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Defending Care & Control Charges in Toronto
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Charged Even Though the Car Was Not Moving?
Many people are shocked to learn they can be charged with impaired driving even if the vehicle was not in motion. They were intoxicated, yes—but they were not driving. In Canada, that distinction does not always matter.
Unlike some other countries, Canadian law makes it an offence to be impaired, Over 80, or to refuse a breath sample while in “care or control” of a motor vehicle. This is one of the most complex and heavily litigated areas of impaired driving law, and judges do not always interpret “care or control” the same way.
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What does "Care or Control" Mean?
The Crown does not need to prove that the vehicle was actually moving. There are generally three ways the Crown attempts to prove care or control.
- Proving actual driving
The most straightforward way is to prove that you were driving. In that case, care or control is automatically established.
This sometimes happens not because of police evidence, but because of the accused’s own statements. Admissions made at the roadside or at the station—such as acknowledging that you were the driver—can be used against you. This is why it is critical to say nothing to police beyond what is legally required, and to make a careful, informed decision about whether to testify at trial.
- Presumption based on the driver’s seat
If you are found sitting in the driver’s seat, the law presumes that you were in care or control of the vehicle. This presumption is not automatic and can be rebutted.
To rebut it, you must show that you were in the driver’s seat for a purpose other than driving. This usually requires testifying under oath and explaining why you were there. Common examples include waiting for a designated driver, using the heater on a cold night, or listening to the radio.
- Risk of putting the vehicle in motion
Even if the presumption does not apply—because you were not in the driver’s seat, or because you successfully rebutted it—the Crown may still attempt to prove care or control by showing that you used the vehicle or its equipment in a way that created a realistic risk of the vehicle being put in motion.
This is a fact-specific analysis and depends heavily on the circumstances of the case.
Care or control cases are not automatic
Being intoxicated in a vehicle does not automatically mean you are guilty of impaired driving. Care or control cases are technical, nuanced, and highly dependent on the evidence. They require careful legal analysis and strategic decision-making from the very beginning.
Defending Impaired Driving Charges in Toronto
Our approach is proactive and detail-driven. We thoroughly review disclosure, analyze police notes and testing records, and assess whether your rights were respected at every stage of the investigation. Toronto DUI cases often involve complex roadside stops, dense urban traffic conditions, and delayed testing — all of which can create viable defence opportunities.
Our DUI defence strategies may include:
- Challenging whether police had reasonable grounds to stop or demand a breath or drug test
- Identifying Charter breaches, including unlawful detention or delay in testing
- Reviewing breathalyzer or blood-test procedures for calibration, timing, and operator errors
- Disputing drug-impaired driving evidence, including field sobriety and DRE assessments
- Examining whether medical conditions, fatigue, or anxiety affected test results
- Seeking reduced charges, withdrawals, or alternative resolutions where appropriate
If you are facing a DUI charge in Toronto, early legal advice is critical. A strong, strategic defence can make a meaningful difference in protecting your licence, record, and future.
Types of Impaired Driving Charges Under Canadian Law
DUI / Impaired Driving
An impaired driving charge requires the Crown to prove that a driver’s ability to operate a motor vehicle was negatively affected by alcohol or drugs. The court looks at how the driver functioned, including coordination, judgment, and overall control of the vehicle. Evidence may include observations of poor driving such as swerving, crossing lanes, or involvement in a collision. Police may also rely on physical signs like slurred speech, unsteadiness, bloodshot eyes, delayed responses, or the smell of alcohol.
Over 80
The offence commonly known as “over 80” applies when a driver’s blood alcohol concentration exceeds the legal limit, regardless of whether their driving appeared impaired. The Crown only needs to prove that the driver’s alcohol level was above 80 milligrams of alcohol per 100 millilitres of blood. This is typically established through breath samples analyzed by an approved testing device. In limited circumstances, police may demand a blood sample, but only when a breath sample cannot reasonably be obtained due to medical or practical reasons.
Refusing a Breath Sample
Refusing to provide a breath sample after a lawful police demand is a criminal offence in Canada. This applies to roadside screening devices as well as approved breath testing instruments at the police station. A refusal is treated as seriously as impaired driving or driving over the legal limit and can result in a criminal record, mandatory driving prohibitions, licence suspension, and significant insurance consequences. In some cases, an individual may face both refusal and impaired driving charges arising from the same incident.
Dangerous Driving
Dangerous driving is a criminal offence that involves operating a motor vehicle in a manner that endangers the public. This can include excessive speeding, aggressive manoeuvres, or distracted driving that puts others at risk. A conviction can lead to jail time, a lengthy driving prohibition, and a permanent criminal record. We have successfully reduced dangerous driving charges to careless driving, which is a traffic offence rather than a criminal one, and have had many charges dismissed entirely.
Failing to Stop
Failing to stop after an accident — often called “hit and run” — is a criminal offence in Canada. The law requires every driver involved in a collision to stop, provide their information, and offer assistance if someone is injured. Failing to do so can result in jail time, a criminal record, and a licence suspension, even if the damage or injury seems minor. Our team has successfully defended clients by proving lack of intent, insufficient evidence, and police procedural errors.
Care & Control
Care and control is a criminal driving offence that can apply even when a person is not actively driving. An individual who is impaired or over the legal alcohol limit may be charged if they are found in or around a vehicle and there is a realistic risk it could be put into motion. Sitting in the driver’s seat creates a legal presumption of care and control under the Criminal Code. A conviction may occur unless the individual can prove they had no intention or ability to operate the vehicle.
FAQS About Care & Control Charges
Care and control refers to being in a position to operate a motor vehicle while impaired or over the legal alcohol limit, even if the vehicle is not moving. The offence focuses on the risk the vehicle could be put into motion.
Yes. A charge may arise even if the vehicle was parked or the person was not driving. Sitting in the driver’s seat creates a legal presumption of care and control.
It can. Even if someone is sleeping, a charge may be laid if there is a realistic risk the vehicle could be operated.
Penalties are similar to impaired driving and may include a criminal record, driving prohibition, licence suspension, fines, and possible jail time.
Defences may include showing there was no intention or ability to operate the vehicle, challenging the police evidence, or rebutting the presumption of care and control.
