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Canadian Lawyers Cry Foul Over New Drugged-Driving Regulations

October 23, 2017
(shaunl/iStock)
Many of Canada’s criminal lawyers are up in arms over Ottawa’s recently unveiled rules surrounding blood-drug concentration levels for drivers and are preparing for battle.

There are myriad problems with the rules, lawyers say, and they won’t survive the constitutional court challenges that are sure to follow if those rules become law.

There are myriad problems with the rules, lawyers say, and they won’t survive the constitutional court challenges that are sure to follow if those rules become law—many of which will cite Section 7 of the Canadian Charter of Rights and Freedoms, which protects an individual’s autonomy and personal legal rights from actions of the government.

The draft rules are pursuant to Bill C-46, which amends impaired driving laws in Canada and was unveiled in April. It is set to become law next summer.

The new rules state that drivers with five or more nanograms of THC per milliliter of blood could be charged with impaired driving, as could drivers with at least 2.5 nanograms of THC and at least 50 milligrams of alcohol per milliliter of blood. Impaired driving has penalties ranging from a mandatory $1,000 fine for a first offence to mandatory 120 days imprisonment for a third.

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Also under the new rules, a driver with more than two but less than five nanograms of THC per milliliter of blood would not be considered impaired but could be charged with a summary offence—one rooted in “a precautionary or a crime prevention approach,” according to the government. This offence could be punishable by a maximum fine of $1,000.

'Those (nanogram) numbers are based on bunk science. They don’t mean anything.'

lawyer Jack Lloyd

“Those [nanogram] numbers are based on bunk science. They don’t mean anything,” Toronto-based lawyer Jack Lloyd told Leafly. There is no scientific consensus on how much THC constitutes impairment, he says. Each person metabolizes marijuana differently. “As a result, actual impairment becomes irrelevant under the proposed law.”

“When you have something that encroaches on people’s freedom and privacy in a significant way, that yields no relevant evidence to the underlying question, ‘Was that person impaired while driving?’ It  just looks like a real mess that can’t survive the first set of challenges,” Vancouver-based lawyer Kirk Tousaw told Now Magazine.

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But even if those numbers weren’t based on “bunk science,” lawyers say, they would be problematic because of the government’s failure to indicate how much cannabis would have to be consumed to reach at least two nanograms of THC per milliliter of blood.

“That is incredibly troubling because, as the public, we have no knowledge of what we can and can’t do, and what we should do,” Vancouver-based lawyer Kyla Lee told the CBC. Simply saying, “Don’t use marijuana and drive,” is not sufficient. “You can never actually know if you’re complying or not complying with the law.”

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Also, according to the regulations, the summary offence is intended to be a crime prevention measure and yet a summary offence is criminal. Driving with less than five nanograms of THC per milliliter of blood “is not even criminal  in their view, but they’re going to make it criminal to prevent a crime from happening. That’s so far removed from what the legal authorities say you can do in enacting criminal law,” Lee told Canadian Lawyer magazine.

The ability to criminally convict a driver who is not impaired is “a tricky and, perhaps, unconstitutional proposition,” Ottawa-based lawyer Michael Spratt told the CBC.

The negative consequences of having a criminal record are extensive, ranging from severe restrictions on travel—the US and other countries can refuse entry to Canadians with criminal records—to limited opportunities in education, employment, housing and even volunteering.

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Bill C-46 would drop the requirement for police to have a reasonable suspicion a driver is impaired before demanding a breath test.

Just as these newly unveiled regulations have drawn criticism from lawyers, so too has the bill to which they are connected. Bill C-46, which was introduced in April, would drop the requirement for police to have a reasonable suspicion a driver is impaired before demanding a breath test. Police suspicion could be based on the driver having red eyes and abnormal speech patterns, or the scent of marijuana. Such a sample would help create reasonable grounds to deduce a crime has been committed, allowing police to conduct further testing.

Also, police would be able to demand a saliva sample from any driver they suspect had drugs in their body. On Oct. 20, the federal health minister said pilot tests for saliva checks were underway.  Ottawa had previously committed $161 million to provide access to drug screening devices and to train police officers in how to recognize the signs of drug-impaired driving.

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Lawyers say that a law allowing police to engage in random testing without reasonable suspicion would not be enforceable under the Charter, which says “everyone has the right to be secure against unreasonable search or seizure.” Vancouver-based lawyer Sarah Leamon stated in The Georgia Straight that she anticipates a constitutional challenge being launched the day after the law is enacted and others agree.

