Impaired Driving

Yes. "Operate" includes having care or control of the vehicle (Criminal Code s. 320.11). If you were in the driver’s seat you are presumed to have been operating it unless you prove you were not there to set it in motion (s. 320.35), and even then you can be convicted if your conduct created a realistic risk of danger (R v Boudreault, 2012 SCC 56).

Yes. Nothing in the impaired driving and over 80 offences limits them to public roads — they apply wherever you operate the vehicle. Where the vehicle was parked still matters to whether there was a realistic risk of danger. A criminal driving prohibition, once imposed, applies to streets, roads, highways and other public places (s. 320.24(8)).

Yes. Since December 2018, an officer who has an approved screening device with them can demand a roadside breath sample from any driver they have lawfully stopped, with no suspicion at all (s. 320.27(2)). Refusing is a crime under s. 320.15(1).

Yes. The over 80 offence covers your blood alcohol within two hours after you stop driving (s. 320.14(1)(b)), and a roadside screening demand can be made if an officer suspects you drove within the previous three hours (s. 320.27(1)). Drinking after you got home is a defence only if you had no reasonable expectation of being asked for a sample and your drinking fits the reading (s. 320.14(5)).

Yes. Impaired driving, over 80, drug-concentration offences and refusal are Criminal Code offences, not traffic tickets. The Crown can proceed summarily or by indictment, with a maximum of 10 years on indictment (s. 320.19(1)). A conviction leaves a criminal record.

You can, though the mandatory minimum for a first offence is a fine: $1,000, rising to $1,500 or $2,000 for high readings and $2,000 for a refusal. A second offence carries at least 30 days in jail and each later offence at least 120 days (s. 320.19). A court must treat factors such as a reading of 120 mg or more, a passenger under 16 or harm to more than one person as aggravating (s. 320.22).

No. A discharge is not available for an offence with a minimum punishment (Criminal Code s. 730(1)), and every first-offence impaired, over 80 and refusal charge carries a minimum fine. Even the treatment-program route in s. 320.23 cannot end in a discharge.

The judge must prohibit you from driving for one to three years (s. 320.24(2)(a)), and Ontario suspends your licence for one year (Highway Traffic Act s. 41), followed by an ignition interlock condition. Eligible first-time alcohol offenders can shorten the suspension through Ontario’s Reduced Suspension with Ignition Interlock program.

Only through an ignition interlock program. Driving while prohibited, or while suspended because of the conviction, is the separate crime of operating while prohibited (s. 320.18(1)); the exception is a driver registered in and complying with a provincial interlock program (s. 320.18(2)).

Yes. Refusing a breathalyzer in Ontario is a separate criminal offence — one with penalties that can exceed those for “over 80”. In Canada, it is a criminal offence to intentionally fail or refuse to comply with a demand to provide a police officer with a breath sample for the purpose of assessing the concentration of alcohol in the body of the driver of a motor vehicle. The offence is section 320.15(1) of the Criminal Code, and it carries the same maximum penalties as impaired driving and over 80.

You can physically decline, but doing so is itself a crime. A police officer who reasonably suspects you have alcohol in your body can demand a breath sample into an approved screening device, and since December 2018 an officer who simply has an approved screening device with them can demand one during any lawful stop, with no suspicion at all. Refusing that demand triggers a separate criminal charge with its own rules, penalties, and defences — plus an immediate 90-day licence suspension and a seven-day vehicle impoundment.

Usually no. Minimum fines for refusal are often higher, and the collateral consequences are just as serious. The minimum fine on a first refusal is $2,000; for over 80 it is $1,000 unless the reading is 120 mg or higher. The driving prohibition, the criminal record, the Ontario suspension, the ignition interlock requirement and the insurance consequences are the same either way.

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.

A person charged with refusing a breath sample in Toronto, Ontario may also be charged with impaired driving at the same time, because impaired driving can be proved on the officer’s observations without any reading at all.

