Lawyers say a government proposal to criminalize having a certain amount of THC in your blood two hours after driving will likely face a Charter challenge if implemented.
A group of prominent criminal defence lawyers recently signed a letter calling on the government to abandon part of the proposed regulations in bill C-46 that would establish a summary offence for people found to have more than two nanograms of THC in a millilitre of their blood within two hours of driving a car.
Lawyers say the proposal would disproportionately affect people who consume the drug for medical purposes and is contrary to s. 7 of the Charter.
“There are a lot of flaws in the legislation,” says Caryma Sa’d, a criminal defence lawyer and one of the letter’s signatories.
“I wouldn’t be surprised to see a constitutional challenge.”
The letter points to two studies from 2009 that found a large number of regular cannabis users still have two ng of THC in their blood after abstaining from the drug for a week.
Sa’d says that while it is important to keep roads safe, the court system should not be clogged up with people facing charges who are not driving in a dangerous way but simply have THC in their bloodstream.
“THC doesn’t necessarily impair someone’s ability [to drive] and depending on how an individual chooses to use [and] how often they consume, they may not actually be impaired,” Sa’d says.
“A more individual case by case is a more appropriate solution than sort of an arbitrary number that doesn’t necessarily reflect what the reality is.”
She adds that such testing cannot be relied on yet as the science around it has not advanced enough. There is no telling how long it would take for the readings
of a habitual marijuana user to come down to a level that is deemed appropriate, whether they smoked recently or not, she says.
“Sometimes, the science can seem determinative when in fact it’s not and we’re not at that stage yet,” she says.
Harrison Jordan, an articling student in cannabis law at Lewin & Sagara LLP, organized the letter as he felt the offence was overbroad. More than 50 lawyers from across the country have signed the letter.
Jordan says that the two-ng threshold will criminalize many Canadians who are not impaired and should not be charged.
“We think that if the government takes out the two ng, the sky won’t fall, just as the sky hasn’t fallen in Colorado and Washington, where they have the presumptive five-ng threshold,” he says.
In a backgrounder on the regulation, the government acknowledged that the proposed summary conviction offence “is not directly linked to impairment, but [it] is, rather, based on a precautionary or crime prevention approach.”
Criminal defence lawyer Michael Spratt, who also signed the letter, says a criminal record for this offence could prevent international travel, limit employment opportunities and preclude full participation in society.
“This is especially true given that we know there will be a disproportionate impact on visible minorities and marginalized members of society. This is a shocking and unprecedented use of criminal law power.”
He adds that the law is “irrational, not based on evidence and overly broad.”
Ian McLeod, a spokesman for the Department of Justice, said the government has received the letter and will review it along with other comments submitted during a 30-day consultation period that ended Nov. 13.
McLeod said the bill that proposed new offences would be set by regulations rather than the Criminal Code.
“Setting the levels by regulations would ensure that the levels can be quickly adjusted to respond to scientific developments or to add new drugs,” he said in an email.
“The proposed level of having at least two ng but less than five ng of THC per millilitre of blood is a precautionary approach that takes into account the best available scientific evidence related to cannabis and driving.”
Going forward, the regulations will not be finalized until Parliament passes bill C-46.