Refusing a Breath Sample in Toronto: 7 Surprising Truths

by Daniel Brown | Apr 6, 2026 | Impaired Driving

The Police Vehicle in Your Rearview Mirror

You hear the siren. The officer approaches and says: "I'm demanding you provide a sample of your breath into an approved screening device."

In that moment, you have a choice: blow or refuse. Many people think refusing is the safer move. Under Canadian law, that assumption is often wrong.

If you've been stopped by police in the GTA and asked for a roadside breath sample, what you do next matters. Refusing a breathalyzer in Ontario is a separate criminal offence — one with penalties that can exceed those for "over 80." Below, the Toronto criminal defence lawyers at Daniel Brown Law explain seven things about refusal charges that most drivers don't know: what the charge is, how it's proven, and where real defences can arise.

What Happens at the Roadside?

A police officer who reasonably suspects you have alcohol in your body can demand a breath sample into an Approved Screening Device (ASD) "as soon as practicable." Refusing that demand triggers a separate criminal charge with its own rules, penalties, and defences. The seven points below cover what people most often get wrong.

Seven Things to Understand Before Considering a Refusal

1) The Penalty for Saying "No" Can Be Harsher Than Blowing Over

For a first-time offender, the minimum fine for refusing a breath demand is higher than the minimum fine for blowing over the legal limit — unless your BAC is exceptionally high. This is not a drafting oversight. The law is designed this way deliberately, to remove any financial incentive to refuse.

Offence	Minimum Fine
Refusal to provide breath sample	$2,000
80–119 mg/100 mL	$1,000
120–159 mg/100 mL	$1,500
160+ mg/100 mL	$2,000

Refusal also triggers automatic licence suspensions and other consequences similar to impaired-driving offences.

2) You're Not Charged With Impairment — You're Charged With Disobedience

When you refuse a breath demand, the Crown doesn't have to prove you were drunk. The charge is about disobeying a lawful order from a peace officer. The trial won't focus on your sobriety, your driving pattern, or how many drinks you had. The central question is whether a valid demand was made and whether you failed to comply. Your level of intoxication is secondary.

3) An Officer's Mistake Can Be Your Best Defence

Because the charge is about lawful compulsion, the validity of the demand matters. The Crown must prove beyond a reasonable doubt that:

The demand was made by a peace officer;
The officer had a reasonable suspicion you had alcohol in your body (for an ASD demand); and
The demand was made as soon as practicable.

If any of those preconditions weren't met — no objective grounds, improper timing, or other procedural defects — the demand may be invalid, and the charge can fail. These defects can often be raised directly at trial without a separate Charter application.

4) Most "Reasonable Excuses" Don't Hold Up in Court

A genuine reasonable excuse is a defence — but courts set the bar high, and the burden is on you to prove it on a balance of probabilities. Excuses that typically fail:

"I was too drunk to comply."
"I thought I could speak to a lawyer first at roadside."
"My lawyer told me not to blow."

A real excuse involves an actual, documented inability to provide a sample at that moment — for example, a serious medical condition, backed by medical evidence. Simply claiming a medical issue is not enough.

5) The Law Is Now Clear on Intent

Courts debated for years what mental state the Crown needed to establish. Parliament resolved it: the Crown only has to show you knew a demand had been made. It doesn't need to prove you intended to refuse — only that you knew and didn't comply.

6) A Refusal Cannot Be Undone

Once you clearly refuse — "I'm not blowing" — the offence is complete. Changing your mind minutes later almost never undoes it. Whether a refusal was unequivocal is a factual question for the trial judge, but a clear verbal refusal consistently counts.

7) Your Roadside Words Are Evidence in a Refusal Case

For impaired driving charges, what you say before being advised of your rights is often difficult for the Crown to use. Refusal cases are different. The words "I refuse" are the act that completes the offence. They are typically admissible to prove the charge.

How Daniel Brown Law Defends Refusal Charges

Demand validity audit: analyzing grounds, timing, ASD availability, and statutory compliance
Evidence integrity review: notes, video, disclosure gaps, and officer memory
Medical and physical capability: where appropriate, obtaining expert support for genuine "reasonable excuse" arguments
Charter litigation when warranted: unlawful detention, delay, or rights violations that may exclude evidence
Negotiation and resolutions: where facts allow, pursuing withdrawals or reduced outcomes

Immediate Penalties Under the Highway Traffic Act

Licence suspension: 90-day administrative suspension
Vehicle impoundment: 7-day impoundment
Administrative penalty: $550 fee
Reinstatement fee: $275

Criminal Penalties and Other Consequences

Criminal record: permanent, with impact on employment, travel to the US, and immigration status
Fines: mandatory minimum of at least $2,000 on refusal
Licence suspension: a further suspension beyond the initial administrative one
Ignition interlock device: required installation
Mandatory programs: Back on Track or mandatory alcohol counselling
Insurance: significantly higher premiums

FAQs: Refusing a Breath Sample in Ontario

Is refusing better than blowing over?: Usually no. Minimum fines for refusal are often higher, and the collateral consequences are just as serious.
Do I have the right to call a lawyer before a roadside ASD test?: Generally no. The right to counsel typically arises upon arrest or detention for further testing — not for the initial ASD demand at roadside.
Can medical issues be a "reasonable excuse"?: Sometimes, but the standard is strict and usually requires medical proof tied specifically to the testing moment.
Can I change my mind after saying "no"?: Once a refusal is unequivocal, the offence is complete. Changing your mind moments later rarely changes the result.
What are the immediate consequences of being charged?: A 90-day licence suspension, 7-day vehicle impoundment, administrative fees, a permanent criminal record, and potential impacts on employment and travel. Consult a criminal lawyer immediately.
What should I do after being charged?: Get legal advice immediately. Early strategy and disclosure requests significantly affect outcomes. Call 416-297-7200.

Talk to a Toronto Criminal Lawyer Now

If you've been charged with refusing to provide a breath sample (Criminal Code s. 320.15(1)) anywhere in the GTA, timing matters. Speak with an experienced defence lawyer at Daniel Brown Law to understand your options and protect your record.

Phone: (416) 297-7200
Office: Downtown Toronto — serving Toronto, Peel, York, Durham, and across Ontario.

This article is for general information only and is not legal advice. Every case turns on its own facts.

5 Surprising Truths About Impaired Driving Charges in Toronto

by Daniel Brown | Oct 22, 2025 | Impaired Driving

The sudden flash of red and blue lights in your rear-view mirror is a moment of panic. Your heart races and your mind spins: What did I do? What happens next? For many people stopped on suspicion of impaired driving, this is only the beginning of a difficult legal journey through a system that is stricter—and more complicated—than they expect.

Many people think they understand “DUI” laws, but Canadian impaired driving law changed dramatically when Bill C-46 came into force. The rules, defences, and legal definitions have all shifted. What used to be common knowledge may now lead you into serious legal trouble.

If you are charged with impaired driving in Toronto, it’s critical to have accurate legal advice. Outdated information and online myths can make your situation worse. Below are five surprising truths about impaired driving law in Ontario—and why having an experienced Toronto criminal lawyer can make the difference between a conviction and an acquittal.

