In Canada, with the legalization of marijuana for recreational use in 2018, concerns have been raised about a potential increase in impaired driving. The incidence of impaired driving is already high, and four Canadians die each day as a result.
The Criminal Code makes it an offence to operate a motor vehicle when impaired by alcohol or drugs. The section adds a note of clarity that impairment may also be by a combination of alcohol and drugs together. With the legalization of marijuana, the government has passed new regulations to enhance the detection and new punishments for drug impaired driving.
Under the new laws, it is a criminal offence to drive while impaired by a drug based on the prohibited limit of the drug in one’s blood system within two hours of driving. The rationale for testing within two hours is that the dissipation rate for cannabis is very quick. The longer the wait before the blood sample is taken, the lower your THC will be. Within just two hours, ninety percent of cannabis has left the body.
How Much Marijuana is Prohibited?
For marijuana offences, the police will test for THC (i.e., tetrahydrocannabinol), which is a chemical compound found in marijuana. The new laws create various prohibited levels for driving with THC per millilitre (ml) of blood.
The penalties for marijuana presence depend on the level of THC found:
Over 2 and up to 5 nanograms of THC/ml of blood within 2 hours of driving. Considered a summary conviction offence, the maximum fine, if convicted, is $1,000.
With 5 or more ng of THC/ml of blood. Considered a hybrid offence, if convicted:
For a first offence the penalty is $1,000 minimum and the maximum is up to 10 years of imprisonment.
For a second offence, the minimum penalty is 30 days of imprisonment and the maximum is up to 10 years of imprisonment.
For a third offence, the mandatory minimum is 120 days of imprisonment and the maximum is up to 10 years of imprisonment.
The penalties for marijuana presence combined with alcohol depends on the amount:
With 2.5 ng or more of THC combined with 50 mg of alcohol per 100 ml of blood. Considered a hybrid offence, If convicted:For a first offence the penalty is $1,000 minimum and the maximum is up to 10 years of imprisonment
For a second offence, the minimum penalty is 30 days of imprisonment and the maximum is up to 10 years of imprisonment
For a third offence, the mandatory minimum is 120 days of imprisonment and the maximum is up to 10 years of imprisonment
With 2.5 ng or more of THC combined with 80-119 mg of alcohol per 100 ml of blood. If convicted:The same penalties as above applies
With 2.5 ng or more of THC combined with 120-159 mg of alcohol per 100 ml of blood. If convicted:The same as penalties as above applies except the minimum fine increases to $1500
With 2.5 ng or more of THC combined with 160 mg or more of alcohol per 100 ml of blood. If convicted:The same penalties as above applies except the minimum fine increases to $2000
The penalties are higher if harm actually occurred:
For impaired driving causing bodily harm, a conviction entails:A maximum of 2 years imprisonment less a day if the Crown elects to proceed by summary convictionA maximum of 14 years imprisonment if the Crown elects to proceed by indictment.For impaired driving causing death, a conviction entails:A maximum of 2 years imprisonment less a day if the Crown elects to proceed by summary conviction
A maximum of life imprisonment if the Crown elects to proceed by indictment
How Do Police Measure Drug Use?
Under the new laws, a police officer can demand that any lawfully-stopped driver provide an oral fluid drug screen test to detect any drugs, including THC if the police reasonably suspect a drug is in a driver’s body. More commonly known as saliva tests, the oral fluid drug screen tests are fast, non-invasive and can accurately detect THC, as well as cocaine and methamphetamine.
Reasonable suspicion is a low legal threshold. Police could form a reasonable suspicion by observing one or more indicators of drug use or impairment, such as:
red eyes;muscle tremors;agitation;speech patterns;smelling of burnt marijuana;observation of marijuana or paraphilia;admission of recent consumption.
If the police have reasonable grounds to believe drug impaired driving has occurred, they may demand a blood sample within two hours after being pulled over. Reasonable grounds is a higher legal threshold and may be formed using the factors listed above combined with the result of the salvia test or a field sobriety test.
A major case related to drug impaired driving, which predates the new cannabis legislation, is that of R v Bingley, 2017 SCC 12, [2017] 1 S.C.R. 170. After being observed driving erratically, entering a parking lot and hitting a car, the police approached Mr. Bingley and performed a series of tests. The drug recognition expert conducted a sobriety test, which Mr. Bingley failed. A urine test revealed the presence of cannabis, cocaine and alprazolam, and Mr. Bingley admitted he had smoked cannabis and taken two alprazolam in the previous 12 hours. After several appeals, Mr. Bingley was convicted of impaired driving.