5 Surprising Truths About Impaired Driving Charges in Toronto

The sudden flash of red and blue lights in your rear-view mirror is a moment of panic. Your heart races and your mind spins: What did I do? What happens next? For many people stopped on suspicion of impaired driving, this is only the beginning of a difficult legal journey through a system that is stricter—and more complicated—than they expect.

Many people think they understand “DUI” laws, but Canadian impaired driving law changed dramatically when Bill C-46 came into force. The rules, defences, and legal definitions have all shifted. What used to be common knowledge may now lead you into serious legal trouble.

If you are charged with impaired driving in Toronto, it’s critical to have accurate legal advice. Outdated information and online myths can make your situation worse. Below are five surprising truths about impaired driving law in Ontario—and why having an experienced Toronto criminal lawyer can make the difference between a conviction and an acquittal.

1. You Don’t Need to Be Driving to Be Guilty: The Law of “Care or Control”

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. This means that simply being in a position to put the vehicle in motion can be enough to be found guilty. 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. 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. Instead of the Crown having to prove you intended to drive, you must prove, on a balance of probabilities, that you did not intend to set the vehicle in motion. This is an incredibly difficult standard to meet. 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.”

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).

The Strategic Bottom Line: The law empowers the police to charge you based on a future risk. Your ‘responsible’ decision to sleep it off can be twisted into a criminal act, forcing you to prove your own innocence—a reversal of the normal burden of proof that is incredibly difficult to overcome in court.

See how we defend impaired driving and “over 80” cases and review our commentary on care and control law.

2. The Two-Hour Rule: Drinking After Driving Can Still Lead to a Charge

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. 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 effectively criminalizes most forms of post-driving drinking. The focus has shifted entirely: Society is endangered by drinking and driving, but not by driving then drinking. To avoid criminalizing innocent post-driving drinking behaviour, section 320.14(5) of the Criminal Code provides a defence for individuals who consume alcohol or drugs after driving. However, this defence is exceptionally narrow. To use it, you must prove 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. 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. This change represents a seismic shift, closing a loophole that frustrated prosecutions for decades.

Why This Is a Trap: The law is so focused on eliminating the old loophole that it can catch people who legitimately drink after arriving home. If you have a drink and the police show up at your door within two hours of you driving, you are presumed guilty. You then have to prove that you had no reason to believe the police would demand a sample—a difficult and unexpected legal battle.

Learn how our team challenges breath and blood testing.

3. Refusing a Breath Test Is Its Own Crime—With Harsher Penalties

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. 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 Supreme Court of Canada has made the distinction clear, stating that the crime is one of disobedience, not impairment: Culpability for the refusal offence is based on disobedience with lawful compulsion, whereas culpability for an “over 80” offence is based on driving with a blood-alcohol concentration over the legal limit. Not only is it a separate crime, but the penalties are often more severe. 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. While the law allows for a “reasonable excuse” for refusing, courts have interpreted this defence so narrowly that common reasons—like confusion, a mistake about the law, or even bad advice from a lawyer—are consistently rejected.

The Strategic Bottom Line: Refusing the breathalyzer does not save you from a charge; it hands the Crown a different, and often easier, conviction. The penalties are harsher, and the defences are almost non-existent. It is a strategic dead end.

Read more: Refusing a Breath Sample in Toronto: What to Know and our older overview on refusal charges.

4. Drug-Impaired Driving: Feeling Sober Doesn’t Mean You’re Safe

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. 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. 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. This is the new reality of drug-impaired driving law.

The Trap Here Is Obvious: With legalized cannabis, the law is no longer about whether you feel impaired, but about what a blood test finds. You can feel perfectly sober and still be charged with a crime for a decision you made days ago.

Learn about defending drug-impaired driving allegations.

5. The Licence Suspension Trap: A Criminal Ban Can Become a Lifetime Loss

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. 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. 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.

Why This Is a Trap: The criminal court system and the provincial ministry system do not align. Believing your sentence is over when the judge’s order expires is a natural, but legally fatal, mistake. The consequence is not just a traffic ticket, but a new criminal record and potentially jail time.

Read more about prohibitions, suspensions, and defending driving offences.

Navigating Ontario’s Impaired Driving Laws

As we’ve seen, the laws governing impaired driving in Toronto and across Ontario are far more complex and filled with more counter-intuitive rules than most people realize. From being convicted without moving an inch to facing a lifetime ban you never knew about, the landscape is treacherous for anyone trying to navigate it without expert guidance. The law is designed to be strict, but its hidden complexities can feel like traps for the unwary. If you’re facing these charges, the most important question isn’t whether you made a mistake—it’s whether you fully understand the legal maze that lies ahead.  Early advice from an experienced impaired driving lawyer in Toronto can protect your rights and your future.

The award winning lawyers at Daniel Brown Law have successfully defended countless impaired driving charges in Ontario and our team of drinking and driving law experts can help guide you through the process of defending your case.