1. You Don’t Need to Be Driving to Be Guilty: The Law of “Care or Control”

One of the most common and perilous misconceptions is that you can’t be charged with impaired driving if the car isn’t moving. Many people believe that if they’ve had too much to drink, the responsible choice is to “sleep it off” in their car until they’re sober. Unfortunately, under Canadian law, this responsible choice can still lead to a criminal conviction. The Criminal Code makes it an offence to operate a vehicle while impaired or over the legal limit. Crucially, the legal definition of “operate” includes not just driving, but also having “care or control” of the vehicle. This means that simply being in a position to put the vehicle in motion can be enough to be found guilty. The law even includes a powerful presumption against you. Section 320.35 of the Criminal Code states that if you are found occupying the driver’s seat, you are presumed to have care or control of the vehicle. This creates a “reverse onus” situation. In most criminal cases, the burden is entirely on the Crown to prove a person is guilty. This ‘reverse onus’ provision is a rare and formidable exception for impaired driving cases, and it puts the accused at a significant disadvantage from the start. Instead of the Crown having to prove you intended to drive, you must prove, on a balance of probabilities, that you did not intend to set the vehicle in motion. This is an incredibly difficult standard to meet. Even if you successfully rebut that presumption—for example, by proving you got in the car only to make a phone call or find shelter—the Crown can still secure a conviction by proving de facto (or factual) care or control. To do this, they must show that your actions created a “realistic risk of danger.”

Courts will look at a list of factors to determine this risk, including:

Your level of impairment.
Whether the keys were in the ignition or easily accessible.
The location of the vehicle (e.g., parked on a public road vs. a private driveway).
Whether you had a concrete, reliable, and implemented alternate plan to get home (e.g., proof you called a taxi that was on its way).

The Strategic Bottom Line: The law empowers the police to charge you based on a future risk. Your ‘responsible’ decision to sleep it off can be twisted into a criminal act, forcing you to prove your own innocence—a reversal of the normal burden of proof that is incredibly difficult to overcome in court.

See how we defend impaired driving and “over 80” cases and review our commentary on care and control law.

2. The Two-Hour Rule: Drinking After Driving Can Still Lead to a Charge

This is perhaps the most counter-intuitive change to impaired driving law. Under the old system, the Crown had to prove your blood alcohol concentration (BAC) was over the legal limit at the time you were driving. The new law, under section 320.14(1)(b) of the Criminal Code, creates a fundamentally different offence: having a BAC of 80 milligrams of alcohol or more in 100 millilitres of blood within two hours of having operated a vehicle. This change turns the old law on its head. The critical window is no longer just the time of driving, but the two hours after you’ve stopped. This new rule was specifically designed to eliminate a notorious legal loophole known as the “intervening drink defence.” In the past, a person involved in an accident could claim they consumed alcohol after the crash but before the police arrived. They would argue their BAC was under the legal limit while driving and only went over 80 because of the post-driving drinks. That is no longer possible. The law now effectively criminalizes most forms of post-driving drinking. The focus has shifted entirely: Society is endangered by drinking and driving, but not by driving then drinking. To avoid criminalizing innocent post-driving drinking behaviour, section 320.14(5) of the Criminal Code provides a defence for individuals who consume alcohol or drugs after driving. However, this defence is exceptionally narrow. To use it, you must prove not only that you drank after driving, but also that you had no reasonable expectation that you would be required to provide a breath or blood sample. If you’ve been in an accident or were pulled over, it is almost impossible to argue you couldn’t have expected the police would make a breath demand. This change represents a seismic shift, closing a loophole that frustrated prosecutions for decades.

Why This Is a Trap: The law is so focused on eliminating the old loophole that it can catch people who legitimately drink after arriving home. If you have a drink and the police show up at your door within two hours of you driving, you are presumed guilty. You then have to prove that you had no reason to believe the police would demand a sample—a difficult and unexpected legal battle.

Learn how our team challenges breath and blood testing.

3. Refusing a Breath Test Is Its Own Crime—With Harsher Penalties

Let’s be blunt: the idea that you can outsmart the police by refusing a breathalyzer is a myth, and following that myth is a strategic blunder with severe consequences. The thinking is that without a breath sample, the Crown can’t prove you were over the legal limit. This is fundamentally wrong and is some of the worst advice you could ever follow. Refusing to provide a sample to police when they have made a lawful demand is a separate criminal offence under section 320.15(1) of the Criminal Code. It is not a loophole; it is a crime in itself. In many ways, it is an easier charge for the Crown to prove. To convict you of impaired driving, the prosecutor must present evidence of your impairment. For a refusal charge, the mental element (mens rea) the Crown must prove is simply that you knew a breath demand was made and you failed or refused to comply. The Supreme Court of Canada has made the distinction clear, stating that the crime is one of disobedience, not impairment: Culpability for the refusal offence is based on disobedience with lawful compulsion, whereas culpability for an “over 80” offence is based on driving with a blood-alcohol concentration over the legal limit. Not only is it a separate crime, but the penalties are often more severe. For a first-time offence, the mandatory minimum fine for refusing a breathalyzer in Canada is $2,000. This is double the minimum $1,000 fine for a first-offence impaired driving charge or a low-level “over 80” conviction. While the law allows for a “reasonable excuse” for refusing, courts have interpreted this defence so narrowly that common reasons—like confusion, a mistake about the law, or even bad advice from a lawyer—are consistently rejected.

The Strategic Bottom Line: Refusing the breathalyzer does not save you from a charge; it hands the Crown a different, and often easier, conviction. The penalties are harsher, and the defences are almost non-existent. It is a strategic dead end.

Read more: Refusing a Breath Sample in Toronto: What to Know and our older overview on refusal charges.

4. Drug-Impaired Driving: Feeling Sober Doesn’t Mean You’re Safe

With the legalization of cannabis, the laws around drug-impaired driving have become a minefield for many drivers. Unlike alcohol, where the charge of “impaired driving” often focuses on your physical signs of intoxication, the law for many drugs has shifted to a much stricter model based on per se limits. Per se limits make it a criminal offence to have a prohibited concentration of a specific drug in your blood within two hours of driving, regardless of whether you were actually impaired. Your personal tolerance, how you felt, or whether you believed you were safe to drive are completely irrelevant. If the concentration of the drug in your blood is over the prescribed limit, you are guilty of a crime. For Tetrahydrocannabinol (THC), the primary psychoactive component in cannabis, the law creates several offences based on nanograms (ng) per millilitre (ml) of blood, including a less serious offence for 2-5 ng/ml and a more serious one for 5 ng/ml or more. This is a radical departure from the traditional focus on impairment. In fact, the foundational science itself, as outlined in the “Report on Drug Per Se Limits” from the Canadian Society of Forensic Sciences, acknowledges that these per se limits are not necessarily linked to a driver’s actual impairment. Imagine this scenario: You use legal cannabis on a Saturday evening. On Tuesday morning, you are pulled over for a broken taillight. You feel completely sober—and you are. However, if an officer has grounds to demand a blood sample that reveals a THC concentration over the legal limit, you can be criminally charged, even though the psychoactive effects wore off days earlier. This is the new reality of drug-impaired driving law.

The Trap Here Is Obvious: With legalized cannabis, the law is no longer about whether you feel impaired, but about what a blood test finds. You can feel perfectly sober and still be charged with a crime for a decision you made days ago.

Learn about defending drug-impaired driving allegations.

5. The Licence Suspension Trap: A Criminal Ban Can Become a Lifetime Loss

If you are convicted of an impaired driving offence, you will be prohibited from driving for a period of time. What almost no one understands is that this is not a single penalty, but a complex puzzle of overlapping punishments from two different levels of government—and confusing them can have catastrophic consequences. When you are sentenced, the judge imposes a criminal driving prohibition under the Criminal Code. For a first offence, this is a mandatory minimum of one year. At the same time, your conviction automatically triggers a separate and distinct provincial licence suspension from Ontario’s Ministry of Transportation (MTO). This is an administrative penalty, not a criminal one, and its rules are completely different. The crucial point is that the provincial suspension is often much longer than the criminal prohibition. Here is a common and devastating example: for a third impaired driving conviction in Ontario, a judge might impose a three-year criminal driving prohibition. However, the MTO will automatically suspend that person’s driver’s licence for life. This creates a legal trap for the unwary. After three years, the court-ordered prohibition ends. The person might believe they are now free to get back on the road. But the lifetime provincial suspension remains in effect. Driving during that period—even though the criminal prohibition is over—is still a separate criminal offence called “Operating while prohibited” under section 320.18 of the Criminal Code.

