The right to be high: How cannabis laws could be posing a threat to the Charter rights of Canadians

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Impaired driving is still the leading criminal cause of death in Canada.

Politicians, police, lawyers and academics all agree on this. But for cannabis users, consumption doesn’t always equate to impairment, creating a legal quagmire.

“We now have a law on the books that punishes people for things that they aren't guilty of,” is how Toronto cannabis lawyer Jack Lloyd sums it up.

Medical cannabis user detained for hours after positive roadside test

In early 2019, just a few months after marijuana was legalized in Canada, Michelle Gray was driving her son home from an evening birthday celebration when she encountered an RCMP check stop on their way to Halifax’s Lower Sackville.

An officer asked if she’d had anything to drink that night. She answered honestly – yes, a drink with dessert while dining out – and agreed to a breathalyzer. Then the officer mentioned smelling cannabis.

“I said yes, you do,” Gray recalls. “I have a medical license for cannabis for my multiple sclerosis and I asked him if he wanted to see it. I always carry a document paper with my doctor’s name and my prescription amount.”

Though it had been seven hours since her last dose, the officer saw cannabis in her vehicle within arm’s reach of her person. By law in most Canadian provinces, cannabis must be stored during transport in a contained area of the vehicle. Gray was told she was being detained.

“(My 19-year-old son) was upset in the car,” Gray recalls. “He was like, ‘What’s going on?’ … He knew that I wasn’t impaired.”

She arranged another ride home for her son with his uncle while she complied with the officer’s requests. She passed the breathalyzer before officers administered a roadside oral fluid screening test called the Drager DrugTest 5000.

Gray was handed a cup and a swab. “You just stick it in your mouth and you hold it on your tongue and try to get as much of a saliva impression as you can,” she says.

After holding the swab in her mouth for about three minutes, Gray says officers put it into the testing device that was in their cruiser. Another five minutes later, the officer informed Gray she had tested positive for cannabis.

The news wasn’t surprising to Gray, who had a prescription for seven grams of cannabis per day. What did surprise her was her subsequent arrest for failing the test.

Given the option of providing a blood sample or completing a 12-step drug recognition evaluation at Halifax Regional Police headquarters, Gray opted for the evaluation, knowing her blood would also show the presence of cannabis.

Some four hours later, after completing physical tests, answering questions and spending time in a holding cell, officers determined Gray was not impaired.

An officer drove Gray home. Her vehicle had been impounded and would end up costing her more than $200 to get it back. The officer also informed Gray that, despite not having committed an offence, she would still have to endure a seven-day license suspension for the positive result on the roadside saliva test. If she got pulled over a second time, Gray would lose her license for 30 days.

As someone who relies on cannabis daily to combat painful symptoms of a chronic disease, the officer’s information scared Gray.

“(I thought) I can never go through a roadblock again. I'll have to avoid it,” Gray says.

Cannabis in Canada

Cannabis was legalized by Prime Minister Justin Trudeau’s government on Oct. 18, 2018. Two main pieces of legislation, which received royal assent on June 21, 2018, set out the laws and regulations surrounding the newly legal drug in Canada: Bill C-45, known as The Cannabis Act and Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts.

While The Cannabis Act primarily restricts and regulates the sale and use of cannabis, the criminal code amendments set out requirements for law enforcement and establish the laws surrounding cannabis driving offences.

The bill was created taking into consideration recommendations put forth by the Task Force on Cannabis Legalization and Regulation, assembled in June 2016 and chaired by former Minister of Health Anne McLellan.

In an interview, McLellan says the complexity of cannabis and the lack of reliable roadside testing methods issues were considered in the discussions. The current roadside tests use an “inexact science,” she says.

Nonetheless, according to documents obtained through federal Access to Information (ATI) requests, the Canadian government felt impaired driving was a substantial risk. In its final report, the task force erred on the side of public safety in its recommendations.

“It may seem drastic, but ultimately, our goal is to ensure the safety of everyone around us,” says Winnipeg Police Service patrol sergeant, Stephane Fontaine.

“The impaired driving investigation is not like any other kind of offense in the Criminal Code. Police have very specific powers when it comes to enforcing impaired driving legislation. We have powers that are unheard of when even compared to the U.S. — they can't believe the things that we're authorized to ask and to do,” says Fontaine.

“It supports how important impaired driving enforcement is, and how society deems it as a very concerning and very important aspect of enforcement,” he adds.

Criminal law specialist and Ottawa defense attorney Michael Spratt suspects a different agenda.

“The government, I think, used the Bill C-46 – the tough-on-crime and unnecessary crackdown and loosening of procedural protections with respect to impaired driving – to provide some political cover so they could so they could more easily justify the partial legalization of cannabis,” says Spratt.

During discussions about Bill S-230 on Apr. 4, 2017, MP Alain Rayes called new impaired driving legislation “critically important in the effort to protect Canadians from the growing scourge of drug-impaired drivers.”

Spratt, who has testified before parliament a number of times, says the concerns he testified to regarding Bill C-46 – including radical changes to police powers of investigation, procedural and evidentiary shortcuts and potential disproportionate impacts on racialized Canadians – were largely dismissed.

