Pubdate: Tue, 14 Nov 2017
Source: Globe and Mail (Canada)
Copyright: 2017 The Globe and Mail Company
Contact:  http://www.theglobeandmail.com/
Details: http://www.mapinc.org/media/168
Author: Mike Hager
Page: A4

IMPAIRED-DRIVING CHANGES COULD UNFAIRLY PUNISH MEDICAL CANNABIS USERS, 
LAWYERS SAY

Canada's proposed overhaul of federal impaired-driving rules could
unfairly criminalize medical-cannabis users, according to an open
letter to Ottawa signed by more than 50 criminal-defence lawyers.

The letter, which warns that medical-marijuana users could be unfairly
punished under the proposed system, underscores the challenges to
preventing high driving. Experts are divided on just how much THC -
the principal psychoactive compound of cannabis - would make someone
impaired, and the government is still developing a reliable way to
conduct a roadside test.

As the federal government and the provinces rush to meet the deadline
for legalizing the drug by next summer, a key concern has been
settling on what is known as a per se limit, which specifies how much
of the drug has to be in a driver's system to constitute a criminal
offence.

Ottawa has decided that people with at least two but less than five
nanograms of THC a millilitre of blood detected within two hours of
driving would be subject only to a fine, to a maximum of $1,000. Those
with at least five nanograms would be treated more seriously. In the
United States, both Colorado and Washington State have adopted a
single drug-impaired driving offence at five nanograms.

Critics say such a two-tiered system of offences, similar to how drunk
drivers are treated in some provinces, does not work for cannabis
because the drug affects each person differently and there is no
agreed-upon level of intoxication, as there is with blood-alcohol levels.

The letter sent on Monday to the federal Department of Justice calls
on Ottawa to do away with the two nanogram threshold. The statement
argues that limit could unfairly penalize some 200,000 licensed
medical users whose regular consumption can lead to them having that
level of THC in their blood days after last using the drug.

"The government has asserted that the 5 ng/ml threshold for a hybrid
offence 'could be associated with some impairment,' but has also
conceded that the 2 ng/ml threshold is 'not directly' tied to
impairment and rather reflects 'a precautionary or crime prevention
approach,' " says the letter circulated by Toronto-based lawyer
Harrison Jordan. "We cannot in good conscience support the
implementation of an offence that carries with it a negligible nexus
to criminality."

Kyla Lee, a Vancouver-based lawyer who signed the letter and who
represents drug-impaired drivers, said lawyers are already preparing
to file constitutional challenges when the legislation is passed next
year.

"At this point, I think it's inevitable that this law is going to
pass," said Ms. Lee, who was invited by the House justice committee to
present on this matter this fall. "Now, it's for us to make sure that
the courts sort it."

Ms. Lee said Ottawa would be better off crafting rules that hinge upon
an officer assessing a cannabis user's ability to drive via field
sobriety tests, not saliva-based THC tests.

Jeff Brubacher, an emergency room doctor at Vancouver General Hospital
and a clinical toxicologist, said this approach may be problematic, as
many front-line officers have trouble determining when people are high
behind the wheel.

About 4 per cent of drivers who had been in a crash had THC levels
higher than two nanograms, according to a study by Dr. Brubacher
analyzing recent data from patients who ended up in four of British
Columbia's busiest emergency rooms. Yet police only suspected drug use
in 8.5 per cent of those drivers caught with between two and five
nanograms of THC, according to Dr. Brubacher.

"When THC levels got higher, it didn't get any better," he said.
"Police have a really hard time detecting drivers who are using drugs."

He said such per se THC limits give police a tool that is pretty
efficient.

Still, the Canadian Association of Chiefs of Police has stated in its
submission to the federal standing committee on justice and human
rights that oral fluid screening devices "are not determinative of
blood drug levels or impairment."
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