Why This Is a Trap: The criminal court system and the provincial ministry system do not align. Believing your sentence is over when the judge’s order expires is a natural, but legally fatal, mistake. The consequence is not just a traffic ticket, but a new criminal record and potentially jail time.

Navigating Ontario’s Impaired Driving Laws

As we’ve seen, the laws governing impaired driving in Toronto and across Ontario are far more complex and filled with more counter-intuitive rules than most people realize. From being convicted without moving an inch to facing a lifetime ban you never knew about, the landscape is treacherous for anyone trying to navigate it without expert guidance. The law is designed to be strict, but its hidden complexities can feel like traps for the unwary. If you’re facing these charges, the most important question isn’t whether you made a mistake—it’s whether you fully understand the legal maze that lies ahead. Early advice from an experienced impaired driving lawyer in Toronto can protect your rights and your future.

The award winning lawyers at Daniel Brown Law have successfully defended countless impaired driving charges in Ontario and our team of drinking and driving law experts can help guide you through the process of defending your case.

Charged with impaired driving, over 80, refusal, drug-impaired driving, or operating while prohibited?

Contact Daniel Brown Law for a confidential consultation.

Defending Dangerous Driving Charges

by Daniel Brown | Jun 14, 2020 | Impaired Driving

A dangerous driving conviction can lead to a criminal record.

It triggers an automatic Ontario licence suspension. It can affect U.S. travel, employment background checks, professional licensing, immigration status, and insurance. Any statement to police becomes part of the disclosure package. The decisions that change the outcome are made in the first hours — before charges enter the court system.

What "Dangerous Driving" Actually Means

Section 320.13 of the Criminal Code makes it a criminal offence to operate a conveyance (including motorized and non-motorized vessels (like canoes or surfboards), cars, planes, and trains) in a manner that is dangerous to the public, considering all the circumstances. The Crown has to prove two elements beyond a reasonable doubt:

The driving was, objectively, dangerous to the public; and
The conduct was a marked departure from the standard of care a reasonably prudent driver would observe in the same situation.

"Marked departure" is the threshold the Supreme Court of Canada has set, and it is deliberately higher than mere negligence. Bad driving alone is not enough. The trial judge must find the lack of care was serious enough to merit a criminal conviction. That distinction — between "negligent" and "markedly worse than what a reasonable driver would do" — is the live battleground in most contested dangerous driving trials. It is also the reason a significant percentage of these charges resolve to careless driving under the Highway Traffic Act: the conduct was negligent, but not criminal.

Three Versions of the Same Offence

The seriousness of a dangerous driving charge depends entirely on whether anyone was hurt. Section 320.13 creates three variants:

Section 320.13(1)

Dangerous Operation

Hybrid offence. Maximum 10 years on indictment, 2 years less a day on summary conviction. No mandatory minimum jail term.

Section 320.13(2)

Causing Bodily Harm

Maximum 14 years. Almost always proceeds by indictment. Trial focus shifts to accident reconstruction and medical evidence.

Section 320.13(3)

Causing Death

Maximum life imprisonment. May be charged alongside criminal negligence causing death or manslaughter. Federal penitentiary exposure.

Our Defence Experience

The lawyers at Daniel Brown Law have defended dangerous driving charges across Ontario for more than two decades. We regularly appear in courthouses throughout the GTA, including Toronto, Brampton, Milton, Newmarket, and Oshawa — as well as Barrie, Hamilton, London, Burlington, and Orangeville. Our practice spans straight section 320.13(1) cases through dangerous-operation-causing-death files at the Superior Court level.

Daniel Brown is a certified specialist in criminal law (Law Society of Ontario), a Fellow of the Litigation Counsel of America, and former president of the Criminal Lawyers' Association. The firm is recognized in current rankings as one of the country's leading criminal defence boutiques:

The Globe and Mail Best Law Firms 2026 — Criminal Law

Top Criminal Law Boutique 2027 — Daniel Brown Law LLP

Best Law Firms Canada — Daniel Brown Law LLP

Toronto Star Readers' Choice Diamond Award Winner

That recognition matters because dangerous driving cases are often won at the margins — on the careful reading of officer notes, the technical handling of vehicle data, the cross-examination of reconstructionists, and the negotiation of resolutions that protect a client's record and licence. Experience in this charge type is what determines whether a file ends in a criminal conviction or in a result the client can move on from.

Why Legal Representation Matters

A dangerous driving conviction is not just a fine. The federal driving prohibition is discretionary on basic dangerous driving charges, but a Criminal Code conviction triggers an automatic Ontario licence suspension for a minimum of a year under provincial highway traffic legislation. For people who drive for work — tradespeople, delivery drivers, salespeople, parents shuttling children — that licence consequence is often the consequence that hurts most.

The cases that resolve well are the cases handled correctly from the beginning. The investigating officer's first roadside conversation, the timing of any statement, the preservation of dashcam and phone evidence, the reconstruction report — all of these are decided in the first hours and days. A client who calls a lawyer at the side of the road or before going to the station has more options than a client who calls only after a charge is already laid.

Frequently Asked Questions About Dangerous Driving Charges

What does the Crown have to prove?

Two things, beyond a reasonable doubt. First, that the manner of driving was — considering all the circumstances — dangerous to the public. Second, that the conduct was a marked departure from the standard of care a reasonably prudent driver would observe in the same situation. The Crown does not need to prove that the driver subjectively intended to drive dangerously; the test is what the driver should have known.

What is the difference between dangerous driving and careless driving?

Careless driving is a provincial offence under the Highway Traffic Act. It captures negligent driving that doesn't reach the criminal threshold. Dangerous driving is a federal Criminal Code offence requiring a marked departure from the reasonable driver's standard. Many dangerous driving charges resolve to a careless driving plea precisely because the conduct was negligent but not criminal. A careless driving conviction carries demerit points, fines, and possible licence consequences — but no criminal record.

Will I lose my licence if I am convicted?

Yes — but the source of the suspension is provincial, not federal. Section 320.24(4) gives the criminal court discretion to impose a federal driving prohibition (often one to three years). Separately, Ontario's Highway Traffic Act imposes an automatic licence suspension on a Criminal Code dangerous driving conviction regardless of what the criminal court orders. Avoiding that licence loss is one of the most common goals of resolution discussions.

What happens if a passenger or pedestrian was injured or killed?

The Crown will normally proceed on section 320.13(2) for bodily harm or 320.13(3) for death, and may also charge criminal negligence causing death or manslaughter. These files almost always proceed by indictment and almost always go to trial. The defence focus shifts to accident reconstruction, scene photography, vehicle "black box" data, witness statements, and medical evidence. Cross-examining a reconstructionist is a specialized skill, and our firm has run dangerous driving and criminal negligence trials at every level of court in Ontario.

Can dangerous driving charges be resolved without a trial?

