Care and Control DUI Charges in Ontario: What You Need to Know
Since December 2018, amendments to the Criminal Code through Bill C-46 consolidated the former offences of impaired driving and impaired care and control into a single offence called impaired operation. Under section 320.11, “operation” includes both actual driving and care or control of a vehicle.
This means you can be charged even if your vehicle is not running and you had no plan to drive. Under section 320.35, if you are found in the driver’s seat while impaired, the law presumes you had care and control unless there is credible evidence to the contrary. That presumption can be challenged — but you need a defence strategy that understands how to do it.
How Care and Control Differs From Driving
Many people assume impaired driving charges require proof that they were actually driving. In reality, the law focuses on whether there was a realistic risk of the vehicle being put in motion, not on your stated intention. This “realistic risk of danger” test, set out by the Supreme Court of Canada, means you could face the same penalties as if you had been caught driving while impaired.
Common real-world examples include:
- Sitting in the driver’s seat with the engine off
- Sleeping in the vehicle (even in the back seat) with keys accessible
- Standing beside the car and reaching inside to retrieve an item
When Can You Be Charged With Care and Control?
The most common scenarios include:
1. Parked or Stopped Vehicle: If you are in the driver’s seat, even with the engine off, you are presumed to be in care and control. This presumption can be rebutted through case law analysis and evidence that you posed no realistic risk of putting the vehicle in motion.
2. Intoxicated With the Engine Off: You may still be charged if impaired and inside your vehicle, even if you intended to wait until sober. This is especially common in rural or northern Ontario, where people use vehicles for shelter from the weather while waiting for a safe ride.
Care and control allegations often appear alongside impaired operation or Over 80 charges. These are layered prosecutions — and we respond with layered defences.
Defence Strategies for Care and Control Charges
An experienced DUI lawyer can contest these charges using several approaches:
1. No Realistic Risk of Danger: Demonstrating that you had no intention or ability to drive — for example, waiting for a ride or resting safely — can directly rebut the presumption in section 320.35.
2. Inoperable Vehicle or Inaccessible Keys: If the vehicle could not be driven due to mechanical failure or immobilization, or if the keys were not accessible, care and control cannot be established.
3. No Impairment at the Time of Arrest: Evidence of impairment must be proven beyond a reasonable doubt. If the Crown cannot establish impairment at the time of the alleged care and control, the charge may not stand.
How We Build Your Defence
At AveryLaw, we go beyond the basics. Our defence often includes:
- Challenging the officer’s legal grounds to investigate
- Reviewing the timing and legality of roadside demands for tests
- Analyzing disclosure for inconsistencies in police evidence
- Filing Charter applications where rights may have been breached
You may have done the responsible thing — staying in your car, waiting for a safe option, or sleeping it off. That doesn’t mean you have to accept a criminal record. These charges can be defended.
The Next Step
Christopher Avery has over 23 years of courtroom experience and has defended hundreds of DUI cases, including complex care and control matters across Ontario. We understand the high stakes and know how to challenge both the legal presumptions and the prosecution’s case.
Contact AveryLaw today for a confidential consultation. The decisions you make now will shape your future.
