Some Pot Laws May Change, But Driving While High Will Still Put You at Risk for an Impaired Driving Conviction

The momentum behind liberalizing marijuana laws in both the U.S. and Canada includes consideration by the federal government of allowing police to ticket people arrested for possession of small amounts of pot instead of pursuing criminal charges. While the conservative government is staunchly against decriminalization or legalization, Liberal leader Justin Trudeau supports full legalization, and the New Democrat Party supports decriminalization.

Driving while “impaired by alcohol or a drug”

While it remains to be seen whether marijuana possession laws will change significantly, one thing unlikely to change is the fact that drivers can face impaired driving charges for driving while high. Criminal Code Section 253 makes it a crime to drive while the person’s ability to operate the vehicle, “is impaired by alcohol or a drug.” A conviction for operating while impaired can have serious implications. In addition to losing your driving privileges and facing fines and potential jail time, a conviction may also negatively impact your reputation, and losing your licence may affect potential employment or educational opportunities.

The challenge for law enforcement is that it is much more difficult to prove that a driver is high or that drugs are the cause of the impaired driving than it is to prove that a driver is intoxicated by alcohol. Nevertheless, drivers should not be under the mistaken impression that they can drive while high undetected and without consequence.

Testing for Drugs

In 2008, the federal government amended the Criminal Code to authorize the police to demand that a driver participate in physical coordination testing (commonly known as Standardized Field Sobriety Testing or SFST) if they have reason to suspect that he or she has any alcohol or drugs in his or her body. This is a relatively low threshold test, which is based on the same grounds as the demand for breath tests on approved screening devices (ASDs). It is an offence to refuse to comply with an officer’s demand to participate in an SFST without a reasonable excuse. The minimum penalty is a $1,000 fine and a one-year driving prohibition.

The results of an SFST can be used to screen drivers and provide grounds for demanding evidentiary breath tests or a “Drug Recognition Evaluation,” or DRE. An officer can demand a DRE from a driver who they have reasonable grounds to believe has, within the preceding three hours, driven while impaired by a drug or a combination of drugs and alcohol.


If you are facing impaired driving charges as the result of the alleged use of marijuana, several possible defences exist. Whether the stop was proper, whether the tests were demanded and collected in the required manner, and whether your constitutional rights were violated are all questions that may impact your defence. For example, the Supreme Court of Canada has held that administering an SFST entails a “detention,” and thereby triggers the right to counsel under section 10(b) of the Charter of Rights and Freedoms. Accordingly, if you were not given the right to counsel, the results of the SFST might not be admissible at trial as proof of your impairment.

An experienced criminal defence lawyer will be able to evaluate your situation, determine whether your rights were violated, and work with you to prepare the best possible defence against the charges.

Ottawa Criminal Defence Firm Engel & Associates Defends Against Even The Most Complicated Charges

Criminal lawyers Bruce Engel and Elena Davies have represented individuals and businesses charged with hundreds of different offences throughout Canada for more than two decades. From the start of a criminal investigation to the close of a trial, we will take a balanced and forceful approach to your defence. We have the experience and know-how to effectively navigate the constantly changing justice system in Canada.

The materials provided on this site are for information purposes only. These materials constitute general information relating to areas of law familiar to our firm lawyers. They do NOT constitute legal advice or other professional advice and you may not rely on the contents of this website as such.

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