Often. A significant percentage of dangerous driving files end in a plea to careless driving under the Highway Traffic Act, sometimes a peace bond or section 810 recognizance, sometimes a conditional or absolute discharge. The Crown's willingness to engage on resolution depends on the strength of its case, the driver's record, the existence of injuries, and any aggravating features such as alcohol or street racing. Resolution discussions are most productive when the defence has pressure — pressure that comes from disclosure work, identification of Charter issues, and trial readiness.

Should I speak to police about the incident?

No — not without first speaking to a lawyer. You have the right to silence and the right to counsel. Anything you say at the scene or at the station goes into the disclosure package and will be replayed at trial. Even an apparently helpful explanation can become the central piece of the Crown's case. If you have already given a statement, that is not the end of the file. The earlier we are involved, the more options stay open.

Defences That Work in Dangerous Driving Cases

Marked-departure threshold: The Crown has to prove more than careless driving. Where the conduct was a single misjudgment, momentary inattention, or sudden mistake, the case can fail on this element alone.
Identification: In hit-and-run, abandoned-vehicle, or multi-occupant cases, who was actually behind the wheel can be the entire issue.
Sudden mechanical failure or medical event: A documented brake failure, tire blowout, seizure, or sudden onset of illness can break the chain of fault. These defences require evidence — repair records, expert assessment, medical documentation.
Charter applications: Unlawful detention, improper seizure of vehicle data or phone records, denial of right to counsel, and unreasonable delay all open the door to evidence being excluded or charges being stayed.
Crown disclosure failures: Missing video, lost officer notes, incomplete reconstruction reports, and unproduced 911 audio create leverage in resolution discussions and at trial.
Reasonable explanation: Evasive action to avoid a hazard, reaction to another driver's conduct, or emergency response can all explain conduct that looks dangerous in isolation.

How Daniel Brown Law Defends These Cases

Early intervention — work begins before charges are formally laid where possible, and always before any statement is given to police.
Comprehensive disclosure review — officer notes, dashcam, in-car camera, body-worn camera, 911 audio, reconstruction reports, and any phone or vehicle data the Crown intends to rely on.
Forensic and reconstruction analysis — we work with accident reconstructionists, biomechanical experts, and digital forensic specialists where the file warrants it.
Charter applications — to challenge unlawful detentions, improper searches of phones or vehicles, breaches of the right to counsel, and unreasonable delay.
Resolution-track negotiation — we engage the Crown on resolution where the file supports it, with a focus on outcomes that protect the licence and avoid a criminal record.
Trial preparation — every file is prepared as if it will go to trial. That preparation creates the leverage needed for a favourable resolution and the foundation needed if the case proceeds.

Related Practice Areas

Dangerous driving rarely arrives alone. Common companion charges:

Impaired Driving and Over-80 — frequently charged alongside dangerous driving, particularly in single-vehicle collisions.
Fail to Remain at Scene of Accident — laid where a driver leaves the scene.
Criminal Appeals — for review of a conviction or sentence after trial.
Bail Hearings — relevant on causing bodily harm or death files where release is contested.

Charged with Dangerous Driving?

Every file is fact-specific. The road conditions, the driver's record, and the evidence the Crown can actually prove all change the analysis. Don't face these charges without experienced criminal defence representation.

Call Daniel Brown Law: (416) 297-7200

Failing to Stop or Remain at the Scene of an Accident

by Daniel Brown | Mar 26, 2020 | Impaired Driving

Failing to remain at the scene of an accident is a Criminal Code offence in Toronto.

A conviction creates a permanent criminal record and triggers an automatic Ontario licence suspension. The penalty range scales from a discharge through life imprisonment depending on what you knew about injury or death at the scene. Anyone facing this charge in Toronto should speak with a criminal defence lawyer before any further statement to police.

What a Fail to Remain Charge Actually Is

Section 320.16 of the Criminal Code makes it a criminal offence to operate a conveyance, (including motorized and non-motorized vessels like canoes or surfboards, cars, planes, and trains) involved in an accident and fail, without a reasonable excuse, to stop, give your name and address, and offer assistance to anyone who is injured or appears to need help. In Ontario, the same conduct can also be a separate offence under the Highway Traffic Act — but the criminal charge is the more serious one. A fail to remain conviction in Toronto can lead to a permanent criminal record and triggers an automatic provincial licence suspension.

Failing to remain charges often arise alongside other Criminal Code driving offences including impaired driving, over-80, dangerous driving, and refusing a breath sample. Often the reason a driver left the scene is connected to one of those other charges — and that connection becomes central to the defence.

Three Versions of the Same Offence

Section 320.16 creates three forms of the offence, separated by what the driver knew about injury or death at the scene:

Section 320.16(1)

Basic Fail to Stop

Hybrid offence. Maximum 10 years on indictment, 2 years less a day on summary conviction. No mandatory minimum jail term or fine.

Section 320.16(2)

Knowing Bodily Harm

Where the driver knew or was reckless about bodily harm. Maximum 14 years. Almost always proceeds by indictment.

Section 320.16(3)

Knowing Death

Where the driver knew or was reckless about death (or bodily harm whose death ensued). Maximum life imprisonment.

Unlike impaired driving and over-80, there is no mandatory minimum fine or jail term for any version of section 320.16. That gives a defence lawyer real room on sentencing — but only if liability is established.

What the Crown Must Prove

To convict someone of fail to remain, the Crown must prove beyond a reasonable doubt:

The accused operated a conveyance (a motor vehicle, vessel, aircraft, or railway equipment).
The conveyance was involved in an accident.
The accident was with another person or another conveyance.
The accused knew, or was reckless as to whether, the conveyance was involved in the accident.
The accused failed, without reasonable excuse, to do at least one of the following: stop the conveyance, give their name and address, or offer assistance if a person was injured or appeared to need it.

These three obligations — stop, identify, assist — are read disjunctively. The Crown does not have to prove all three were breached. Failing to do any one of them is enough to make out the offence.

The mental element of the crime was redrafted when Bill C-46 came into force. Under the old version of the law, the prosecutor had to prove the driver left "with intent to escape civil or criminal liability." Under the new section 320.16, that intent requirement is gone. Recklessness is now sufficient — meaning a driver who knew or ought to have known an accident happened can be convicted. In exchange, the burden shifted: the accused must now establish a "reasonable excuse" on a balance of probabilities why they failed to remain on scene, instead of just raising a reasonable doubt about whether they left the scene to avoid liability.

Our Defence Experience

The lawyers at Daniel Brown Law have defended fail to remain charges as Toronto criminal lawyers for more than two decades. We regularly appear in courthouses throughout the GTA, including Toronto, Brampton, Milton, Newmarket, and Oshawa — as well as Barrie, Hamilton, London, Burlington, and Orangeville. Fail to remain charges share a procedural skeleton with impaired and dangerous driving cases, but they turn on a different core question: what the driver knew about the accident at the time, and why the driver left.

Daniel Brown is a certified specialist in criminal law (Law Society of Ontario), a Fellow of the Litigation Counsel of America, and former president of the Ontario Criminal Lawyers' Association. The firm is recognized in current rankings as one of the country's leading criminal defence boutiques:

How a Fail to Remain Charge Is Defended

Defending a fail to remain charge in Toronto turns on three connected questions: did the accused know about the accident, what kind of accident was it, and why did the driver leave.

Did the Accused Know About the Accident?

Knowledge is the central battleground in many fail to remain cases. The Crown must prove the driver knew an accident occurred — or was reckless about whether one had occurred. A driver who genuinely did not know they had struck another vehicle, a pedestrian, or a parked car has not committed the offence. This defence comes up most often in low-impact contacts: a glancing scrape in heavy traffic, a parking-lot bump felt as a vibration, a contact at night where the driver thought they had hit debris or an animal.

