Failure or Refusal to Comply Lawyers Calgary

What is Failure or Refusal to Comply with a Demand?

Failure or refusal to comply with a demand is a criminal offence under section 320.15 of the Criminal Code of Canada (the “Code”). Per section 320.27 and 320.28, where a peace officer has reasonable grounds to suspect a person has alcohol or drugs in their body, and operated a conveyance, they may demand a breath, blood or bodily fluid sample be provided for analysis. This charge most often arises in conjunction with impaired driving charges.

In Calgary, although recent statistics indicate that failure to comply with a demand charges are not extremely common, the Calgary Police Service take the offence seriously and the punishments available in the Code reflect the seriousness of the charge.

The relevant provision for a failure or refusal to comply with a demand charge in the Code is:

Failure or refusal to comply with demand

320.15 (1) Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under section 320.27 or 320.28.

Per section 320.27(1):

Testing for presence of alcohol or drug

320.27 (1) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug:

(a) to immediately perform the physical coordination tests prescribed by regulation and to accompany the peace officer for that purpose;

(b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose;

(c) to immediately provide the samples of a bodily substance that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of approved drug screening equipment and to accompany the peace officer for that purpose.

Per section 320.28 (1):

Samples of breath or blood — alcohol

320.28 (1) If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it was impaired to any degree by alcohol or has committed an offence under paragraph 320.14(1)(b), the peace officer may, by demand made as soon as practicable,

(a) require the person to provide, as soon as practicable,

(i) the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of an approved instrument, or
(ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to take one, the samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to enable a proper analysis to be made to determine the person’s blood alcohol concentration; and

(b) require the person to accompany the peace officer for the purpose of taking samples of that person’s breath or blood.

A failure or refusal to comply with a demand charge is a serious offence with complex legal elements. It often engages Charter questions and requires careful review of the police investigation. For these reasons, having an experienced criminal defence lawyer on your side is critical.

Investigation of Failure or Refusal to Comply with a Demand Charges in Calgary

A failure or refusal to comply with a demand investigation is usually initiated following a suspicion of impaired driving at a routine traffic stop, at the scene of an accident, at a check-stop, after a driver is pulled over or pursued, or following a report or complaint from an alleged witness.

In the case of alcohol impairment, at the roadside, the officer will ask you to provide a breath sample which requires blowing into a handheld breathalyzer device. It is important to note that compliance with this test is mandatory for all drivers, regardless of why you were stopped.

In the case of drug impairment, the officer will ask you to perform a physical coordination test, as well as to provide a bodily substance sample which can be analyzed by approved drug screening equipment. A Drug Recognition Expert may also be called to perform a 12-step evaluation which includes; an eye examination, taking your blood pressure and searching for or examining any injection sites.

If the roadside samples indicate grounds to believe that you are impaired either by drugs, alcohol or both, you will be arrested and taken to the nearest police detachment for processing and further samples.

Once at the detachment you will be required to provide further evidence:

  • Alcohol Impairment: Two additional samples in a breathalyzer measuring your exact blood alcohol concentration (BAC), or a blood sample.
  • Drug Impairment: A sample of blood or urine to determine the exact drug and amount that is believed to have rendered you impaired.

It is important to note that you can be charged for failure or refusal to comply with a demand at roadside, or at the police detachment. You are required to fulfil both sets of demands.

Bail Process and Conditions for Failure or Refusal to Comply with a Demand Charges in Calgary

How do I get myself or a loved one out on bail for failure or refusal to comply with a demand charges in Calgary?

For most failure or refusal to comply with a demand charges, it is not unusual for police to release you at the scene. Police will provide you with an appearance notice outlining your charges, and any court appearances you must make.

If the police feel that your circumstances require more onerous conditions they may require you to sign an undertaking.

This document will outline your charges and include any specific conditions you must follow, including being prohibited from:

  • Leaving the province of Alberta;
  • Alcohol consumption; and/or
  • Staying out beyond a certain time (i.e. curfew).

