Bill C-46 Index to New Legislation
Index to Bill C-46 sections that go into force December 18, 2018:
DUI Procedure/Evidence Bill C-46 320.27 Screening Demand without Reasonable Suspicion - Random
Index to Bill C-46 Criminal Code Amendments Already in Force:
DUI Procedure/Evidence Criminal Code of Canada 254 (2) Approved Screening Device or Physical Tests Demand
DUI Procedure/Evidence Criminal Code of Canada 254(3.1) Alcohol Drug Evaluation Demand and Screening Procedure
Cannabis Driving Evidence before Canada's Justice Committee in 2017
The evidence provided by experts to the House of Commons Justice Committee seems inconsistent with the legislation eventually adopted by Parliament. Please read the excerpts below, click the links to see the actual evidence in context, and judge for yourself. It appears that the cannabis per se law makes no sense whatsoever and that no one should ever operate a motor vehicle ANY LENGTH OF TIME after consuming or smoking cannabis. The new laws give police very wide powers. Because metabolites can remain in the body for months after recreational or medical use, it will be very dangerous to drive, for a very long time after use, whether recreational or medical. Defences will be limited. Please also consider that refusal of a police officer's demand, no matter how ridiculous it may seem, even to a non-drinker or non-user, may result in a criminal charge. Refusal convictions result in higher penalties under Bill C-46. It is also unwise to operate a motor vehicle after consumption of any prescribed or over-the-counter drug.
Excerpt of Evidence from House of Commons, Standing Committee on Justice and Human Rights
Mr. Wood, thank you for your very troubling testimony today. You have testified that the per se levels approach to cannabis, the two nanograms per millilitre or the five, are, I think in both cases, you've suggested, simply not going to do the job, based on the experience of your research in Colorado. You pointed out that if someone has less than the per se limit, they will no doubt be found innocent, even though someone may have been affected, unless of course they were found impaired through field sobriety or some other measure, because they will not have violated the per se limits.
I'd like, therefore, to explore your recommendations with you further. You talked about tandem per se limits a moment ago. I'd like you to spend a little more time explaining how that might work in practice.
Of course, you distinguished, I think properly, between heavy users and occasional users. Some of the heavy users will have a level of cannabis in their system that will last for a long time. To your question about those who have less than the per se limits in their system, does that mean your ultimate recommendation is that they be banned permanently from driving? Is that the implication of what you're saying?
If they cannot drive safely, they should be banned from driving, yes.
Even though they may have residual amounts? Because your testimony is that per se limits don't make any sense. They may well have a bit in their system, but maybe they won't have impairment. I'd like you to explore that and then also talk about your specific recommendation. Elaborate on the tandem, sir, if you would.
I'll talk first of all about this issue of tolerance between the heavy users and the occasional users, which is the fundamental part of your first question. We know that some studies show that people do develop tolerance to all drugs: alcohol, opioids, THC, and so forth.
The level of tolerance that can be developed with THC is on about the same order of magnitude as what can be developed with alcohol, according to Dr. Harold Kalant, a professor at the University of Toronto, so there is some tolerance for THC. What we find is that those people who are chronic daily users of cannabis develop a level of THC in their body that is there durably, and they are impaired for an extended period of time even when they stop taking cannabis. Studies have shown that these people can remain impaired over a three-week period of total abstinence, even when they show zero THC in their blood.
The issue is impairment. If you have somebody who is an addict, basically, which is what these people are, they develop a tolerance, they will be impaired and, yes, they should be banned from driving.
On your question on the issue of tandem per se, I've put forth a concept that needs to be fleshed out and based upon Canadian laws, norms, and values. It's just a bare-bones concept at this point. It is very similar to the zero tolerance laws that are already in place in many states in the United States.
