Toronto DUI & Impaired Driving Lawyer

The Charges You Are Actually Facing

Most people arrested at the roadside are charged with more than one offence, and the charges are not interchangeable. Since December 2018 the impaired driving provisions live in Part VIII.1 of the Criminal Code, so the section numbers you may remember, 253 and 254, no longer apply. The three charges that matter are set out in section 320.14 of the Criminal Code and section 320.15.

• Impaired operation. Operating a vehicle while your ability to do so is impaired to any degree by alcohol, a drug, or a combination. This is proved by evidence of your driving, your appearance, and your behaviour, not by a number.
• Over 80. Having a blood alcohol concentration at or over 80 milligrams of alcohol in 100 millilitres of blood within two hours of ceasing to operate. This is proved by the breath readings.
• Refusal or failure to comply. Failing or refusing without a reasonable excuse to provide a sample when lawfully demanded. This is a standalone criminal offence and it is punished at least as seriously as blowing over.

You do not have to be driving. "Operation" includes having care or control of a vehicle, which can capture someone found in a parked car, and in some circumstances someone asleep in the driver's seat. Where the Crown relies on the presumption that a person in the driver's seat had care or control, the defence can lead evidence to rebut it, and whether that succeeds turns on the specific facts.

What Changed in 2018, and Why It Matters to Your Case

Bill C-46 rewrote this area of law and made four changes that shape almost every file:

• Mandatory alcohol screening. Under section 320.27(2), an officer who has an approved screening device at hand can demand a breath sample from any driver they have lawfully stopped, without needing any suspicion that the driver has been drinking. The old requirement of a reasonable suspicion is gone for that first roadside test.
• The two hour window. The offence is no longer about your blood alcohol at the moment of driving. It is about your concentration within two hours of ceasing to operate.
• The intervening drink defence was narrowed. Drinking after you stopped driving is now only a defence in tightly defined circumstances, and it is no longer the escape route it once was.
• The maximum penalty rose to ten years. That single change had an enormous unintended consequence for non citizens, covered further down this page.

The practical effect is that the older defences a lot of people have heard about have been closed off, and the real ground has shifted to the reliability of the testing and the conduct of the investigation.

Your Licence Is Suspended Before You See a Judge

This is the part that catches almost everyone by surprise. If you register a fail on the roadside screener, blow over at the station, or refuse, Ontario imposes an immediate 90 day administrative licence suspension along with a seven day vehicle impoundment. It happens at the roadside. It is imposed under the Highway Traffic Act, not the Criminal Code, and it is entirely separate from the criminal charge.

That means the suspension is not a punishment for being convicted, and it does not wait for a trial. You can ultimately be acquitted and still have served the full 90 days. Details of the administrative scheme and the penalties that follow a conviction are published by the Government of Ontario.

Understanding this early matters, because people often make decisions about their case based on the mistaken belief that pleading quickly will get their licence back sooner. It will not. Address the suspension and the criminal charge as two separate problems.

What Happens at the Roadside and at the Station

There are two different machines and the distinction is important. The roadside device is an approved screening device, and it produces a pass, warn, or fail. It is a screening tool, and its result is not evidence of your blood alcohol concentration at trial. A fail gives the officer grounds to arrest and to demand samples on an approved instrument, the larger machine at the station operated by a qualified technician. Those station readings are the evidence the over 80 charge is built on.

Between those two points sits your right to counsel under section 10(b) of the Canadian Charter of Rights and Freedoms. On arrest you must be informed of your right to a lawyer without delay, given a real opportunity to speak with one privately before samples are taken, and told about free duty counsel. Whether that happened, and whether it happened properly, is one of the most frequently litigated issues in these cases. If you are reading this before it has happened: ask to speak to a lawyer, say so clearly, and then say nothing about how much you had to drink.

How These Cases Are Actually Defended

A serious impaired driving defence is built out of paper. The first step is obtaining full disclosure and reading all of it, which means the officer's notes, the screening device records, the maintenance and calibration history of the approved instrument, the alcohol standard certificates, the technician's certificate, the instrument printouts including any aborted tests, booking video, and in-car camera footage. Cases turn on details buried in those documents far more often than they turn on courtroom argument.

