Frequently Asked Questions - Drug-Impaired Driving Laws

Why did drug-impaired driving laws need to be strengthened?

Impaired driving is the leading criminal cause of death and injury in Canada. This is completely unacceptable. Keeping Canadians safe on our roads by combatting impaired driving is a top priority for the Government of Canada.

On October 17, 2018, cannabis became legalized in a strictly-regulated market. Therefore, the Government of Canada put in place stronger laws to deter and detect those who drive while impaired by alcohol and drugs, including cannabis.

How do the recent changes to the Criminal Code address drug-impaired driving?

The legislation, formerly known as Bill C-46, was passed by Parliament in June 2018. It has three main elements that address drug-impaired driving:

• It creates new criminal offences of being at or over a prohibited blood drug concentration for certain impairing drugs, including THC and cocaine within two hours of driving (the levels are set by regulation)
• It authorizes the police to use approved drug screening equipment (e.g., oral fluid drug screeners) to detect the presence of some impairing drugs in drivers such as THC and cocaine
• It strengthens the existing legal framework to enhance the investigation and prosecution of the current offence of driving while impaired by a drug

What are the new Criminal Code offences relating to drug-impaired driving?

There are three new offences of having prohibited blood drug concentrations within two hours of driving. There is a straight summary conviction offence and two hybrid offences, one hybrid offence applies to drugs alone, and one applies to drugs in combination with alcohol. A summary conviction offence is intended for less serious conduct. A hybrid offence is an offence where the prosecutor can decide, based on factors such as the seriousness of the harm caused, to proceed either by way of summary conviction (in less serious cases) or by indictment (in more serious cases).

What are the new prohibited blood drug concentrations and how are they set?

The prohibited blood drug concentrations are set by regulation. The regulation came into force on June 26, 2018. For THC, the prohibited levels are:

• at or over 2 ng (nanograms) but under 5 ng of THC per milliliter (ml) of blood for the straight summary conviction offence
• at or over 5 ng of THC per ml of blood for the drug-alone hybrid offence
• at or over 2.5 ng of THC per ml of blood combined with 50 mg of alcohol per 100 ml of blood for the drugs-with-alcohol hybrid offence

Levels for eight other impairing drugs are set at "any detectable level" for the hybrid offence. These include: Cocaine, LSD, 6-MAM (a metabolite of heroin), Ketamine, Phencyclidine (PCP), Psilocybin, Psilocin (magic mushrooms), and Methamphetamine. The level for Gamma hydroxybutyrate (GHB) is set at 5 mg/L, as the body can naturally produce low levels of this drug.

What are the penalties for these new offences?

The penalty for the summary conviction offence is a maximum fine of $1,000.

The penalties for the two hybrid offences are the same as for alcohol-impaired driving. These include mandatory minimum penalties of $1,000 fine for a first offence, 30 days imprisonment for a second offence and 120 days imprisonment for a third offence.

What are the tools and techniques available to law enforcement in drug-impaired driving investigations?

Since 2008, specially trained law enforcement have been authorized to use Standardized Field Sobriety Test (SFST) and a Drug Recognition Evaluations (DRE). SFST tests are routinely conducted at the roadside to provide preliminary indications of impairment. DRE evaluations are conducted at the police station, can include a bodily fluid sample, and can provide further evidence to support a drug-impaired driving charge.

As of June 2018, as a result of Bill C-46, police can now also demand a sample of oral fluid on approved drug screening equipment at the roadside. A drug screener has now been approved for use as an additional tool for law enforcement.

What is an oral fluid drug screener?

In order to be approved for use in Canada, an oral fluid drug screener must be comprised of both: an oral fluid collection kit and a reader. It can detect the presence of some drugs in oral fluid, including THC, the main impairing component in cannabis. These devices are fast, non-invasive, and accurate. A positive result on an oral fluid drug screener is strongly suggestive of recent cannabis and recent cocaine use. A positive result on an oral fluid drug screener may provide enough information to move the investigation forward either by making a demand for a drug recognition evaluation or a blood sample.

When can law enforcement demand an oral fluid sample from a driver?

Before the police can demand an oral fluid sample on a drug screener, they must reasonably suspect there is a drug in the driver's body. Courts have indicated that a reasonable suspicion is based on objectively discernable facts, such as red eyes, muscle tremors, agitation, or speech patterns. Police officers are trained to identify the signs and symptoms of recent drug use.

What happens if a driver tests positive on an oral fluid drug screener?

A positive result on an oral fluid drug screener provides information to the police that helps them develop reasonable grounds to believe that an impaired driving offence has been committed, including the new blood drug concentration offences. A positive result on an oral fluid drug screener may provide enough information to move the investigation forward either by making a demand for a drug recognition evaluation or a blood sample.

Will an oral fluid screening test be used in every case?