Courts debated for years what mental state the Crown needed to establish, and Parliament settled part of it by writing the words “knowing that a demand has been made” into the section itself. So the Crown must prove you knew a demand had been made. Where the allegation is an outright refusal, that plus the refusal is the offence. Where the allegation is a failure — you tried to blow and no suitable sample was produced — the failure has to be intentional. A person who unintentionally fails to provide a sample is not guilty, because the charge requires a refusal or an intention to fail to provide the sample.

Generally no. The right to counsel typically arises upon arrest or detention for further testing — not for the initial approved screening device demand at roadside. That is because the roadside demand requires you to blow immediately. The position is different once you are arrested and taken to the station for breath tests on an approved instrument: there you must be informed of your right to counsel and given a real opportunity to use it, and being denied a private consultation with a lawyer before providing those samples has been held to be a reasonable excuse.

For a roadside screening test, effectively yes. Section 320.27(2) allows mandatory alcohol screening: where a peace officer has an approved screening device in their possession and is acting in the lawful exercise of a power — an ordinary traffic stop will do — they may require the driver of a motor vehicle to provide a sample immediately. No suspicion of alcohol is required. The suspicion-based demand in section 320.27(1) still exists alongside it, and the demand for breath tests at the station under section 320.28 needs the much higher standard of reasonable grounds to believe.

That can be fatal to the charge. A roadside demand requires you to provide the sample immediately, and in R. v. Breault the Supreme Court of Canada held that the validity of the demand requires the officer to have immediate access to an approved screening device — a person cannot be criminally liable for refusing to comply with a demand it was not actually possible to comply with. Where the officer had to radio for a device, the timing of everything that followed matters.

Yes. Section 320.27(1)(a) lets an officer with a reasonable suspicion demand that you immediately perform the physical coordination tests prescribed by regulation, and accompany them for that purpose. Failing or refusing that demand is an offence under section 320.15(1) in exactly the same way as refusing to blow. The same is true of refusing a drug evaluation or a blood sample demanded under section 320.28.

Sometimes, but the standard is strict and usually requires medical proof tied specifically to the testing moment. A medical condition that prevented the accused from providing a suitable sample — asthma or emphysema, for example — can mean there was no intentional failure at all. Medical grounds are also recognised as a reasonable excuse where performing the test would endanger the accused’s health, or where they were required to attend for medical treatment during the period when the officer wanted the test performed. Simply claiming a medical issue is not enough.

Determining whether an excuse is reasonable is always fact specific. What may be seen as reasonable in one case may not be held to be reasonable in another. Examples that have been held reasonable in some cases include: medical grounds; mental grounds, where the accused was so drunk or affected by drugs that he was unable to understand the nature of the demand or the effect of his refusal; denial of the right to consult with counsel in private prior to providing the breath sample; unreasonable inconvenience, such as being taken a very long distance for the test or where the test could not be validly performed within the time limits prescribed by law; the absence of grounds for the demand; and a breathalyzer machine that is not able to give an accurate reading, where the police insist on the test anyway.

Courts set the bar high, and the burden is on you to prove the excuse on a balance of probabilities. Excuses that typically fail are “I was too drunk to comply”, “I thought I could speak to a lawyer first at roadside” and “my lawyer told me not to blow”. A real excuse involves an actual, documented inability to provide a sample at that moment.

Once a refusal is unequivocal, the offence is complete. Changing your mind moments later rarely changes the result. Whether a refusal was unequivocal is a factual question for the trial judge, but a clear verbal refusal consistently counts.

That is a real defence. An unintentional failure to provide a breath sample can arise from a lack of comprehension of the instructions given by the police officer — because of the level of intoxication of the person being asked, or because of a language barrier between the officer and the accused. If the person did not understand the instructions given to them about providing a sample, they cannot be found guilty of the offence.

