In recent years, vaping has become a popular alternative to smoking, with many turning to e-cigarettes for their perceived health benefits and convenience. However, this rise in vaping has also led to concerns about its use while driving.
What is an E-cigarette?
The Motor Vehicle Act and the Tobacco and Vapour Products Control Act define an “e-cigarette” as:
- a product or device, whether or not it resembles a cigarette, containing an electronic or battery-powered heating element capable of vapourizing an e-substance for inhalation or release into the air;
- a prescribed product or device similar in nature or use to a product or device described in paragraph (a);
An “e-substance” is defined as a solid, liquid or gas that:
- on being heated, produces a vapour for use in an e-cigarette, regardless of whether the solid, liquid or gas contains nicotine, and
- is not a controlled substance within the meaning of the Controlled Drugs and Substances Act (Canada).
Vaping While Driving
Section 231.1 of the Motor Vehicle Act makes it an offence to use an e-cigarette while driving with someone under the age of 16. So long as the vehicle does not contain anyone under 16, the driver may use their vape while driving.
Is a Vape an Electronic Device?
A vape is not an electronic device under BC law. While there have been some reports of drivers being ticketed while vaping for the offence of Using an Electronic Device While Driving, the Motor Vehicle Act and the Use of Electronic Devices While Driving Regulation do not explicitly state that an e-cigarette, or vape, is an electronic device. There is no case law that has found a vape to be an electronic device.
Regardless of whether or not a vape is legally an electronic device, the police may mistake a vape for an electronic device and issue a ticket. If you do not dispute the ticket within the allotted 30 days, then you will be deemed guilty of the offence.
Is Vaping While Driving Considered Distracted Driving?
While vaping and driving is not necessarily illegal, it may become illegal in circumstances where it is too distracting or to the extent that the driver is no longer showing due care or reasonable consideration for others. In other words, it depends on the context. For example, in the case of R. v. Jackson, 2019 BCPC 203, Ms. Jackson was convicted of one count of driving without due care for eating while driving. Eating while driving is not always illegal, and the court could not find any case law supporting that proposition. However, the court found that the combination of holding a bowl in one hand and chopsticks in the other while actively eating as well as speeding on a four-lane road in a city, constitutes driving without due care and attention.
If vaping becomes distracting, results in obstruction of the driver’s view, or is combined with other illegal driving behaviour, the driver could be guilty of careless driving or driving without reasonable consideration for others.
What About Vaping Cannabis?
Under the Cannabis Control and Licensing Act, it is illegal to consume cannabis while operating a vehicle, whether the vehicle is moving or stationary. It is also illegal to operate a vehicle if another person in the same vehicle is smoking or vaping cannabis.
There are also numerous criminal offences contrary to the Criminal Code for driving while vaping cannabis:
- Driving while impaired by any substance, including cannabis.
- Driving with 5 ng THC per mL of blood or more.
- Driving with a combination of 2.5 ng THC per mL of blood and 50 mg of alcohol per 100 mL of blood.
A driver may also face a number of consequences under the Motor Vehicle Act:
- A 90-day driving prohibition for having a blood drug concentration over the legal limit.
- A 24-hour driving prohibition where an officer has reasonable grounds to believe you have drugs in your body.
- A 12-hour driving prohibition where a new driver has any amount THC in their body.
- Further driving prohibitions and licence suspensions at the discretion of the Superintendent.
- A permanent drug-related driving record.
- Various insurance consequences.
Conclusion
The consequences of vaping while driving can be severe, especially if there is cannabis involved. If you are being investigated or have been charged with an offence for vaping while driving, it is important to speak to an experienced lawyer about your options.
