5 Surprising Truths About Impaired Driving Charges in Toronto

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. That definition is in section 320.11. This means that simply being in a position to put the vehicle in motion can be enough to be found guilty.

A presumption that works against you

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. Strictly, the Code says you are presumed to have been operating it. 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.

To escape the presumption, you must prove, on a balance of probabilities, that you did not occupy the driver's seat for the purpose of setting the vehicle in motion. This is an incredibly difficult standard to meet.

Even without the presumption: a “realistic risk of danger”

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." The Supreme Court of Canada set out that test in R v Boudreault, 2012 SCC 56. It is a low threshold: the risk must be realistic rather than just theoretically possible, but it need not be probable. Without a present intention to drive, the Court said the risk can arise in three ways — you might change your mind and drive while still impaired, you might set the vehicle in motion by accident, or a stationary vehicle might itself endanger someone.

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). In Boudreault the Court said a plan counts only if it was objectively concrete and reliable and you actually put it into effect.

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. And if the first test happens more than two hours after you stopped driving, the Code presumes your reading within the two hours was higher: the result plus 5 mg for every 30 minutes past the two-hour mark (s. 320.31(4)).

The end of the “intervening drink” defence

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 criminalizes post-driving drinking whenever you should expect to be tested. The focus has shifted entirely: Society is endangered by drinking and driving, but not by driving then drinking.

The narrow exception

To avoid criminalizing innocent post-driving drinking behaviour, section 320.14(5) of the Criminal Code provides a defence for individuals who consume alcohol after driving (s. 320.14(6) and (7) do the same for drugs, and for alcohol and drugs combined). However, this defence is exceptionally narrow. To use it, there must be evidence 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 — and your drinking has to be consistent with both your test result and a reading under 80 at the time you were driving.

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. Someone who got home safely, sober, and then had a few drinks is the kind of case the exception was written for. The federal Department of Justice’s explanation of the law says that once there is an air of reality to such a claim, the Crown has to disprove it; the courts decide what counts as a reasonable expectation case by case.

This change represents a seismic shift, closing a loophole that frustrated prosecutions for decades.

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. And you do not have to be suspected of anything to be asked: an officer who has an approved screening device with them can demand a roadside sample from any driver they have lawfully stopped (s. 320.27(2)).

Often an easier charge to prove

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 offence is about disobeying a lawful demand, not about impairment: the Crown does not have to prove that you were impaired or over the limit.

A refusal and an over 80 charge are alternatives — if you refused, there is no reading — but an impaired driving charge can still be laid alongside the refusal, and at that trial the court may draw an inference against you from the refusal (s. 320.31(10)).

The penalties

Not only is it a separate crime, but the penalties are the same or more severe. A refusal carries the same maximum sentence and the same mandatory driving prohibition as impaired driving and over 80 (ss. 320.19(1), 320.24). The difference is the fine. 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. Only an over 80 reading of 160 mg or more carries the same $2,000 minimum (s. 320.19(3) and (4)). Because a minimum punishment applies, a discharge is not available either (s. 730(1)).

“Reasonable excuse” is narrow

While the law allows for a "reasonable excuse" for refusing, courts read it narrowly. A mistake about the law is not an excuse (Criminal Code s. 19). Following bad advice from a lawyer is not a defence either: in R v Suter, 2018 SCC 34, the driver had refused on a lawyer’s advice and pleaded guilty, and the Supreme Court of Canada treated the advice as relevant, at most, to the sentence. A genuine medical inability to provide a sample is the kind of excuse that can succeed — and it answers only the refusal charge.

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. The limits are set in the federal Blood Drug Concentration Regulations (SOR/2018-148):

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. The report, by the society’s Drugs and Driving Committee in 2017, found that the effects of THC do not correlate well with THC blood levels, and that the 2 ng limit rests on public safety rather than on 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. That risk is greatest for regular users: the same report notes that people who use cannabis daily can stay above a per se limit for hours or possibly days after they stop. This is the new reality of drug-impaired driving law.

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.

It starts before any conviction. In Ontario, a reading of 80 or more, a refusal, or a failed drug evaluation means your licence is suspended on the spot for 90 days and your vehicle is impounded for seven, with no hearing first (Highway Traffic Act ss. 48.3, 48.3.1 and 48.4).

Two clocks, two governments

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. It does not simply end on a date, either: under section 41 of the Highway Traffic Act, it continues until you have completed any conduct review program the Ministry requires you to take.

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. That section also covers a provincial suspension imposed because of the conviction, and it carries up to 10 years on indictment (s. 320.19(5)).

The way back: ignition interlock

The two systems do meet in one place. Driving while registered in, and complying with, Ontario’s ignition interlock program is not an offence (s. 320.18(2)), and for a first offence the court decides whether you must wait any time before registering (s. 320.24(10)). Ontario’s Reduced Suspension with Ignition Interlock program can cut a first-time alcohol-only suspension to as little as three months, followed by at least nine months with an interlock, for drivers who plead guilty and are sentenced within 90 days of the offence. Drug-impaired convictions and cases involving bodily harm or death are not eligible. Whether it is open to you is something to decide before you plead.