Canada Debates Law to Determine How and When Motorists Are Too High to Drive

Witnessing Bill C-45, Canada’s cannabis legalization law, trickle through Parliament was like watching a candy bar slowly being released from an old vending machine. The coil holding the treat never moves fast enough — and you cross your fingers that it doesn’t get stuck on the way down.

As Canadians gaze at the piece of legislation that will ultimately end more than 90 years of cannabis prohibition, many have taken their eyes off of Bill C-45’s stepsister, Bill C-46.

“Bill C-46 amends the criminal code and makes consequential amendments to other acts, but the piece that everyone is talking about is the driving offenses that come out of the amendments,” said Matt Maurer, Chair of the Cannabis Industry Group at Minden Gross, in an interview with

Maurer went on to add that the most vocal opposition arises over how the police will determine someone is too high to drive.

“How are they going to test for cannabis impaired driving and is the method by which they propose to do it effective?” he asked.

The proposed legislation will strengthen impaired driving laws by arming police with devices that administer a roadside saliva test, which if positive, could lead to drivers being forced to give a blood sample.

Those in favor of Bill C-46 have said that the devices need to be ready before legalization. They have even gone as far as suggesting the government halt all legalization, scheduled for July 1, 2018, until the equipment is functional and distributed.

“We believe it’s imperative that these devices are in the hands of officers that need them so they’re able to properly enforce rules against impaired driving,” said Manitoba Justice Minister Heather Stefanson.

Indeed, Bill C-46 has raised eyebrows in the cannabis and legal communities in recent months. The way it’s presented, drivers with between 2-5 nanograms of THC in their bloodstream can get a summary conviction and a fine of up to $1,000, a less severe punishment than an indictable offense. A person with more than five nanograms of THC in their bloodstream could face criminal prosecution. A nanogram is one-billionth of a gram.

The problem here, critics say, lies with the fact that by examining blood for THC, the test does not take into account the way the compound is processed in the body. Meaning, habitual marijuana users or patients might have that amount in their system but not be high at all, depending on when they last consumed the substance.

“If there’s a certain amount of THC in someone’s bloodstream, that doesn’t necessarily mean they are impaired,” Maurer said. “It might mean one person is impaired and someone else isn’t. There’s reason to believe that, in theory, you could consume cannabis in the evening and possibly test over the next morning, even though you’re not impaired at all.”

This bill could also state who can consume cannabis as medicine. Just like any other prescribed substance, there is a schedule that patient is required to follow for the drug to be effective. The frequency and amount of cannabis needed depends on the condition a patient is treating.

The potential problems with the bill also stretch further than just matters with cannabis prescriptions. A large-scale issue regarding police disproportionately arresting minorities for cannabis still exists to this day. Bill C-46 gives police more power to administer roadside tests for sobriety, and that would include the officers who, consciously or unconsciously, target motorists of color.

Despite these issues, Maurer concluded that lawmaking is an ongoing process. Just because the bill may pass as is, it does not mean the legislation can’t evolve moving forward.

“The science can change and make it more accurate to test,” said Maurer. “I think it’s easier for the government to put in a system where it says, if you’ve got x-amount in your blood that’s going to be impaired driving, and we’ll deal with the medical patients as we need to. That’s easier than taking the side of the medical patients and having to answer to general society about why we are a little bit lax on the [impaired driving]testing.”

Jon Hiltz was a journalist for for two years and is now director of content for INDIVA, a licensed cannabis producer in Ontario, Canada.

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