Driving while under the influence of cannabis is illegal in Manitoba and throughout Canada. In this article, we explain:

• The laws governing cannabis-impaired driving
• How police test for cannabis-impaired driving
• The penalties for driving high
• Common defence strategies used to fight back against cannabis-impaired driving charges
• What to do if you’ve been charged with driving while impaired by cannabis

A few notes before we begin. First, throughout the article, you’ll see references to the term “DUI”. We use this term in the article because Canadians often refer to impaired driving charges as DUIs. 

You should know, however, that in Canada the technical term is impaired driving. Impaired driving includes driving under the influence of cannabis, drunk driving, and driving under the influence of many other drugs; the focus of this article is driving under the effects of cannabis.

“Cannabis” refers to THC impairment; cannabis and THC are closely related terms that are used by the Department of Justice. Edibles, smoking, and vaping cannabis products can all lead to detectable levels of THC in your bloodstream. Marijuana and weed are other commonly used terms; we use the terms cannabis and THC to be consistent with the Department of Justice. 

We use the term Criminal Code throughout this article; when we use it, we are referring to the Criminal Code of Canada. 

Peace officers include police officers and other individuals who are entrusted to keep the peace, as defined in Section 2 of the Criminal Code. 

Is It Illegal To Drive After Using Cannabis In Manitoba?

Yes, in almost all cases, it is illegal to drive after using cannabis in Manitoba and throughout Canada. As per the Department of Justice’s Blood Drug Concentration Regulations and the Criminal Code, it is illegal to drive:

• While having 5 ng or more of THC per ml of blood within 2 hours of driving
• While having 2.5 ng or more of THC per ml of blood and a Blood Alcohol Concentration (BAC) of 50mg per 100 ml of blood within 2 hours of driving

Within 2 hours of driving implies that it would be illegal to consume cannabis until 2 hours after you last drove. The Criminal Code makes an exception to get around this problem; you are not considered to have violated the law if:

1. You consumed cannabis after ceasing to drive and
2. You had no reasonable expectation that you would be required to provide a sample of a bodily substance

How Does Manitoba Test For Cannabis-Impaired Driving?

The Criminal Code gives peace officers the right to require a person they believe to be impaired to pass field sobriety tests, provide oral fluid samples, or undergo evaluation by a drug recognition expert (DRE). 

Roadside Oral Fluid Screening

Presently, two roadside oral fluid screening devices are approved for use in Canada (and, thus, Manitoba):

• The Dräger DrugTest® 5000 and the Dräger DrugTest® 5000 STK-CA, when used together
• The SoToxa™, the Abbott SoToxa™ Test Cartridge and the Abbott SoToxa™ Oral Fluid Collection Device, when used together

These are the only two approved oral fluid screening devices. These tests do not prove impairment; positive tests may, however, be sufficient to obtain a warrant to obtain a blood sample. 

Standardized Field Sobriety Tests (SFST)

Peace officers may require a person to perform physical coordination tests. The most commonly used approved physical coordination tests are the Standard Field Sobriety Tests (SFSTs), which consist of:

• The Horizontal Gaze Nystagmus Test (eye test)
• The Walk and Turn test
• The One-Leg Stand test

Officers receive training to learn to perform these tests. Should a person fail those tests, an officer may send them for evaluation with an evaluating officer – often a Drug Recognition Expert (DRE). 

Drug Recognition Expert (DRE) Evaluation

Drug recognition experts (DREs) are individuals who qualify as evaluating officers under section 320.11 of the Criminal Code.  DREs use a 12-step process, including eye examinations, dark room examinations, and pulse examination.

DREs cannot test blood; instead, the tests performed by the DRE provide evidence by which blood, urine, and other bodily fluid samples can be demanded. 

Penalties For Cannabis DUI In Manitoba

Charge	1st Offence	2nd Offence	3rd Offence
Having 5ng or more of THC per ml of blood within 2 hours of driving	Minimum: $1000 fine Maximum: 10 years imprisonment	Minimum: 30 days imprisonment Maximum: 10 years imprisonment	Minimum: 30 days imprisonment Maximum: 10 years imprisonment
Having a BAC of 50 mg per 100 ml of blood + 2.5 ng or more of THC per 1 ml of blood within 2 hours of driving	Minimum: $2000 fine	Minimum: 30 days imprisonment Maximum: 10 years imprisonment	Minimum: 30 days imprisonment Maximum: 10 years imprisonment

Common Defences To Cannabis DUI Charges In Manitoba

There are several different defences to cannabis related impairment charges in Manitoba. These defences may be related to:

• Unlawful traffic stops
• Improper roadside screening
• Charter violations
• Delays in testing
• Inaccurate or improper DRE evaluation

What Should You Do If Charged With Cannabis DUI In Manitoba?

Start by complying with requests to perform oral fluid screening, field sobriety tests, drug recognition tests, and bodily fluid samples. Should you be detained or arrested, you have the right to call a lawyer. We recommend doing so. 

Speak With A Lawyer Today

Facing a charge for a DUI in Winnipeg? Call Matt Gould today.