New cannabis-impaired driving laws applied inconsistently

The decriminalization of recreational cannabis in Canada ushered in new cannabis-impaired driving laws. Although I was, and still am, a vocal critic of these laws, I also want to see them being applied fairly so long as they are in effect. Sadly, almost a year on from legalization, this is not the case.

Enforcement of the cannabis-impaired driving laws has been restricted mainly to small towns, if at all. In fact, police in BC are yet to lay a single charge under the new Criminal Code drug-impaired driving offences. It’s not just BC. There have been only eight charges laid in Alberta under the new laws.

In Ontario, there were 100 charges up to the end of June and in Quebec, 39. The locations of the charges in both provinces, however, skews towards small towns rather than big cities. Ontario Provincial Police detachments handled about two thirds of the drug-impaired driving charges. Toronto, a city of three million people, had two.

To understand this inconsistency of cannabis-impaired driving enforcement, first you have to know what the law actually states.

The cannabis-impaired driving laws

New offences for drug-impaired driving came into effect for the first time ever last year. The laws were a direct response to the legalization of cannabis, however, other drugs such as cocaine and LSD were also included.

The legislation made it an offence to have certain amounts of THC in your blood within two hours of driving. There are different offences depending on how much THC is found in your blood. Having between 2 and 5 nanograms (ng) of THC per 1 ml blood is a summary conviction offence, punishable by a fine of up to $1,000. Having 5 ng or more of THC can result in a minimum fine of $1,000 for a first offence, 30 days imprisonment for a second offence or at least 120 days in prison for a third offence or more. There is also something called a hybrid offence, which means if you have a combination of alcohol and THC in your system, a 0.05 blood alcohol content and 2.5 ng or more of THC, you are liable to receive a more serious punishment.

Per se limits

I argued against setting per se limits for THC when the new drug-impaired driving laws were being drafted. For one, measuring a person’s THC-blood concentration is simply not a reliable way to indicate impairment. THC can linger in a person’s blood long after the effects of consuming cannabis have worn off.

Another issue with setting limits is there is no way of knowing how much cannabis you can consume and still be below the legal limit. It is not like alcohol where drinks can be divided into standard units to guide us how many it is safe to have before driving. With cannabis, you simply cannot know for sure how much cannabis you can consume before you are over the 2 ng limit. Factors such as the strain and how the cannabis was taken – was it smoked or was it an edible – have an influence on how much THC your body absorbs.

So long as per se limits are in place I will support them, but it is only a matter of time before these laws come under constitutional scrutiny and they are potentially struck down.

Problems with testing

When the constitutionality of these new laws makes it to the Supreme Court – and it is a case of when not if – a key battleground will be testing. The law clearly states that a person’s THC levels must be above the particular limits within two hours of driving. Clearly this is a much easier task for some police forces than it is for others. Officers are not phlebotomists and they can’t simply take samples themselves. This often means police have to take someone they suspect of impaired driving to a hospital. In big cities getting seen by a doctor within two hours is nothing short of a miracle, especially considering such blood tests are non-emergency and so ago to the back of the line behind all the actual medical emergencies.

This might help to explain the discrepancy between cities and small towns when it comes to cannabis-impaired driving charges.

Problems with devices

Another big problem with enforcing the new cannabis-impaired driving laws is the technology just isn’t there yet. The government approved the Drager DrugTest 5000 for use as a screening device to be used at the roadside. The device has some major flaws, such as not being able to operate in temperatures below four degrees rendering it pretty much useless for Canada for most of the year. It was publicly rejected by a number of police forces, including the Vancouver PD, before the BC government announced it would pay for them to be used in the province.

The federal government has approved a second roadside testing device, the Abbott SoToxa, but that also has some serious limitations. It is complicated to use and takes a long time to return a result, which arguably infringes upon people’s Charter rights.

With all these problems, it’s understandable why officers may be reluctant or simply unable to lay charges under the new laws.

What next?

The truth is we may never have a device that can reliably measure THC levels, let alone tell you categorically whether or not someone is impaired by cannabis.
If we cannot reliably measure blood-THC content then the legitimacy of the cannabis-impaired driving laws is open to constitutional challenge. The government needs to go back to the drawing board.

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