If you are a smoker in Ontario, it may be your habit or routine to take a drag of your cigarette or electronic vaporizer while driving to your destination, however, you may want to consider the following as your actions could be prohibited conduct.
Smoke-Free Ontario Act
“Smoking” is defined as the action of inhaling and exhaling or simply holding lighted tobacco. Additionally, a relatively new concept to smoking, “vaping” means inhaling or exhaling vapour or simply holding an activated device. Ontario has been taking an increasingly tough stance on tobacco use by way of the enactment of the Smoke-Free Ontario Act, 20171 (‘SFOA’).
SFOA came into force in December 2017 prohibiting the use of “smoking” tobacco and “vaping” devices in any enclosed public space within the meaning prescribed by SFOA. Essentially any enclosed public place, which includes your motor vehicle while on a highway, can be interpreted as a prohibited place under SFOA.
It is therefore an offence that can be laid by a peace officer under SFOA to smoke tobacco or vape while you have any passenger under the age of 16 in Ontario2. This prohibition applies regardless of whether or not the vehicle is set in motion or stationary parked (and does not matter whether windows are open or not). If convicted of this offence, you would be subject to a monetary set fine of $2503 plus applicable costs.
However, as long as you are of legal age to consume tobacco products, and are not driving with a minor, you can continue to smoke cigarettes while driving according to SFOA currently. However, let us explore other exposures that might ensue under the Highway Traffic Act4 (‘HTA’) in Ontario.
Littering on a highway
The most common offence to be laid under the HTA by peace officers in regards to smoking while in your vehicle, is the prohibition against any person who tosses their cigarette butt on the roadway.
Although it is not a prohibition directly of smoking, it certainly targets smokers once they are finished and do not have a proper receptacle. Section 180 of the HTA prescribes littering on a highway is a prohibited violation as follows,
“Every person who throws or deposits or causes to be deposited any glass, nails, tacks or scraps of metal or any rubbish, refuse, waste or litter upon, along or adjacent to a highway, except in receptacles provided for the purpose, is guilty of the offence of littering the highway.”5
A peace officer simply would need to observe you throw anything (such as a cigarette butt) to be construed as “rubbish, waste, or litter” on the roadway. Absent doubt to the contrary, i.e. mistake of fact by the officer, generally speaking, there would be sufficient proof to secure a conviction at trial.
It also may be laid as a bylaw infraction, for example in Toronto under the Municipal Code6, you could be subject to a fine of up to $500 for littering. It is a good idea to look up your local municipal bylaws as each may be different. Ignorance of the law is not an excuse.
Careless Driving
We have gone over a prohibition for minors in your vehicle while smoking – as well as tossing litter on the roadway when finished smoking – but nothing expressly prohibits smoking cigarettes while on the highway.
However, there is one overarching consideration to be had that is among the most serious regulatory offences in Ontario. That is the evolving interpretation of the act of “careless driving”. Careless driving is difficult to define and vague on purpose but by definition under the HTA, it is defined as follows:
“Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway.7
A person is deemed to drive without reasonable consideration for other persons using the highway if he or she drives in a manner that may limit his or her ability to prudently adjust to changing circumstances on the highway.”8
The question becomes whether the conduct of the accused falls below that which would be expected of a reasonably prudent driver in the circumstances. Smoking while driving could lead to impaired visibility or distraction situations.
With that said, in my view, although perhaps a leap, based on the jurisprudence evolving, I believe it would be possible for a Prosecutor under the guise of careless driving to obtain a conviction against a driver smoking while driving. Especially, if an accident flowed from the instance. For the court to convict, the court would need to accept at a minimum, that the cigarette may limit a driver’s ability to prudently adjust to the oncoming circumstances.
This notion is consistent and tends to support the evolving statutory purpose and policy considerations of the HTA a regulatory scheme that’s efforts are focused on curbing “distracted driving” related offences – and no not just handhelds. The HTA is public welfare legislation designed to protect those who use the roads in Ontario.
The Act, and in particular Part XI “Rate of Speed” and Part X “Rules of the Road” of the HTA, create a wide variety of offences; Careless driving among them. Those offences, taken together, are designed to regulate and control conduct on the roads. The offences are therefore to be properly regarded as public welfare offences and entail a broader sweep in the public interest (see the decision in Raham9).
Quoting the Ontario Court of Appeal case, the Honourable Justice Goudge wrote the decision in Kazemi10
considering the Official Report of the Debates April 200911:
“In my view, [the] interpretation of ‘holding’ [while driving] best ensures the attainment of the objective of the HTA, which is to protect those who use the roads of Ontario.
This interpretation also best serves the legislature’s purpose in enacting the provision in which ‘holding’ appears. Section 78.1(1) was added to the HTA with the enactment of the Countering Distracted Driving and Promoting Green Transportation Act. On the third reading, on April 22, 2009, the Minister of Transportation [James Bradly] described the purpose of the amending legislation [as follows]:
Our eyes-on-the-road, hands-on-the-wheel legislation aims to stop the use of hand-held wireless communication devices such as cell phones while driving. The goal is not to inconvenience people but to make our roads safer for them and for everyone else who shares our roads. For safety’s sake, drivers should focus on one thing and one thing only: driving.”
According to the evolving parliamentary policy and judicial interpretation – holding anything while driving is a distraction – and therefore perhaps even an object as benign as a cigarette or vape.
In Summary
We posed a question at the beginning of this blog, and will address it in clear and concise terms:
Yes.
There is nothing currently expressly prohibiting you from smoking while driving unless you are with a minor while driving. But with all things considered, it should be obvious by now, that navigating the regulatory framework of Provincial Offences can be difficult to interpret.
The laws and rules of the road are constantly changing. You could be one cigarette away from being charged with careless driving.
Something not addressed in detail in the blog could also be collateral consequences such as insurance considerations. One thing to consider is that insurers take into account your behaviours as a driver. Perceived behaviour, such as smoking while driving, could be labelled as “risky”, and smoking while driving might be considered a distraction increasing your premiums.
Never underestimate the value of a knowledgeable and skilled advocate to fight the charge you are faced with. Someone who can interpret the everchanging landscape and let you know where you stand.
It’s important to note that specific legal advice should be sought in individual cases, and this response is based on a broad approach applying general legal knowledge. Call X-Copper today for a personalized free consultation on your charges.
Sources
1 Smoke-Free Ontario Act, 2017, S.O. 2017, c. 26, Sched. 3, s. 12(2)
2 SFOA, section 17(1)
3 SFOA, section 21(7)
4 Highway Traffic Act, R.S.O. 1990, c. H.8, s. 1(1)
5 Ibid, s. 180(1)
6 Toronto Municipal Code, Chapter 548-1, Littering and Dumping
7 HTA, section 130(1)
8 Ibid, section 130(5)
9 R. v. Raham, 2010 ONCA 206
10 R. v. Kazemi, 2013 ONCA 585
11 Ontario, Legislative Assembly, Official Report of the Debates (Hansard), 39th Parl., 1st Sess. (April 22, 2009) (Hon. James Bradley). [page303]
