Cannabis impaired driving charges under Sections 320.14 (1) and (4) of the Criminal Code

It is a criminal offence to drive under the influence of cannabis in Canada. Cannabis DUI charges carry the same potential penalties as drunk driving.

Driving while high on cannabis is a criminal offence in Canada under Sections 320.14 (1)(a), 320.14 (1)(c) and 320.14 (4) of the Criminal Code. It is considered an impaired driving charge (DUI) and carries the same potential penalties as alcohol related driving offences. The law requires that the judge sentence those found guilty to a permanent criminal record (conviction). Unlike many other criminal offences, an absolute or conditional discharge is not an available option to the court if the accused pleads guilty or is found guilty after a trial.

If you are charged with impaired driving via drugs you will receive a Form 10 Undertaking with a court date if you are released from the police station and not held for bail. It is common for first time offenders to be released from the station after sobering up without a bail hearing provided there was no accident or injury. Those held for bail and eventually released will have a Form 11 Release Order.

If you have received an Undertaking or Release Order document you have been charged by the police and your case will be handled in court. Since a criminal record is automatic upon a finding of guilt it is extremely important that you hire a lawyer immediately to start working on your case. Unlike with alcohol, impairment by cannabis is not nearly as obvious. Urinalysis is not necessarily indicative of blood/cannabis concentration levels. Blood cannabis levels also do not necessarily correlate with mental impairment though maximum amounts are prescribed by law nonetheless.

The legal THC limit for driving after consuming cannabis in Canada is 2 ng/ml of blood.

In Canada it is a crime to have a blood THC concentration at or above 2 ng of THC per mL of blood. This is codified in s. 320.14 (4) of the Criminal Code, which reads:

Operation — low blood drug concentration

320.14 (4) Subject to subsection (6), everyone commits an offence who has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation and that is less than the concentration prescribed for the purposes of paragraph (1)(c).

This Criminal Code section above relies on a separate piece of law called the Blood Drug Concentration Regulations (SOR/2018-148) to specify the actual legal limit, section 1 of which reads:

For the purpose of subsection 320.14 (4) of the Criminal Code, the prescribed blood drug concentration for tetrahydrocannabinol (THC) is 2 ng of THC per mL of blood.

As such, the criminal legal limit is 2 ng per 1 mL of blood. Those found to be above this level while driving or in care and control of a motor vehicle will be criminally charged and subject to a punishment under s. 320.19 (2) to a summary conviction carrying a minimum fine of $1000 and up to six months in jail along with probation. Since the Code prescribes a minimum fine a judge is not able to discharge the offender meaning all those found guilty of driving while high will receive a permanent criminal record as a mandatory minimum sentence.

Heightened penalties are prescribed for those whose blood THC levels exceed 5 ng per mL under Criminal Code Section 320.14 (1)(c), which reads:

Operation while impaired

320.14 (1) Everyone commits an offence who

(c) subject to subsection (6), has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation ..

The Blood Drug Concentration Regulations (SOR/2018-148) specify the limit for s. 320.14 (1)(c) in section 2, Item 1, Column 2 at 5 ng/mL of blood. The section also specifies the limit limits for driving while impaired by other drugs such as PCP, cocaine, meth, LSD, and Ketamine at any detectable level.

If you are charged and found guilty under s. 320.14 (1)(c) harsher potential penalties may be imposed with the maximum punishment being 10 years in prison and a permanent criminal record. Similar to alcohol related DUI cases, those charged with driving while high on cannabis will generally receive tougher sentences relative to their blood THC level.

If the accused has a prior driving while impaired related charge, the court is required to sentence them to a minimum of 30 days in jail. Those with more than one prior will receive a minimum of 120 days in jail as part of their sentence.

What does “within 2 hours after ceasing to operate a conveyance” mean?

This is a relatively new addition to the Criminal Code for all forms of impaired driving offences (cannabis, alcohol, other drugs) that was added by parliament to prevent an accused from ingesting alcohol/drugs after driving to skew their blood concentration readings or from saying the cannabis or alcohol in was ingested so soon before driving that it would not have absorbed in their bloodstream until after ceasing to drive.

This was a defence that worked in some cases that parliament wanted to eliminate. While the new provisions make it much more difficult there is an exception for post driving consumption found in Section 320.14 (6), which reads:

Exception — drugs

320.14 (6) No person commits an offence under paragraph (1)(c) or subsection (4) if

(a) they consumed the drug after ceasing to operate the conveyance; and

(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of a bodily substance.

This means that it is not necessarily an offence to consume drugs within two hours after driving. Perhaps the person was home at the time of arrest and consumed cannabis shortly after driving not realizing that the police were called and on their way.

Prior to this law some individuals would consume drugs or alcohol right after being pulled over or on the roadside after an accident as a way to claim they were not under the influence while driving (only after). Since in both these examples a reasonable person would have known the police would be investigating them for impaired driving the exception would not apply.