The Crown can prove knowledge through circumstantial evidence — the force of impact, visible damage to the driver's own vehicle, the audible sound of the collision, the driver's own subsequent behaviour. The Crown can also rely on wilful blindness: a driver who suspected they had hit something and chose not to look has the same culpability as a driver who knew. The defence focuses on what was actually perceptible from inside the vehicle and what the driver did or did not see.

Was There Really an "Accident"?

Not every contact between vehicles or between a vehicle and a person is an "accident" for section 320.16 purposes. The case law has developed this term broadly — an accident does not require visible damage, does not require injury, and does not require a collision in the conventional sense. Even momentary contact can qualify. But there are limits. An accident with a stationary object that is not a vehicle (a pole, a fence, a building) does not trigger section 320.16. An accident with an animal that is not "cattle in the charge of another person" does not trigger it either.

A single-vehicle accident where the only person involved is the driver — no passenger, no pedestrian, no other vehicle — is not a section 320.16 accident. The duty to remain only applies where another person or another conveyance was involved.

Why Did the Driver Leave? The "Reasonable Excuse" Defence

If the Crown proves the basic elements, the accused can still avoid conviction by establishing a reasonable excuse on a balance of probabilities. The case law has developed two clear categories.

Reasons that have been accepted as reasonable excuses include leaving to seek medical assistance, leaving to escape an attack, and leaving to find help when staying at the scene was not practical. A driver who had no choice — who was unconscious, who was being assaulted, who needed urgent medical care — has a real defence.

Reasons that have been rejected involve leaving to avoid consequences connected to the driving itself. Where a driver left to avoid being caught for impaired driving, dangerous driving, driving a stolen vehicle, or driving while suspended, the reason for leaving is connected to the driving and does not amount to a reasonable excuse. The same logic applies whether the driver was trying to avoid a single criminal charge or a combination of charges.

Where a driver had a "dual purpose" — fleeing both to avoid a non-driving liability and to avoid liability for the accident itself — the defence may not succeed, because the accident-related reason is enough to make out the offence.

What Is Not a Reasonable Excuse

Avoiding arrest for another driving offence. Leaving to avoid being caught for impaired driving, dangerous driving, refusing a breath sample, driving without a licence, or driving a stolen vehicle is not a reasonable excuse.
Panic or embarrassment. A driver who fled because they were upset, embarrassed, or did not want to deal with the situation does not have a reasonable excuse.
Belief that no one was hurt. A subjective belief that no one was injured does not, on its own, excuse a failure to stop and exchange information.
Belief that someone else would handle it. The duty to remain is personal. It cannot be delegated to a passenger or another driver, except in narrow circumstances such as urgent medical need.
Intoxication on its own. Under the old section 252, the offence was one of specific intent, which meant intoxication could potentially negate the intent element. Under the new section 320.16 — which uses recklessness as the mens rea standard — intoxication on its own is unlikely to defeat the charge.

Frequently Asked Questions About Fail to Remain in Toronto

How does the prosecutor prove I failed to stop at the scene of an accident?

To obtain a conviction for failing to stop at the scene of an accident, the prosecutor must prove beyond a reasonable doubt that the accused operated a conveyance, that the conveyance was involved in an accident with another person or another conveyance, that the accused knew or was reckless about whether the accident had occurred, and that the accused failed — without reasonable excuse — to do at least one of: stop the vehicle, give their name and address, or offer assistance if anyone was injured or appeared to need it.

Is it a criminal offence to fail to remain at the scene of a single motor vehicle accident?

There is no obligation under the Criminal Code to remain at the scene of an accident involving only a single motor vehicle, as long as there are no injuries to passengers and no other person or conveyance was involved. Section 320.16 only requires a driver to remain where another person or another conveyance was part of the accident. An accident where the driver hits a guardrail with no one else in or around the vehicle is not, on its own, a section 320.16 offence — though it may give rise to other charges, depending on the facts.

What personal information must be shared at the scene?

A driver involved in an accident with another person or another conveyance must communicate their name and address in a way that meaningfully and effectively conveys it to the other party. The information has to be useful for follow-up — whether through police, an insurance claim, or a civil action. Once name and address are properly given and any required assistance is offered, the duty is discharged.

Can the duty to remain at the scene be delegated to another person?

No, except in narrow circumstances. Section 320.16 imposes a personal obligation on the person who operated the conveyance. A driver cannot generally hand off the duty to a passenger or another driver. The exception is where the driver themselves needs urgent assistance — for example, a driver who requires immediate medical attention may be justified in leaving without first providing their information, because their own situation makes compliance impossible.

What if a person leaves the scene briefly before returning?

The court looks at why the person left. If the driver left to obtain assistance, to call for help, or to deal with their own urgent injury — and not to evade responsibility — the offence is generally not made out. A driver who leaves briefly and returns with the intention of fulfilling the duties at the scene typically has a defence available, provided their reason for leaving is genuine and connected to the accident response rather than to avoiding consequences.

Must there be visible damage or injury before the duty to stop applies?

No. The duty to stop and offer assistance is triggered by an "accident" with another person or conveyance, regardless of whether visible damage or injury occurred. Even minor contact between two vehicles, or between a vehicle and a person, can trigger the duty. The legislation focuses on whether contact occurred and whether someone may need assistance, not whether damage is obvious.

Must the driver stop after an accident with an unoccupied vehicle?

Yes. Even where the other vehicle is unoccupied — a parked car, for example — there is still an obligation to stop and either locate the other driver or leave personal information. Driving away from a parking-lot collision without making any effort to identify yourself can support a fail to remain conviction. The standard practice is to leave a note with name, address, and phone number on the windshield of the unoccupied vehicle.

What if I did not know an accident occurred?

A driver only has an obligation to stop once they are aware, or reckless about whether, an accident has occurred. It is a valid defence to say the driver was unaware that they had struck another person or vehicle, provided the driver was not wilfully blind to the possibility. This defence comes up regularly in low-impact collisions — a parking-lot scrape, a glancing contact in heavy traffic, a bump that the driver mistook for a pothole or debris.

What are the penalties for failing to stop at the scene of an accident?

The penalty depends on what the driver knew about injury or death at the scene. The basic offence under section 320.16(1) carries a maximum of 10 years imprisonment when the Crown proceeds by indictment, and 2 years less a day on summary conviction. The aggravated version under section 320.16(2) — where the driver knew or was reckless about bodily harm — carries a maximum of 14 years. The most serious version under section 320.16(3) — where the driver knew or was reckless about death — carries a maximum of life imprisonment.

There is no mandatory minimum jail term or mandatory minimum fine for any version of section 320.16. Sentence outcomes range from a discharge or suspended sentence on first-offence basic files with no injury, to penitentiary terms on cases involving death. The court may impose a discretionary federal driving prohibition under section 320.24. Separately, Ontario's Highway Traffic Act imposes an automatic licence suspension on a Criminal Code conviction.

Can I appeal a conviction or sentence for failing to stop?

Yes. A conviction or sentence under section 320.16 can be appealed, the same as any other criminal charge. In some cases, a federal driving prohibition can be suspended pending the outcome of the appeal so that the driver can keep their licence in the interim. Read more about the criminal appeal process.

