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Yes, you can be convicted of an impaired driving offence without driving. In the Criminal Code, to “operate” a motor vehicle includes having care or control of it (s. 320.11). If you are found in the driver’s seat, the law presumes you were operating it unless you prove you were not there to set it in motion (s. 320.35). Without that presumption, the Crown can still prove care or control by showing a realistic risk of danger, the test the Supreme Court of Canada set in R v Boudreault, 2012 SCC 56. For the charges themselves, see our impaired driving and over 80 defence page.
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 or control” of a motor vehicle, so that they can be convicted of an impaired driving or over 80 offence without proof that they were driving.
The law has changed since then. On December 18, 2018, Parliament repealed the old drinking and driving sections, including ss. 253 and 258, and replaced them with Part VIII.1 of the Criminal Code (S.C. 2018, c. 21). The offence is now operating a conveyance while impaired or with a blood alcohol concentration of 80 mg or more (s. 320.14(1)). “Care or control” did not disappear: it moved into the definition of “operate”. This article explains what R v Boudreault decided, and how the same ideas work under the current sections.
- The offence
- Criminal Code s. 320.14(1)Operating while impaired, or at 80 mg or more within two hours
- “Operate” includes
- Care or controlDriving is not required (s. 320.11)
- In the driver’s seat
- Presumed operatingUnless you prove you were not there to drive (s. 320.35)
- First conviction
- $1,000 minimum fineAnd a driving ban of 1 to 3 years (ss. 320.19, 320.24)
What does it mean to be in care or control of a motor vehicle?
Three elements, one question: did your conduct create a realistic risk of danger?
In R. v. Boudreault, The Supreme Court clearly set out the elements of care or control. They include:
- (1) an intentional course of conduct associated with a motor vehicle;
- (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit;
- (3) in circumstances that create a realistic risk of danger to persons or property.
R. v. Boudreault attempts to define what creates a realistic risk of danger as opposed to a theoretical or speculative risk. The Court said the risk must be realistic and not just theoretically possible, but it need not be probable, or even serious or substantial (para. 34). That is a low threshold (para. 35).
The prosecutor need not prove that an accused person intended to drive the vehicle in order to make out the offence of care or control. The Supreme Court recognized that an intoxicated person may accidently, or unintentionally put a vehicle in motion, thus creating a realistic risk of danger to others absent a present intention to set the vehicle in motion.
In his majority judgment, Justice Fish recognizes a realistic risk of danger may arise in at least three ways absent a present intention to drive:
- (1) an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so;
- (2) an inebriated person behind the wheel may unintentionally set the vehicle in motion; and
- (3) through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.
Not automatic, but close. Therefore, while not automatic, Justice Fish reminds us that, “anyone found inebriated and behind the wheel with a present ability to drive will — and should — almost invariably be convicted” (para. 45).
What happened in R v Boudreault?
Factual background
On a cold February morning, Mr. Boudreault was found asleep in the driver’s seat of his parked pickup truck. It was the taxi driver he had called who found him, and who phoned the police instead of waking him. He was charged with having care or control of a motor vehicle while his ability was impaired by alcohol, and while over 80. He was seated in the driver’s seat with the engine running.
Prior to his arrest, Mr. Boudreault had consumed a large quantity of alcohol at a local bar the night before. While at the bar, he met a woman and spent the remainder of the evening at her apartment, where the drinking continued into the morning. The following morning, Boudreault, still too drunk to drive, asked the woman to call him a cab, which she did not once but twice. Eventually asked to leave her apartment, Mr. Boudreault decided to wait inside his vehicle for the cab to arrive. He turned on the car, turned on the heat and fell asleep awaiting the cab’s arrival. The truck was in a private driveway, on level ground, in park; it was minus 15 degrees outside (paras. 17–20).
Legal issue
There was no question that Mr. Boudreault was still impaired by alcohol at the time the police arrived: his breath readings were more than three times the legal limit (para. 22). The question for the court to resolve was whether or not he was in “care or control” of his motor vehicle, such that he should be found guilty of having care or control of a motor vehicle while impaired, and while over 80, under s. 253(1) of the Criminal Code as it then read.