If this is your second or subsequent failure or refusal offence, or there are other accompanying charges, you may require a formal bail hearing.

In the event that a bail hearing is necessary, you will be transferred from the district office to the Spyhill Services Centre. The bail hearing must be held within 24 hours, a period that starts from the moment of arrest or detention rather than the time when you are brought to the Centre. Although for many years the Centre was located in downtown Calgary, it is now situated in the deep Northwest of Calgary, which makes getting home after being released far more difficult for many people.

The exact address of the Centre is as follows:

Spyhill Services Centre
12500 85th Street, NW
Calgary, AB T3R 1J3
Tel: 403-428-3400

Loved ones are not able to contact you while you are detained. The police will not release any information to friends or family due to privacy laws. Your lawyer is the only person allowed to contact you. Once the police have verified your lawyer’s details, they will pass on information about your whereabouts, if requested.

Because of these difficulties, while you are held in custody, it is best to appoint a competent defence lawyer as soon as possible to manage the legal processes and communicate with loved ones. After an arrest, the police must provide you with the opportunity to call a lawyer in private and, if that happens, stop questioning you.

Once you retain one of our experienced criminal defence lawyers, we will begin working to secure your release on bail.

We will immediately do the following:

  1. Call in to the Spyhill Services Centre in Calgary and speak to you.
  2. Contact the prosecutor assigned to the bail hearing to start negotiating your release.
  3. Order and secure a copy of the police information package that details the allegations against you in advance of the bail hearing. This allows the lawyer to make meaningful representations to the court about why you should be released on bail.
  4. Conduct either an in-person or teleconference bail hearing to secure your release.

When you attend your bail hearing, the judge will consider the following factors:

  • Is detention necessary to secure your attendance in court?
  • Is detention necessary to protect the public from a substantial risk of re-offence?
  • Is detention necessary in all the circumstances to maintain confidence in the administration of justice?

Although it is unlikely that you will be denied bail for this type of charge, restrictions may nevertheless be applied to your release. Rest assured, we will work to not only secure your release but also to ensure the least restrictive set of bail conditions (including the minimum cash deposit).

Our lawyers are often successful at persuading the Crown Prosecutor in charge of bail to let our clients out. If we can’t convince the prosecutor, we can conduct a formal bail hearing and work to convince the court. Even if you are ultimately detained, we can appeal that decision on very short notice through a bail review, which is conducted at the Court of Queen’s Bench of Alberta. 

Where can I pay bail for failure or refusal to comply with a demand charges in Calgary?

If you or a loved one are charged with failure or refusal to comply with a demand in Calgary and granted bail, you may be required to provide a cash deposit to secure release. The cash deposit can be paid at any courthouse in Alberta. Even if you live in Edmonton, you can pay bail there for someone detained in Calgary.

Bail hearing offices in Calgary are open 24 hours a day, seven days a week.

The contact details of the bail hearing office at the Calgary Courts Centre are as follows:

Calgary Courts Centre
601 5th Street SW
Calgary, AB T2P 5P7
Tel: 403-297-4444

You can also make a bail payment at the Calgary Remand Centre prior to 8:30 pm.

The contact details for the Calgary Remand Centre are as follows:

Calgary Remand Centre
12200 85 Street NW
Calgary, AB T3R 1J3
Tel: 403-695-2100

To pay your own bail, you can make a payment after your hearing, assuming you have sufficient funds with you to do so. 

How do I change my release conditions for failure or refusal to comply with a demand charges in Calgary?

Release on bail with a failure or refusal to comply with a demand charge may require a surety, cash or no-cash deposit.

Beyond that, you may face tight restrictions, including conditions to refrain from:

  • Being behind the wheel of a motor vehicle;
  • Using drugs or alcohol;
  • Staying out beyond a certain time (i.e. curfew);
  • Breaking any laws;
  • Possessing weapons;
  • Visiting certain places; and/or
  • Travelling.