“When you're dealing with what can be intrusive, life-altering legislation, legislation that literally lets them forcibly take blood out of someone, you'd like to think that they weren't just ramming through what they had that was preordained, and that they had listened to experts, that they had listened to the witnesses,” Spratt says.

In a 2017 public statement reviewing the proposed Bill C-46, the Canadian Bar Association noted that “set limits for blood drug levels may not actually identify impaired drivers and may penalize non-impaired ones.”

Lloyd says the same suggestion was flagged by other organizations, too, but was ultimately not heard by the government.

It came down to “moral panic” over science, according to Spratt.

“A lot of the talk leading up to the legalization of cannabis was sort of a moral panic that if cannabis is legalized, our roads will be flooded by cannabis-impaired drivers … but, of course, that's an absurd situation that hasn't happened. And it was absurd to think that it would happen,” he says.

Robert Martin, chief of police in West Gray, Ont. says cannabis is just a “flavour of the year.” But Winnipeg’s Fontaine says cannabis was a problem long before legalization.

“It's not like it's a new drug that all of a sudden people are using,” Fontaine says. “It has been a problem since its inception, and the fact that it impairs people's ability to drive has always been a concern, and it still remains a concern.”

Fontaine says statistics on cannabis-impaired driving specifically are not usually recorded. For this reason, he believes cannabis-impaired driving is under-reported.

Up for debate

Bill C-46 and several prior bills – including Bill C-226 and Bill S-230, which did not receive assent – focused on enforcing a zero-tolerance approach to those driving under the influence of cannabis. In documents obtained through freedom of information requests, Bill C-46 was hailed as legislation that would “put Canada amongst the leaders in the world with respect to road safety.”

Ultimately, Bill C-46 created a new class of offences based on THC levels, where individuals found to be above the legal limit could face financial penalty and/or criminal charges.

“But the scientific community doesn't agree that a particular THC concentration in your system equates to impairment,” says BC impaired driving lawyer Kyla Lee.

Nonetheless, the consequences are steep. Under federal rules, a driver found with THC levels between two and five nanograms per millilitre of blood could face a fine of up to $1,000.

Lloyd argues it’s an arbitrary number that doesn’t relate to impairment and violates Section 7 of the Charter, which guarantees Canadians “the right to life, liberty and security of the person” with an exception made when a deprivation of those rights is in accordance with the fundamental principles of justice.

Lee clarifies that drug-impaired driving has always been a violation of Canadian law.

“If you smoked too much pot to drive safely and drove anyway, that was always a criminal offense. It was never not an offense. But when cannabis was legalized, there was this boogeyman that was created by the people that were opposed to legalization and especially advanced by law enforcement,” she says.

Mothers Against Drunk Driving (MADD) is a registered Canadian Charitable Organization focused on preventing impaired driving. Annually, the group spends about $13 million in advertising, according to a publicly available T3010 tax return.

“There was a time when drunk driving was by far our biggest concern,” reads a statement posted by MADD on their website. “Sadly, that’s no longer the case. In recent years, drug-impaired driving has become a serious problem that needs our urgent and constant attention.”

In an email, MADD spokesperson Tracy Crawford says 618 deaths occurred in 2014 as a result of vehicle crashes involving individuals who were positive for drugs, compared to 299 deaths involving individuals positive for alcohol. The stat, while alarming, doesn’t specify which drugs were involved.

Police, too, readily provide statistics for drug-impaired driving, however, cannot specify how many of these offences were specifically involving cannabis alone.

“We know that when we put in our drug driving provisions in the Criminal Code, our drug impaired driving apprehensions went up 43 per cent in one single year, simply because we gave the police officers tools to actually effectively deal with drug impaired driving,” says Martin.

As for cannabis itself, there’s scant evidence of police being overwhelmed by stoned drivers. On Oct. 17, 2018, CTV News reported two police incidents involving cannabis and driving. The Ontario Provincial Police issued a $215 ticket for driving a “vehicle or boat with cannabis readily available.” Winnipeg police issued a $672 fine for consuming cannabis in a motor vehicle on a highway.

“I mean, everybody thought … there are going to be so many people on the road driving drug impaired,” McLellan says. “If you look at the statistics, it would appear that really that's not the case.”

Both Lee and Lloyd acknowledge the danger of driving impaired but say the fears surrounding an uptick in cannabis-impaired driving were, and continue to be, unfounded.

“It's not like people who smoked cannabis have been walking for the last 100 years,” Lloyd says. “So everybody got really scared that there was going to be a massive increase in cannabis-impaired driving; it simply didn't happen.”

Winnipeg impaired driving lawyer Michael Dyck, who works on about 80 impaired driving cases a year, shares concerns that the threat of cannabis-impaired driving was overestimated.

“If somebody was so diligent in respecting criminal law that they wouldn't even try the devil's lettuce until it was legalized, chances are that person is never going to get behind the wheel after even having a sip of wine, because they're just going to play totally by the book,” he says.