The outcome
In Mr. Boudreault’s case, he was able to offer credible evidence that he was simply escaping a cold winter morning in a warm vehicle while waiting for a cab to pick him up. It was the existence of this “alternate plan” to get home that led to his acquittal, as he had satisfied the judge that there existed no “realistic risk” that his vehicle would be put in motion.
The trial judge acquitted him. The Quebec Court of Appeal substituted convictions. The Supreme Court, by a majority, restored the acquittals: whether a realistic risk existed is a finding of fact, and the Crown can appeal an acquittal only on a question of law alone (paras. 6, 11, 15–16). Justice Cromwell dissented.
Is “care and control” still an offence after the 2018 changes?
Yes, although it is no longer a separately named offence. Since December 18, 2018, the offence is operating a conveyance while impaired or over 80 (Criminal Code s. 320.14(1)). For a motor vehicle, “operate” means “to drive it or to have care or control of it” (s. 320.11). The Justice Canada backgrounder to the 2018 law explains that the definition “includes the concept of ‘care or control’, which is taken from the impaired driving offences.”
So the words the Supreme Court interpreted in R v Boudreault are still in the Criminal Code. Its three-element test is still the starting point for what care or control means. What changed is the section numbers and the name: people are now charged with “operating” while impaired, even where the Crown’s theory is care or control rather than driving.
The driver’s seat presumption
If it is proved you occupied the seat ordinarily occupied by the operator, you are presumed to have been operating the vehicle unless you establish that you did not occupy it for the purpose of setting it in motion (Criminal Code s. 320.35). This replaced the old care-or-control presumption in s. 258(1)(a); Justice Canada says nothing changed about how it is rebutted.
Care or control without the presumption
Rebutting the presumption does not end the case. The Crown can still prove care or control directly. In R v Boudreault, the Court said an accused who shows they had no intention to drive will not necessarily escape conviction: someone impaired, behind the wheel, with a present ability to drive, may still present a realistic risk of danger (para. 41).
The drinking still has to be proved
Care or control only answers the “operate” question. The Crown must still prove impairment to any degree by alcohol or a drug, or a blood alcohol concentration of 80 mg or more within two hours after you ceased to operate the vehicle (Criminal Code s. 320.14(1)(a) and (b)).
Rebutting a “realistic risk of danger”
For someone found behind the wheel with a present ability to drive, the accused will need to adduce credible and reliable evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case in order to escape conviction. The Court described this as a “tactical necessity” rather than a legal burden (para. 48). The answers fall into two groups: those that attack the driver’s seat presumption, and those that attack the risk itself.
You were not there to drive
Attacks: the presumption
Evidence that you got into the driver’s seat for another reason, such as shelter or warmth, and not to set the vehicle in motion, can rebut the s. 320.35 presumption. On its own it is not a full answer: the Crown can still try to prove a realistic risk.
The vehicle could not pose a risk
Attacks: realistic risk
For example, it may be argued that the motor vehicle was inoperable or, on account of its location or placement, could, under no reasonably conceivable circumstances, pose a risk of danger.
An innocent purpose
Attacks: realistic risk
Likewise, use of the vehicle for a manifestly innocent purpose should not attract the stigma of a criminal conviction.
A plan to get home
Attacks: realistic risk
The impact of an “alternate plan” of this sort on the Court’s assessment of the risk of danger depends on two considerations: first, whether the plan itself was objectively concrete and reliable; second, whether it was in fact implemented by the accused. In every case, this will be a fact specific inquiry.
A plan can fail. A plan may seem watertight, but the accused’s level of impairment, demeanour or actions may show a realistic risk that it would be abandoned. Even where the taxi was probably coming and there was a good reason to sit in the driver’s seat, a judge may still find a realistic risk (R v Boudreault, paras. 52–53).
It bears repeating that most people found in the driver’s seat of a motor vehicle while drunk will face the likelihood of conviction on the basis that they were in care or control of their motor vehicle while impaired. To avoid conviction, the accused in practice has to lead credible evidence (such as an alternate plan to get home) capable of rebutting the inference that the vehicle would be put in motion. Apart from the driver’s seat presumption, the legal burden stays on the Crown: the Court said any other reverse onus is a matter for Parliament, not the courts (paras. 47–48). The driver’s seat presumption is now s. 320.35.
How does a court decide a care-or-control case?
The questions come in a fixed order. Whether a realistic risk existed is a finding of fact, made on all the evidence (R v Boudreault, para. 50).
