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.

Defending Dangerous Driving Charges in Toronto

Our lawyers have defended dangerous driving charges in all corners of the province and often appear in courts across the GTA in addition to the Toronto courthouses including Newmarket, Oshawa, Brampton, and Milton.

Daniel Brown Law is recognized as one of Canadian Lawyer Magazine’s Top 10 Criminal Law Boutique Firms for 2018-19.

Our firm is often called upon by the media to comment on high-profile dangerous driving cases in the news. Recently, Daniel spoke to CTV News about a woman convicted of dangerous driving causing death.

In 2026, Daniel was voted the Toronto Star’s Readers’ Choice Award Winner in the category of Best Lawyer. Daniel Brown Law was also voted the 2026 Award Winner in the category of Best Legal Services.

The remainder of this article defines the criminal charge of dangerous driving, reviews possible defences, and summarizes the penalties associated with a dangerous driving conviction in Toronto, Ontario. If you are charged with dangerous driving you should contact Daniel Brown Law at (416) 297-7200 for immediate legal advice.

Frequently asked questions about dangerous driving:

• What is dangerous driving?
• How is dangerous driving determined?
• What standard is used to assess whether the vehicle was driven dangerously?
• How is the term “marked departure” defined?
• What if the dangerous driving was caused by a momentary loss of attention?
• How is the term “dangerous” defined by the court?
• Must the public actually be put in danger to ground a conviction for dangerous driving?
• Can speeding alone amount to dangerous driving?
• Can impairment by drugs or alcohol amount to a defence to dangerous driving?
• Can the involuntary consumption of drugs/alcohol amount to a defence to dangerous driving?
• What are other defences to dangerous driving?
• What are the penalties for dangerous driving?
• How can you appeal a conviction or sentence for dangerous driving?

What is dangerous driving?

Section  320.13 (1) of the Criminal Code of Canada reads that one commits the offence of dangerous driving by operating a conveyance (such as a motor vehicle, a vessel, an aircraft or railway equipment)  in a manner that, having regard to all of the circumstances, is dangerous to the public. These considerations including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic at the time is or might reasonably be expected to be at that place.

How is dangerous driving determined?

Determining whether someone has committed the offence of dangerous driving is done by looking at the manner in which a motor vehicle was operated as opposed to the consequences of the driving. A court cannot conclude from the consequences alone, including a death or a collision, that the vehicle must have been operated in a dangerous manner. The nature of the driving must be established independently from the consequences.

What standard is used to assess whether the vehicle was driven dangerously?

Dangerous driving is assessed by examining whether the accused's conduct, viewed objectively (using the standard of the "reasonable person"), amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. The prosecutor need not prove that the driver intended to drive dangerously. Rather, the court assesses the dangerous conduct against the standard expected of a reasonably prudent driver, regardless of the driver’s intention.

If the prosecutor can prove that the driving was a marked departure from how the reasonably prudent driver would have driven in the circumstances, the fault element of the offence will have been established.

How is the term “marked departure” defined?

The accused's conduct must amount to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. A mere departure from the appropriate standard of care will not constitute a criminal offence for dangerous driving. The distinction between a marked departure and a mere departure from the norm is a matter of degree. Some departures from the requisite standard of care, while dangerous, may not be "marked" or "significant".

The lack of care in driving must be serious enough to merit punishment. It is only when there is a marked departure from the norm that objectively dangerous conduct demonstrates sufficient blameworthiness to warrant a criminal offence.

What if the dangerous driving was caused by a momentary loss of attention?

Although there may be exceptions, momentary inadvertence that occurs within a few seconds, while in the course of driving that is otherwise proper, is more suggestive of civil liability rather than the "marked departure" required for a criminal conviction. Therefore, most cases demonstrating only a momentary loss of attention will not be sufficient to ground a conviction for dangerous driving.

How is the term “dangerous” defined by the court?

The requirement that the vehicle be operated in a manner “dangerous” to the public involves driving that is perilous, hazardous or unsafe. The word “dangerous” is defined in Black’s Law Dictionary, 6th ed. to mean: “Attended with risk; perilous; hazardous; unsafe.”