From there, the live issues usually include:

• The lawfulness of the stop and the detention. Sections 8 and 9 of the Charter. Was the stop lawful? Was the detention longer than the investigation justified?
• The right to counsel. Section 10(b). Was the right given without delay, was privacy provided, and was the accused given a genuine opportunity to exercise it?
• The reliability of the readings. The Code presumes the instrument was working properly when certain conditions are met, but that presumption depends on the Crown proving those conditions. Maintenance gaps, an out of tolerance standard, or a technician departing from the operating procedure can put the readings in issue.
• Unreasonable delay. Section 11(b). Impaired files are prosecuted in the Ontario Court of Justice, where the ceiling set in R v. Jordan is eighteen months from charge to the end of trial. Delay beyond that, absent exceptional circumstances, results in a stay.

In R v. Mach, Robb defended a client charged with impaired driving and with refusing to provide a breath sample. The Crown's case was strong on its face. Robb brought a section 11(b) application for unreasonable delay and all charges were stayed. Reported Canadian decisions, including the delay jurisprudence, are freely searchable on CanLII.

Where a Charter breach is established, the remedy can be exclusion of the breath readings. In an over 80 prosecution, excluding the readings usually ends the case.

Drug Impaired Driving Is a Different Fight

Cannabis and drug impaired charges are prosecuted under the same section but they are proved very differently, and the science is far more contestable than it is with alcohol. There is no equivalent of a breathalyzer. The Crown relies on some combination of a drug recognition evaluation performed by a specially trained officer, an oral fluid screening device at the roadside, and a blood sample analysed for concentration.

Each of those has weaknesses that a prepared defence can expose. The drug recognition evaluation is a twelve step protocol, and departures from the protocol matter. Oral fluid screeners are affected by temperature and by timing. And blood concentration correlates far less reliably with actual impairment for cannabis than it does for alcohol, which is why the prescribed levels have been contentious since they were introduced. Where the charge also involves possession or trafficking allegations, see our page on drug offence defence.

What a Conviction Actually Costs

The Criminal Code sets mandatory minimums, so a judge cannot go below them. A first offence carries a minimum fine of $1,000, rising with the reading: $1,500 where the concentration was 120 to 159 milligrams, and $2,000 at 160 or above. A refusal carries a $2,000 minimum. A second offence carries a minimum of 30 days in jail, and a third carries 120 days. A first conviction also brings a driving prohibition of at least one year under the Code.

Ontario then applies its own consequences on top. A first conviction brings a one year provincial suspension, mandatory participation in the Back on Track remedial program, a licence reinstatement fee, and the ignition interlock requirement, which places a breath testing device in your vehicle that must be blown into before the engine will start. Reduced suspension streams exist for some first offenders who plead early and agree to interlock, and whether that route is in your interest is exactly the kind of decision that should be made with advice rather than at the counter.

The Consequences Nobody Warns You About

A conviction reaches well past the fine and the suspension.

Immigration. This is the most serious and the least understood. When Bill C-46 raised the maximum penalty for impaired driving to ten years, it moved the offence into the definition of serious criminality under the Immigration and Refugee Protection Act. A permanent resident or foreign national convicted of impaired driving can be found inadmissible to Canada on that basis, regardless of how modest the actual sentence was. If you are not a Canadian citizen, this changes the entire calculation of your case and immigration counsel should be involved from the beginning.

Insurance. A conviction typically removes you from the standard market for several years and into high risk facility rates, which for many drivers costs considerably more over time than every court imposed penalty combined.

Employment and travel. Anyone who drives for a living, holds a commercial licence, or works in a role requiring a clean record or a security clearance faces consequences beyond the court's order. Entry to the United States can be refused, and border officers have access to Canadian criminal records.

These consequences deserve to be part of the strategy from the first meeting, not discovered after a plea.

Get Advice Early

Impaired driving files are won on preparation, and some of the material that decides them, such as maintenance records and video, is only preserved for a limited period. Time also runs against you on the section 11(b) clock and on the deadlines attached to the administrative suspension. Robb MacDonald has practised criminal defence for more than twenty years, earned his J.D. at Queen's University in 2006, was called to the Ontario bar in 2007, and trained under Edward Greenspan QC. He is a two time provincial advocacy champion (Arnup Cup, OTLA Cup), is in court roughly five days a week, and defends impaired driving trials and appeals at every level of court in Ontario. Every Ontario lawyer is regulated by the Law Society of Ontario.

If you have been charged, call (416) 315-1505 or email rm@lawintoronto.com. The office is at 130 Spadina Ave, Suite 606, Toronto ON M5V 2L4, and Robb is available day and night. You can also request a confidential consultation.