Yes. The machine receiving the sample of the driver’s breath may not have been operating properly, or there may have been an obstruction in the mouthpiece receiving the sample that made providing a suitable sample impossible. In either case the failure was not intentional. And if the person is taken to a machine that cannot give an accurate reading of the amount of alcohol in their blood, there is no reason for administering the test at all, so insisting on it gives the person a reasonable excuse for refusing.

A 90-day licence suspension, a seven-day vehicle impoundment, a $550 administrative penalty, an eight-hour education course and a $281 reinstatement fee — all before a court has decided anything. A conviction then brings a permanent criminal record, with potential impacts on employment and travel. Consult a criminal lawyer immediately.

A fine of not less than $2,000 on a first offence, under section 320.19(4). A second offence carries a minimum of 30 days imprisonment and a third or subsequent offence 120 days. Every conviction also carries a mandatory driving prohibition — one to three years on a first offence, two to ten on a second, three years or more after that — plus the whole of any custodial term.

Older material, including earlier versions of this page, gives the minimum fine as $1,000 and the suspension as 12 months. The minimum fine for a refusal has been $2,000 since the drinking and driving provisions were rewritten in 2018.

Ten years in prison where the Crown proceeds by indictment; on summary conviction, a fine of up to $5,000 or two years less a day, or both. The maximums rise sharply where the refusal follows an accident: 14 years where the person knew, or was reckless as to whether, they were involved in an accident resulting in bodily harm, and life where the accident resulted in death.

No. Section 730 of the Criminal Code does not allow an absolute or conditional discharge for an offence for which a minimum punishment is prescribed by law, and a refusal carries a minimum $2,000 fine. A finding of guilt for refusing a breath sample will therefore automatically result in a permanent criminal record for a first-time offender. The only route past the minimum is section 320.23, under which — with the consent of the prosecutor — a court may delay sentencing so the offender can attend a provincially approved treatment programme, and on successful completion need not impose the minimum punishment or the prohibition. Even then, it still cannot direct a discharge.

The consequences of a conviction for refusing a breath sample can include: job loss; fines, probation and possible imprisonment; loss of your driver’s licence; a 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; living with the social stigma of a criminal record; the risk of the conviction being reported publicly in the media; and a criminal record that will be stored and accessible in the national CPIC database.

For individuals without criminal histories, the effect of a refuse breath sample conviction on their livelihood, freedom and future opportunities in life can be tremendous.

Get legal advice immediately. Early strategy and disclosure requests significantly affect outcomes. Given the consequences of a drinking and driving conviction, it is important to consult with a lawyer in order to identify possible defences to the allegations before making any determination about defending your case or pleading guilty. Call Daniel Brown Law at 416-297-7200.

Possibly. Impaired driving can be laid alongside a refusal, because it can be proved from the officer’s observations without any breath reading. Over 80 cannot: a refusal means there is no reading to prove, so the two are alternatives to each other. You can read more information about impaired driving and other drinking and driving offences such as driving over 80, or about care and control where police say you were in charge of a vehicle without driving it.

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.

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).

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.

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.

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.

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).

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).

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.

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).

To obtain a conviction for failing to stop at the scene of an accident, the prosecutor must prove beyond a reasonable doubt that:

1. the accused operated a conveyance (which includes a motor vehicle);
2. that the conveyance was involved in an accident with a person or another conveyance;
3. that the operator of the conveyance knew or was reckless as to whether the conveyance had been involved in an accident; and
4. the accused failed to do all of the following things following the accident without a reasonable excuse:
   1. stop the vehicle;
   2. give his or her name and address; and
   3. where any person has been injured or appears to require assistance, offer assistance to that person.

There is no legal requirement imposed by the Criminal Code of Canada to remain at the scene of an accident involving only a single motor vehicle as long as there are no injuries to any passengers of that vehicle. The Criminal Code only requires a driver to remain at the scene of an accident if another person or conveyance was also involved in that accident.

