with mandatory minimum penalties and a maximum of up to 10 years in prison.
The Legal Definition
Criminal Code, section 320.15(1) (paraphrased summary): The offence is made out where an accused knows that a demand for a sample of breath or other substance has been made and then fails to comply or refuses to comply with that demand without a reasonable excuse.
Full wording and all subsections can be consulted directly at: Criminal Code, RSC 1985, c C-46, s. 320.15.
In plain English, the law targets situations where a police officer has the legal authority to require a sample – usually a breath sample into an approved screening device or a breathalyzer at the station, but sometimes a blood, urine, or saliva sample – and the person being investigated simply does not cooperate. The key elements are that a valid demand has been made, the person understands that demand, and they either actively refuse or passively fail to provide the sample, and they do so without a legally recognized “reasonable excuse.”
Section 320.15(1), found in the impaired driving part of the Criminal Code, is designed to prevent people from avoiding impaired driving convictions by refusing to provide evidence. Parliament treats refusal to comply demand as essentially equivalent in seriousness to impaired operation. Police cannot force someone to blow effectively into a machine in every circumstance, so the law creates a strong incentive to cooperate: if you refuse, you face penalties that mirror or even exceed those for impaired driving itself. The statute at the link above explains the technical circumstances in which officers can make a demand and the forms that demand can take (roadside vs. evidentiary breath sample, alcohol vs. drugs).
Penalties & Sentencing Framework
- Mandatory minimum – first offence: $2,000 fine.
- Mandatory minimum – second offence: 30 days’ imprisonment.
- Mandatory minimum – third or subsequent offence: 120 days’ imprisonment.
- Maximum penalty: Up to 10 years’ imprisonment.
The sentencing structure for refusal or failure to comply with a lawful alcohol or drug demand is intentionally harsh. Parliament has set escalating mandatory minimum penalties that increase with each prior conviction for this type of offence (or for related impaired driving offences). On a first conviction, a judge must impose at least a $2,000 fine; the court cannot go lower even if the offender has no record and strong mitigating factors. On a second conviction, a judge must order at least 30 days in jail, and on a third or later conviction, at least 120 days in jail. These mandatory minimums significantly restrict judicial discretion in impaired and refusal cases.
The maximum of 10 years’ imprisonment places this offence among the more serious crimes in the Criminal Code’s driving-related provisions, reflecting the legislature’s view that impaired driving and associated refusal conduct can have life‑threatening consequences. While most first-time refusal cases do not approach the 10-year maximum in practice, the availability of such a high maximum sentence allows courts to respond strongly in repeat-offender cases, where there may be aggravating factors such as collisions, injuries, or extremely poor driving behaviour preceding the refusal.
This offence can proceed as a less serious (summary) matter or a more serious (indictable) matter, depending on how the Crown chooses to prosecute and on the facts of the case. Procedurally, summary proceedings typically involve shorter limitation periods, lower maximum penalties, and simpler procedure; indictable proceedings involve higher potential sentences and more robust procedural protections (including, in some circumstances, elections regarding mode of trial). However, because the Criminal Code sets mandatory minimums and a 10‑year maximum, even when a case is treated procedurally as less serious, courts and lawyers regard refusal to comply demand as a serious criminal matter with long‑lasting consequences such as a criminal record, driving prohibitions, and significant insurance and employment impacts.
