As the Senate debates new impaired driving legislation, some Senators are expressing concern with how the legislation will impact medical cannabis patients.
Bill C-46, the impaired driving companion legislation to Bill C-45, the Cannabis Act, provides a host of new proposed rules and limits for those impaired by drugs or alcohol, as well as new rights for police to screen drivers for these substances.
Thus far, the debate in the Senate around C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, has focused largely on both the need for more robust impaired driving legislation, not only for cannabis and other drugs, but also alcohol, as well as concerns raised by numerous experts in the House Standing Committee on Justice and Human Rights in relation to the constitutionality of some of the more aggressive and intrusive aspects of the bill.
In relation to cannabis and THC, the bill proposes three legal limits be enacted to set a summary conviction:
1) When a driver is found to have between two and five nanograms of THC per millilitre of blood. This offence would be punishable by a maximum fine of $1,000 and a discretionary driving prohibition of up to one year.
2) A hybrid offence, a more serious criminal offence that would apply when a driver had 5 or more nanograms of THC per millilitre of blood.
3) A hybrid offence would apply when drivers have more than 2.5 nanograms of THC per millilitre of blood in combination with 50 milligrams of alcohol per 100 millilitres of blood.
The second and third offences would be punishable by mandatory penalties of $1,000 for the first offence and increasing penalties for repeat offenders, with maximum penalties being similar to those for alcohol-impaired driving.
In the few hours of debate at second reading so far, Senators who have spoken have expressed support for the bill, but also cautioned that some of the limits may be challenged in court, especially in relation to concerns with the accuracy of available testing equipment in determining impairment rather than simply the presence of THC or cannabinoids. This is especially true for medical cannabis users who may have a higher threshold for cannabis and because cannabinoids can stay in one’s system for several hours or days after consumption.
In a speech on November 22, Senator Saint-Germain said she had concerns that the legislation could discriminate against medical cannabis patients.
“Canadians who use cannabis for medical purposes may be disproportionately affected by the new approach,” said Saint-Germain. “Does Bill C-46 take these Canadians’ circumstances into account? These measures should not inadvertently discriminate against patients who use medical cannabis to treat conditions like chronic pain. Not only will the committee have to examine whether this measure complies with the Canadian Charter of Rights and Freedoms, but it will also have to consider the alternatives available to medical cannabis users in this context.
“We know that tolerance for cannabis varies widely from one individual to another, as does the length of time that traces of THC stay in a person’s system,” continued the Independent Senator from De la Vallière, Quebec. “The different consumption methods could also have an impact, which is something that has not been discussed much so far. However, the data currently available suggests that to avoid driving over the limit, long-time users of medical cannabis may have to wait several days before getting behind the wheel, even if their faculties remain unimpaired.”
“In light of the havoc that drugs are causing on Canadian roads, my instinct is to support this approach. However, having studied the issue in greater depth and exchanged at length with officials of the government, I believe that this minimum threshold of 2 nanograms will need to be examined in committee. The risk is that this threshold, the low threshold of 2 nanograms, not only criminalizes Canadians who are not impaired at all, for instance medical marijuana users, as Senators St. Germain and Gold pointed out last week, but also weakens the legislation itself.” - Senator Andre Pratte
Senator Marc Gold noted similar concerns, referencing a R v. Smith, a Supreme Court case from 2015 that opened the door to patients possessing non-dried forms of cannabis based on the Canadian Charter of Rights.
“In the Smith case,” said Senator Gold, “the court ruled that access to cannabis products for medical purposes also engaged section 7. For reasons underlined by Senator Saint-Germain in her remarks yesterday, this raises the possibility that the bill may infringe the Charter rights of those who are using cannabis for medical reasons. Why? Because THC can remain detectable within a regular user’s blood for days and even weeks after it was last consumed."
“Medical users have this Hobson’s choice: either they need to stop their consumption for many days prior to operating a vehicle or simply forego forever their ability to drive. Moreover, a medical cannabis user will tend to have a higher tolerance level than a less frequent user and, therefore, will not demonstrate the same level of impairment as the occasional user even if both have the same level of THC in their systems. As such, a medical marijuana user may fail the per se test but in no way be impaired.
“I acknowledge that the latter point can be said to apply equally to regular recreational users of cannabis. However, there seems to be a difference between the case of a person who has chosen to ingest drugs sometime before driving, notwithstanding the law, and one who is prescribed cannabis for medical reasons, as is their constitutional right, rightly or wrongly, and is therefore unable to drive without committing an offence.”
On November 29, referencing the testimony of a government expert in the House Committee, Senator Andre Pratte says he sees the two nanogram limit as being open to court challenges and weakening the bill.
“Some will say that given the characteristics of cannabis and the scientific uncertainties that persist, these limits—that’s two nanograms per milliliter of blood and five nanograms per milliliter of blood—are arbitrary. As they stand, however, they are based on the best scientific knowledge available as compiled by the drugs and driving committee of the Canadian society of Forensic Scientists.”
“In light of the havoc that drugs are causing on Canadian roads, my instinct is to support this approach. However, having studied the issue in greater depth and exchanged at length with officials of the government, I believe that this minimum threshold of 2 nanograms will need to be examined in committee. The risk is that this threshold, the low threshold of 2 nanograms, not only criminalizes Canadians who are not impaired at all, for instance medical marijuana users, as Senators St. Germain and Gold pointed out last week, but also weakens the legislation itself.”
Last June, Public Safety Canada released the results of their Oral Fluid Drug Screening Device Pilot Project which tested two oral fluid drug screening devices, the Securetec DrugRead and the Alere DDS-2. These devices have been used and tested in other jurisdictions, as well.
The program was intended to help coincide with the government’s promise to legalize cannabis, and was in collaboration with Public Safety Canada, the RCMP, and the Canadian Council of Motor Transport Administrators.
The report concludes that, with proper training, the devices are reliable and a "useful tool" for Canadian law enforcement and the Canadian climate and environment, but concerns around the devices reliability, as well as concerns that THC limits are being set too low have been expressed by numerous experts.
The Senate will continue their debate of Bill C-46 at second reading before sending it to committee for review. Bill C-45, the Cannabis Act, is also scheduled to begin second reading Thursday, November 30.
C-46 was passed by the House on October 27 and was first tabled in the Senate for first reading on November 1. Second reading began a week later on November 7, with the bill being debated five times so far, on the 7th, the 22nd, the 23rd, and 29th, for a total of about 2 hours.
Featured image via Wiki Commons.