Cannabis DUI charges under s. 320.14 (1) and (4) of the Criminal Code of Canada.

Cannabis DUI charges carry the same potential penalties as alcohol, but are usually harder to prove in court.

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.

All accused who receive an Undertaking or Release Order have been criminally charged by the police and guilt will be decided 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.

Impairment by cannabis is not as easy to prove as alcohol and you may have a good defence. Urinalysis is not necessarily indicative of blood/cannabis concentration levels. Blood cannabis levels may not be determined and the Crown may not be able to prove impairment in court.

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

In Canada it is a crime to drive with 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 THC 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 Criminal 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 criminalizes 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.

Minimum jail sentence

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.

If you are found to be high or drunk within 2 hours after driving, you can be charged for DUI. The police may show up at your door after you park your car.

With all forms of impaired driving (cannabis, alcohol, other drugs) you can be charged if found under the influence within two hours of driving. This is to prevent prevent the accused from:

1. ingesting alcohol/drugs after driving to skew their blood concentration readings, and/or


2. 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.

Before the new law some individuals would consume drugs or alcohol right after being pulled over or on the roadside after an accident and then claim they were not under the influence while driving (only after).

Parliament changed the law to prevent this, but added 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.

It is not necessarily an offence to consume drugs or alcohol within two hours after driving. If the accused was home at the time of arrest and consumed cannabis only after driving with no reasonable expectation of the police showing up, they meet this exception and should be found not guilty. In cases where a reasonable person would have known the police would be investigating them for impaired driving (like after an accident) the exception would not apply.

Cannabis accused can still sometimes use the "I only got high after driving" defence in 2026. It helps if they remained silent upon arrest.

While the new law makes "I only was impaired afterwards" type defences more difficult, they still work sometimes. The Crown still has to prove that you should have reasonably expected to be investigated. This can be hard to do without a statement from the accused especially if there is no accident, police chase or obvious incident to warrant police involvement. In third party calls to 911 cases the Crown may not be able to prove the accused knew the police would get involved.

The Crown may not be able to prove their case at trial especially if the accused remained silent upon arrest and did not make any admissions. Some accused will foolishly incriminate themselves by saying they expected the police to show up.

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 necessarily prove impairment or meaning recent consumption. A sober person could have a blood THC concentration above 2 ng or even 5 ngs. Cannabis is metabolized differently than alcohol and can remain detectable long after impairment or consumption.

THC blood test levels not necessarily indicating impairment is particularly apparent in cases where the accused is a regular user of cannabis edibles. Edibles remain in a person’s system for longer than when THC is smoked or vaped. A regular cannabis user may be over the legal THC blood limit even if they have not recently used and do not act or feel high.

Cannabis DUI law is relatively new and untested in Ontario courts. Many triable issues and defences remain which can help get charges dopped.

Cannabis DUI laws are untested at the highest levels of court and may violate the Charter for being overly broad, arbitrary and/or vague. Many defences have yet to be tested in court. While the Ontario case of R. v. Robertson (2022 ONCJ 160) held that 5 ng/ml THC limits do not violate the Charter, this decision not binding on other equal level courts (though is persuasive).

In Robertson the court also only adjudicated the provisions criminalizing 5 ng/ml, not the low concentration level of 2 ng/ml. The criminalization of low THC blood levels while driving could still be found to be unconstitutional.

Even if a person's blood THC level is below 2 ng/ml they can still be convicted for DUI under CC 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) 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 someone could still be criminally convicted even if they are below the legal THC blood limit.

To prove impairment under s. 320.14 (1)(a) the police will include evidence of the accused's behaviour upon arrest and whether they exhibited signs of impairment or not. The police use the DRE to collect evidence of the accused acting or appearing impaired so even if the blood THC level comes back low they can still claim you were driving high.

Ontario police usually include the 320.14(1)(a) charge in addition to the THC blood level charge as a failsafe in case the Crown is unable to prove the accused was over the legal THC limit.

Cannabis DUI charges can be hard for the Crown to prove in court and thus easier for us to get dropped or have acquitted at trial.

Those charged for drug DUIs should never plead guilty right away. Sometimes the Crown's case is weak and they will drop or reduce the charges down to an HTA traffic ticket instead (no criminal record).

The Crown may not even have a blood sample (considered the gold standard of evidence). Only qualified medical practitioners and technicians are allowed to withdraw blood samples and can only do so under circumstances that do not endanger the health of the accused. Such individuals are not always available to take a blood sample right away. The accused’s blood THC level may be impossible to prove in court.

Drug DUI cases that rely only on the police officer’s opinion and not blood tests are often very triable. Urine samples alone do not indicate current impairment status nor do they necessarily correlate with blood THC levels.

Other evidence provided by the police may work in the client's favour and prove them innocent.

Bodycam CCTV footage, bodycams, in car videos, and police station booking and DRE videos are crucial parts of the evidence in DUI cases because they may conflict with the officer’s statements. Sometimes the accused does not appear drunk or high on video. The defence may call an expert witness to testify that a positive urine sample for cannabinoids does not prove they were impaired or that their blood THC level was over 2 or 5 ng/ml within 2 hours of driving. Urinalysis indicates past usage, not current impairment.

Anyone investigated for or charged with a drug related DUI offence should politely remain silent. If no statements or admissions are made by the accused the Crown may be unable to prove impairment at trial (especially if no blood THC level reading is available).

You don't have to jeopardize your future or waste thousands of dollars on excessive legal fees. We provide effective and affordable lawyer representation for those charged with impaired driving throughout all of Ontario, Canada.

Have a skilled criminal lawyer who focuses on defending DUI charges protect you and your future from the consequences of a criminal record.




Are you a lawyer? If you are defending a impaired driving related case and are looking for expert advice regarding possible defences, case strategies, and information release management call us at: 647-228-5969.

Please note: We do not accept legal aid certificate cases. All clients are handled on a private retainer only.

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