Driving High in Ontario: Still Illegal

By Geoff Haskell, Associate

Chong asked Cheech more than 40 years ago, “Hey man – am I driving ok?” 

Back then it was illegal to smoke pot and drive. Today, it still is.  In fact, impaired driving has been a crime since 1925. Although it was originally intended to deal with drunk driving, the crime of impaired driving is equally applicable to those impaired by cannabis.

Despite the fact that as of 17 October 2018 – Canadians from coast to coast to coast can light up their joints with impunity, you still cannot drive while ‘high’.  This article will help get you acquainted with the legal landscape relating to driving high.

The Cannabis Act:

The freshly minted Cannabis Actis Canada’s new law regulating the sale and consumption of marijuana.  (There is no longer any reference to ‘cannabis’ in the Controlled Drugs and Substances Act). With it’s arrival, all Provinces introduced new driving laws that aimed to punish those that drive while high. 

These new rules are mostly now in force and you need to be aware of how they apply to you if you are a driver and use cannabis in anyform. 

To start with, here’s some basic rules: 

• In Ontario, if you are over the age of 18, you can possess up to 30 grams of dried cannabis and smoke (or ‘vape’) it in:

  • Private residences;

  • Outdoor public spaces; and

  • Boats and Recreational vehicles.

• On the other hand, nobody in Ontario is allowed to smoke or vape:

  • in a boat or motor vehicle that is in motion,

  • indoor common areas in condos, apartment buildings and university/college residences

  • enclosed public places and enclosed work places

  • non-designated guest rooms in hotels, motels and inns

  • within 20 meters of schools, playgrounds, or daycares.

  • within 9 meters of a restaurant or hospital entrance

  • within 20 meters of publicly owned sports fields or spectator stands.

The one exception to the above, are those persons that have a medical prescription for cannabis. If you have a valid prescription from a Canadian doctor, you can smoke (almost) anywhere. Medical users are also exempt from many of the criminal laws relating to possession and growing cannabis. In other words, medical users have different rules –so if you do have a prescription, know the laws that apply to you specifically. 

New Driving Laws:

While it may be confusing as to where you can and cannot smoke cannabis, when it comes to driving it’s very simple – you can’t. This includes cars, trucks, boats, snowmobiles and off-road vehicles.

The only exceptions are boats and motorhomes that are parked/anchored and have permanent toilets, sleeping accommodations, and cooking equipment – (same rule applies to consuming alcohol in a boat/vehicle).

The Canadian Society of Forensic Science recently released a report stating that impairment from cannabis begins almost immediately and can last up to 6 hoursor more, depending on factors such as ‘THC’ levels and how it was consumed. 

All Canadian Police officers are authorized to use various tests to determine if you are impaired by Cannabis. These tests include:

• Standard Field Sobriety Testing (SFST); administered at the roadside

• Drug Recognition Expert (DRE) evaluation; which includes a series of tests and a urine/blood sample.

• Oral fluid drug screening equipment; Law enforcement can require a driver provide an oral fluid sample for screening

Severe Penalties:

If a police officer believes that you are operating a boat or motor vehicle while impaired by any drug, including cannabis, (or if you refuse to take a drug test), you could face the following penalties:

• automatic 90-day licence suspension;

• automatic 7-day vehicle impoundment;

• $550 Fine; and

• $198 licence reinstatement fee

You may also be required to attend an education/treatment program. 

And that’s just the start! If you are later found guilty of driving while impaired by cannabis, you face the following punishments:

First offence:

• Licence suspension of at least 1 year

• You must attend a mandatory education or treatment program

• You will need to undergo a mandatory medical evaluation to determine whether you meet the requirements for driving in Ontario

Second offence within 10 years:

• Licence suspension of at least 3 years

• You must attend a mandatory education or treatment program

• You will need to undergo a mandatory medical evaluation to determine whether you meet the requirements for driving in Ontario

Third or more offence within 10 years:

• Lifetime licence suspension, (which may be reduced after 10 years)

• You must attend a mandatory education or treatment program

• You will need to undergo a mandatory medical evaluation to determine whether you meet the requirements for driving in Ontario

Need to speak to a criminal lawyer?

 

Zero–Tolerance for Novice and Commercial Drivers:

If you are licenced driver in Ontario, but are considered a “novice” or “commercial” driver; the law is very strict (‘Commercial drivers’ include anyone with an A-F class licence issued by the Ministry of Transportation for Ontario, or any driver operating under a ‘CVOR’).  

These persons are not allowed to have any cannabisin their system while driving, even if not technically ‘impaired’ by cannabis. In other words, there is zero-tolerance for these drivers. 

If, however, you are a medical user with a valid prescription, you are exempt from the ‘zero-tolerance’ policy – but not from the impaired driving rules.

Future Changes to the Law?

In April of 2019, Canadian retailers will be allowed to obtain a licence to open up legal ‘pot-shops’. The rules regarding selling weed will vary from Province to Province and will also be different for each municipality. For that reason, you need to make sure you know the local laws before you open up shop.

Likewise, driving laws will also vary from Province to Province, but municipalities do not have the power to create localized driving laws related to pot consumption.  So, it is safe to assume that the rules regarding ‘driving high’ will be the same no matter where you are driving in the Province. 

In sum, despite the fanfare that came with the legalization of weed in Canada, it is still very much a crime to drive while high, the only problem is that “high” is a relative term. So it is best to proceed with caution if you plan on getting behind the wheel after consuming cannabis. Just because you feel fine, doesn’t mean you’re legally allowed to drive. 

So if you have to ask if you’re “driving ok”, you’re better off not driving at all.  

Remember that this content is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. If you have further questions, or need legal representation, feel free to contact our criminal law firm or call us at 416-304-1414.