Defences That Work in Fail to Remain Cases

No knowledge of the accident. The Crown has to prove the driver knew, or was reckless about whether, an accident occurred. Low-impact collisions, contacts at night, or accidents involving glancing contact often turn on what the driver could perceive from inside the vehicle.
Not an "accident" under the section. Single-vehicle collisions with no injury to passengers, contact with stationary non-vehicle objects, and contact with animals (other than cattle in charge of another person) do not trigger section 320.16.
Reasonable excuse on balance of probabilities. Leaving to seek medical assistance, to escape an attack, or to find help where staying was not practical can establish a reasonable excuse.
Identification. In hit-and-run cases, who was actually behind the wheel can be the entire issue. Identification turns on witness reliability, in-car evidence, surveillance video, and forensic work.
Charter applications. Unlawful detention, improper seizure of vehicle data or phone records, denial of right to counsel after arrest, and unreasonable delay all open the door to evidence being excluded or charges being stayed.
Crown disclosure failures. Missing video, lost officer notes, incomplete reconstruction reports, and unproduced 911 audio create leverage in resolution discussions and at trial.

How Daniel Brown Law Defends Fail to Remain Charges

Early intervention — work begins before charges are formally laid where possible, and always before any statement is given to police.
Detailed disclosure review — officer notes, dispatch records, in-car video, body-worn camera, surveillance footage from nearby buildings, and any phone or vehicle data the Crown intends to rely on.
Reconstruction analysis — for cases involving injury or death, we work with accident reconstructionists, biomechanical experts, and digital forensic specialists where the file warrants it.
Charter motions — to challenge unlawful detentions, improper searches of phones or vehicles, breaches of the right to counsel, and unreasonable delay.
Resolution-track negotiation — we engage the Crown on resolution where the file supports it, with a focus on outcomes that protect the licence and avoid a criminal record.
Trial preparation — every fail to remain file is prepared as if it will go to trial. That preparation creates the leverage needed for a favourable resolution and the foundation needed if the case proceeds.

Related Practice Areas

Fail to remain charges rarely arrive alone. Common companion charges:

Impaired Driving and Over-80 in Toronto — frequently charged alongside fail to remain in single-vehicle and post-collision investigations.
Dangerous Driving in Toronto — high-speed flight from a collision often produces both charges.
Refusing a Breath Sample — laid where police catch up with the driver after the fact and a breath demand follows.
Criminal Appeals — for review of a conviction or sentence after trial.
Bail Hearings in Toronto — relevant on fail to remain causing bodily harm or death files where release is contested.

Charged with Fail to Remain in Toronto?

Every fail to remain file turns on what the driver knew at the time of the accident and why the driver left. Don't face this charge without an experienced Toronto criminal defence lawyer.

Daniel Brown has extensive experience defending all types of driving-related charges, including failing to remain at the scene of an accident, impaired driving, and dangerous driving.

Call Daniel Brown Law: (416) 297-7200

Supreme Court of Canada clarifies “care and control” for drinking and driving offences

by Daniel Brown | Oct 30, 2012 | Impaired Driving

On October 26th, 2012, the Supreme Court of Canada released their ruling in R. v. Boudreault 2012 SCC 56, clarifying the elements of proof required to show that a person is in “care and control” of a motor vehicle for the purpose of establishing that they were driving while impaired.

Factual Background

On a cold February morning, Mr. Boudreault was found sleeping in his parked vehicle by police officers and was charged with, among other things, impaired operation of a motor vehicle. He was seated in the driver’s seat with the engine running. (more…)

Refusing a Breath Sample Charge

by Daniel Brown | Nov 28, 2011 | Impaired Driving

Refusing a breath sample carries the same penalties as impaired driving.

A first refusal in Toronto means a $2,000 mandatory minimum fine, a one-year federal driving prohibition, and a permanent criminal record. The Crown does not need a breathalyzer reading to convict. The refusal itself is the offence. Anyone charged with refusing a breath sample in Toronto should speak to a defence lawyer before any further statement to police.

What Refusing a Breath Sample Actually Means

Section 320.15 of the Criminal Code makes it a separate criminal offence to fail or refuse — without a reasonable excuse — to comply with a lawful demand for a breath sample, knowing the demand has been made. In plain language: when a Toronto police officer makes a lawful breath demand, the driver has to comply. Refusing is itself the offence.

A person charged with refusing a breath sample in Toronto is often charged with impaired driving as well, since both arise during the same investigation. The penalty range for refusing tracks the penalty range for impaired driving and over-80 almost exactly. Refusing is not a way around the breath test. It is its own conviction with the same harsh consequences.

The Two Different Breath Demands

Police can make two separate kinds of breath demands in Ontario, and they operate under different legal rules. The first decision in defending a refusal charge is identifying which demand was made.

Section 320.27(2)

Roadside Screening Demand

Mandatory Alcohol Screening since Bill C-46. Police can demand a roadside sample from any lawfully stopped driver without suspicion of impairment. No right to counsel before the sample.

Section 320.28

Evidentiary Breath Demand

Made at the police station on an approved instrument. Requires reasonable grounds to believe the driver was impaired. Right to counsel under section 10(b) of the Charter must be facilitated first.

Section 320.15

The Refusal Offence

Failure or refusal to comply with either demand, without a reasonable excuse. Same mandatory minimum penalties as impaired driving and over-80 under section 320.14.

There are also screening demands for drugs and physical coordination tests under section 320.27, and evidentiary blood, oral fluid, and drug-evaluation demands under section 320.28. The same refusal offence applies to all of them.

Three Elements the Crown Must Prove

To convict someone of refusing a breath sample, the Crown must prove three things beyond a reasonable doubt:

The officer made a valid demand — meaning all the statutory preconditions for that specific demand existed.
The accused knew the demand had been made.
The accused failed or refused to comply.

If the Crown cannot prove any one of these, the charge fails. Importantly, the validity of the demand is an element of the offence in refusal cases. That is different from impaired driving prosecutions, where the validity of the demand is challenged by way of a Charter application. In a refusal case, the defence can simply argue that the Crown has not proven a valid demand — no Charter motion is required.

Our Defence Experience

The lawyers at Daniel Brown Law have defended refusing breath sample charges as Toronto criminal lawyers for more than two decades. We regularly appear in courthouses throughout the GTA, including Toronto, Brampton, Milton, Newmarket, and Oshawa — as well as Barrie, Hamilton, London, Burlington, and Orangeville. Refusal cases share a procedural skeleton with impaired and over-80 cases, but they turn on different evidence: officer notes about the demand, the wording of the demand, the timing of the right to counsel, and the medical or technical reasons offered for non-compliance.

How a Refusing Breath Sample Charge Is Defended

Defending a refusal charge in Toronto follows a structured analysis. Each step is fact-specific, and the order matters.

Step 1 — Was a Lawful Demand Made?

In defending an allegation of failing or refusing to provide a breath sample, the lawyer first assesses whether the police officer made a lawful demand. If the statutory preconditions for the demand were not met, there is no valid demand, and an essential element of the offence has not been proven. The accused must be acquitted.

What a "lawful demand" requires depends on the kind of demand made. A roadside screening demand under section 320.27(1)(b) requires the officer to have reasonable grounds to suspect alcohol in the driver's body. A drug screening demand under section 320.27(1)(c) requires similar grounds with respect to a drug. A mandatory alcohol screening demand under section 320.27(2) requires only that the officer have a screening device in their possession and be acting in the lawful exercise of their powers when the encounter a driver operating a motor vehicle. An evidentiary demand under section 320.28 requires the officer to have reasonable grounds to believe — a higher threshold — that the driver's ability was impaired.

The officer must also actually communicate a demand. The wording does not need to be magical, but the words have to convey that the driver must comply and provide a sample. A request such as "would you like to take the test?" is not a demand. A request to "please" provide a sample, on its own, is not a demand. Refusing a request is not an offence — only refusing a demand is.

