TORONTO CRIMINAL and DUI LAWYERS
FREQUENTLY ASKED QUESTIONS
FAQ
1. What is "Operation While Impaired"?
Operation while impaired is defined as operating a conveyance while the person’s ability to operate the conveyance is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug.¹
¹ “Criminal Code (R.S.C., 1985, c. C-46)” (26 May 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.14(1)(a),
2. What is a “Conveyance” in this Context?
A conveyance is defined as a motor vehicle, a vessel, an aircraft, or railway equipment.²
² “Criminal Code (R.S.C., 1985, c. C-46)” (26 May 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.11,
3. What is a “Motor Vehicle” in this Context?
A motor vehicle is defined as a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment.³
³ “Criminal Code (R.S.C., 1985, c. C-46)” (26 May 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 2,
4. What is “Operation” in this Context?
To operate is defined as in respect of a motor vehicle, to drive the motor vehicle or to have care or control of the motor vehicle;⁴ in respect of a vessel or aircraft, to navigate the vessel or aircraft,⁵ to assist in the vessel’s or aircraft’s navigation or to have care or control of the vessel or aircraft; and in respect of railway equipment, to participate in the direct control of the railway equipment’s motion, or to have care or control of the railway equipment as a member of the equipment’s crew, as a person who acts in lieu of a member of the equipment’s crew by remote control, or otherwise.⁶
⁴ “Criminal Code (R.S.C., 1985, c. C-46)” (26 May 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.27(1), 320.27(1)(b), 320.27(2), 320.28(1), 320.28(1)(a), 320.28(1)(a)(i)
⁵ “Criminal Code (R.S.C., 1985, c. C-46)” (26 May 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 2.
⁶ “Criminal Code (R.S.C., 1985, c. C-46)” (26 May 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.27(1), 320.27(1)(b).
5. What are the Essential Elements of "Operation While Impaired"?
The essential elements of "Operation While Impaired" have been defined as
1. That the accused operated a conveyance⁷
2. While the accused’s ability to operate the conveyance was impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug.⁸
⁷ “Criminal Code (R.S.C., 1985, c. C-46)” (26 May 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.27(2).
⁸ “Criminal Code (R.S.C., 1985, c. C-46)” (26 May 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.28(1), 320.28(1)(a), 320.28(1)(a)(i).
6. What is the Actus Reus of "Operation While Impaired"?
The actus reus for impaired operation of a conveyance is the act of operating a conveyance when the voluntary consumption of alcohol or drug has impaired the accused’s ability to operate the conveyance.⁹
⁹ “Criminal Code (R.S.C., 1985, c. C-46)” (26 May 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(1)(b), 320.28(1), 320.28(1)(a), 320.28(1)(a)(i)
7. What is the Mens Rea of "Operation While Impaired"?
The mens rea for impaired operation of a conveyance is the intent to operate a conveyance after voluntarily consuming alcohol or a drug.¹⁰
8. Does an accused’s having a concentration of drugs and/or alcohol in the accused’s body at which it is unlawful for the accused to operate a conveyance prove that the accused’s ability to operate a conveyance is impaired by alcohol and/or a drug?
Because an accused can be convicted of operating a conveyance with a concentration of drugs and/or alcohol in the accused’s body at which it is unlawful for the accused to operate a conveyance but can be acquitted at the same trial of operation while impaired by a drug and/or alcohol,¹¹ the mere fact that an accused has a concentration of drugs and/or alcohol in the accused’s body at which it is unlawful for the accused to operate a conveyance does not prove that the accused’s ability to operate a conveyance is impaired by alcohol and/or a drug.
9. How is impairment by alcohol and/or a drug defined in this Context?
Before convicting an accused of impaired operation, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug, and if the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence of impaired operation has been made out. ¹² If the ability to operate a motor vehicle is impaired (even slightly) by alcohol or drugs, it is not necessary that the degree of that impairment be marked.¹³ But the Courts must not fail to recognize the fine but crucial distinction between slight impairment generally and slight impairment of a person’s ability to operate a motor vehicle.¹⁴ It is a misinterpretation of the jurisprudence to read the jurisprudence as requiring only proof of a slight degree of impairment by alcohol or a drug as opposed to a slight degree of impairment of one’s ability to operate a motor vehicle as a result of the consumption of alcohol or a drug.¹⁵
The impairment of an accused’s ability to operate a conveyance is generally understood as meaning the alteration of one’s judgment and the decrease in one’s physical abilities.¹⁶
Before a trier of fact can make a finding of guilt about a charge of operation while impaired, the trier of fact must be satisfied beyond a reasonable doubt that the accused’s ability to operate a conveyance was impaired to some degree by alcohol and/or a drug.¹⁷
Whether an accused was impaired while operating a conveyance is essentially a question of fact which a trier of fact must determine based upon the evidence.¹⁸