Must the public actually be put in danger to ground a conviction for dangerous driving?

The prosecutor is not required to prove that a person was actually endangered by the accused's driving and a conviction may be entered if the accused's driving was dangerous to the public which might reasonably be expected to be present at the time of the impugned driving.

Can speeding alone amount to dangerous driving?

Excessive speed, depending on the context in which it occurs, can endanger the lives or safety of the public and amount to a marked departure from the standard of care of a prudent driver so as to support a conviction for dangerous driving.

The determination of liability based on evidence of excessive speed also has to take into consideration the speed at which other vehicles on the highway are driving, as well as the speed at which vehicles may be safely driven on the highway.

Consideration has to be given to the actual speed; the accused’s ability to maintain control over his or her vehicle, and the accused’s ability to reduce his or her speed to react to an unexpected occurrence or to avoid an accident.

Consideration also has to be given to, the nature of the roadway and place where the driving occurred, the distance over which the accused maintained the high speed, whether the accused was keeping a look-out compatible with operation of the vehicle at a high speed, and the entire driving pattern.

Can impairment by drugs or alcohol amount to a defence to dangerous driving?

It is not a defence to claim that the dangerous driving at the time of the offence was not voluntary or intentional by virtue of a person’s intentional drug or alcohol consumption. A person’s voluntary consumption of drugs and/or alcohol under circumstances in which he knew or ought to have known that his ability to drive might thereby be impaired is sufficient to support a conviction for dangerous driving.

** Related article: defending an impaired driving charge.**

Can the involuntary consumption of drugs/alcohol amount to a defence to dangerous driving?

Involuntary or unintentional consumption of drugs and/or alcohol, which lead a person to drive in a dangerous manner, may operate to negate the fault element for dangerous driving. For example, if a person operates a vehicle in a dangerous manner after becoming unknowingly drugged at a bar, they may be acquitted of the dangerous driving if they were unaware of the potential side effects the drugs had on their ability to drive.

What are other defences to dangerous driving?

Unexpected medical impairments such as seizures, hallucinations or black-outs may also provide a person charged with dangerous driving with a defence. However, if the medical impairment was caused as a result of the driver’s voluntary decision not to take medication for the pre-existing condition, his actions will not be excused by his medical conditions. The accused's guilt would be grounded on the historical awareness that, because of a diagnosed condition, the accused could be a danger to the public while driving.

What are the penalties for dangerous driving?

A person found guilty of dangerous driving may serve a maximum penalty of up to five years in jail. The penalty is increased to a maximum penalty of either 10 or 14 years depending on whether the person is found guilty of dangerous driving causing bodily harm or dangerous driving causing death.

Along with the potential of a significant period of incarceration, a person found guilty of dangerous driving will also lose their drivers license for a period of at least one year in Ontario. A Judge may also impose a Canada wide driving ban for anyone found guilty of dangerous driving.

How can you appeal a conviction or sentence for dangerous driving?

It is always possible to appeal a conviction or sentence for any charge including dangerous driving. To read more about the criminal appeal process read: Appealing a criminal conviction or sentence. In some instances it is also possible to suspend the driving prohibition in order to get back a drivers license pending the outcome of one's appeal.

Every case of dangerous driving is fact specific and needs to be assessed on an individual basis. Personal circumstances and the other circumstances surrounding the driving are important considerations. Please call Daniel Brown at (416) 297-7200 to arrange a consultation to discuss a dangerous driving charge or other criminal matter.

This article provides a brief summary of the law in relation to the offence of failing to stop or failing to remain at the scene of a traffic accident (section 320.16 of the Criminal Code). In most provinces, a provincial driving statute such as the Ontario Highway Traffic Act may also regulate the offence of failing to remain at the scene of an accident. This article does not consider the law with respect to those provincial traffic statutes. Failing to remain charges often arise alongside other driving offences such as impaired driving or dangerous driving. If you or someone you know has been criminally charged with failing to remain at the scene of an accident, contact a criminal lawyer. The lawyers at Daniel Brown Law can be reached for an immediate consultation at (416) 297-7200.

Frequently asked questions about failing to remain at the scene of an accident:

(more…)

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.