This is a fact-specific analysis. Each case is different. A lawyer reviews all the facts surrounding the demand — the officer's grounds, the wording used, the timing of the demand relative to the stop, whether the demand was made by a peace officer, and whether it was made promptly once the grounds were formed.

Step 2 — Was the Failure Intentional or Unintentional?

If the demand was lawful, the next question is whether the failure to comply was intentional. The Crown has to prove the accused knew a demand had been made and failed or refused to comply with it. An unintentional failure to provide a sample is not a refusal under section 320.15.

A driver may unintentionally fail to provide a breath sample for several reasons:

Machinery not operating properly. The screening device or approved instrument may have malfunctioned. There may have been an obstruction in the mouthpiece. Where the device was not working, the driver's unsuccessful attempts to blow do not amount to a refusal. In cases where multiple attempts were made, the Crown should produce evidence that the device was working — and the absence of that evidence can leave a reasonable doubt about whether the failure was the driver's fault or the device's.
Lack of comprehension. A driver may not have understood the demand. The Ontario Court of Appeal has held that the Crown must establish that the accused understood the demand. Lack of comprehension can arise from a language barrier — the driver does not speak the language the officer is using — or from the driver's inability to take in instructions in the moment. If the driver did not understand, they cannot be guilty of intentionally refusing.
Medical inability. A driver with asthma, emphysema, or another respiratory condition may genuinely be unable to provide an adequate sample. A driver with a recent injury — a fractured jaw, an injured chest, oral injuries — may also be unable to blow with the force required. Where a medical condition prevented compliance, the failure was unintentional.

If the failure was unintentional, the offence is not made out. The driver is not guilty.

Step 3 — Reasonable Excuse on a Balance of Probabilities

If the demand was lawful, the failure was intentional, and the Crown has otherwise proven the elements of the offence, the accused can still avoid conviction by establishing a reasonable excuse on a balance of probabilities. The burden is on the accused at this stage.

What is reasonable is fact-specific. What works in one case will not work in another. Recognized categories include:

Risk to life or health, or medical excuse. Where providing a sample would pose a substantial risk to the driver's life or health, the excuse is reasonable. A fractured neck where blowing could cause paralysis. An injured mouth where the driver was restrained for medical reasons and unable to sustain the blow. A serious respiratory condition that made the demand genuinely impossible to follow. These defences require credible medical evidence — typically a doctor's report, hospital records, or expert testimony — not just the driver's own say-so.
Mental health conditions in some circumstances. Panic attacks, severe anxiety disorders, and other mental health conditions can be reasonable excuses where they made compliance impossible. These defences require both the driver's testimony and credible expert evidence from a doctor, psychologist, or psychiatrist explaining the disorder and its physiological effects.
Unreasonable inconvenience. If the driver had to be taken a long distance for the test, or if the test could not be carried out within the time limits prescribed by law, the situation may amount to a reasonable excuse.
Approved instrument not working. If the breathalyzer at the station could not give an accurate reading, refusing to keep blowing into a broken machine can be a reasonable excuse. The Crown should be able to produce evidence that the device was working.
Officer misconduct at the station. Where the technician administering the test refused to wash visibly dirty hands, where the driver had been assaulted or threatened, where the driver was roughly handled or required to strip naked — these fact patterns have been accepted as reasonable excuses. Nothing physically prevented the sample, but the refusal was justifiable in the circumstances.

The reasonable excuse defence is narrow. The driver must point to specific evidence linking the asserted excuse to the events in question. A general assertion of poor health, anxiety, or inability is not enough.

What Is Not a Reasonable Excuse

Several arguments that clients raise are not reasonable excuses, and it is important to know that going in:

Intoxication. Being too drunk to comply, too drunk to understand the consequences, or too drunk to make a rational decision is not a reasonable excuse. The Supreme Court of Canada has been clear that intoxication is not a defence in this context. A driver too intoxicated to understand the demand may have a separate comprehension argument, but intoxication on its own does not excuse the refusal.
A mistake of law. A driver who refused because they thought they had a right to refuse, or thought they had a right to wait for a particular lawyer, has not raised a reasonable excuse. Mistakes of law are not defences.
Advice from a lawyer not to blow. The Supreme Court of Canada has confirmed that advice from a lawyer not to provide a breath sample is not a defence to refusal. Lawyers cannot advise clients to break the law, and following that advice does not excuse the offence. Reliance on incorrect legal advice may be a mitigating factor on sentencing — but it is not a defence.
Not actually operating a vehicle. An acquittal on impaired driving on the basis that the driver was not operating a vehicle is not a reasonable excuse for refusing the breath demand if the demand itself to provide the sample was valid. The two questions are separate.

Penalties for Refusing a Breath Sample

A conviction for refusing a breath sample carries the same mandatory minimum penalties as a conviction for impaired driving or over-80 under section 320.14. The minimums apply on a first conviction with no record:

First offence: Mandatory minimum fine of $2,000 and a minimum one-year federal driving prohibition.
Second offence: Mandatory minimum 30 days in jail and a minimum two-year prohibition.
Third or subsequent offence: Mandatory minimum 120 days in jail and a minimum three-year prohibition.

Maximum penalties scale up depending on whether the Crown proceeds summarily or by indictment, and whether bodily harm or death is alleged in connection with the same investigation. A finding of guilt for refusing a breath sample also produces an automatic permanent criminal record for a first-time offender. The provincial licence suspension under Ontario's Highway Traffic Act runs separately and is automatic on conviction, regardless of whether the criminal court orders a federal prohibition.

Consequences of a Refusal Conviction

The consequences of a conviction for refusing a breath sample reach beyond the courtroom:

Job loss
Fines, probation, and possible imprisonment
Loss of driver's licence
Significant increase in car insurance
Problems with immigration, permanent residence, and citizenship applications
Being deemed ineligible for certain professions, jobs, and opportunities
Being denied entry into the United States or other countries
The social stigma of a criminal record
The risk of the conviction being reported publicly in the media
A criminal record stored and accessible in the national CPIC database

For someone with no prior record, the effect of a refusal conviction on livelihood, freedom, and future opportunities can be significant and long-lasting. Anyone facing this charge in Toronto should speak with a criminal defence lawyer to review the case and all available options before making any decision about defending or pleading guilty.

Frequently Asked Questions About Refusing a Breath Sample in Toronto

Is refusing the same as impaired driving?

The offence is different but the penalties are the same. Section 320.15 creates the standalone refusal offence. The mandatory minimum fines, jail terms, and driving prohibitions mirror the impaired driving and over-80 provisions in section 320.14. The Crown does not have to prove the driver was actually impaired — only that a lawful demand was made and the driver did not comply.

Do I have a right to a lawyer before giving a roadside breath sample?

No. The Supreme Court of Canada has held that the brief detention required for a roadside screening sample does not trigger the right to counsel when the officer is in possession of the roadside screening device. Different considerations apply if the device is not onhand and there will be a delay obtaining the device from another location. Mandatory Alcohol Screening since Bill C-46 widened that further: police can demand a roadside sample from any lawfully stopped driver without any suspicion of impairment, and the driver must comply on the spot as long as they are operating a motor vehicle at the time the demand was made and the officer has the screening device with them at the time. The right to counsel attaches at the station for an evidentiary demand under section 320.28. Police are required to inform the driver of that right and to facilitate access to a lawyer before the breathalyzer test there.

Can I be charged with refusing if I tried to blow but the machine wouldn't register?

That depends on whether your attempts were genuine. If you tried in good faith and the device failed or you were physically unable to provide an adequate sample, that is not a refusal. If the Crown cannot show the device was working, the unsuccessful attempts cast doubt on whether the failure was caused by the driver or the machine. Feigned attempts to blow — pretending to try while not actually trying — are treated as a refusal.

