Cannabis in Canada Pt 10

Cannabis in Canada: A Primer. Part Ten.

Part Ten: Public Safety and the Issue of Impaired Driving

Bill C-46 is the Impaired Driving Act, which is to change Canada’s impaired driving legislation and related offences under the Criminal Code. Bill C-46 also received Royal Assent on June 21, 2018. Part 1 of the Bill adds new sections for driving while under the influence of drugs, and Part 2 replaces provisions for driving offences in the Code with a new regime that would come into effect 180 days after Part 1 received Royal Assent.

Impaired Driving while under the influence of Cannabis is challenging to regulate for a number of reasons. There seems to be no consensus on how to determine scientifically whether a person is high behind the wheel and what level of THC is required to constitute impairment. The level of THC concentration each person may have when tested largely depends on the individual and their tolerance. One of the great challenges in developing adequate road-side tests is the challenge that researchers face in in conducting research as it is challenging to do research with an illegal drug. Moreover,  once that permission is granted, researchers are restricted to a particular cannabis supply which has low TCAH content.

Prior to its passing, lawyers had raised concerns about Bill C-46. The Canadian Bar Association released a report in September 2017 expressing concern with the constitutionality of aspects of the bill – particularly part 2. In their report, they highlight the extent to which Bill C-46 resembles Private Members’ Bill C-226 (on impaired driving), introduced in February 2016, which eventually was declared dead. There was concern that new sections would bring a substantial amount of uncertainty to an area of well-established and heavily litigated law, which could result in increased (and prolonged) litigation, posing an additional burden on the criminal justice system. Additionally, the CBA and other legal groups advised the senate that the Bill could lead to s.8,9, and 10(b) Charter violations and litigation.

The Senate had amended the Bill to remove the provision allowing police to conduct random roadside alcohol tests. The Senate also sought to legally downgrade impaired driving offences so that they were not classified as “serious criminality” in order to protect foreign nationals and permanent residents from losing their statuses or becoming inadmissible to Canada after such a conviction. The government reported rejecting the key change that stripped mandatory alcohol screening from the bill because it is a “proven traffic safety measure that will deter impaired driving and save lives”. In passing the legislation, the Government did not accept these amendments.


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- By Heather Webster.