-
Were you in the driver’s seat?
If so, the Criminal Code presumes you were operating the vehicle (s. 320.35). If you were in the back seat or the passenger seat, the presumption does not apply and the Crown has to prove care or control another way.
-
Can you rebut the presumption?
You must establish that you did not occupy the seat for the purpose of setting the vehicle in motion. An intention to drive is not itself an element of the offence (R v Boudreault, para. 36).
-
Was there a realistic risk of danger?
If the presumption is rebutted or does not apply, the Crown must prove care or control under R v Boudreault. Where impairment and a present ability to set the vehicle in motion are shown, a realistic risk is normally the only reasonable inference unless there is evidence to the contrary (para. 48).
-
Was the drinking proved?
Finally, the Crown must prove impairment, or a blood alcohol concentration of 80 mg or more within two hours after you ceased to operate the vehicle (s. 320.14(1)).
What are the penalties for care or control in Canada?
The same as for impaired driving or over 80, because care or control is a way of operating the vehicle. The maximum is 10 years on indictment, or a $5,000 fine and up to two years less a day on summary conviction (Criminal Code s. 320.19(1)). The minimum punishments and the driving ban are mandatory, so a discharge is not available (s. 730(1)). Criminal record: Permanent.
| Conviction | Minimum punishment (s. 320.19(1)) | Criminal driving ban (s. 320.24) |
|---|---|---|
| First | $1,000 fine$1,500 at 120 mg or more, $2,000 at 160 mg or more (over 80) | 1 to 3 yearsPlus any time in custody |
| Second | 30 days jail | 2 to 10 yearsPlus any time in custody |
| Each later one | 120 days jail | 3 years or moreNo maximum |
Ontario adds its own licence suspension on conviction: one year for a first conviction, three years for a second within 10 years, and indefinitely after that (Highway Traffic Act s. 41).
In Ontario the licence consequences start before any conviction. A person driving or having the care, charge or control of a motor vehicle who blows 80 or more on an approved instrument, or fails or refuses a demand, loses their licence for 90 days on the spot, and the vehicle is impounded for seven days (Highway Traffic Act ss. 48.3, 48.3.1 and 48.4). A refusal carries its own $2,000 minimum fine (s. 320.19(4)); see refusing a breath sample. For ways to shorten a driving ban, see reduced driving prohibitions.
Why Choose Daniel Brown Law?
Daniel Brown Law is a leading Canadian criminal defence firm. Our lawyers defend impaired driving and care-or-control charges.
A nationally recognized defence firm
An award-winning reputation in criminal defence: ranked among Canada’s top criminal law boutiques by Canadian Lawyer, listed for criminal defence by The Globe and Mail and Best Law Firms, and voted Best Law Firm and Best Legal Services by Toronto Star readers.
The facts decide these cases
Whether a realistic risk existed is a finding of fact. Our lawyers build the evidence around it: where the vehicle was, whether it could move, why you were in it and how you planned to get home.
Impaired driving defence, start to finish
From the 90-day suspension to trial, our lawyers defend impaired driving and over 80 charges and refusal charges.
Recognized by the profession and the public
Daniel Brown Law is ranked among Canada’s top criminal law boutiques by Canadian Lawyer, listed by The Globe and Mail and Best Law Firms for criminal defence, and voted Best Legal Services by Toronto Star readers. Five of its lawyers are recognized by Best Lawyers in Canada for criminal defence.
Best Law Firms: Criminal Law
The Globe and Mail, 2026
Top Criminal Law Boutique
Canadian Lawyer, 2026–27
Criminal Defence, Tier 1
Best Law Firms Canada, 2026
Best Lawyers in Canada
Criminal Defence, 2027
Toronto Star Readers’ Choice
Best Law Firm and Best Legal Services, repeat winner
Crime, Nationwide
Chambers Canada, 2027
The firm and its lawyers have been repeatedly recognized for excellence in criminal defence:
- Canada’s Best Law Firms 2026 — The Globe and Mail (Report on Business)
- Canada’s Top Criminal Law Boutiques 2026–27 — Canadian Lawyer Magazine
- Best Law Firms 2026 — Criminal Defence and Appellate Practice (Best Lawyers / Best Law Firms)
- Best Lawyers in Canada — Criminal Defence — Daniel Brown, Hilary Dudding, Mark Halfyard, Lindsay Board and Colleen McKeown
- Toronto Star Readers’ Choice Awards — Best Law Firm and Best Legal Services, repeat winner
- Chambers Canada 2027 — ranked for Crime, nationwide, by Chambers and Partners
- Certified Specialists in Criminal Law — Law Society of Ontario (Daniel Brown and Mark Halfyard — fewer than 2% of Ontario criminal lawyers hold this designation)
Care or Control — Frequently Asked Questions
Short answers to the questions people ask about being charged without driving.