What if my lawyer told me not to blow?

Following advice from a lawyer not to provide a breath sample is not a defence to a refusal charge. Lawyers cannot advise clients to break the law. A driver who refused based on that advice will be convicted of refusing, though the bad advice may be a mitigating factor on sentencing.

Will I lose my licence if I am convicted?

Yes. The criminal court has discretion to impose a federal driving prohibition under section 320.24, with a one-year minimum on a first refusal conviction. Separately, Ontario's Highway Traffic Act imposes an automatic licence suspension on a Criminal Code conviction. Drivers also face an immediate administrative roadside suspension that begins at the side of the road, independent of the criminal court outcome.

Should I speak to police about the incident?

Not without first speaking to a lawyer. You have the right to silence and the right to counsel, and police must tell you so before the evidentiary breath test. Anything you say at the station goes into the disclosure package and will be replayed at trial. If you have already given a statement, that is not the end of the file. The earlier we are involved, the more options stay open.

How Daniel Brown Law Defends Refusing Breath Sample Charges

Early intervention — work begins before charges are formally laid where possible, and always before any statement is given to police.
Detailed disclosure review — officer notes, dispatch records, in-car video, body-worn camera, booking video, and ASD calibration records.
Charter motions — to challenge unlawful detention, denial of right to counsel, and improper handling of the demand and evidentiary process.
Medical evidence development — where a reasonable excuse defence is realistic, we work with treating physicians and respiratory specialists to build a documented record.
Resolution-track negotiation — careless driving pleas, peace bonds, and other resolutions that avoid the criminal record and federal prohibition where the file supports it.
Trial preparation — every refusal file is prepared as if it will go to trial, because that preparation is what creates leverage for resolution.

Related Practice Areas

Refusing a breath sample is closely connected to other Criminal Code driving offences. Common companion or related charges:

Impaired Driving and Over-80 in Toronto — refusal is often charged in the same investigation; the procedural defences overlap considerably.
Dangerous Driving in Toronto — single-vehicle collisions and erratic driving stops frequently produce both charges.
Fail to Remain at Scene of Accident — laid where a driver leaves a collision and is later approached for a breath demand.
Bail Hearings in Toronto — relevant on second and subsequent refusal allegations where mandatory minimum jail is in play.

Charged with Refusing a Breath Sample in Toronto?

Every refusal case turns on the specific demand made, the specific words used, and the specific procedure followed. The minimum penalties apply whether or not you actually had alcohol in your system. Don't face this charge without an experienced Toronto criminal defence lawyer.

Daniel Brown has extensive experience defending all types of DUI charges including refusing to provide a breath sample, impaired driving, and driving over 80.

Call Daniel Brown Law: (416) 297-7200

Penalties for DUI Cases in Canada

by Daniel Brown | Jan 19, 2011 | Impaired Driving

This article summarizes various types of reduced driving prohibitions for drinking and driving cases and identifies the preconditions for qualifying in Toronto, Ontario. Those seeking legal information on defending a drinking and driving case in Toronto, Ontario can read: Defending Drinking and Driving and Impaired Driving Charges.

Until recently, anyone convicted of their first drinking and driving offence in Canada involving a motor vehicle faced a minimum of a 12 month driving prohibition, followed by 12 months of only driving with an ignition interlock device (a device which requires a driver to provide a breath sample before a car’s ignition can be started, as well as requiring random tests while the ignition is on).

However, recent amendments to the Criminal Code of Canada have created reductions in driving prohibitions for first time offenders in an effort to reduce the number of drinking and driving cases that go to trial as well as encourage the use of the ignition interlock device as a rehabilitative tool.

Anyone convicted of a drinking and driving offence including impaired operation of a motor vehicle ("impaired driving"), driving with a blood-alchol level over the legal limit ("over 80") or failing/refusing to provide a breath sample will receive a minimum sentence of a criminal record and a minimum fine of $1000. The changes to the Criminal Code only affect whether or not a person is eligible to obtain their license without completing the traditional 12 month driving prohibition that used to accompany every drinking and driving conviction.

Driving Prohibition Reduction Categories

Reduced driving prohibtions fall into two categories: "Stream A" and "Stream B".

In “Stream A”: the driving prohibition is reduced to three months (from 12) , followed by 9 months of using an Interlock device in their vehicle.

In “Stream B”: the driving prohibition is reduced to six months of no driving, followed by 12 months of using an Interlock device.

How to Qualify for Stream A or Stream B

Those persons found guilty before August 3, 2010 (either by trial or by guilty plea) are not eligible for either stream.

Those who either plead guilty between August 3, 2010 and November 1, 2010 or those who plead guilty after November 1, 2010, within 90 days of the offence date are eligible for Stream A subject to meeting the minimum qualifications and completing the necessary paperwork with the Ministry of Transportation.

Those who entered guilty pleas after November 1, 2010, outside of 90 days of the offence date and those who took their matters to trial after August 3, 2010 are eligible for Stream B subject to meeting the minimum qualifications and completing the necessary paperwork with the Ministry of Transportation.

Minimum qualification for either Stream A or Stream B

The offence did not include impairment by drugs or impairment by a combination of drugs and alcohol.
The accused person has entered into a lease agreement for an ignition interlock device.
The accused person has completed a preliminary assessment with the Ministry of Transportation.
Within the past 5 years, the accused person has not been convicted for driving while disqualified (Criminal Code, s. 259(4)).
Within the past 10 years, the accused person has not been convicted for the following offences involving a motor vehicle:

- - Criminal negligence causing death or bodily harm (Criminal Code, ss. 220, 221)
  - Manslaughter (Criminal Code, s. 236)
  - Dangerous operation (Criminal Code, s. 249)
  - Flight (Criminal Code, s. 249.1)
  - Criminal negligence causing death or bodily harm (street racing) (Criminal Code, ss. 249.2, 249.3)
  - Dangerous operation while street racing (Criminal Code, s. 249.4)
  - Impaired operation/care or control; Over 80 operation/care or control; refuse/failure to comply with a demand (Criminal Code, ss. 253, 254, 255).

The accused person was not required to use an interlock device at the time of the offence.
The accused person has not received a lifetime suspension for multiple convictions of offences listed above, which was then subsequently reduced to a 10-year suspension.
The offence did not cause death or bodily harm.
No order by a judge otherwise precluding eligibility for Stream A or Stream B.

Order by judge to preclude eligibility:

Notwithstanding the fact that one meets the minimum qualifications for the reduced driving prohibition, a judge may make an order precluding eligibility. Factors to be considered by a judge could include whether there was an accident, the level of the blood alcohol readings, a bad driving record, a criminal record showing that a person has a history of not complying with court orders, or the circumstances of the offence.

Listed below are some frequently asked questions about the reduced driving prohibitions

Does a person qualify for the reduced driving prohibitions program if they are charged with just refusing or failing to provide a breath sample?

Yes.

Does the program apply retroactively? If a person was found guilty prior to August 3, 2010, and are still serving their 12 month driving prohibition on August 3, 2010, can they apply to have the prohibition reduced?

No. The Ministry of Transportation has decided it will not apply retroactively.

What if the offence involves an accident? What if the blood-alcohol content readings are very high?

A person can still the meet the minimum qualifications, provided a judge does not order otherwise, and in cases of an accident, provided the offence did not cause death or bodily harm.

To learn more about whether you are eligible for any of the reduced driving prohibition programs or to discuss a drinking and driving case call Daniel Brown for a consultation at (416) 297-7200.