The difference is that zero tolerance laws typically require reasonable grounds to collect a blood sample, and if a person has any level of these impairing substances, that person is then guilty of a violation. What I'm proposing is not reasonable grounds but rather probable cause, which is a little higher level, and also requiring that the probable cause be based upon behaviour and impairment assessments, not simply on finding some weed in somebody's glove compartment. That would not suffice as probable cause.
What I'm suggesting is a concept. It is very similar to an extension of the zero tolerance laws that are already in place and have been working for many years in many states in the U.S.
Last, what is very interesting is the edibles question. I think you've indicated that if you consume edibles you wouldn't be prosecuted under Bill C-46. What is your solution to that problem?
Don't adopt the per se limits of Bill C-46. Instead, put in the tandem per se. I think that would fix it.
But in terms of impairment—
—a correlation between THC and impairment, it's your position that there is no correlation.
That is correct.
So, if you're at two nanograms, it really has no bearing on your ability to operate a motor vehicle.
The problem is that whatever you find in the forensic test tells you absolutely nothing about the level of THC at the time of the incident because of that decline in the blood.
It really raises the question, to state the obvious, that in the event someone is charged because they're impaired, and they may be under two nanograms, what Bill C-46 is going to do is it is going to result in a whole lot of people potentially being charged who very well may not be impaired. They just happen to be above two nanograms in terms of what they register in the way of THC, which unlike alcohol, does not necessarily indicate whether or not they are able to safely operate a motor vehicle.
Is that a fair assessment?
That is a dilemma with legalizing marijuana.
Wow. That's fascinating.
Concerning Mr. Cooper's question, I have to ask the chiefs of police. Mr. Cooper stated that could you have people who are not impaired by marijuana but be over the two nanogram limit.
Let me ask the chiefs of police, is there any safe level to drive at when you have consumed marijuana? Do you believe that anybody who has consumed marijuana is not impaired?
No, what we're saying is pretty simple. If you consume marijuana, you don't drive.
Thank you. We'll have a lot of fun on this one.
Thank you so much for fascinating testimony, gentlemen. It is much appreciated.
Excerpt of Evidence from House of Commons, Standing Committee on Justice and Human Rights
Thank you, Mr. Chair.
Thank you to the witnesses.
I want to start out with Ms. Wallage regarding per se limits. I have reviewed the “Report on Drug Per Se Limits” issued by the Canadian Society of Forensic Science in September 2017.
The very first line of the executive summary notes that “a drug per se limit does not imply all drivers below this limit are not impaired and all drivers above this limit are impaired.” There really is a question about the correlation between impairment and THC levels. I found it troubling or concerning, at least, to see what a study that's cited here found when comparing chronic users with occasional users. The 11 individuals who were occasional users didn't register really any THC levels immediately after they started smoking, and they were basically under one nanogram eight hours later. By contrast, of the chronic users, one was at five nanograms before he even began to smoke marijuana, and “3 of the chronic users had THC blood concentrations of 2 ng/mL or greater 8 hours after smoking”. Another study cited found that nine of 21 regular users had five nanograms or more at least 24 hours after they had last used marijuana.
I'd just like you to comment on that because it's a real concern to me that if we're going to establish a per se limit, there has to be, surely, a correlation with impairment. Otherwise, what we have is an arbitrary limit.
Okay, just to put this in context, you're citing the report we wrote, in which we tried our best to flush out all of the issues with respect to cannabis and driving, as well as the other drugs. I will say that cannabis is not a simple drug. There are a variety of considerations with respect to different types of users, different types of use, and effects in the body.
That whole paragraph was about chronic users, so people who routinely administer a cannabis product. Predominately this was about smoking or the inhalation route, because there is obviously another route, which is the edibles, as people do consume it as well, and that comes with a whole different interpretation.
With respect to this, THC, which is the parent ingredient, the primary psychoactive ingredient in cannabis products—and I'll just use the short form, because I'm assuming we're all familiar with the short form—is a lipid-loving drug, which means it goes into fatty tissues. If you are an occasional user, then inhalation will result in a THC concentration rapidly rising and rapidly declining in a blood sample and then it being redistributed to all the fatty tissues, including the brain, and that's where it has its effects.