While the new law makes such defenses more difficult there are many situations that are not so clear and thus are litigated in court. The Crown Attorney has to prove to the judge beyond a reasonable doubt that you did not reasonably expect to have to possibly provide a blood or urine sample which is not always easy to do.

Unfortunately for many accused they may have made statements to the police or other third parties admitting to essential elements of the offence that otherwise may have been impossible to prove had they remained silent.

THC ng per mL levels do not necessarily indicate recent cannabis use or mental impairment.

Unlike with alcohol, a person’s blood THC level does not exactly correlate with the impairment level in a meaningful way. It is possible for a person to be sober yet still have a blood THC concentration above 2 ng or even 5 ngs. Cannabis is metabolized much differently than alcohol by the body and remains in a person’s bloodstream long after impairment.

THC blood test levels not necessarily indicating impairment levels is particularly apparent in cases where the accused is a regular user of cannabis edibles. Edibles such as candies, capsules, and oils remain much longer in a person’s system than while the drug is smoked or vaped. A regular user may be over the legal limit just based on their residual level of blood THC despite being perfectly sober.

Since these laws are relatively new there are not many existing cases that deal with this issue in Ontario. It is unclear whether these provisions will hold up in court as constitutional in the long term as they may violate the Charter for being overly broad, arbitrary and/or vague. While the case law is still developing, in the case of R. v. Robertson (2022 ONCJ 160) the court ultimately rejected the notion that prescribing a legal THC limit violated the Charter. This decision is not binding on equal level courts and each case will be handled and decided on a case by case basis until the Court of Appeal or Supreme Court of Canada renders a verdict on its constitutionality.

In R. v. Robertson, the court also specifically focused on the charges arising under the provisions criminalizing 5 ng/ml, not the low concentration level of 2 ng/ml. It is anticipated that other courts will weigh in on the legality of setting a legal limit for blood THC ng/ml levels.

Even if a person's blood THC level is below 2 ng/ml they can still be legally impaired and convicted under CCC Section 320.14 (1)(a).

While the Criminal Code specifically classifies both 2 ng/ml and 5 ng/ml of THC per ml of blood as criminal offences, s. 320.14 (1)(a) creates an offence for simply being impaired regardless of a person's blood THC level. The section reads:

320.14 (1)(a) Everyone commits an offence who

(a) operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug

Most people charged under s. 320.14 (1)(c) or s. 320.14 (4) will also be charged with violating s. 320.14(1)(a) for generally being high while driving. This means that technically a person could still be criminally convicted even if they are below the legal THC limit. Evidence to prove impairment under s. 320.14 (1)(a) will include evidence of the accused's behaviour upon arrest and whether they exhibited signs of impairment or not.

The police virtually always include the general 320.14(1)(a) charge in addition to the THC blood level charge as a failsafe in case the Crown is unable to prove they were over the legal THC limit.

How do criminal lawyers defend charges for driving while high in court?

Challenging the constitutionality of the law itself is only one of the potential avenues to a successful defence of cannabis impaired driving charges. There are many other defenses that can lead to a win in court or an agreement from the Crown Attorney to drop or reduce the charges down to something that is not criminal (HTA traffic ticket offence).

A blood sample is not always part of the evidence against the accused. It is considered the gold standard by the courts partially because it is not always available. Some cases rely only on the police officer’s opinion that a person was high or a urinalysis. Urine samples do not necessarily correlate with blood THC levels and are often the only bodily substance taken from the accused.

Only qualified medical practitioners or qualified technicians are allowed to withdraw blood samples and cannot do so under circumstances that do not endanger the health of the accused. Such individuals are not always available to take a blood sample from the accused. This makes the accused’s blood THC level within 2 hours of driving extremely difficult to prove.

The Crown and the courts will evaluate these cases on evidence of behaviour consistent with impairment provided by the officer.

This is why bodycam CCTV footage, in car videos, and booking videos from the police station are crucial parts of the evidence as they may conflict with the officer’s opinion that the person appeared high. The defence may also call expert witnesses to testify that a positive urine sample for cannabinoids does not mean that the accused’s blood THC level was over 2 or 5 ng/ml within 2 hours of driving. It is generally accepted that while urinalysis is an indication of possible impairment or being over the limit, it is not in and of itself conclusive proof.

As with any criminal case, the admissions and statements of the accused become a critical part of their prosecution. Many will speak to the police about their smoking, vaping, or ingesting cannabis edibles at the roadside or during an officer’s investigation. These statements are often given to try to convince the police they are not impaired or persuade them not to press charges. They will later be used in court by the Crown as evidence against them as to their likely blood THC level within 2 hours of driving particularly in cases where the court is unable to rely on blood analysis.

It is often very beneficial to the defence that no statements are made admitting to drug use particularly in cases where there is no blood sample analysis available as evidence.


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