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Marijuana May be Legal in Canada, But Don’t Combine it with Driving

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Greater Toronto Area residents can now receive home delivery of recreational marijuana from Uber Eats. The food delivery platform began offering cannabis delivery in the region last month through a partnership with online marijuana marketplace Leafly. According to the two companies, the initiative is designed in part to help combat the illegal marijuana market and help reduce marijuana-related impaired driving.

According to a report released last year by public policy research agency Public First, 14% of Canadian cannabis users surveyed reported that they had driven within two hours of using marijuana. Whether home delivery of pot will reduce such impaired driving remains to be seen, but perhaps it’s a noble effort.

The government of Canada legalized the recreational use of marijuana in 2018 in lockstep with revisions to the Criminal Code that set TCH blood limits for driving and screening protocols to detect marijuana-impaired driving. Whether because of legalization, enhanced marijuana-impaired driving enforcement, or a combination of the two, the number of people charged with drug-impaired driving in Ontario has increased dramatically since 2018. In that year, according to the latest Statistics Canada data, Ontario police agencies arrested 787 people on drug-impaired driving charges, a figure that rose to 1,438 for an 82.7% increase in 2020. Little doubt that much of this increase can be attributed to marijuana impairment.

Marijuana Impairment Charges Similar to Alcohol DUI

The criminal defence DUI lawyers at Toronto’s Mass Tsang LLP will suggest that you do not want to join these figures as a future statistic. Under Canadian law, driving while impaired by marijuana subjects you to the same laws — and penalties — that cover alcohol-impaired driving. DUI charges that cover marijuana impairment under the Offences Relating to Conveyances section of the Criminal Code include:

  • Over the legal limit — Screening that detects more than five nanograms of THC per ml of blood or a combination of 2.5 nanograms-plus per ml of blood with 50 mg of alcohol per 100 ml is grounds for a criminal driving while impaired DUI charge. Levels between two and five nanograms of TCH per ml of blood can subject you to a non-criminal administrative warning.
  • Impaired Driving — DUI based on physical evidence in the absence of screening used to prove that your ability to drive a motor vehicle was impaired by marijuana or another drug. Such physical evidence is often collected through a 12-step drug recognition expert evaluation.
  • Refuse a Blood Sample — Refusing to comply with a demand for roadside drug screening and/or blood sampling is automatically charged as a standard DUI that carries the same penalties upon conviction.
  • Care and Control — Having care and control of a non-operating motor vehicle while impaired by drugs, as evidenced by a combination of screening/physical evidence and your ability to easily put the vehicle into motion.
  • Zero Tolerance Impaired Driving — Applied to underage drivers, commercial drivers, and those with a G1, G2, M1, or M2 license who are not allowed to drive with any level of marijuana (or other drug) impairment.

Other than enrollment in the mandatory ignition interlock program, DUI penalties are the same for all types of impairment, whether alcohol, marijuana, or other drugs. Minimum penalties and other potential negative impacts for a first-time DUI conviction by marijuana include:

  • Minimum one-year license suspension (with $281 fee for license reinstatement).
  • Mandatory medical evaluation to determine driving fitness.
  • $1,000 fine.
  • Vehicle impoundment
  • Mandatory participation in Ontario’s “Back on Track” education/treatment program as a condition of license reinstatement.
  • A criminal record.
  • Subject to at least five years of expensive “risky driver” insurance rates post-license reinstatement.
  • Potential impacts on your current employment, educational opportunities, future career, and ability to travel internationally.

While an administrative warning for cannabis testing that detects between two and five nanograms of TCH per ml of blood doesn’t result in criminal DUI charges, it will still cause problems. A first offence warning results in a three-day license suspension, $250 fine, and $287 license reinstatement fee, while subsequent warnings carry longer license suspensions, larger fines, mandatory enrollment in the Back on Track program, and other possible penalties.

Be Careful with Medical Marijuana

Canadian law does not provide medical marijuana users with the right to operate a motor vehicle while impaired by cannabis, though those who have a prescription are not subject to any zero-tolerance requirements under the law. Medical marijuana users need to ensure that the drug does not impair their driving ability and that their TCH levels are below prohibited levels.

How Police Determine Marijuana Impairment

Ontario police agencies use four different methods to determine a driver’s marijuana impairment:

  • Standardized field sobriety testing (SFST)
  • 12-step drug recognition expert (DRE) evaluation
  • Approved (roadside) drug screening equipment (ADSE)
  • Blood sampling

Police can initially arrest a suspect for marijuana DUI based on either the SFST, ADSE, or both. To further bolster their evidence to support the charges, police typically demand a blood sample, DRE or both once the suspect has been brought to the police station. While suspects do not have the right to consult with a lawyer before undergoing the SFST or ADSE, once arrested, they have the right to speak to a lawyer before blood extraction and/or a DRE evaluation. If you have been arrested for a marijuana-related DUI, Mass Tsang lawyers strongly encourage you to utilize this right.

Evidence used for marijuana-impaired DUI charges tends to be more subjective than that for alcohol impairment charges. Crown prosecutors must prove that your driving ability was impaired and that marijuana caused the impairment. Charges based solely on DRE evaluation are open to a wide range of legal challenges and your lawyer can challenge the validity of the DRE or roadside testing used to demand a blood sample.

Roadside ADSE devices are also subject to legal challenges. They have yet to establish the same level of historical reliability as roadside alcohol testing devices and breathalyzers. The government currently reviews their reliability, and they remain open to challenges in court.

Secure Your Marijuana DUI Defence with Mass Tsang

If you are arrested for DUI in the Greater Toronto Area, you should always secure the services of the best criminal defence possible to avoid a conviction or secure the best outcome possible. The subjective nature of most marijuana-related DUI charges in Ontario can provide various opportunities to mount an effective defence. Mass Tsang DUI criminal defence lawyers have a strong record of strategizing solid defence efforts that secure withdrawn charges, dismissals, acquittals, and other favourable outcomes. Contact Mass Tsang Today to learn more.

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