10. What is acceptable proof that an accused is impaired in ability to operate a conveyance by alcohol and/or a drug?
There is no special test for determining impairment of the ability to operate a conveyance by alcohol and/or a drug.¹⁹
Courts have considered a number of factors in determining whether an accused’s ability to operate a conveyance was impaired as a result of alcohol and/or a drug, including lay opinions from witnesses, accidents, speech, appearance of eyes and face, gross and fine motor skills, mental ability and emotional state, odour of alcohol, alternative explanations for indicia of impairment, and admissions of consumption of drugs and/or alcohol by the accused.²⁰
In any proceedings for impaired operation, evidence that the accused, without reasonable excuse, failed or refused to comply with a demand to provide a sample or to submit to testing for the purpose of providing evidence that the accused’s operation of a conveyance was unlawful due to intoxicants is admissible, and the Court may draw an inference adverse to the accused from that evidence.²¹ Whether the Court draws this inference should depend upon the circumstances because there may be times when the refusal occurs for reasons which, although not legally valid, fall short of satisfying the Court that the refusal arose from consciousness of guilt.²²
¹⁹ Cf, “R. v. Ramroop, 2021 ONCA 642” https://coadecisions.ontariocourts.ca/coa/coa/en/item/19954/index.do at para 11,
²¹ “Criminal Code (R.S.C., 1985, c. C-46)” (26 May 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(1)(a), 320.27(1), 320.27(1)(a), 320.27(1)(b), 320.27(1)(c), 320.27(2), 320.28(1), 320.28(1)(a), 320.28(1)(a)(i), 320.28(1)(a)(ii), 320.28(1)(b), 320.28(2), 320.28(2)(a), 320.28(2)(b), 320.28(3), 320.28(4), 320.28(4)(a), 320.28(4)(b), 320.31(10),
11. How should claims that an accused involuntarily consumed an intoxicant be dealt with?
An accused is presumed to have become intoxicated voluntarily.²³ Involuntary intoxication occurs when a person either unknowingly takes intoxicants (as occurs when an accused consumes a spiked drink) or knowingly takes drugs whose effects are unknown to the accused.²⁴
The defence of involuntary intoxication, although often conflated and/or confused with the defence of automatism, is separate from the defence of automatism.²⁵
Any degree of intoxication, even if not intoxication causing automatism, can support a defence of involuntary intoxication.²⁶
Because intoxication’s voluntariness is assumed, absent evidence to the contrary, the accused must raise a reasonable doubt about voluntary consumption before a defence of involuntary intoxication can succeed.²⁷ Although the presumption of voluntary intoxication is rebuttable, the defence only needs to point to evidence that raises a reasonable doubt about the intoxication’s voluntariness and does not need to prove anything on a balance of probabilities.²⁸ This means that when the accused raises the defence of involuntary intoxication, the accused has no burden to prove anything, and the burden remains with the Crown to prove beyond a reasonable doubt that the accused’s act was voluntary.²⁹
When an accused raises the defence of involuntary intoxication to the charge of impaired operation, the accused is, for the defence’s purpose, conceding that the accused’s actions fulfilled the actus reus of the charge of impaired operation but is alleging that the accused lacked the mens rea sufficient to be convicted of impaired operation.³⁰
If the accused can raise a reasonable doubt about the intoxication’s voluntariness and whether the accused realized impairment before operating a conveyance, then the accused must be acquitted of offences related to operating a conveyance unlawfully due to intoxicants.³¹
An accused’s recklessness about a substance’s impairing effects on the ability to operate a conveyance is sufficient to establish mens rea for impaired operation.³² But when an accused is genuinely involuntarily impaired, that very impairment may serve as a legitimate explanation for why the accused, having become impaired, failed to avoid unlawfully operating a conveyance.³³
12. What is "Operation While Impaired" as Driving?
Operation while impaired as driving must be distinguished from merely defective driving, even criminally bad driving.
Even when the trier of fact concludes that the accused consumed alcohol and/or a drug before the accused was driving, had a concentration of a drug and/or alcohol within the accused’s body sufficient to convict the accused of unlawfully operating a conveyance, and was obviously intoxicated by a drug and/or alcohol after the defective driving, the accused may be acquitted of impaired operation as driving when the trier of fact is left with a reasonable doubt about whether the accused was impaired by alcohol and/or a drug when the accused engaged in defective driving and/or is left with a reasonable doubt about whether the accused’s defective driving was caused by the accused’s being impaired by alcohol and/or a drug.³⁴
When there is no acceptable evidence that the accused had an illegally high BAC, then the fact that the accused’s breath smelled of alcohol, the accused had bloodshot eyes, and the accused, despite being fairly steady upon his feet, tripped on treacherous terrain need not combine with the fact that the accused collided with a road’s meridian to convict the accused of impaired operation because a reasonable doubt may remain about whether the accused’s bad driving was related to the accused’s recklessness rather than the accused’s being impaired.³⁵
It is possible for an accused, despite indisputably having been impaired while driving, to be acquitted of impaired driving by citing evidence that the accused’s poor driving was caused not by impairment but by defects in the vehicle being driven.³⁶ Similar arguments can be raised successfully by citing the strange and unsafe route taken by the road, which even a non-intoxicated driver would find dangerous to drive through³⁷ and due to the weather conditions when the accused was driving and the surface over which the accused had to drive,³⁸ although they are made stronger when there is no unambiguous evidence that the accused was intoxicated.³⁹
It is possible for a driver to be witnessed driving a vehicle into a ditch, to smell of alcohol, to admit to having consumed alcohol, and to be convicted of refusing to provide a breath sample relating to the accident but be acquitted of impaired operation because there were no consistent accounts that the accused was physically impaired by intoxication and the accused’s explanation for the accident preserved a reasonable doubt.⁴⁰
³⁶ “R. v. Bacci, 2018 ONCA 928” https://coadecisions.ontariocourts.ca/coa/coa/en/item/17299/index.do at paras 21, 31, 33, 48,
