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In Canadian criminal law, failure to comply drugs (UCR Code 9245) refers to situations where a driver or other operator of a vehicle refuses or fails to provide a legally requested sample (such as blood, urine, or other bodily substances) for drug testing. This offence is created by section 320.15 of the Criminal Code and is a hybrid offence, meaning the Crown can choose to proceed either by summary conviction or by indictment depending on the seriousness of the case. While there is no mandatory minimum sentence, a conviction can lead to a criminal record, heavy fines, and potentially lengthy jail terms, especially for more serious or repeat cases.
The Legal Definition
Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made to them by a peace officer under section 320.27 or 320.28 to provide a sample of breath, blood, urine, or other bodily substance to test for drugs (or a combination of alcohol and drugs) in the context of operating a conveyance.
In plain English, this provision makes it a crime to say “no” or otherwise refuse when a peace officer makes a lawful demand for a bodily sample under sections 320.27 or 320.28 of the Criminal Code. Those sections allow police to demand samples from people who are operating, have care or control of, or have recently operated a “conveyance” (which includes cars, trucks, motorcycles, boats, and some other vehicles) when there are grounds to suspect or believe impairment by drugs or a combination of drugs and alcohol.
The key elements are: (1) a lawful demand made by a peace officer under section 320.27 or 320.28; (2) a requirement to provide a sample of breath, blood, urine, or another bodily substance for the purpose of testing for drugs or drugs and alcohol; and (3) a failure or refusal to comply with that demand without reasonable excuse. The phrase “without reasonable excuse” is important: the law recognizes that in rare situations a person may be unable to comply or may have a legitimate reason for not providing a sample (for example, a genuine medical condition). However, simply not wanting to cooperate or fearing the result is not a reasonable excuse.
Penalties & Sentencing Framework
- Offence type: Hybrid (prosecutable by summary conviction or by indictment).
- Mandatory minimum penalty: None.
- Maximum penalty on summary conviction: Fine of not more than $2,000 or imprisonment for a term of not more than 18 months, or both.
- Maximum penalty on indictment: Imprisonment for a term of not more than 10 years.
Because this offence is hybrid, the Crown prosecutor chooses whether to proceed summarily or by indictment. Summary proceedings are generally reserved for less serious instances, such as first-time refusals with no collision or injury and relatively lower signs of impairment. Indictable proceedings are typically reserved for more serious situations: repeat offenders, cases involving collisions, injuries, or other aggravating factors. The choice of mode strongly influences both the procedure and the sentencing range.
Even though there is no mandatory minimum sentence, a conviction for failure to comply or refusal in a drug context is still treated seriously by courts. Judges will consider a range of sentencing principles under the Criminal Code, including denunciation (expressing society’s condemnation of the conduct) and deterrence (discouraging both the offender and the public from similar behaviour). The courts often emphasize that refusing to provide a sample can seriously undermine road safety enforcement because it prevents police from obtaining crucial evidence of drug impairment. As a result, even for a first offence, a convicted person can expect at least a significant fine and, depending on the facts, possibly a period of jail or probation.
Sentencing will also consider personal circumstances (such as employment, family responsibilities, and prior record) as well as the context of the offence (time of day, driving pattern, risk to the public, and whether there was an accident). Because this is an offence connected with operating a conveyance, related regulatory consequences like driving prohibitions or licence suspensions under provincial law frequently accompany the criminal sentence, even though they are not technically part of the Criminal Code penalty itself.
Common Defenses
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Reasonable excuse for failure or refusal
The phrase “without reasonable excuse” appears directly in section 320.15, making it a core part of the offence. A defence may arise where the accused can demonstrate a reasonable excuse for not complying. This is highly fact-specific. Examples might include a genuine medical inability to provide the type of sample sought (such as a condition that prevents proper breathing into a device, severe needle phobia coupled with documented psychological issues, or other health emergencies) or circumstances where complying would pose a serious and immediate risk to the person’s health or safety. The excuse must be objectively reasonable; mere anxiety about being charged, dislike of needles, or concern about the consequences of a positive test will almost never be enough. The court will analyze medical evidence, timing, the officer’s instructions, and whether alternative testing options were offered. If the judge accepts that a reasonable person in the same situation would have been unable or legitimately unwilling to comply, an acquittal may follow.
