December 11, 2023
In October of 2018, recreational cannabis became legal in Canada.
In response to this, the Federal Government has amended impaired driving laws.
This comes as no surprise given that:
- impaired driving is already the leading criminal cause of death and injury in Canada, even before legalization;
- Statistics Canada estimates that a drug impaired driving offence is recorded every three hours in Canada; and
- research shows that cannabis use increases a person’s likelihood of being involved in a motor vehicle accident.
Previous Impaired Driving Laws
The Criminal Code prohibited driving while impaired by any drug. Under Section 253 of the Criminal Code it was an offence to operate or have the care or control of a motor vehicle while impaired by alcohol or a drug, or while having a blood alcohol content greater than eighty milligrams of alcohol per one hundred millilitres of blood.
Impaired driving laws were enforced using specially-trained police officers known as Drug Recognition Experts, or DREs. These officers used a 12-step system to detect drug impaired drivers, including examining a driver’s eyes, attention, blood pressure, and pulse, as well as other visible signs of intoxication. Penalties ranged from a $1,000 fine for a first offence to 120 days in prison for a third or subsequent offence.
New Federal Legislation
Bill C-46 introduced a number of new ways to enable testing and prosecution of impaired drivers.
First, police officers are able to conduct roadside saliva and blood tests for intoxication when they have reasonable grounds to believe an offence has occurred. Reasonable grounds would be based on objective signs of intoxication such as red eyes, muscle tremors, agitation, or speech patterns. The new legislation makes it illegal to drive within two hours of being over the legal limit.
Secondly, the amendments codify a Supreme Court of Canada decision that certified DREs do not need to be qualified through an expert witness before giving opinion testimony on a suspected impaired driver. As such, the identification and prosecution of impaired drivers may rest largely on police officers.
As for testing, there are now legal limits for cannabis, as there currently are for alcohol. New legal limits for THC (the active ingredient in cannabis) are as follows:
- 2 nanograms (ng) but less than 5 ng per 1 millilitre (ml) of blood within two hours of driving is a summary conviction offence, with a fine of up to a $1,000;
- with 5 ng or more per 1 ml of blood, a driver is liable for a $1,000 fine (for the first offence), 30 days in prison (for the second offence), and 120 days in prison (for the third offence);
- a reading of 2.5 ng or more per 1 ml of blood combined with 50 mg or more of alcohol per 100 ml of blood (within two hours of driving) would be treated as a drugs-with-alcohol hybrid offence. The driver would be liable to a $1,000 fine (first offence), 30 days imprisonment (second offence) and 120 days imprisonment (third offence).
Issues with Roadside Tests
Experts disagree about the accuracy of roadside tests. The tests do not seem capable of measuring impairment as well as roadside alcohol tests do, and there is still no consensus on how long one should wait to drive after consuming cannabis. In addition, regular cannabis users (such as medical cannabis users) can show positive results days or even weeks after use. One concerning result, from a 2017 University of Calgary study, shows that even exposure to second-hand cannabis smoke can cause someone to fail a roadside saliva test.
In addition to federal legislative changes, the provinces are also permitted to implement their own provincial impaired driving laws.
In BC, the Cannabis Control and Licensing Act creates a number of provincial cannabis-specific offences with penalties ranging from a maximum of $2,000 to $100,000, imprisonment of three to 12 months, or both. The Act was most recently amended in 2022 to regulate transportation by approved carriers and updating prescribed forms warrants related to inspection of property.
BC has also amended the Motor Vehicle Act to toughen regulations on impaired driving, including:
- creating a 90-day Administrative Driving Prohibition for any driver whom the police reasonably believe operated a motor vehicle while affected by a drug or a combination of a drug and alcohol, and
- subjecting new drivers in the Graduated Licensing Program to a zero-tolerance policy for the presence of THC, as currently applies with respect to alcohol.
How will this affect liquor licensees?
If more patrons are found to be intoxicated under the new laws, this will undoubtedly lead back to licensees and their establishments. Therefore, in the face of new and changing laws, licensees will have to be even more vigilant in meeting their standard of care with respect to liquor service.
What does this mean for consumers?
Because the science behind cannabis use is less developed and more complex than it is for alcohol, there are, as yet, no reliable guidelines about cannabis consumption and driving. Therefore the safest approach is to avoid any combination of cannabis, alcohol and driving altogether.
Cannabis legalization brings both freedom and responsibility. Canadians, if they choose to use cannabis, should be aware of what they can and cannot do and, most importantly, what is safe to do.
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Contributions to this article were provided by Mathews Dinsdale & Clark LLP. The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.
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