Ontario’s impaired-driving restitution proposal: Legal and policy challenges ahead

Law360 Canada (November 21, 2025, 1:05 PM EST) --

Daniel Dylan

As reported by Law360 Canada, the Ontario government is exploring a new measure that would require impaired drivers who kill a parent or guardian in a motor vehicle accident to make ongoing financial support payments to the victim’s surviving children. The idea mirrors Bentley’s Law in Texas, enacted in 2023, which mandates long-term restitution — essentially child support — whenever an impaired driver is convicted of what Texas law refers to as “intoxication manslaughter” (the Canadian analogue most closely maps to “Impaired Operation Causing Death” under s. 320.14(3) of the Criminal Code).

Of Bentley’s Law, Mothers Against Drunk Driving (MADD) — a non-profit organization dedicated to preventing impaired driving, supporting victims of drunk and drugged driving, and advocating for stronger laws to keep roads safe both in the United States and Canada — has supportively said, “Too often, offenders are able to move on with their lives even after killing someone, while victims and survivors are reminded every day of their loss. The idea behind Bentley’s Law is to both provide a sense of justice to victims and survivors and make sure offenders are reminded of the heartbreak they caused by making the choice to drive impaired.”

On its face, Bentley’s Law and the Ontario measure are emotionally compelling. No child should be forced to bear the financial burden of losing a parent to an avoidable crime. Ontario Attorney General Doug Downey, who I recently had the pleasure of meeting at a CLE event, said as much in a recent press release. But the legal and policy implications in the Canadian context are far from straightforward.

In Texas, restitution orders can continue until each affected child turns 18 or graduates from high school. Courts determine the amount of restitution by assessing the child’s needs, the surviving family’s finances and the offender’s ability to pay. Payments can even be deferred until after incarceration. It is a flexible system with what appears to be broad judicial discretion; however, it has already illustrated a major problem: collection.

Most people convicted of impaired driving causing death will spend significant time in custody, then re-enter society with what is likely to be diminished earning potential. Many may even lack assets or stable employment. As a result, Texas observers have expressed skepticism that restitution orders will ever be realistically paid. In Ontario, where the collection rate for criminal restitution is already very low (orders for restitution are treated as civil judgments leaving victims to personally seek judicial enforcement), financial support may end up being more symbolic than substantive.

Constitutional issues loom even larger. Canada’s Charter of Rights and Freedoms places strict limits on sentencing laws that create unequal or disproportionate penalties. Because Ontario’s proposed law would impose a substantial long-term financial burden only when the victim is a parent or guardian, offenders convicted of the same crime could face radically different consequences based solely on the victim’s family status.

This raises an obvious equality concern under s. 15 of the Charter. While parental status itself is not a recognized protected ground, Canadian courts may look at discriminatory effects, not just protected grounds. An Ontario court could be asked to decide whether it is arbitrary — or constitutionally impermissible — for an impaired driver who kills a parent of young children to face decades of mandatory payments, while another offender whose victim has no dependents faces none, making the severity of punishment pivot on random circumstance rather than moral blameworthiness. Courts have struck down sentencing provisions before when their effects produced unequal treatment, including in the Ontario Court of Appeal’s decision in R. v. Sharma, 2020 ONCA 478 (later reversed by the Supreme Court of Canada).

There is also a risk that large, multi-year payment orders could be challenged as grossly disproportionate, opening the door to s. 12 arguments about cruel and unusual punishment similar to the ones made and accepted by the SCC in R. v. Boudreault, 2012 SCC 56. Such an outcome is particularly plausible if the legislation lacks meaningful avenues for review or reduction based on the convicted person’s ability to pay.

Beyond Charter issues, the proposal also seemingly blurs the line between criminal sentencing and civil damages. As a matter of remedies, long-term dependency support is traditionally the domain of civil wrongful-death suits. Embedding such obligations into criminal sentencing could create duplication, confusion or conflict with existing civil remedies.

None of this is to say Ontario should necessarily abandon the idea. The policy goals are legitimate and might have popularity if not deterrent effect. Nevertheless, impaired driving remains a scourge in Ontario, with over 11,000 impaired driving charges laid in 2023. But if the province proceeds with the measure, careful drafting of the legislation will be essential (as it is with all legislation). The Texas model offers positive guidance: give courts broad discretion, incorporate means testing, allow deferrals during incarceration and require periodic review of payment amounts. Were it to be implemented in Ontario, a rigid, mandatory scheme would be vulnerable to challenge, whereas a flexible one might be more defensible.

Ontario could also pair offender restitution with a publicly funded compensation program, similar to the province’s existing Victims’ Justice Fund program. This hybrid approach would perhaps ensure children receive support even when offenders cannot pay, while still promoting some degree of accountability.

Ultimately, the question is not whether victim children deserve compensation. Surely they do. Rather, the question is whether a criminal sentencing tool is the right mechanism to deliver such recompense. Unless Ontario approaches this proposal with constitutional caution and administrative realism, a well-intentioned reform may fail to achieve its purpose and face many legal and policy challenges ahead.

Daniel Dylan is an associate professor at the Bora Laskin Faculty of Law, Lakehead University, in Thunder Bay, Ont. He teaches animal law, contract law, evidence law, intellectual property law and Indigenous knowledge governance.

The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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