What is the Difference Between ‘Impaired Care and Control’ and ‘Impaired Operation’?

Section 253 of the Criminal Code of Canada, which was repealed in 2018, contained two distinct concepts related to the offense of driving while impaired: “impaired operation” and “impaired care and control” of a motor vehicle. These two concepts were very similar, although a distinct difference existed between the two.  

Bill C-46 repealed section 253 of the Criminal Code and replaced it with section 320.14(1). This was part of a legislative overhaul that aimed to modernize the offenses and procedures relating to conveyances, which include motor vehicles, vessels, aircraft, and railway equipment. Although the old and new offenses both target individuals who operate motor vehicles with a specific blood alcohol limit, the offenses are significantly different. 

Below we briefly explain the two offenses under the repealed section 253 and then compare these to the offenses now contained in section 320.14(1).

Section 253: Impaired Driving

According to the now-repealed section 253(1) of the Criminal Code, the offense of impaired driving or operation arose when you operated a vehicle while your ability to do so was impaired. This impairment could be caused by alcohol, meaning your blood exceeded 80 mg of alcohol in 100 mL of blood, or drugs, or both. This offense included two concepts: 

1. Impaired Care and Control: This referred to the offense of being impaired by alcohol or drugs while having care or control of a motor vehicle. “Care or control” typically meant having the ability to set the vehicle in motion or to put it into operation. This included situations where you were found intoxicated inside a parked vehicle with the keys readily available, indicating the potential to operate the vehicle.

2. Impaired Operation: This referred to the offense of actually operating, or being in control of, a motor vehicle while impaired by alcohol or drugs. Unlike impaired care and control, where the vehicle may not be in motion, impaired operation involves the actual act of driving or controlling the vehicle while impaired.

The key difference between the two offenses lies in the element of operation versus potential operation. 

Penalties Under Section 253

The penalties for impaired driving depended on the specific case but included criminal charges, potential imprisonment, significant fines, and a mandatory driving prohibition. A first-time offender typically received a fine of at least $1,000.00, while a second-time offender faced a mandatory minimum of 30 days in jail. A third-time offender was sentenced to a mandatory minimum of 120 days in jail. 

However, these were the minimum punishments, and the actual punishments were usually much higher in cases involving accidents, fatalities, or aggravating factors such as high breathalyzer readings or dangerous driving. Additionally, a driving prohibition of 1, 2, or 3 years was imposed, which could be extended to a lifetime prohibition for repeat offenders.

Given the potential severity of the consequences of impaired driving cases, it’s crucial to seek legal advice from an impaired driving lawyer who can help navigate through the legal complexities to achieve the best possible outcome.

Section 320.14(1): Operation While Impaired

Section 320.14(1) of the Canadian Criminal Code outlines the offense of operating a conveyance (which includes vehicles, vessels, aircraft, and railway equipment) while impaired by alcohol, drugs, or a combination of both. This section is comprehensive in addressing various scenarios related to impaired operation, including the consequences of causing bodily harm or death while impaired. Here’s a detailed breakdown of the key components of section 320.14(1):

Operation While Impaired

It is an offense to operate a conveyance while your ability to do so is impaired to any degree by alcohol, drugs, or a combination thereof. Important terms to understand include:

• Blood Alcohol Concentration (BAC): Committing an offense includes having a BAC equal to or exceeding 80 mg of alcohol in 100 mL of blood within two hours after ceasing to operate a conveyance. This is also known as driving over 80.
• Blood Drug Concentration: Similarly, it is an offense to have a blood drug concentration equal to or exceeding the prescribed limit for the drug within two hours after ceasing operation.
• Combination of Alcohol and Drug: An offense is also committed if, within two hours after ceasing to operate a conveyance, one has a combined blood alcohol and drug concentration at or above the prescribed limits.

Aggravated Offenses

If, while operating the conveyance, you cause bodily harm to another person, it constitutes an aggravated offense. Likewise, if you cause the death of another person while operating the conveyance under impairment is also considered an aggravated offense.

Exceptions

There are two exceptions to a charge of operation while impaired: Post-operation consumption and consistency with BAC. 

In terms of the former, no offense is committed under certain conditions if the alcohol or drug was consumed after ceasing operation of the conveyance, and there was no reasonable expectation of being required to provide a sample of breath or blood. For the latter – specifically for alcohol – it’s also required that the consumption is consistent with having a BAC of less than 80 mg of alcohol in 100 mL of blood at the time of operation.

Legal Implications and Defenses

Offenses under Section 320.14(1) are considered hybrid, meaning the Crown can choose to proceed either summarily or by indictment, depending on the severity of the case. To prove this charge, the Crown needs to show that your driving ability was impaired and you are guilty beyond a reasonable doubt. This is often achieved by examining witness observations on aspects such as the person’s driving, balance, speech and other signs of impairment.

The penalty amounts and terms remained the same as per the repealed section 253. 

Defenses against impaired driving under section 320.14(1) of the Code include challenging the lawfulness of the traffic stop, the reliability of testing methods, and the credibility of police officers’ observations. Additionally, affirmative defenses such as necessity, duress, and entrapment can be employed. 

It’s important to note that the specific defenses that may be used, depend on the circumstances of each case. You should seek legal representation from an experienced criminal defense lawyer, as they can significantly influence case outcomes, potentially leading to a reduction or dismissal of charges, lighter sentencing, or alternative resolutions such as treatment programs.

Final Thoughts

Section 320.14(1) is a critical legal provision aimed at curbing impaired driving by establishing clear offenses for operating a conveyance while impaired by alcohol, drugs, or a combination thereof. Compared to its predecessor, it is much more comprehensive. It includes provisions for aggravated offenses when impaired operation results in bodily harm or death and outlines specific exceptions related to post-operation consumption of substances. The law reflects Canada’s commitment to road safety and the serious consequences of impaired driving.

If you face an impaired driving charge, contact our experienced impaired driving lawyers in Toronto. We have extensive experience successfully defending charges for impaired driving.