The judge can also impose additional conditions such as:

  • Residing where approved;
  • Reporting to probation;
  • Attending counselling; and/or
  • Maintaining or seeking employment.

A variety of factors will be considered when determining your precise restrictions, including:

  • Your criminal history;
  • Your history of drug/alcohol usage;
  • Your physical and mental condition;
  • The nature of the alleged offence; and
  • The likelihood that you will flee.

If you have already been released, at least for the short term, it is critical that you abide by your conditions until they can be changed. Breaching the terms of your release can result in further charges or a revocation of your bail, as well as a forfeiture of any cash paid to secure your release. It is important to take these conditions seriously.

Once the matter is in court, we can work with the Crown Prosecutor to alter your conditions. This includes either adding exceptions to some of the conditions or eliminating them altogether.

If your court date is far away and you cannot wait until then, we can arrange to have the matter dealt with sooner. Our first priority is always to stabilize your release conditions, that way you will not feel pressured to plead guilty because of the restrictive terms of your release. Once the conditions are manageable and minimally intrusive to your daily routine, we can focus 100% of our attention on defending the case.

Penalties for Failure or Refusal to Comply with a Demand Charges in Calgary

Failure or refusal to comply with a demand is treated as a hybrid offence in Canada. This means that the Crown can choose to prosecute you summarily or by way of indictment, indictment being the more severe.

Your punishment will vary depending on how the Crown chooses to proceed:

  • Indictment: Maximum $5,000 fine or imprisonment of two years less a day, or both;
  • Summary: Maximum ten years imprisonment. 

You will also face a mandatory minimum penalty whether the Crown chooses to proceed via summary or indictment:

  • First offence: A fine of $1,000;
  • Second offence: Imprisonment for a term of 30 days;
  • Each subsequent offence: Imprisonment for a term of 120 days.

In addition to the immediate penalties resulting from a conviction for a failure or refusal to comply with a demand charge, it can have wide-ranging negative consequences on your future. You may have difficulties securing employment in the area of your choice, especially in roles that require driving. Furthermore, your insurance rates will almost certainly increase (contact your insurance agency for specifics). One of the most serious long-term consequences is the lifelong criminal record that results from a conviction, which can hinder immigration and travel.

For these reasons, even if you intend on accepting responsibility for this type of offence, it is worthwhile to explore your options and consider all the potential penalties. Often, good representation can result in no criminal record. Furthermore, a community-based sentence may be obtained even where the Crown is seeking jail time.

Rest assured, our lawyers will work hard to defend you so that you are not saddled with the consequences that stem from a failure or refusal to comply with a demand charge. In fact, we can canvass a range of sentencing options with the prosecutors that will either leave you with no criminal record or impose minimal restrictions on your liberty after sentencing. To learn more about potential non-criminal resolutions, please visit our resolutions page, or read our FAQ on resolutions and other sentencing options.

Calgary Failure or Refusal to Comply with a Demand

Defending Failure or Refusal to Comply with a Demand Charges in Calgary

What are the best defence to failure or refusal to comply with a demand charges in Calgary?

The defence that is best for you will depend on the circumstances of your offence. Generally, some of the best defences to failure or refusal to comply with a demand are:

  • Violation of Constitutional Rights: The Canadian Charter of Rights and Freedoms (the “Charter”) sets out your rights before and after your arrest. If the police fail to abide by these rights, it can aid your defence.
  • Lawful Demand: In order for a charge for failure or refusal to comply with a demand to be upheld, the demand made by the peace officer must have been lawful. If it was not, the court will be unable to proceed.
  • Reasonable Excuse: If you have a reasonable excuse, such as a medical condition that can be confirmed by a physician which renders you incapable of providing a sample, this can be used to show to show you should not be convicted.
  • Did Not Know Demand Made: If you were unaware that a demand was being made, for example due to a language barrier, this will weaken the requisite mens rea (mental element) of the offence.
  • Did Not Fail or Refuse to Comply: If you intended to provide a sample but were not permitted to do so by the breath technician or peace officer, this will significantly diminish the Crown’s case.

