Pubdate: Mon, 05 Mar 2018
Source: Globe and Mail (Canada)
Copyright: 2018 The Globe and Mail Company
Author: Daniel Leblanc
Page: A4



Scientists and lawyers are raising a series of concerns over Ottawa's
plans to combat drug-impaired driving, saying the proposed regime is
not based on evidence and will struggle to withstand legal challenges.

Bill C-46, which would create new drug-impaired driving offences, is
currently being studied in the Senate, where there is growing pressure
on senators to amend the proposed legislation before it comes into
law. The government wants the new rules in place before cannabis is
legalized for recreational use, a move expected in late summer.

According to experts, Bill C-46 sets limits for levels of THC, the
primary psychoactive compound in cannabis, that do not determine
whether a driver is impaired or not. Cannabis acts differently on the
body from alcohol and there is no exact link between driving abilities
and THC levels, as measured in nanograms per millimetre (ng) of blood.

The "per se" limits for alcohol (80 milligrams of alcohol in 100
millilitres of blood) have been upheld in court, but the limits for
cannabis have not been tested in court. Some frequent users have
constant levels of THC and are not actively impaired, while others may
be impaired with low levels of THC.

"As toxicologists, we're not big on 'per se' numbers for drugs because
drugs are very different from alcohol on how they impair people, the
tolerance and the wide spectrum of tolerance that exists between
different individuals," D'Arcy Smith, a member of the RCMP's drug
evaluation and classification program, told senators last month.

Amy Peaire, who chairs the drugs and driving committee at the Canadian
Society of Forensic Science, added impairment depends on a variety of
factors, including whether cannabis was smoked or eaten. Cannabis is
fat soluble, which means blood concentration levels vary between

"Unlike alcohol in which you can have blood concentrations which have
links to impairment, that's not the same for THC because there's not a
good correlation between impairment and blood concentration," Ms.
Peaire said.

Justice Minister Jody Wilson-Raybould has defended her government's
approach, stating it relied on scientific evidence, including the work
of Mr. Smith and Ms. Peaire.

"We're moving forward on the drug levels that we have in C-46. The
levels have been set and based in large part on the advice provided to
us by the drugs and driving committee. The science around drug levels
is something that continues to evolve and we'll continue to engage
with the committee," Ms. Wilson-Raybould told reporters.

Under Bill C-46, three new offences would be created:

Having a THC level between 2 and 5 ng, punishable by a fine of up to

Having a level above 5 ng, punishable by a fine of $1,000 for a first
offence and escalating penalties for repeat offenders;

Having a blood alcohol concentration of 50 milligrams per 100 mL of
blood in addition to a THC level superior to 2.5 ng, with the same
penalties as the previous offence.

Ms. Wilson-Raybould said the best way to prevent drug-impaired driving
is simply to stay off the road after consuming cannabis.

"Until we have definitive scientific evidence around what is a safe
level, we're proceeding on a precautionary basis, saying there is no
safe level," Ms. Wilson-Raybould said.

But lawyers warned the government the new regime will be hard to
enforce, with legal challenges guaranteed to clog up Canadian courts
already beset by delays.

"The [Canadian Bar Association] does not view Bill C-46 as offering
any significant improvement over the existing legislation, certainly
not one that would offset its negative impact on justice
efficiencies," spokeswoman Kathryn Pentz told senators.

Ms. Pentz added the new law is bound to be challenged in court and
that prosecutors will be hard-pressed to defend the measures.

"It has to be evidence-based. At this point and time, the experts are
saying we really cannot get a correlation between a level of drugs in
one's system and a level of impairment," she said.

Conservative Senator Claude Carignan has expressed serious
reservations about Bill C-46, saying the best way to determine whether
drivers are impaired is through certified drug recognition experts
(DRE). However, the process to become a DRE is long and mostly
requires training in the United States, leaving Canada with a shortage
with only a few months to go before legalization.

"The solution will be to present an amendment to Bill C-46 to suspend
the application of the 'per se' limits up until the moment that
scientific evidence backs up their use, and to rely solely on DREs in
the meantime," Mr. Carignan said.

Kyla Lee, a Vancouver-based defence lawyer, said the law would be more
likely to withstand a constitutional challenge if DREs were used in
every case before charges are laid.

"I believe it would be more likely to withstand Charter scrutiny," she
told senators.
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