Toronto Criminal Lawyer

Impaired driving is one of the most commonly prosecuted criminal offences in Ontario. Every year, thousands of Canadians are charged under the impaired driving provisions of the Criminal Code, and the consequences of a conviction extend well beyond the courtroom. A criminal record, licence suspension, increased insurance costs, and potential imprisonment are all real possibilities that anyone facing these charges should understand clearly.

This guide explains how impaired driving law works in Canada following the significant reforms introduced by Bill C-46 in December 2018, what penalties the courts can impose, and what defences may be available depending on the circumstances of a particular case.

The Law: Criminal Code Sections 320.14 to 320.19

Canada's impaired driving laws were substantially overhauled in 2018 and are now found in sections 320.14 through 320.19 of the Criminal Code. The key offences include:

• Section 320.14(1)(a) — Operating a motor vehicle while impaired by alcohol, a drug, or a combination of both
• Section 320.14(1)(b) — Operating a motor vehicle with a blood alcohol concentration (BAC) at or over 80 mg of alcohol per 100 mL of blood (the "over 80" offence)
• Section 320.14(1)(c) — Operating a motor vehicle with a blood drug concentration at or above prescribed levels
• Section 320.14(1)(d) — Operating a motor vehicle with a combined blood alcohol and blood drug concentration at or above prescribed levels
• Section 320.15 — Failure or refusal to comply with a lawful demand for a breath or blood sample

The legislation also created aggravated versions of these offences. Under s.320.14(2) and (3), causing bodily harm or death while operating a vehicle impaired carries significantly higher maximum penalties, including up to life imprisonment for impaired driving causing death.

How Impaired Driving Investigations Work

A typical impaired driving investigation in Toronto follows a relatively standard sequence. Understanding this process is important because procedural errors at any stage can become the basis for a defence.

The traffic stop. Police may stop a vehicle for a traffic violation, at a RIDE (Reduce Impaired Driving Everywhere) checkpoint, or based on observations suggesting impaired operation such as swerving, erratic speed, or failing to stop at signals.

Roadside screening. If the officer suspects the driver has alcohol in their body, or under the mandatory screening provisions, the officer may demand a breath sample into an approved screening device (ASD). This is a preliminary test conducted at the roadside. A "fail" reading provides grounds for a further demand.

The breath demand. If the ASD indicates a fail, or if the officer has reasonable grounds to believe the driver is impaired, the officer will make a formal demand under s.320.28 for the driver to provide breath samples on an approved instrument (commonly the Intoxilyzer) at the police station. Two samples are taken, typically 15 to 20 minutes apart.

Right to counsel. Upon detention or arrest, the driver has the right to retain and instruct counsel without delay under section 10(b) of the Canadian Charter of Rights and Freedoms. The police must inform the driver of this right and provide a reasonable opportunity to contact a lawyer, including access to duty counsel if the driver does not have their own lawyer.

Penalties and Mandatory Minimums

The penalties for impaired driving in Canada are set out in s.320.19 and s.320.2 of the Criminal Code. They are among the most structured sentencing provisions in Canadian criminal law, with true mandatory minimum sentences that the court cannot go below.

First offence (summary conviction):

• Mandatory minimum fine of $1,000
• Maximum penalty of up to two years less a day imprisonment
• Mandatory driving prohibition of at least one year

Second offence:

• Mandatory minimum of 30 days imprisonment
• Mandatory driving prohibition of at least two years

Third or subsequent offence:

• Mandatory minimum of 120 days imprisonment
• Mandatory driving prohibition of at least three years

Impaired causing bodily harm: Maximum 14 years imprisonment (indictable).

Impaired causing death: Maximum life imprisonment.

Licence Suspension and Ignition Interlock

The licence consequences of an impaired driving charge in Ontario operate on two tracks: the immediate administrative suspension and the post-conviction suspension.

