In the realm of uncertainty surrounding cannabis legalization, there is a lot of misinformation and premature legal analysis out there about when a person can and cannot smoke or possess cannabis. From my perspective as a lawyer who frequently deals with driving cases of all types, the assessment of whether or not a person can smoke or vape cannabis products in a vehicle is more complex than it may be made out in the media.
Recent articles, including on the Huffington Post, have suggested that it is illegal to consume cannabis in a vehicle, even if it is parked and there is no present intention to set the vehicle in motion. But based on my read of the Cannabis Control and Licensing Act in British Columbia, this may be an important misinterpretation.
And here’s why. Buckle up, this is getting technical and legal. But it is information cannabis users need to know.
The provision dealing with cannabis use in vehicles is Section 65 of the Cannabis Control and Licensing Act. It states as follows:
Consumption in vehicles and boats
There is a significant difference between being in care and control of a vehicle, operating, and driving. These are three legally distinct standards relating to vehicles.
First, actual driving is pretty self-explanatory. It involves putting the vehicle in motion, through a course of intentional conduct associated to the vehicle. That much is obvious.
When it comes to care and control and operating a vehicle, the law becomes a lot less clear. Care and control means acts that fall short of driving, but where there is a realistic risk the vehicle could be set in motion, either accidentally or through a change of intention. It can involve sitting in the driver’s seat with possession of the keys, sleeping in the vehicle, or in some circumstances, even being near the vehicle.
By contrast, operating is something more than care and control and less than actual driving. This is clearly indicated by the use of the language “regardless of whether the vehicle is in motion.”
The distinction between operating or having care and control can be seen in places like the Motor Vehicle Act. There, several sections show that there is a legal difference. Section 215.41, for example, refers to “having care or control… whether or not the vehicle is in motion.” However, Section 214.2, which deals with the prohibition on use of electronic devices while driving, prohibits use of an electronic device “while driving or operating a motor vehicle…” Thus, we see driving or operating acting as distinct from being in care and control.
The Motor Vehicle Act is rife with distinction that shows something higher than care and control meant by operate. Look at the following provisions:
A person who is under 15 years of age must not drive or operate an implement of husbandry on a highway
But you can sit in the driver’s seat of a running vehicle without a driver’s license and not offend the section. You can theoretically have a 12 year old intend to operate an instrument of husbandry on a highway or industrial but not commit an offence so long as they do not actually operate it.
The distinction is nuanced, complex, but important.
Thankfully, the Cannabis Control and Licensing Act provides a helpful definition of operation in the context of motor vehicles. In the definitions section, the statue provides that operate means to exercise control over a vehicle. Exercising control is legally distinct from care and control. Exercising control over a vehicle means to interact with the fittings or equipment of a motor vehicle that could set it in motion, without doing so.
Essentially, this means you could offend the provision if you consume cannabis while putting a vehicle in gear, or with your foot on the brake, after you’ve parked the vehicle.
Okay, that seems clear enough.
But before you start celebrating by lighting up your next BC Government supplied pre-roll in your vehicle, wait.
Because where things get tricky about consumption of cannabis in vehicles is not whether you are sitting in the driver’s seat but where the vehicle is located.
Yes, a lesser-known and lesser-discussed provision of the Cannabis Control and Licensing Act purports to define public place as:
(a) any place to which the public has access as of right or by invitation, express or implied, whether or not a fee is charged for entry, and
Yes, you read that right.
Any place to which the public has access or is invited is a public place if your vehicle is parked there. And for the purpose of the Cannabis Control and Licensing Act, your vehicle is a public place if it is located in such a place. So anywhere that public consumption of cannabis is prohibited, so too is consumption in a vehicle regardless of whether you are operating it or not.
As a refresher, these places are: skating rinks, sports fields, swimming pools, playgrounds, skate parks, spray or wading pools, parks, outdoor areas for community recreation, any by virtue of the inclusion of vehicles provisions the parking lots associated to these places. Also, the parking lots of schools, health board properties,
This is really discouraging for the numerous people in the Lower Mainland who are living in their vehicles and who park them overnight at these locations. It also means that people who go camping in an RV or tent-trailer or one of those cool VW vans also offend the provision if they consume cannabis in those locations.
Okay, so what if you consume your cannabis from the passenger seat?
You’re probably okay. So long as you do not do it while there is a driver operating the vehicle, and so long as there is not a minor present in the vehicle. Oh, and so long as you do not consume the cannabis while your vehicle is parked at a location where public consumption is prohibited.
Now, can you consume cannabis while there is a person in the driver’s seat? Yes. Provided that the person in the driver’s seat is not operating the vehicle.
I hope that helps to provide some much-needed clarity to the issue of smoking or vaping cannabis in a vehicle. There is confusion among legal experts, the police, and the media about this issue, and if you are facing a ticket for smoking cannabis in a vehicle, you need to know what defences you have. If you are looking to smoke or vape cannabis in a vehicle, you need to know when you can and when you cannot.
And, of course, if you are still confused or have any questions, please reach out on my contact form and I will try to answer your specific question.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.