13. What is "Operation While Impaired" as Care or Control?
An accused who raises at least a reasonable doubt about whether the accused was intoxicated at the relevant time cannot be convicted of "Operation While Impaired" as care or control.⁴¹
In proceedings for impaired operation, if it is proven that the accused occupied the seat or position ordinarily occupied by a person who operates a conveyance, the accused is presumed to have been operating the conveyance unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the conveyance in motion.⁴² The standard of proof in rebutting the presumption is a balance of probabilities.⁴³ Proof on a balance of probabilities means that the trier of fact must scrutinize the relevant evidence with care in order to determine whether it is more likely than not that an alleged event occurred.⁴⁴ This presumption cannot be rebutted merely by establishing that the conveyance was inoperable and posed no risk to the general public.⁴⁵
Even when this presumption is rebutted, the accused can be convicted of impaired operation as care or control when the Crown is able to prove beyond a reasonable doubt that the accused, while impaired at the relevant time, was in care or control of the conveyance⁴⁶ in what is commonly referred to as de facto care or control.⁴⁷
“Care or control” signifies an intentional course of conduct associated with a motor vehicle by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit in circumstances that create a realistic risk, as opposed to a remote possibility, of danger to persons or property.⁴⁸ The existence of a realistic risk of danger is a matter of fact.⁴⁹
Even when the accused is found impaired in a stationary vehicle’s driver’s seat, care and control are only established when there is a risk that the vehicle will unintentionally be set in motion; a risk that through negligence a stationary or inoperable vehicle may endanger the accused or others; or a risk that the accused, having decided not to drive, will change the mind and drive while still impaired.⁵⁰
The risk of danger must be realistic and not just theoretically possible, but the risk also need not be probable or even serious or substantial.⁵¹ The existence of a realistic risk of danger is a finding of fact which must be made after examining all of the relevant evidence.⁵² “realistic risk” is a low threshold and, in the absence of evidence to the contrary, is normally the only reasonable inference when the Crown establishes impairment and a present ability to set the vehicle in motion.⁵³ In order to avoid conviction, the accused would in practice face a tactical necessity of adducing credible and reliable evidence tending to prove that no realistic risk of danger existed in the case’s particular circumstances.⁵⁴
⁴¹ See, e.g., albeit under the old statutory scheme, .
⁴² “Criminal Code (R.S.C., 1985, c. C-46)” (26 May 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(1)(a), 320.35,
⁴⁴ “F.H. v. McDougall, [2008] 3 S.C.R. 41, 2008 SCC 53” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6211/index.do at para 49,
⁴⁷ “R. v. Smits, 2012 ONCA 524” https://coadecisions.ontariocourts.ca/coa/coa/en/item/11451/index.do at paras 47-48,
⁴⁸ “R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12636/index.do at para 9,
⁴⁹ “R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12636/index.do at paras 9-11,
⁵⁰ “R. v. Smits, 2012 ONCA 524” https://coadecisions.ontariocourts.ca/coa/coa/en/item/11451/index.do at paras 52-53,
⁵¹ “R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12636/index.do at paras 33-34, 42, .
⁵² “R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12636/index.do at paras 33-34, 42, 50,
⁵³ “R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12636/index.do at paras 33-34, 42, 48,
⁵⁴ “R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12636/index.do at paras 33-34, 42, 48,
14. How is the risk that the vehicle will unintentionally be set in motion assessed?
The risk that the vehicle will unintentionally be set in motion is assessed by considering how complicated the steps which would have been required to set the vehicle in motion when the accused was impaired in the vehicle were.⁵⁵
15. How is the risk that through negligence a stationary or inoperable vehicle may endanger the accused or others assessed?
The accused may avoid conviction for impaired operation as care or control by adducing evidence that the conveyance, on account of its location or placement, could, under no reasonably conceivable circumstances, pose a risk of danger.⁵⁶
⁵⁶ “R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12636/index.do at paras 33-34, 42, 49,