Administrative suspension (pre-conviction): Under Ontario's Highway Traffic Act, a driver who registers a BAC over 0.08 on an approved instrument, or who refuses a breath demand, faces an immediate 90-day administrative licence suspension. This suspension takes effect at the roadside and is separate from any criminal proceedings.

Post-conviction suspension: Upon conviction, the Ontario Ministry of Transportation imposes a suspension period: one year for a first offence, three years for a second, and a lifetime suspension for a third offence (with limited reinstatement eligibility after ten years).

Ignition interlock: After serving the mandatory suspension period, most convicted impaired drivers must install an ignition interlock device in their vehicle. This device requires the driver to provide a breath sample before the vehicle will start. The interlock period is a minimum of one year for a first offence and progressively longer for repeat offences.

These provincial consequences apply regardless of the sentence imposed by the criminal court and can represent significant ongoing costs and inconvenience. For information about what happens during the court process, see our guide on what happens after an arrest in Ontario.

Common Defences to Impaired Driving Charges

Every impaired driving case turns on its own facts, but several categories of defence arise regularly in these prosecutions:

Right to counsel violations. If police failed to inform the accused of their right to a lawyer, did not provide a reasonable opportunity to contact counsel, or continued the investigation before counsel was reached, this may constitute a breach of s.10(b) of the Charter. A successful Charter application can lead to the exclusion of breath results under s.24(2).

Delay and the "as soon as practicable" requirement. Breath samples must be taken as soon as practicable. While this does not mean "immediately," unexplained or unreasonable delays between the time of driving and the time of testing can undermine the reliability of the results or constitute a Charter breach.

Approved instrument issues. The breathalyzer must be an approved instrument, properly maintained, and operated by a qualified technician. Defence counsel routinely requests maintenance and calibration records for the specific instrument used. Deficiencies in maintenance or operation can form the basis of a defence.

Lack of reasonable grounds. For a breath demand under s.320.28, the officer must have had reasonable grounds to believe that the accused committed an impaired driving offence within the preceding three hours. If the grounds are insufficient, the demand may be unlawful and the results inadmissible.

Identity and operation. The Crown must prove that the accused was the person operating the vehicle. In some cases, particularly accidents where the driver has left the scene, this element may be contested.

If you are facing charges, it is important to understand your right to remain silent and how to exercise it properly during interactions with police.

The "Warn Range" and Provincial Penalties

Ontario imposes administrative penalties for drivers who blow in the "warn range" of 0.05 to 0.079 BAC. While this does not result in criminal charges, the consequences are still significant:

• First occurrence: Three-day licence suspension
• Second occurrence: Seven-day suspension, mandatory education program
• Third or subsequent occurrence: 30-day suspension, mandatory treatment program, mandatory ignition interlock for six months

These are administrative penalties under the Highway Traffic Act and do not result in a criminal record. However, they do appear on a driver's Ministry of Transportation record and can affect insurance rates.

For a more detailed discussion of what happens if you are asked to provide a breath sample at the roadside, see our article on refusing a breathalyzer in Ontario.

What to Do If You Are Charged

An impaired driving charge is a serious criminal matter. There are several practical steps that anyone facing these charges should consider:

• Contact a criminal defence lawyer as soon as possible. Impaired driving cases involve technical legal and scientific issues that require experienced counsel.
• Do not discuss the details of your case with anyone other than your lawyer. Anything you say to friends, family, or on social media can potentially be used as evidence.
• Keep all documents provided by police, including your release conditions, appearance notice, and any paperwork related to your licence suspension.
• Note down everything you remember about the stop, arrest, and testing process while it is fresh in your memory. Details about timing, what was said, and what procedures were followed can be important for your defence.

Understanding the bail process is also important, particularly for cases involving aggravating factors or repeat offences where detention may be sought.

Speak with a Criminal Lawyer. If you are facing impaired driving charges in Toronto, obtaining legal advice early in the process is essential. An experienced criminal defence lawyer can review the disclosure, identify potential defences, and guide you through the court process. Contact a criminal lawyer to arrange a confidential consultation about your case.