In a habitual user, so someone who uses on a daily basis or multiple times a day, this THC will then redistribute through the same mechanism. The THC concentration rapidly escalates or rapidly declines in a blood sample and it then goes into the fatty tissues. But in a chronic user, the THC will accumulate in the fatty tissues. In an occasional user, the THC concentration in the blood will decline to an undetectable level, whereas in somebody who repeatedly administers this drug via smoking and then for a period of time, for experimental purposes, stops using the drug, there tends to be residual levels of THC in their bloodstream.
In some cases amongst chronic users, at least in the case of the studies, there are rather high THC levels 24 hours or eight hours after the fact. I note that your report says that with regard to these per se limits, the detection of THC would be well beyond the period during which they would be expected to experience acute intoxication. Later, it refers to zero to six hours after smoking cannabis as the time period in which there is really an acute concern about impairment. Is that correct?
For smoking, that's correct.
A witness who appeared last week raised a number of concerns about per se limits, and it was his evidence that drivers testing below five nanograms per millilitre of THC can be just as impaired as those testing above five nanograms. Would you agree with that observation?
I would agree with the point that a person can be impaired below a concentration of five nanograms per millilitre. They can be impaired at a concentration of one nanogram per millilitre. Directly correlating a concentration to impairment is very difficult. With respect to impairment and THC, there are a number of factors that toxicologists consider. You consider the route of administration and that will tell you something about how quickly it could come on and how long it will last, so the duration of action.
If you have something like smoking, it's very fast to go into the bloodstream and into the brain, and it has its impact and can last up to approximately six hours. It may be less. If a person consumes it, ingests it, then it takes longer for that active component to get into the bloodstream. That active component, THC, is then metabolized into another active compound. Both of those compounds are contributing to the activity, but you don't see a high peak concentration as you would with smoking. The duration then can be longer than six hours with consumption.
On top of the route of administration, we also consider the potency of the products. Obviously, if it's of greater potency or a person is a more effective smoker.... Chronic smokers tend to be very good at getting all of the active ingredient into their bloodstream and therefore into their brain. The main part about whether we can offer an opinion on impairment is the time elapsed since use. If I have a time and a concentration and all kinds of information, I certainly can be more helpful. Unfortunately, I don't work in that world. I work in the world where I have maybe a concentration and maybe some additional information, but that's certainly not ideal for me to offer a fulsome opinion.
Thank you, Chair.
Ms. Wallage, is there any level for alcohol or THC, for example, where below this level it's safe to drive and above this level it's not?
No. With respect to alcohol, because that's really predominantly what I testify on, as I am the chair of the drugs and driving committee but most of our cases are alcohol, certainly, within the scientific literature, impairment has been demonstrated at as low as 15 milligrams of alcohol in 100 millilitres of blood. I notice a lot of people are speaking in grams, but for the purposes of the Criminal Code, it's in milligrams. This may equate to one drink. That impairment has been demonstrated in a lab setting.
With respect to THC, the easiest answer is that if you compare somebody who has been smoking, regardless of their concentration, and somebody who has not been smoking, I would expect impairment in the person who has been administering the drug.
With regard to the question about concentration and correlation to impairment, when we were asked this question about coming up with a per se limit, of course we looked at what other countries were doing and things of that nature. We really did focus in on smoking, because ingestion of cannabis has such low THC levels that potentially they won't be caught in these per se limits. They could be lower than five and potentially lower than two. We looked at the literature.... Granted, these are not the high-potency types of products that are used recreationally now, and there's a reason for that. People don't want to study high-potency products because of the adverse drug reactions that are potentially possible—
I am trying to separate the concepts of safety and impairment.
Then the answer is yes. If you smoke, regardless of your concentration, it's ill-advised to drive a car. There is a window during which I would expect that drug to have an effect.
