Blood Drug Concentration Regulations: SOR/2018-148

Canada Gazette, Part II, Volume 152, Number 14


June 27, 2018


P.C. 2018-952 June 26, 2018

Her Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to section 253.1footnote a of the Criminal Codefootnote b, makes the annexed Blood Drug Concentration Regulations.

Blood Drug Concentration Regulations

Blood Alcohol Concentration and Blood Drug Concentration

Summary offence

1 For the purpose of paragraph 253(3)(b) of the Criminal Code, the prescribed blood drug concentration for tetrahydrocannabinol (THC) is 2 ng of THC per mL of blood.

Hybrid offence — drugs

2 For the purpose of paragraph 253(3)(a) of the Criminal Code, the prescribed blood drug concentration for each drug set out in column 1 of the table to this section is set out in column 2.


Column 1


Column 2



Tetrahydrocannabinol (THC)

5 ng/mL of blood


Lysergic acid diethylamide (LSD)

Any detectable level



Any detectable level



Any detectable level


Phencyclidine (PCP)

Any detectable level



Any detectable level



Any detectable level



Any detectable level


Gamma hydroxybutyrate (GHB)

5 mg/L of blood



Any detectable level

Hybrid offence — combination of drugs and alcohol

3 For the purpose of paragraph 253(3)(c) of the Criminal Code, the prescribed blood alcohol concentration is 50 mg of alcohol per 100 mL of blood and the prescribed blood drug concentration for tetrahydrocannabinol (THC) is 2.5 ng of THC per mL of blood.

Application Before Publication

Statutory Instruments Act

4 For the purpose of paragraph 11(2)(a) of the Statutory Instruments Act, these Regulations apply according to their terms before they are published in the Canada Gazette.

Coming into Force

5 These Regulations come into force on the day on which they are made.


(This statement is not part of the regulations.)


As part of its initiative to strengthen the criminal law approach to drug-impaired driving in advance of the legalization and regulation of cannabis, the Government has proposed, and Parliament has enacted, new criminal offences through Part I of An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts (the Act). These offences prohibit individuals from having certain levels of impairing drugs in their blood within two hours of driving. The specific drugs included under these offences, as well as their prohibited levels, are established in the Blood Drug Concentration Regulations (the Regulation), adopted by the Governor in Council and the authority for making these regulations is enacted in the new section 253.1 of the Criminal Code. Part II of the Act comes into force 180 days following royal assent. It includes the amendments made in Part I of the Act and will renumber the Criminal Code provisions referred to in Part I of the Act. The Regulations Amending the Blood Drug Concentration Regulations (the Amending Regulation) will come into force upon the coming into force of Part II of the Act. It is a technical amendment and will ensure that the Regulation cites the renumbered sections of the Criminal Code at the same time that Part II of the Act comes into force.


Under the Act, the Criminal Code continues to prohibit driving while impaired by a drug or alcohol or a combination of both (the impaired driving offence). This offence requires proof of impairment but does not require evidence of the level of drugs or alcohol in the body. The Criminal Code also continues to include an offence for driving with a prohibited blood alcohol concentration (BAC) for which proof of impairment is not required.

Under the Act, there are three new criminal driving offences for having a blood drug concentration (BDC) within two hours of driving that is at or over the level set by the Regulation: (1) a summary conviction offence for a low BDC; (2) a hybrid offencefootnote 1 for a higher BDC; and (3) a hybrid offence for a combination of low BAC and low BDC. In addition to motor vehicles, the offences apply to the operation of vessels (boats), aircraft and railway equipment.

The Act’s penalties for the hybrid BDC offences mirror the penalties for the hybrid offences for alcohol-impaired driving. They are punishable by mandatory penalties of $1,000 for a first offence, with escalating penalties for repeat offenders (i.e. 30 days imprisonment on a second offence and 120 days on a third or subsequent offence). The penalty for the separate summary conviction offence for a low BDC is a maximum fine of $1,000.

The Act also provides new authorities for the Attorney General of Canada to approve drug-screening equipment for detection of drugs in bodily substances that can be used in the investigation of drug-impaired driving and BDC offences. The existing authorization for the Attorney General of Canada to approve screening devices for breath alcohol testing, typically at the roadside, will remain.

