QUICK TAKEAWAY
Impaired Driving (Marijuana): When a driver's actions attract police attention, officers look for both alcohol and drug impairment. Section 320.14 (1) of the Criminal Code makes it a crime to have a blood alcohol concentration of .08 percent or more, or to be impaired by narcotics, which can be measured through an oral fluid sample screening. For marijuana, anyone found with THC levels higher than two nanograms per milliliter of blood can be charged. There is zero tolerance for harder drugs. Provinces also can hand out fines and penalties such as a licence suspension, especially to novice drivers.
Table of Contents:
Determining Marijuana Impairment
Following a roadside stop, police can demand an oral fluid sampleA mixture of saliva and other materials found in the mouth if they suspect you are driving under the influence of a drug. Section 320.14 (1) of the Criminal Code states that it is against the law to operate a vehicle if impaired by alcohol or a drug or by a combination of both. A Department of Justice (DoJ) document (Frequently Asked Questions - Drug-Impaired Driving Laws) states that it is a criminal offence to be at or over a prohibited blood drug concentration for certain impairing drugs, including THCThe psychoactive component of cannabis and cocaine. THC levels are measured by using oral fluid drug screeners.
When it comes to cannabis, there are two prohibited levels for THC.
- Between two and five nanogramOne billionth of a grams (ng) of THC per milliliter (ml) of blood within two hours of driving; and
- Over five nanograms of THC per ml of blood within two hours of driving.
If you were consuming cannabis edibles, keep in mind they don't trigger an immediate high such as cannabis products that are smoked. Edibles are slow-release and can take two hours before the high is felt, though they will show up in oral fluid tests in the same way.
Penalties for Driving While Impaired by Marijuana
If oral fluid samples show that you have between two and five ng of THC in your blood, that would be prosecuted as a summary convictionUsed for lesser offences offence, punishable by a minimum fine of $1,000. If five ng or more of THC is detected, your charge would be a hybrid offenceAn offence prosecuted either as a summary conviction or as an indictable offence, meaning that it can be prosecuted by indictment in serious cases or by summary conviction in lesser cases.
According to s.320.19 of the Code, hybrid offences are punishable by mandatory penalties of $1,000 for a first offence and escalating penalties for repeat offenders. The minimum penalty for a second offence is 30 days imprisonment, with sentences of a 120-days behind bars handed out for a third or subsequent offence.
The maximum penalty for having five ng or more of THC in your body while driving is two years less a day on summary conviction"] and 10 years for an indictable offenceIndictable offences are more-serious criminal offences.
If you refuse to comply with a demand for bodily samples, you could be fined $2,000.
Under s.320.23 of the Code, the court is directed to consider aggravating factors that may increase the severity of your sentence. Those include if you:
- were in a race with another driver on a street or a public area;
- had someone under the age of 16 was with you at the time
- were being compensated for operating the vehicle you were arrested in
- were not permitted, by federal or provincial authorities, to operate the vehicle you were arrested in.
After arresting you for impaired driving, police must advise you of your rights, including the right to a lawyer. According to the RCMP (Impaired driving investigations,) that right can be exercised before any testing is done in a police station. However, the roadside tests and evaluations are done before speaking with a lawyer.
Provinces Have Their Own Penalties
In addition to the penalties for cannabis use by drivers set out in the Code, provinces and territories can hand out licence suspensions and financial penalties to those convicted of driving while under the influence of marijuana. For example, in Ontario novice drivers (Cannabis and driving) are not allowed to have any cannabis in their bodies if they are 21 or under, have a G1, G2, M1 or M2 licence, or if they are driving a vehicle that requires an A-F driver’s licence or Commercial Vehicle Operator’s Registration.
In Alberta, novice drivers (Immediate Roadside Sanctions Program of IRS ZERO: Novice) in the class 7 Learner’s licence category and class 5 Graduated Driver Licensing drivers must have a zero blood alcohol/drug level when driving. Penalties for offenders include an immediate 30-day driver’s licence suspension, a seven-day vehicle seizure and a $200 fine.
Most provinces and territories have laws similar to Ontario or Alberta, with licence suspensions and attendance at educational programs part of the penalty.
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Deverett Law Offices
Lobel Law
Song Criminal Defence
Brian M Micner
Mattis Law Professional Corporation
Donna V Pledge - Criminal Lawyer
Glossary of Legal Terms
Hybrid offence
Hybrid offences fall between a summary and an indictable offence. The Crown prosecutor chooses whether to treat the offence as a summary or indictable offence.
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Nanogram
One billionth of a gram. Anyone that has more than two nanograms of THC per millilitre of blood can faces charges in Canada.
Oral fluid sample
Oral fluid is a mixture of saliva and other materials found in the mouth that law enforcement officers check for indications of drug imprairment.
Summary conviction
Summary convictions are used for lesser offences with penalties, fines and short jail time. They reflect the majority of offences as defined in the Code.
THC
Tetrahydrocannabinol (THC) is the chemical responsible for most of marijuana's psychological effects. THC can induce hallucinations, change thinking and cause delusions.