The Ontario Highway Traffic Act is broader. Its duty to remain applies to any accident on a highway, including a collision involving only one vehicle, so leaving a single-vehicle collision can still lead to a provincial charge under s. 200.

Yes. "Hit and run" is the everyday term for what the Criminal Code calls failing to stop or remain at the scene of an accident. There is no separate offence called hit and run in Canadian law. Whether the police describe it as a hit and run, leaving the scene of an accident, or fleeing the scene, the charge is laid under section 320.16 of the Criminal Code and carries the same penalties and defences described on this page. Provincial statutes such as the Ontario Highway Traffic Act also contain their own failing to remain offences, which can be charged instead of, or alongside, the criminal offence.

The term "accident" within section 320.16 of the Criminal Code of Canada does not require any real physical damage before a person is obligated to stop and offer assistance. Rather, an accident will be deemed to have occurred when any form of contact is initiated between two vehicles or between the vehicle and another person and not only where damage or injury occurs.

Even in cases where there is no occupant in the other vehicle (such as a parked car), there is still an obligation for the driver to stop and make efforts to locate the driver or leave their personal information. A failure to stop and make such efforts could result in a conviction.

A person involved in an accident involving another person or vehicle must communicate his name and address in some meaningful and effective way to bring home to the other party that information, so that he or she may follow it up with the police or by pursuing a civil claim, knowing that he or she has the right person. Once this is done, the person has discharged their duties at the scene, provided they have also offered assistance to anyone who has been injured or appears to need it.

The Ontario Highway Traffic Act asks for more. On request, a driver must give in writing their name, address, driver's licence number and jurisdiction, insurer and policy number, the name and address of the vehicle's registered owner, and the vehicle permit number.

Section 320.16 of the Criminal Code of Canada imposes a personal obligation on the person involved in the accident to remain at the scene for the purpose of providing assistance and their personal information as required by law. This duty cannot be delegated to others such as the passenger of the vehicle involved in the accident unless there is a very pressing reason to justify the failure to remain and offer assistance. For example, a person who requires immediate medical attention may be justified in leaving the scene of an accident without providing their information to others involved in the accident.

The Court will look at the reason why a person left the scene of an accident to determine whether they had a good justification for their actions. If the Court concludes that the person left to obtain assistance and not to evade responsibility, that can amount to a reasonable excuse, and they should be found not guilty of the offence. The Highway Traffic Act expressly requires a driver to remain at, or immediately return to, the scene.

A driver only has an obligation to stop once he is aware an accident has occurred. It is a valid defence to the charge of failing to stop at the scene of accident to say that the driver was unaware he has struck another person or vehicle as long as the driver wasn't reckless about whether an accident had occurred.

The penalties for failing to stop at the scene of an accident can range from no time in jail to a maximum of life in jail. If a person is injured or killed and the driver knew it, or was reckless about it, there is a minimum punishment of a $1,000 fine (which includes a criminal record) for a first offender, 30 days in jail for a second offence and 120 days for each offence after that. The maximum is 14 years in jail where a person was injured, and life in jail where a person was killed. The maximum punishment for all other cases is ten years in jail with no minimum punishment.

During the sentencing phase, the judge may also consider suspending an accused person's driver's license for a period of time in addition to jail or a monetary fine. In all cases, a judge will assess the specific facts of the allegation that is before them and the history of the person being sentenced.

The Ministry of Transportation in Ontario will automatically suspend a person's driver's license for a period of 12 months upon conviction for failing to remain at the scene of an accident regardless of any further sanctions the Court imposes as a penalty. A second conviction within ten years brings a three-year suspension, and a third an indefinite one.

It is always possible to appeal a conviction or sentence for any charge including failing to stop at the scene of an accident. To read more about the criminal appeal process read: Appealing a criminal conviction or sentence. In some instances, it is also possible to suspend a driving prohibition in order to get back a drivers license pending the outcome of the appeal.