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Lack of reasonable grounds for the demand by the peace officer
Under sections 320.27 and 320.28, an officer must meet certain legal thresholds before demanding bodily samples. For example, they may need reasonable suspicion or reasonable grounds to believe that the driver’s ability is impaired by a drug or by a combination of drugs and alcohol, or that an offence has been committed. If the officer did not actually have these grounds, or if the demand was made in a way that falls outside the authority granted by the statute, the demand itself may be invalid. Since section 320.15 requires a lawful demand, the defence can argue that the Crown has not proven this fundamental element. Evidence such as video, witness testimony, and the officer’s own notes will be examined to determine whether the legal standard for reasonable grounds or suspicion was truly met. Where the demand is found to be unjustified or unlawful, the accused cannot be convicted for refusing to comply with it.
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Charter rights violations (sections 8 and 9, among others)
The Canadian Charter of Rights and Freedoms protects individuals from unreasonable search and seizure (section 8) and from arbitrary detention (section 9). A demand for a bodily sample, like blood or urine, is a significant intrusion into bodily integrity and privacy and is generally treated as a search under section 8. A traffic stop or roadside detention may engage section 9. If police detain a person without proper legal authority, prolong the detention without justification, or obtain samples in a way that is unreasonable, a court may find a Charter breach. When a Charter violation is established, the defence may seek to have the evidence excluded under section 24(2) of the Charter, or—if the breach is closely connected to the refusal charge itself—argue that continuing the prosecution would undermine the fairness of the justice system. Although the offence in section 320.15 focuses on the refusal rather than a positive test result, serious Charter breaches surrounding the demand, detention, or attempted collection of samples can lead a court to stay the proceedings or otherwise provide a remedy that indirectly results in an acquittal.
Real-World Example
Imagine you are driving home at night and are pulled over by a police officer who notices your car briefly swerve within the lane and detects a strong odour that could be associated with cannabis. The officer asks you some questions, observes your behaviour, and decides there are grounds to suspect you might be impaired by drugs. Relying on their powers under section 320.27 or 320.28, they demand that you accompany them to a nearby facility to provide a blood sample for drug analysis. You are nervous, dislike needles, and are worried a positive result could affect your job. You refuse to provide the blood sample, even after the officer explains that refusal is a criminal offence. In this scenario, unless you have a legally acceptable reasonable excuse (such as a medically documented condition that truly prevents safe blood collection) or can show that the officer did not have proper legal grounds for the demand, your refusal could lead to a charge under section 320.15. The court would examine the totality of the circumstances: whether the officer’s suspicion and demand were lawful, whether your stated reasons were genuinely compelling and objectively reasonable, and whether your Charter rights were respected during the stop and demand.
Record Suspensions (Pardons)
A conviction for failure to comply or refusal (drugs) creates a criminal record, which can affect employment, travel, insurance, and other aspects of life. In Canada, people who have been convicted can apply to the Parole Board of Canada for a record suspension (often informally called a “pardon”) after a waiting period, provided they meet all eligibility criteria. Because this is a hybrid offence, the waiting period depends on the way the Crown proceeded in your specific case. If the offence was prosecuted by summary conviction, you generally become eligible to apply for a record suspension 5 years after completing your sentence, which includes the end of any jail term, probation, and payment of fines. If the offence was prosecuted by indictment, the waiting period is longer: you may apply only after 10 years have passed since sentence completion. During the waiting period, you must avoid new criminal charges and comply fully with all court orders. A record suspension, if granted, does not erase the conviction but sets it aside in federal records and can significantly reduce the impact of the conviction on your daily life.
Related Violations
- Driving While Impaired
- Refusal to Provide Breath Sample
- Operating While Prohibited