We will carefully review the entire police file, which may include expert reports from a traffic reconstructionist, witness statements, medical evidence, collision reports, photographs, video footage, and other documents pertaining to your case. Our lawyers will explore every possible defence that could raise a reasonable doubt about the prosecution’s evidence and/or your Charter rights being upheld. 

How can I help defend failure or refusal to comply with a demand charges in Calgary?

If you have been charged with failure or refusal to comply with a demand, the following actions can help your lawyer build a strong defence:

  • Take detailed notes about your version of events to provide to your lawyer;
  • Have passengers write down their observations of what happened;
  • Collect and maintain all documents and records about the event;
  • Gather any photographic evidence that you may have; and
  • Log any relevant texts, emails or phone calls.

As soon as you are released, start gathering any information that may be of use to your lawyer. What information is relevant will depend on the facts of your case. If you are uncertain what information may be relevant, you should contact one of our lawyers immediately to create a plan of action for gathering information.

To be truly proactive about the matter, consider doing the following:

  • Secure proof of employment;
  • Secure reference letters;
  • Enroll in counselling (e.g. alcohol or drug rehabilitation);
  • Secure a record of prescriptions; and
  • Secure a record of any mental health conditions you suffer from.

These steps can be very helpful in building an effective defence (or convincing the prosecutor to drop the charges altogether).

What can a lawyer do to help me defend against failure or refusal to comply with a demand charges in Calgary?

As we start preparing your defence by examining police actions and the evidence against you, there are certain defence strategies that can be used to aid your cause. Some of these include:

  • Assembling documents, photos, texts, etc. that contradict the allegation and support your version of events;
  • Identifying mistakes in the actions of the police, such as Charter breaches; and
  • Uncovering administrative/systemic errors, such as “Jordan delay,” non-disclosure, lost or destroyed evidence, etc.

Even if the charges proceed and you are found guilty, a good lawyer can significantly reduce the severity of the consequences for you.

Further Reading

Below are a few notable cases dealing with various aspects of a failure or refusal to comply with a demand charge:

In R v Agout, 2018 ABPC 180 the accused was charged with impaired driving and failure or refusal to comply with a breath demand. At issue was whether the accused failed or refused to comply by being unable to provide a usable breath sample after nine attempts. Although defence argued that the accused had tried his best and was following the instructions of the breath technician, the court determined that the breath technician provided proper instructions and the accused continued to provide “insufficient flow” for the machine. The accused was found guilty of failure or refusal to comply.

In R v Daytec, 2021 ABPC 48, the accused was also charged with impaired driving and failure or refusal to comply with a breath demand. Though the accused provided one acceptable breath sample while at police dispatch, he failed to provide a second sample despite seven attempts. At issue was whether the accused had a “reasonable excuse.” The court determined that although the accused was provided seven attempts to provide a second sample, the breath technician did not provide adequate instructions as to how to provide a sample, and for this reason the accused was unable to comply. The accused was found not guilty of the failure or refusal to comply charge.

In R v Veen, 2109 ABPC 55, the accused was charged with failure or refusal to comply with a breath demand. The accused was arrested and brought back to the police detachment after the officer believed he was refusing to comply. At issue was whether this arrest was lawful. The court determined that although the refusal to comply was made out, the accused’s Charter rights were breached when he was unlawfully arrested and detained. All of the necessary paperwork, etc could have been completed at the scene without the need to transport the accused back to police detachment. The accused’s charges were stayed.

What’s Next?

Most of the information above relates to simple failure or refusal to comply with a demand charges, which can become increasingly complex and fact-specific depending on the circumstances of your case.

We have tried our best to provide a general outline of what you can expect if you find yourself in this situation, but this is just the tip of the iceberg.

To learn more about how we can help, please contact our team of impaired driving lawyers. We will conduct a thorough review of your situation and tailor a precise strategy that targets your successful defence.

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