The law today
What does it mean to be in care or control of a motor vehicle?
Under R v Boudreault, 2012 SCC 56, care or control means an intentional course of conduct associated with a motor vehicle, by a person whose ability to drive is impaired or whose blood alcohol level is over the limit, in circumstances that create a realistic risk of danger to persons or property. Having care or control is one way to “operate” a motor vehicle under s. 320.11 of the Criminal Code.
Does the Crown have to prove I intended to drive?
No. An intention to set the vehicle in motion is not an element of the offence. An impaired person may change their mind, or set the vehicle in motion by accident (Boudreault, paras. 36 and 42).
What if the engine was running but I was asleep?
That was Mr. Boudreault’s situation, and he was acquitted because the trial judge found no realistic risk he would drive. But the Supreme Court said anyone found impaired behind the wheel with a present ability to drive will almost invariably be convicted. What matters is the evidence of why you were in the driver’s seat and how you planned to get home.
What if I was sitting in the back seat?
The s. 320.35 presumption applies only to the seat ordinarily occupied by the person who operates the vehicle. In the back seat, the Crown has to prove care or control without it, under the Boudreault test.
Boudreault and the defences
What did the Supreme Court decide in R v Boudreault?
That a realistic risk of danger is an essential element of care or control, and that whether it existed is a question of fact. Because the trial judge found as a fact that there was no such risk, the Crown’s appeal could not succeed, and Mr. Boudreault’s acquittals were restored.
What counts as an alternate plan?
A plan to get home without driving, such as a taxi that has been called. It helps only if it was objectively concrete and reliable and was actually implemented. A judge can still find a realistic risk that an impaired person would abandon it (Boudreault, paras. 52–53).
Can an inoperable vehicle still lead to a conviction?
It can be a defence: evidence that the vehicle was inoperable, or could not pose a risk because of where it was, may show there was no realistic risk (Boudreault, para. 49). It is not automatic. The Court also said a stationary or inoperable vehicle can itself endanger persons or property (para. 42).
Penalties
What is the penalty for care or control in Canada?
The same as for impaired driving or over 80: for a first offence, a minimum $1,000 fine (more for high readings) and a driving prohibition of one to three years; 30 days in jail minimum for a second offence and 120 days for each later one (Criminal Code ss. 320.19 and 320.24). The maximum is 10 years on indictment.
Will my licence be suspended right away in Ontario?
Yes, if a breath or blood analysis shows 80 mg or more, or you fail or refuse a demand. The 90-day suspension and seven-day vehicle impoundment apply to a person who has care, charge or control of the vehicle, not only a driver (Highway Traffic Act ss. 48.3 and 48.4).
Charges we defend
Learn more about some of the charges we defend. We defend more than what we have written blog articles about.
- Assault
- Bail hearings
- Bail pending appeal
- Coercive control
- Criminal appeals
- Criminal harassment
- Dangerous driving
- Distributing an intimate image
- Domestic assault
- Drug possession
- Drug trafficking
- Extradition
- Fail to appear at court
- Fail to comply with bail
- Failing to remain at the scene
- Firearm and weapon possession
- Forcible confinement
- Fraud
- Impaired driving
- Importing drugs
- Mischief
- Murder and manslaughter
- Obstruct police
- Peace bonds
- Public mischief
- Refusing a breath sample
- Robbery
- Sexual assault
- Sexual exploitation
- Theft and shoplifting
- Uttering threats
- Voyeurism
- Young offenders
Charged without driving? Talk to Daniel Brown Law
A care-or-control case turns on the facts of the night, and those are easiest to gather early. To arrange a consultation with Daniel Brown Law, contact our team or call our office at (416) 297-7200.
Phone: (416) 297-7200
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