“The people who drafted this law are lawyers so they know it won’t survive court challenges,” Lloyd told Leafly. “This piece of legislation is giving extra, unconstitutional powers to police for the purpose of assuaging the concerns of law enforcement officials,” Lloyd, who works with Tousaw on cannabis cases, told Leafly. “It’s entirely political.”

Randi Druzin's Bio Image

Randi Druzin

Randi Druzin is an author and journalist in Toronto. She has worked at several major media outlets, including the National Post and the CBC, and has written for dozens of publications, such as The New York Times, Time magazine, ESPN The Magazine, and The Globe and Mail.

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  • lovingc

    The Drug and Alcohol Crash Risk report, produced by the Department of Transportation’s National Highway Traffic Safety Administration, found that while drunken driving dramatically increased the risk of getting into an accident, there was no evidence that using marijuana heightened that risk. In fact, after adjusting for age, gender, race and alcohol use, the report found that stoned drivers were no more likely to crash than drivers who were not intoxicated at all.
    It’s worth taking a closer look at that 2015 NHTSA study, because federal officials put a lot of stock in it as “the first large-scale [case control crash risk] study in the United States to include drugs other than alcohol.” Data was collected from more than 3,000 crash-involved drivers and 6,000 control drivers (not involved in crashes) over a 20-month period in Virginia Beach, Virginia. The data was fresh and solid: Research teams responded to crashes 24 hours a day, 7 days a week. Drivers were considered THC-positive if they tested for active THC, not for non-impairing metabolites still in their blood days or weeks after consumption.
    While THC-positive drivers were 5% more likely to be involved in a crash, the researchers found that drivers who’d taken an opioid painkiller had a 14% greater risk of crashing. Here’s a chart from that NHTSA study comparing THC (marijuana) with opioids (narcotic analgesics) and other drugs:
    Those levels of increased risk were tiny, however, compared to the risk involved with alcohol. Drivers within the legal range of blood alcohol level as registered by a breathalyzer (BrAC) were found to be 20% to 222% more likely to be involved in a crash. At .08 BrAC, the legal limit, the risk increased to 293%. At 0.15 BrAC, drivers were more than 12 times (+1118%) more likely to be involved in a crash than a sober person. Here’s a chart from that same study, calculating the increased risk of crashing at rising blood alcohol levels:
    By comparison, a driver who has taken penicillin is 25% more likely to be involved in a crash. Drivers carrying two or more passengers are 120% more likely to crash. Drivers using mobile phones to talk or text are 310% more likely to crash.
    A separate NHSTA study (“Marijuana And Actual Driving Performance”) further conceded it’s “difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects … Drivers with high concentrations showed substantial [impairment], but also no impairment, or even some improvement.” In other words, cannabis affects different drivers in different ways, depending on a number of factors.

    • Turner Kayston

      Good quote. =)

  • Turner Kayston

    Autopilot mentalities and a lack of scientific understanding… Just another unconstructive, prohibitionistic and criminalized approach to the upcoming pseudo-legalization “regime”, which is as idiotic as legislating the excrement of dung from cows.

    The Canadian Drug Policy Coalition’s website has a great report entitled “Cannabis Use and Driving: Evidence Review”, a worthy read for both prohibitionists and rationalists.

    To quote a small part from an article, read from The Journal of Drug Policy and Practice:

    (…)
    “marijuana’s THC is unlike alcohol chemically, biologically, and metabolically. As a result, what works for alcohol does not necessarily work for THC. There is no level of THC in blood above which everyone is impaired and below which no one is impaired. This is not due to a lack of research. It is due to chemistry and biology. It is not due to politics. It is due to science.”

    (…)
    “Neither THC nor alcohol impairs blood, breath, urine, or oral fluid. These drugs impair the brain.”

    (…)
    “So even if we knew the blood level of THC at the time of the incident, this would tell us absolutely nothing about the drug level of THC in the brain, the only place where it really matters.”

    (…)
    “So even if we knew the drug level in the brain, this tells us nothing about the level of impairment of the individual.”

  • Dante-the-cat

    Automobiles have been on the road for over a hundred years. Breathalyzers were invented in the late 50’s. Therefore people operated automobiles for 50 years without any kind of mechanical/electronic sobriety test.

    I figure we have a 20 year grace period.