Common Defenses
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Charter rights violations
One of the most important lines of defence in refusal cases involves the Canadian Charter of Rights and Freedoms. Police must respect rights such as the right to be secure against unreasonable search and seizure (section 8), the right not to be arbitrarily detained (section 9), the right to be informed of the reasons for arrest or detention and to retain and instruct counsel without delay (section 10), and the right to a fair trial (section 11). If an officer’s demand for a breath or bodily sample is not grounded in lawful authority – for example, the stop itself was arbitrary, there was no legal basis for the specific type of demand made, or the demand was made outside of the time limits and conditions prescribed in the Criminal Code – a court may find that the accused’s Charter rights were breached. Where a Charter breach is established, the defence can ask the court to exclude the evidence under section 24(2) of the Charter. In a refusal case, this may mean arguing that the accused’s responses, statements, or other evidence surrounding the demand should be excluded, potentially leading to an acquittal if the Crown can no longer prove beyond a reasonable doubt that a valid and lawful demand was made and understood. Charter violations related to the right to counsel are also significant: if a person was not properly informed of their right to speak to a lawyer, or their efforts to contact counsel were improperly delayed or denied, this can undermine the lawfulness of the demand and the fairness of the refusal-related investigation.
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Procedural or technical police errors
Even when there is no Charter breach serious enough to justify excluding evidence, procedural or technical errors by the police can provide powerful defences. For a conviction under section 320.15(1), the Crown must prove key elements: that the officer had the legal authority to make the demand; that the demand was actually made; that it was made in the proper form and within the statutory time frame; that the accused heard it and understood it; and that the accused then refused or failed to comply without a reasonable excuse. Any misstep in this chain can create reasonable doubt. Examples include: the officer failing to clearly articulate the demand; using the wrong type of demand (for example, demanding an evidentiary breath sample when only a roadside screening demand is authorized at that stage); not having the instrument or qualified technician ready within a reasonable time; incorrectly recording times, locations, or communications; or failing to reasonably accommodate the accused’s physical or language limitations when taking the sample. If the evidence shows confusion, miscommunication, or improper procedure, a judge may find that the accused did not truly “refuse,” or that the refusal was not proven beyond a reasonable doubt.
Real-World Example
Imagine you are driving home late at night and are pulled over for erratic driving. The officer smells alcohol on your breath and notes bloodshot eyes and slurred speech. Relying on these observations, the officer makes a lawful demand that you provide a breath sample into a roadside screening device. You respond that you are running late for an important appointment and simply refuse to blow, insisting you need to leave. The officer repeats the demand and warns you that refusing is a criminal offence, but you still decline. Based on this interaction, the officer arrests you for failure or refusal to comply with demand (alcohol and drugs) under section 320.15(1).
From a legal perspective, the fact that you were “in a hurry” is not a reasonable excuse. The officer had grounds to stop and investigate your driving, lawfully formed a suspicion that you had alcohol in your body, and then made a valid demand for a breath sample within the authority of the Criminal Code. Your knowing refusal, after being warned, satisfies the core elements of the offence. In court, the judge would focus on whether the officer’s demand was lawful and properly communicated, whether you understood it, and whether there was any legal “reasonable excuse” such as a genuine medical incapacity to blow or other recognized justification. Absent such a defence, a conviction would likely follow, triggering at least the mandatory minimum fine plus a driving prohibition and a permanent criminal record.
Record Suspensions (Pardons)
A conviction for refusal to comply demand is a criminal offence that will appear on your record and can affect travel, employment, volunteering, and professional licensing. In Canada, record suspensions (often called “pardons”) are administered by the Parole Board of Canada. For this type of offence, which is treated as a serious driving-related crime with a maximum of up to 10 years, record suspension eligibility typically begins 5 years after the completion of the entire sentence for a summary conviction. “Completion of the sentence” includes payment of all fines, completion of any probation or imprisonment, and expiry of any driving prohibition imposed as part of the sentence. If the matter proceeds and is sentenced as an indictable offence, longer ineligibility periods may apply. Because eligibility can vary based on how the charge was prosecuted, your overall criminal record, and statutory amendments, individuals should seek competent legal advice or consult the Parole Board of Canada’s current guidelines before applying. A record suspension, once granted, does not erase the conviction but separates it from active criminal record checks for most purposes, easing some of the long-term consequences of the offence.
Related Violations
- Impaired Driving
- Driving Over .08
- Hit and Run
