Care and Control in Ontario, What It Means, Penalties and Defences
You can be charged with impaired driving without driving under the Criminal Code. Having care or control of a vehicle while impaired, or while over the legal limit, counts as operating it, even if the vehicle is parked and the engine is off.
This page explains what care and control means, how it differs from impaired driving, the charges and penalties you could face in Ontario, and the defences that may apply.
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What Does "Care and Control" Mean Under the Criminal Code?
Section 320.11 of the Criminal Code defines “operate”, for a motor vehicle, as driving it or having care or control of it. So when section 320.14 makes it an offence to operate a vehicle while impaired or over the limit, that offence also covers care or control.
The Supreme Court of Canada set out the test in R v Boudreault, 2012 SCC 56. The Crown must prove:
- an intentional course of conduct involving the vehicle
- by a person whose ability to drive is impaired, or whose blood alcohol is over the legal limit
- in circumstances that create a realistic risk of danger to people or property
The “realistic risk” doesn’t depend on whether you planned to drive. Courts consider whether you could set the vehicle in motion, whether by accident or by changing your mind, and whether the way you used it created danger. The risk has to be real, not just possible in theory. A person who cannot move the vehicle, or who has a reliable plan that rules out driving, may fall outside the offence.
The Driver’s Seat Presumption
Section 320.35 creates a presumption. If you were in the seat ordinarily occupied by the driver, the law presumes you were operating the vehicle, unless you show that you weren’t there to set it in motion. You have to prove this on the balance of probabilities, meaning it’s more likely than not.
Evidence that can help includes a ride you’d arranged, messages showing you planned to wait or stay, where the keys were, and anything you said or did when police arrived. Rebutting the presumption doesn’t end the case. The Crown can still try to prove care or control under the Boudreault test.
Situations That Can Lead to a Care and Control Charge
Police lay care and control charges in situations like these:
- sleeping in the driver’s seat of a parked car after drinking
- sitting in the driver’s seat with the engine running for heat or air conditioning
- waiting in a vehicle outside a bar or restaurant, with the keys within reach
- moving a car a short distance, like out of a parking space
- staying with a vehicle after a breakdown, with the keys and the ability to restart it
A charge isn’t a conviction. In each case, the court looks at all the circumstances, including where you were, where the keys were, whether the vehicle could move, how impaired you were, and what you told police.
Care and Control vs Impaired Driving, What's the Difference?
Impaired driving involves driving or moving the vehicle. Care and control applies when you weren’t driving, but were in a position to, and there was a realistic risk you might. In law, they’re the same offence, impaired operation, and carry the same penalties.
Before 18 December 2018, these offences were in section 253 of the Criminal Code. Bill C-46 repealed section 253 and replaced it with section 320.14. The new provisions use the word “conveyance”, which covers motor vehicles, vessels, aircraft and railway equipment. So care and control can apply to a boat at a dock as well as a car in a driveway.
Which Care and Control Charges Can You Face?
Under section 320.14(1), it’s an offence to operate a conveyance, including having care or control of it:
- While your ability to operate it is impaired to any degree by alcohol, a drug, or both
- With a blood alcohol concentration of 80 mg or more per 100 mL of blood, within two hours after you stopped operating it. This is commonly called “over 80”. See driving over 80.
- With a blood drug concentration at or above the prescribed limit, within two hours. See drug-impaired driving.
- With a combined alcohol and drug concentration at or above the prescribed limits, within two hours
More serious charges apply if impaired operation causes bodily harm or death. Refusing to provide a breath or blood sample when lawfully demanded is a separate offence, explained on our refusing a breath sample page.
Drinking after you stopped. Section 320.14(5) creates an exception to the two-hour limits. It applies where you drank after you stopped operating the vehicle and had no reason to expect police would ask for a sample. Your drinking is consistent with a blood alcohol concentration under the limit at the time you were operating.
What Is the Legal Alcohol Limit in Ontario?
Two sets of rules apply.
- The Criminal Code limit is 80 mg of alcohol per 100 mL of blood, commonly written as 0.08. At or above this level, you can be charged criminally, including with care and control over 80.
- Ontario’s “warn range” is 50 to 79 mg. It isn’t a criminal offence, but it brings an immediate 7-day licence suspension, an education course and a $250 penalty for a first occurrence, with longer suspensions after that.
- Zero tolerance. Drivers aged 21 and under, novice drivers with a G1, G2, M1 or M2 licence, and commercial drivers must have a blood alcohol level of zero.
What the Crown Must Prove
To convict you of care and control, the Crown must prove two things beyond a reasonable doubt.
Impairment or a prohibited level. For an impairment charge, the Crown relies on evidence like the smell of alcohol, slurred speech, unsteadiness, what you said, and how you responded to tests. For an over-80 charge, it relies on breath or blood results from an approved instrument, which the Criminal Code treats as conclusive proof of your blood alcohol level when the testing conditions in section 320.31 are met. Challenges focus on whether those conditions were met.
Care or control. Under the Boudreault test, the Crown must show you had care or control of the vehicle. Where you were in the driver’s seat, it can rely on the presumption in section 320.35.