The Drugs and Driving Committee (DDC) of the Canadian Society of Forensic Science (CSFS) acts as the government’s scientific advisor on drugs and driving. In April 2017, the DDC issued its Report on Drug Per Se Limits, providing findings and recommendations with respect to the types and levels of drugs that could be included under the new BDC offences. The DDC also evaluates drug-screening equipment developed by manufacturers, and makes recommendations to the Attorney General of Canada on whether the drug-screening equipment should be approved for use for Criminal Code purposes. In November 2017, the DDC issued a document outlining the evaluation standards and procedures it will apply when evaluating drug-screening equipment. Both documents were published on the CSFS website.


The BDC levels set out in the Regulation give effect to the Act’s criminal BDC offences. The Act also makes it easier to investigate and prosecute drug-impaired drivers and sends a clear message to the public about the dangers of mixing impairing drugs with driving.


The Regulation establishes BDC offence levels for tetrahydrocannabinol (THC, the primary psychoactive component of cannabis), THC in combination with alcohol, cocaine, gammahydroxybutyrate (GHB), methamphetamine, lysergic acid diethylamide (LSD), psilocin/psilocybin (magic mushrooms), phencyclidine (PCP), 6-monoacetylmorphine (6-MAM)footnote 2 and ketamine.

With respect to LSD, psilocin/psilocybin, PCP, 6-MAM, ketamine, cocaine and methamphetamine, any level of these drugs, detectable in blood within two hours of driving, is prohibited under the Act’s hybrid criminal offence BDC level.

With respect to THC and GHB, specific BDC levels are set out in the Regulation. The hybrid offence BDC level for THC is set at ≥5 nanograms (ng) per millilitre of blood. The summary conviction offence BDC level for THC is set between ≥2 ng/ml and <5 ng/ml. In addition, the BDC level for THC and alcohol in combination is set at ≥2.5 ng/ml and ≥50 mg/100 ml, respectively. The BDC for GHB is set at ≥5 mg/L.

It should be noted that THC is a more complex molecule than alcohol and the science is unable to provide general guidance to drivers about how much cannabis can be consumed before it is unsafe to drive or before the BDC levels enacted under the Regulation would be exceeded. It is equally challenging to provide general advice as to how long a driver should wait to drive after consuming cannabis. In this context, the safest approach for anyone who chooses to consume cannabis is to not mix their cannabis consumption with driving.

“One-for-One” Rule

The “One-for-One” Rule does not apply to this proposal, as it does not impose any administrative burden on business.

Small business lens

The small business lens does not apply to this proposal, as it does not impose any administrative burden on business.


For THC, the BDC offence levels contained in the Regulation are based, in part, on the advice of the Drugs and Driving Committee (DDC) of the Canadian Society of Forensic Science. The levels for LSD, magic mushrooms (e.g. psilocin/ psilocybin), phencyclidine (PCP), 6-monoacetylmorphone (6-MAM), and ketamine are set at “any detectable level.” These levels were recommended by the DDC as any presence of these drugs in the body is inconsistent with safe driving. The levels for GHB, cocaine, and methamphetamine are lower than those recommended by the DDC. This reflects the Government position that these are impairing illicit drugs and drivers should not have them at these levels in their body. The level for GHB reflects the fact that GHB can be produced naturally by the body. Therefore, “any detectable level” is not appropriate for this drug.

Although not specifically consulted on the BDC levels, the provinces and territories were consulted on drug-impaired driving through the Coordinating Committee of Senior Officials (CCSO) Working Group on Impaired Driving and the Federal-Provincial-Territorial (FPT) Senior Officials (Assistant Deputy Ministers) Working Group on Cannabis Legalization and Regulation. Additionally, the Government considered the views of groups such as Mothers Against Drunk Driving (MADD) and the Canadian Association of Chiefs of Police, which had long called for BDC offence levels to simplify investigation and prosecution of drug-impaired driving.

Publication of the proposed regulatory text in the Canada Gazette, Part I, stipulated a 30-day comment period for any interested parties, which ended on November 13, 2017. In response to the publication of that notice, the Department received ten comments (one by telephone) on the proposed regulatory text.