I note that the charge we're talking about here would be driving in excess of a per se limit, not an impairment charge. I guess the argument there is that if you're driving over this limit, you're not safe, so the per se limit, whether or not it denotes impairment, would go towards fulfilling a public good. Would you agree with that?
I would agree with that, yes.
Thank you, Chair.
I'll just to follow up with Ms. Wallage.
Maybe it would be helpful if you could explain to me what the connection is between impairment and THC levels. I look at some of the studies, and some of the evidence said that if you have five nanograms or more, you may not be impaired, and if you're under two nanograms, you may be impaired.
What is the connection? It seems to me that THC tells us that someone has used marijuana, but on the question of impairment, what is it telling us when someone has five nanograms versus one nanogram?
Perhaps I could explain our process going into this when we were discussing the numbers.
As I said before, we did look at other countries. Predominantly this is about smoking because of how THC gets in so slowly with regard to edibles. What is important is recency of use.
You could take a number like 100 nanograms per millilitre and say that it is very recent use. Basically, the person is smoking and somebody is taking a blood sample at the same time. Toxicologists could get behind that. It would be recent use. But this is not reality for how it looks on the road, so we are trying to incorporate studies that looked at concentrations that could potentially be associated with recent use, as well as incorporating that no back calculation can be done, and that it takes time to get a blood sample.
On that note, with regard to the legislation, a blood sample has to be taken within two hours of the offence or else there is nothing to catch that result afterwards. If a blood sample is taken two and a half hours later, there's nothing in this bill that can happen, because there is no back calculation.
Five was the number that was decided upon because in general the literature pointed towards occasional users, among them five would mean recent administration for smoking. This comes with a caveat that it does not include those chronic users who have residual levels in their bloodstream for extended periods of time. As well, there aren't a lot of studies on the increase of potency that's available now.
That was our idea behind coming up with these numbers. One nanogram meant recent administration, as far as we can say that. I mean, there will always be exceptions to the rule. All those other factors were built in. Two was suggested just because there are people who can certainly be impaired below a concentration such as five, and the THC drops so rapidly that you could be at two even though there was recent administration.
Thank you very much.
Before we wrap up, I just want to follow up on Mr. Cooper's question to Ms. Wallage.
Ms. Wallage, you made it clear that there's not necessarily a direct correlation between five milligrams of THC in the blood and impairment. As we know, the law basically has different categories of offences. One is driving while impaired under alcohol or drugs. Another is exceeding a per se limit. Would you agree with me that it would be the same in the case of alcohol? You could have somebody below .08 who is very impaired because they're not used to drinking alcohol, and you could theoretically have somebody over .08 who was not showing signs of impairment. Wouldn't it essentially be the same?
I would pick something like 50, because my opinion is that people are impaired at a concentration of 50 milligrams of alcohol in 100 millilitres of blood. Just for your example, you could have somebody who is not used to drinking who could be impaired below 50, and then you could have somebody who is used to drinking, who routinely consumes alcohol, and they might not demonstrate outward signs of intoxication from the alcohol consumption. They may be able to get from point A to point B without too much difficulty. If they are challenged on the roadside, meaning if there is a sudden or unexpected task, that's when impairment becomes an issue.
The same goes for THC, in that if you are a chronic user, you do develop some tolerance to the drug. That doesn't mean the drug is having no effect on you, but it does mean that you would have to increase your dose to achieve a similar effect to what you are looking for, so there can be people who are impaired at quite a bit lower level than others.
There could be people who are over that, but you would consider them impaired even if they were showing fewer visible signs of impairment than somebody else was, the same as you would for somebody over 50 for alcohol based on the level that you propose to use.
That's correct. I would still consider that person to be impaired by alcohol above a concentration of 50, but can you look at them and see that they're having difficulty with walking and talking? Potentially, no. However, if you put them in a car and a sudden event happens, that's when they require all their faculties to respond to it.