Drug Per Se Limits

• Author: Karen Jokinen/Peter Keen
• Pages: 29-60



Drug PerSe

Limits

3

I. Introduction ............................................. 30

II. Three Approaches to Drug Impaired Driving: Behaviour-Based

Statutes, Per Se Laws, and Zero Tolerance Laws ................ 30

A. Legislation ......................................... 31

III. Per Se Limits ............................................. 32

A. Examples of the Oences Using THC ................... 33

B. Zero Tolerance and Other Per Se Limits ................. 34

IV. The Oence and Defence .................................. 34

V. At or Over the Per Se Limit Within Two Hours of Operation ....... 46

VI. Roadside Screening ....................................... 47

VII. Blood Drug Demand ...................................... 51

VIII. Using the Blood Analysis ................................... 52

IX. Drug Consumption After Operation but Before Testing ........... 52

X. Conclusion .............................................. 53

Appendix 3.1 Blood Drug Concentration Regulations ........... 53

Blood Drug Concentration Regulations ....................... 54

Regulatory Impact Analysis Statement ........................ 55

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 Impaired Driving and Other Criminal Code Driving Oences

I. Introduction

Drug per se limits were first introduced in Canada in 2018 through Bill C-46.1 These

oences are akin to the “80 and over” oence, except they deal with blood drug

concentration (BDC) rather than blood alcohol concentration (BAC). Operating a

motor vehicle while having a per se level of alcohol in the blood has been an oence

since 1969, when Parliament first introduced the “over 80” oence. The per se limit

for alcohol is 80 milligrams of alcohol in 100 millilitres of blood. The drug per se limits

are dierent for each drug and are established by regulation.

The law relating to proving a per se limit is discussed in detail in Chapter 18, Prov-

ing Blood Alcohol Concentration Through Breath Samples: Approved Instruments and

Certified Evidence. Many of the issues discussed there will apply to drug per se limits.

There have been relatively few per se cases actually litigated in Canada since BillC-46

came into force. The one notable exception is R v Robertson,2 which was released as we

were finalizing this chapter. Other decisions may be released prior to publication. Robert-

son is an Ontario Court of Justice decision that appears to have been superbly litigated.

The trial judge, confronted with a constitutional challenge rooted in section 7 of the Char-

ter, upheld the legislation. Our hats are o to Patrick Quilty for the Crown, as well as Craig

Bottomley and Mayleah Quenneville for the defence. Justice Sandra Caponecchia’s ruling

examines the scientific evidence and legal principles at play. Her decision should be con-

sidered required reading for those dealing with per se cases.

This chapter reviews the legislation, provides a background to the scientific litera-

ture dealing with per se limits, reviews Robertson, and interprets the laws applicable to

drug per se limits.

II. Three Approaches to Drug Impaired Driving:

Behaviour-Based Statutes, Per Se Laws, and Zero

Tolerance Laws

Although drug impaired driving has been illegal in Canada since 1925, jurisdictions

worldwide have been updating their legislation to better address this social problem.

Advances in scientific knowledge and social changes like the legalization of cannabis

have prompted legislative change. In Robertson, the Court noted there have been three

approaches to dealing with drug impaired driving: “behaviour-based statutes, per se

laws, and zero tolerance laws.”3

1 An Act to amend the Criminal Code (oences relating to conveyances) and to make consequential

amendments to other Acts, 1st Sess, 42nd Parl, 2018 (assented to 21 June 2018), SC 2018, c 21.

Part 1 of Bill C-46 enacted s 253(3) of the Criminal Code, RSC 1985, c C-46. The current drug

per se oences were introduced by part 2 of Bill C-46 in ss 320.14(1)(c), (d), and 320.14(4),

which replaced s253(3).

2 R v Robertson, 2022 ONCJ 160.

3 R v Robertson, ibid at para 56(h).

© 2023 Emond Montgomery Publications. All Rights Reserved.

Chapter 3 Drug PerSe Limits 

1. Behaviour-based statutes require evidence that the driver was exhibiting behav-

iour inconsistent with the operation of a motor vehicle and that the impairment

was the result of a psychoactive substance. They require ocers to be trained in

techniques and can require considerable time to conduct the tests. Behaviour-

based approaches are used in many countries around the world, including sev-

eral that have implemented hybrid strategies that combine evidence of impaired

driving behaviour along with blood test results to determine whether a violation

has occurred.

2. Per se laws consider drivers to have committed an oence if the concentration of

a specific drug in their blood exceeds a specific threshold value. The introduc-

tion of per se limits for drugs has proceeded cautiously.

3. A variation of pe r se limits sets the drug concentration limit at 0—often referred

to as zero tolerance. In most cases, this approach applies to illicit and controlled

substances. The rationale often cited for this approach is simple. If a substance

is illegal to manufacture or possess, it would be inconsistent to give the impres-

sion of allowing one to drive a vehicle after using it, even at low levels. Zero

tolerance approaches send a very clear message that driving under the influence

of illicit drugs is not acceptable.4

An example of a behaviour-based statute is section 320.14(1)(a) of the Criminal

Code,5 which bars both alcohol and drug impaired driving. Sections 320.14(1)(c) and

(d) contain both per se and zero tolerance laws. In this chapter, we will focus exclu-

sively on the per se and zero tolerance approaches in the current legislation. Impaired

operation is dealt with in Chapter 4, Impaired Ability to Operate, and Chapter 19,

Drug-Impaired Driving.

A. Legislation

Operation while impaired

320.14(1) Everyone commits an oence 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; or

(d) subject to subsection (7), has, within two hours after ceasing to operate a

conveyance, a blood alcohol concentration and a blood drug concentration that is

equal to or exceeds the blood alcohol concentration and the blood drug concentration

for the drug that are prescribed by regulation for instances where alcohol and that

drug are combined.

4 R v Robertson, ibid.

5 RSC 1985, c C-46.

© 2023 Emond Montgomery Publications. All Rights Reserved.