Comments were varied and included concerns that the existing scientific evidence is insufficient to support a link between specific BDC offence levels and actual impairment. Others noted that different methods of consuming cannabis (i.e. smoking versus edibles) have different rates of absorption in the body. Some commented that the drug levels in the proposed Regulation are too high and would not capture all drug-impaired drivers, while others raised concerns that the drug level for THC is too low and may capture medical marijuana users who have a detectable level of THC in the body but are not impaired. Some supported a zero tolerance approach to all impairing drugs and driving when carrying out the duties of employment. Charter concerns were raised along with the expectation that, should the Regulation come into force, the offences would be subject to court challenges. Finally, there were separate calls for random drug testing in the workplace and for the inclusion of oral fluid drug concentration levels in the Regulation.


The enactment of “any detectable BDC level” for LSD, magic mushrooms, PCP, 6-MAM, and ketamine corresponds with the recommendations of the DDC, which indicated that any presence of these drugs in the body is inconsistent with safe driving.

Given the unique properties of THC, the DDC outlined the pros and cons of two different THC levels, both of which have been adopted in the Regulation. As noted by the DDC, the BDC summary conviction offence level of ≥2 ng to <5 ng of THC per millilitre of blood is not directly linked to impairment but, rather, is based on a precautionary crime prevention approach, whereas the hybrid offence level of ≥5 ng of THC per millilitre of blood is based on an impairment approach.

The BDC levels for GHB, cocaine, and methamphetamine are lower than those recommended by the DDC. For these drugs, the DDC based its recommended BDC levels on the levels of the drugs that would have a negative impact on driving skills. The lower BDC levels for these drugs adopted in the Regulation (“any detectable level” for cocaine and methamphetamine, and ≥5 mg/L for GHB) reflects the Government’s position that these are impairing illicit drugs and drivers should not consume them and drive. The BDC level for GHB reflects the fact that GHB can be produced naturally by the body and, as such, a BDC of “any detectable level” is not appropriate for this drug. The DDC’s published evaluation standards for drug-screening equipment include THC, cocaine and methamphetamine. They do not include screening for any other drugs in the wide range of impairing drugs. These other drugs would only be detected by testing a bodily substance after police have first developed reasonable grounds, from observations of physical symptoms and/or driving behaviour, to believe that a drug-impaired driving offence has been committed.

The BDC offence levels set out in the Regulation reflect several considerations, including the recommendations by the DDC, based on the available scientific literature on impairing drugs and driving, and on the experience of international jurisdictions that have set BDC offence levels for driving. For example, with respect to THC, scientists in England had recommended the adoption of a 5 ng/ml offence, plus an offence at 3 ng/ml of THC in combination with 20 mg/100 ml of alcohol. However, in England where cannabis remains illegal, England chose, instead, to adopt a single offence at 2 ng/ml of THC. In the United States, both Colorado and Washington, for example, have adopted a single offence at 5 ng/ml of THC. Authorizing the Governor in Council to set BDC offence levels by regulation provides a flexible mechanism with which to provide a robust response as scientific knowledge about impairing drugs continues to evolve.

The Regulation and Amending Regulation have no direct cost implications for the federal or provincial/territorial governments. Any costs relating to this initiative are related to other elements of the Government’s strategy to address drug-impaired driving, including detection and enforcement.

Implementation, enforcement and service standards

In addition to the proposal to create new criminal BDC offences, the Act would strengthen the criminal law response to drug-impaired driving by authorizing the police to use additional tools, including approved drug-screening equipment. It also facilitates the collection of blood samples. In addition to addressing drug-impaired driving, the Act makes significant reforms in the area of alcohol-impaired driving.

Public Safety Canada is currently working with each province and territory to develop a national strategic plan to respond to drug-impaired driving that includes identifying needs in relation to law enforcement training, training capacity, technology and data collection. In September 2017, the Government announced $161 million for training frontline officers on how to recognize the signs and symptoms of drug-impaired driving, building law enforcement capacity across the country, and providing access to approved drug-screening equipment.

The Regulation comes into force on the day on which it is made. The Amending Regulation comes into force 180 days following royal assent of the Act.


Monique Macaranas
Criminal Law Policy Section
Telephone: 613-957-4752