Penalties for Care and Control in Ontario
Care and control carries the same penalties as impaired driving. The offence is hybrid. The maximum is 10 years on indictment, or two years less a day on summary conviction. Causing bodily harm carries up to 14 years, and causing death carries up to life imprisonment.
|
Minimum penalty |
Federal driving prohibition |
|
|
First offence |
$1,000 fine. Higher minimums apply at higher readings for an over-80 charge: $1,500 at 120 to 159 mg, and $2,000 at 160 mg or more |
1 to 3 years |
|
Second offence |
30 days in jail |
2 to 10 years |
|
Third or later offence |
120 days in jail |
At least 3 years |
Ontario adds its own consequences. These include an immediate 90-day licence suspension and a 7-day vehicle impoundment when you’re charged, and on conviction, a licence suspension, a mandatory education or treatment programme, and an ignition interlock condition.
A conviction also creates a criminal record, which can affect employment and insurance. US border officers may consider a criminal record when deciding whether to admit you, and it can affect eligibility for programmes like NEXUS. A single impaired driving conviction isn’t, by itself, grounds to refuse entry to the United States, but repeat or more serious convictions can create problems. Our article on travelling to the United States with a criminal record explains more.
Our care and control lawyer page explains the full consequences, and our article on jail time for impaired driving covers sentencing in more detail.
Common Defences to a Care and Control Charge
The right defence depends on the facts and the evidence. Defences in these cases tend to focus on:
- Rebutting the presumption. Showing you were in the driver’s seat for a reason other than driving, such as sleeping while you waited for a ride.
- No realistic risk of danger. For example, the vehicle couldn’t be moved, or you had a reliable plan that ruled out driving.
- The police stop and demands. Police in Ontario can stop drivers to check sobriety, and mandatory alcohol screening lets officers demand a roadside breath sample from a lawfully stopped driver. But each step must still follow the law. An unlawful detention or demand can exclude evidence.
- Your right to counsel. Under section 10(b) of the Charter, police must tell you about your right to a lawyer and give you a real chance to use it.
- The breath or blood evidence. How samples were taken, whether the instrument was approved and properly operated, and whether the records support the results.
- Charter issues with searches. See our article on section 8 of the Charter.
Read more in our guide to impaired driving defences.
Charged with care and control? The details of that night matter.
Past Results in Care and Control and Impaired Driving Cases
R. v. S. | Acquittal
The client was followed by an off-duty police officer on a Sunday afternoon due to allegedly erratic driving. He was arrested and charged with impaired driving after breathalyzer readings showed approximately 300, nearly four times the legal limit. We successfully defended him at trial.
R. v. M. | Charges Stayed
The client was charged with impaired driving and driving over 80 mg. We filed a successful Charter application arguing that the delay in bringing him to trial breached his right to be tried within a reasonable time under section 11(b).
R. v. P. | Charges Dismissed
The client was charged with care and control over 80 and impaired care and control. Police found him sleeping in his vehicle with the engine running and a half-full bottle of liquor in his pocket. His breath readings were 141 mg%, nearly twice the legal limit. We successfully argued the officer lacked reasonable and probable grounds to request a breath sample, and the readings were excluded as evidence.
R. v. C.B. | Criminal Charges Withdrawn
The client was charged with impaired driving and driving over the legal blood alcohol limit. We filed a Charter application alleging breaches of his rights against unreasonable search and seizure, arbitrary detention, and right to counsel. We convinced the Crown to withdraw the criminal charges in exchange for a guilty plea to a provincial Highway Traffic Act offence.
Frequently Asked Questions
Can I Be Charged If I'm Sleeping in My Car?
Yes. Sleeping in the driver’s seat after drinking is one of the most common care and control situations, especially with the engine running. Whether it leads to a conviction depends on the presumption and on whether there was a realistic risk you’d set the vehicle in motion.
Can I Be Charged If I'm Not in the Driver's Seat?
You can, but the presumption doesn’t apply, so the Crown has to prove care or control under the Boudreault test without it. Your position in the vehicle, where the keys were and what you intended all matter.
What If I Drank After I Stopped Driving?
The two-hour limits may not apply. Section 320.14(5) creates an exception where you drank after you stopped operating the vehicle, had no reason to expect a breath demand, and your drinking is consistent with being under the limit when you were operating.
Is It Safer to Wait in My Car for a Ride?
It’s safer to wait somewhere other than the driver’s seat, and away from the keys. If you do wait in the vehicle, sit in the back seat with the keys out of reach, and keep messages showing you arranged a ride; this can make a real difference if police become involved. The safest option, if you’ve been drinking, is not to get into the vehicle at all.
Does Care and Control Apply to Boats?
Yes. The offence applies to any “conveyance”, including vessels, aircraft, railway equipment, and motor vehicles. It can apply whether or not the conveyance is moving.
What Procedures Must Police Follow?
Police must have lawful authority for each step, whether you’re arrested or asked for breath samples at the station. They must also tell you about your right to a lawyer and give you a reasonable chance to speak with one. A qualified technician must take breath samples as soon as practicable, and the results must be properly recorded. A failure at any step may affect what evidence can be used.