There is no requirement that an oral fluid screening demand be made in every case. It is an additional tool that can be used by police to help them detect drug-impaired drivers.

Can oral fluid drug screeners detect all impairing drugs?

No. There are thousands of impairing drugs, and not all can be detected by oral fluid drug screeners.

Police have other tools and techniques at their disposal. Since 2008, specially-trained law enforcement have been authorized to use both the Standardized Field Sobriety Tests (SFST) and a Drug Recognition Evaluations (DRE). SFST tests are conducted at the roadside to provide preliminary indications of impairment. DRE evaluations are conducted at the police station, can include a bodily fluid sample, and can provide further evidence to support a drug-impaired driving charge.

Are blood samples required in every case?

Blood samples are required to prove the new blood drug concentration offences.

How is drug-screening equipment approved for use in Canada?

Similar to the long-established process for approving alcohol breath-testing equipment, the process for approving drug-screening equipment requires drug screeners to be evaluated by the Drugs and Driving Committee (DDC) of the Canadian Society of Forensic Science (CSFS).

Drug screeners are evaluated by the DDC against their standards and evaluation procedures. If the DDC determines that a drug screener meets its evaluation standards, it will be recommended to the Attorney General of Canada for consideration and approval. Details of the evaluations undertaken by the DDC are confidential to protect the commercial and proprietary interests of the manufacturers.

Are police officers required to use an oral fluid drug screener to investigate drug-impaired driving?

Drug-screening equipment is an additional tool available for police to use to detect and investigate drug-impaired driving, including the new blood drug concentration offences. Police agencies are not obligated to purchase or use oral fluid drug screeners and can continue to rely on other tools and techniques, such as Standardized Field Sobriety Tests and Drug Recognition Expert evaluations.

What technological alternatives are available to oral fluid screening equipment?

No other technology for drug screening has yet advanced to the level of scientific acceptance that oral fluid drug screening technology has achieved.

How were the blood drug concentration levels determined for each drug?

The prohibited blood drug concentration levels, including those for THC, are based, in part, on the final report of the DDC. The prohibited levels also take into account the approach taken in other jurisdictions, including jurisdictions where cannabis has been legalized.

The levels were selected based on strong and indisputable evidence that cannabis is an impairing drug. The straight summary conviction offence (2 ng of THC) is based on a precautionary approach taking into account the best available scientific evidence related to THC. The hybrid offence (5 ng of THC) is more closely linked with impairment as it can be associated with recent use. Finally, the hybrid combination offence is based on evidence that THC in combination with alcohol is more impairing than either of the two alone.

How much cannabis can someone consume before it is unsafe to drive?

Unlike alcohol, the existing scientific evidence does not yet provide general guidance to drivers about how much cannabis can be consumed before it is unsafe to drive or how long a driver should wait to drive after consuming cannabis. However, we know that mixing driving with cannabis, or any other impairing drug, is not safe and poses a danger on Canadian roads. The law reflects this precautionary approach.

How would the new law and criminal offences affect individuals who have a medical authorization for cannabis?

The law applies to all drivers, including those with a medical authorization for cannabis. The new law does not include a medical exemption; this is consistent with the Criminal Code's long-standing drug-impaired driving offence which has never exempted drivers who drive impaired by prescription drugs, for example.

How does the approach in the new law compare with other jurisdictions?

Other jurisdictions have set offence levels for impairing drugs, including cannabis. Colorado and Washington have set a 5 ng/ml of blood level for THC. The United Kingdom has set a 2 ng/ml of blood level for THC.

The three newly created offences for having a prohibited concentration of drugs in the blood within two hours of driving include specific (per se) levels for THC at:

• for the summary conviction offence for 2 ng but less than 5 ng of THC per ml of blood
• for the hybrid offence for 5 ng or more of THC per ml of blood
• for the hybrid offence for a combination of 50 mg of alcohol per 100 ml blood + 2.5 ng or more of THC per ml of blood

What is the Government of Canada doing to address the dangers of alcohol-impaired driving?

In addition to the changes to address drug-impaired driving, former Bill C-46 also made significant changes to the alcohol-impaired regime in the Criminal Code, including to:

• authorize mandatory alcohol screening at the roadside where police have already made a lawful stop under provincial law or at common law
• repeal and replace all transportation offences with a modern, simplified and coherent structure
• increase some minimum fines and maximum penalties
• facilitate investigation and proof of blood alcohol concentration
• eliminate and restrict defences that encourage risk-taking behaviour and make it harder to enforce laws against drinking and driving
• clarify what is required to be disclosed by the Crown with respect to proving blood alcohol concentration
• permit an earlier enrolment in a provincial ignition interlock program

Combined with the new drug-impaired driving offences, the new law has created a modernized, simplified, coherent legislative framework addressing all transportation offences including impaired driving in Canada.