In Ontario, smoking or vaping while driving may be legal in certain circumstances, but there are restrictions and potential penalties drivers should be aware of.
If you’re a regular reader of our blog, you know that drinking and driving is dangerous and can lead to severe criminal charges if police believe that you are operating a motor vehicle under the influence of alcohol. You also likely know that while marijuana is now legal in Canada, driving while stoned is also a criminal offence that carries the same penalties as alcohol-related driving under the influence (DUI) charges.
Being a responsible driver , you’d never consider consuming alcohol or lighting up a joint while behind the wheel, right? But what about tobacco? If you smoke or vape, do you ever hesitate before lighting up your cigarette or vape pen when you’re driving?
If not, keep reading because the Greater Toronto Area lawyers at Mass Tsang will tell you that smoking and vaping while driving in Ontario can be illegal in certain circumstances. As an offence under Ontario’s tobacco laws, the penalties for being charged with smoking while driving are not as severe as they are for DUI, but the monetary fine can sting. As a rarely charged traffic safety offence , the penalties can be steeper and come with driving record demerit points.
The province’s Smoke-Free Ontario Act (SFOA) was enacted in 2017 to protect workers and the public from second-hand smoke and vapour. It prohibits smoking, vaping, and electronic cigarette use with any substance in enclosed workspaces, enclosed public places, and other designated places in the province. The Act defines enclosed workspaces and public spaces in a way that includes vehicles and conveyances.
That said, with two noteworthy exceptions, the legislation does not explicitly prohibit persons from smoking or vaping in their private vehicles.
These prohibitions apply whether the vehicle is in motion or stopped, and having the vehicle’s windows open will not preclude it from being considered an enclosed space under the law.
SFOA carries a monetary fine penalty of $250 plus court costs for those convicted of the offence.
Q. Can you smoke cigarettes while driving in Ontario?
A. Smoking cigarettes while driving in Ontario is legal, except if there is someone under 16 in the vehicle. Additionally, careless driving charges can apply if smoking distracts the driver.
Even if you don’t run afoul of the SFOA because there’s no one under the age of 16 in your vehicle, smoking while driving could potentially get you in legal trouble under Ontario’s Highway Traffic Act. Canada’s Royal Canadian Mounted Police lists smoking and vaping as examples of distracted driving behaviours. However, Ontario legislators did not include smoking or vaping as prohibited acts in its updated 2019 distracted driving laws .
Nevertheless, a driver could technically be in violation of the Highway Traffic Act’s language defining the offence of careless driving. Section 130 of the Act defines careless driving as: “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.”
Section 130 (5) elaborates on this definition by adding: “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.”
The chances of an Ontario Police officer pulling you over for careless driving based on observing you smoking are likely slim, but the vague language of the careless driving statute does not preclude the possibility. While we are not aware of anyone who’s been charged with the offence based on their smoking, police and prosecutors are taking a harder line on driving behaviours that pose a threat to the public.
Because smoking could limit a driver’s “ability to prudently adjust to changing circumstances on the highway,” we’re not going to be surprised when we learn that someone has been charged accordingly. By the way, the penalties for a careless driving conviction range from a $400 fine to $2,000 and/or a six-month term in jail. The conviction will add demerit points to your driving record, and the court can suspend your driver’s license for up to two years.
Last, we should warn you about another smoking-while-driving behaviour that could cause trouble with the law. If a cop sees you tossing a cigarette butt out your vehicle’s window, they have grounds to cite you for littering under Section 180 of the Highway Safety Act. A conviction of this offence will result in an $85 fine. If you commit the offence in the City of Toronto, the Municipal Code allows for fines of up to $500.
The traffic violation lawyers of Mass Tsang have helped 1,000s of Ontario motorists successfully dispute their traffic-related offences. Whether you were smoking or not, to help beat a careless driving charge or other traffic violation in the Greater Toronto Area, contact us today for a free consultation.
