Pubdate: Wed, 07 Mar 2018
Source: Winnipeg Free Press (CN MB)
Copyright: 2018 Winnipeg Free Press
Author: Solomon Israel
Page: B4


Investment firm head says he'd spend $25,000 to fight
cannabis-impaired driving provisions

As experts warn of flaws with the cannabis-impaired driving provisions
of Bill C-46, a high-profile Canadian cannabis industry executive has
vowed to bankroll a future court challenge against that aspect of the
proposed law.

Chuck Rifici, the CEO of cannabis industry investment firm Wheaton
Income Corp., and the former chief financial officer of the Liberal
Party of Canada, said he would commit up to $25,000 to fund such a

"As obviously a very public, hard-core, card-carrying Liberal, I'm
personally disappointed to see the government putting in a policy
that's not fact-based," Rifici said in an interview.

The policy in question would establish legal limits known as "per se"
limits on the amount of THC present in drivers' blood. (THC is a
psychoactive chemical compound contained in cannabis.)

Bill C-46, which is not yet law and is currently under consideration
by the Senate, would allow police to use blood tests to measure the
concentration of THC in the blood of suspected impaired drivers, in
much the same way blood-alcohol levels are used to determine a
driver's impairment by alcohol. Drivers over certain limits, starting
at two nanograms of THC per millilitre of blood, would be subject to
penalties ranging from fines to imprisonment.

There are two major problems with using per se blood-THC limits to
determine impairment by cannabis, say scientific and legal experts.
First, unlike existing legal limits for blood-alcohol concentrations,
scientists have not established an exact threshold of blood-THC levels
beyond which drivers are objectively impaired. Second, the fat-soluble
nature of THC means frequent users of cannabis could have much more
than the proposed legal limit of THC in their blood at any given time,
even if they aren't currently under the influence of cannabis.

Testifying before the Senate Committee on Legal and Constitutional
Affairs last Thursday, Vancouver defence attorney Kyla Lee described
the drug-impairment provisions and related mandatory minimum penalties
laid out in Bill C-46 as "particularly troubling."

"The result of this is that more Canadians are going to be left with
criminal records, and I also predict that because more people will be
left with criminal records for something that's not criminal, the
overall stigma in our criminal justice system associated with a
criminal record will eventually become decreased, and it will have an
unexpected effect on the severity of punishment in other offences and
in other arenas," said Lee, who specializes in impaired-driving law.

According to the federal Department of Justice, the specific legal
limit for blood-THC levels proposed in Bill C-46 was based partly on a
report of the Canadian Society of Forensic Sciences' Drugs and Driving
Committee. The authors of that report, however, described the task of
setting an appropriate per se limit for cannabis impairment that
"minimizes the potential for an individual to be 'wrongly' convicted
of a drugged-driving offence" as "an exercise in selecting the least
objectionable alternative."

"THC impairs an individual's ability to operate a motor vehicle;
however, setting a per se limit does not mean that all drivers below
that concentration are not impaired and all drivers above that
concentration are impaired," wrote the authors.

"More research is needed to help define an acceptable per se limit for
THC that would be based on the same robust scientific testing and
epidemiological research that supports the per se laws in place for
alcohol," wrote the federal task force on cannabis legalization in its
2016 report to the government.

Despite that, the task force also wrote that establishing a per se
limit for cannabis impairment "would nevertheless be an important tool
for deterring cannabis-impaired driving."

"As the scientific knowledge base continues to grow, a per se limit
should be revisited and adjusted as necessary," said the report.

Rifici said he's especially concerned about the impact of the proposed
per se limits on Canadians who use cannabis for medical purposes,
because "it basically makes it so that they can't drive, almost

"Anybody with a high cannabis tolerance, even if they didn't consume
for a day or a week, or even a month, would still blow past those
limits," he said.

A future legal challenge against the limits, said Rifici, "would be a
very quick challenge, and I intend to rally other CEOs and other
people in the (cannabis) industry to contribute as well, to just have
a very aggressive fund to stamp it out fast."

B.C. attorney John Conroy, who is known for his work on key Canadian
court rulings related to cannabis, said he has "no doubt that there
will be challenges to the impaired-driving legislation."

Those challenges, he said, could potentially rely on Sec. 7 of the
Canadian Charter of Rights and Freedoms to argue that someone charged
with cannabis-impaired driving using per se blood-THC limits was
deprived of their liberty in a way that's "not in accordance with the
principles of fundamental justice."

"The whole idea is to catch people and deter people from impaired
driving, and not presume them to be impaired when we can show that
they're not, in fact, impaired," said Conroy.

Kirk Tousaw, another B.C. attorney with extensive experience in
cannabis-related law, said the invasive nature of blood testing by law
enforcement could also bring Sec. 8 of the charter into play.

"You're invading people's privacy to yield irrelevant evidence that
does not go to the issue to be determined, and that is their guilt,
presumably, of a criminal offence," said Tousaw. "So it's very serious

A legally registered user of medical cannabis who gets pulled over and
charged with impaired driving after failing a blood test would offer a
good opportunity to challenge the law, Tousaw said, describing such a
case as "eminently winnable."

"But it should be just as applicable to a recreational consumer - you
smoke a few joints on a Friday night, you're not impaired Saturday
morning but you could easily be over two nanograms per millilitre in
your blood of THC metabolites."

Rifici, Conroy and Tousaw all pointed out that driving while impaired
by drugs is already a crime in Canada.

"This, I think, is an instance where politics does not always make
good public policy," said Tousaw.

"I think, as part of the political sell for legalization in broad
swathes of Canada, it was important for the Liberals to assuage a
concern - and not a completely illegitimate concern - that there would
be some negative consequences in the realm of driving while impaired."

Rifici said the process of challenging the per se limits in Bill C-46
"is going to start very fast, if the bill passes unchanged."

If publicizing the problems with blood-THC limits prompts the
government to rethink its approach, Rifici suggested, "we could save a
couple years of pain through that process."
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