In any case, the ‘book’ isn’t entirely clear.

The problem with THC detection

To assess the impairment of drivers, the federal government had to approve some sort of test.

Former Minister of Justice and Attorney General Jody Wilson-Raybould announced that the Drager DrugTest 5000 would be implemented in August 2018.

According to internal government documents, the Drager DrugTest 5000 was the only oral fluid screening device recommended by the Drugs and Driving Committee (DDC) of the Canadian Society of Forensic Science to become “approved drug screening equipment” prior to legalization. The DDC acts as an advisory committee to the Department of Justice on issues of drug-impaired driving.

The Drager monitors for the presence of THC – short for Tetrahydrocannabinol, the main psychoactive chemical in cannabis – in saliva. But despite its presence being treated as a main indicator of impairment by cannabis in current Canadian law, scientific evidence suggests the presence of THC in the human body does not mean someone is impaired.

Neuroscientist Dr. Didier Jutras-Aswad, interim chief for the department of psychiatry at the University of Montreal Hospital Centre (CHUM) and psychiatrist in CHUM’s addiction psychiatry unit, says THC can have a negative impact on cognition that can relate to impairment, but doesn’t work to measure impairment in everyone.

“You’ll have some people (who are) affected by very low doses (of THC) and others that are not,” Jutras-Aswad says. “A one-size-fits-all (approach) is probably kind of difficult to implement and use.

“Is it the right compound to look at if you’re interested in biological level of exposure to cannabis? I would say yes. But … pure THC level is not a great marker for impairment compared to actual behaviours.”

Further, THC is stored in fatty cells, which gives them a long lifespan in the human body. Depending on frequency of use and potency, THC can stay in a person’s body for as long as 30 days, making testing for impairment based on THC presence less reliable compared to alcohol, which can only be measured on someone’s breath for a period of 24 hours.

“This is much more complex than alcohol, where it's quite clear, you have kind of a dose effect,” Jutras-Aswad explains. “The more you drink, the more you're impaired … In terms of cannabis, it's a little more complex.”

“A breathalyzer is .08, we know that that's the limit (for alcohol),” Lee says. “But drugs, the science isn't the same … there's a lot more sort of nuance to it that makes it a lot more complicated.”

Lee says neither the Drager or the more recently approved Abbott SoToxa screening devices can conclusively determine whether an individual is impaired by cannabis.

“We don’t have the existing scientific knowledge base to create devices that can measure it right now,” Lee says.

Martin agrees.

“The biggest problem (with the Drager) is it gives you the presence of a drug in your mouth, in the oral fluids and not having the correlation that we have with alcohol. Alcohol is a wonderful drug, because it is a very systematic way of breaking down to the body. Whereas cannabis, the studies aren't there to determine how it breaks down how long it lasts and what levels are truly impairing.”

However, a Regulatory Impact Analysis Statement by the Department of Justice regarding oral fluid screening devices obtained through freedom of information states, “A positive result (on a roadside testing device) would be a strong indication of recent use.”

Patrol Sgt. Fontaine agrees the Drager does not indicate impairment, but says the device is only sensitive to “recent” cannabis use, within approximately the past four to six hours.

“Right now we have trouble correlating the amount of THC in someone’s blood with true impairment,” he adds.

“If the oral fluid testing device shows us a positive, that's telling me that the person has had recent consumption, whether it's for medical reasons or not, it doesn't matter. The fact that they've consumed recently is a concern to me as an officer and society as a whole.”

Lloyd says it should matter, however.

“What they're referring to is the fact that it's a 0.2 nanogram limit for that metabolite as far as impairment goes. Their machine is designed to check that so that they can then do a blood test,” Lloyd says.

Blood, rather than saliva or urine, is agreed to be a far greater biological determinant of impairment by cannabis experts.

“If we do blood draws, that's a pretty, pretty solid way of seeing exactly the levels of THC in people's system … but the problem is police officers don't have that training to draw someone's blood,” Lloyd says.

As well, because of the high expectation of privacy for this bodily fluid afforded to Canadians by the Charter, police first need an indicator – in the form of a positive Drager reading – and medical assistance to a blood sample.

Nova Scotia RCMP confirmed blood is not a frequent testing method used to determine cannabis impairment. A constable in the Edmonton Police Service’s (EPS) impaired driving unit says this is in part due to wait times for lab results which can reach up to 200 days.

Lloyd further noted the Drager is impacted by extremely hot or cold weather and has to be kept perfectly level to work properly.

Law enforcement professionals from the Nova Scotia RCMP and EPS have both stated that these problems aren’t likely to interfere with their roadside testing results, provided the machines are properly calibrated and maintained.

An April 2017 backgrounder document obtained through freedom of information on changes to impaired driving laws stated that reforming impaired driving legislation in the Criminal Code would create “new offences, making the law easier to enforce, as well as simpler, more coherent and efficient."

“I don't think it's simpler or more efficient at all. It's just created unfettered discretion for police to make allegations regarding impairments,” says Lloyd.

Lloyd says he has represented clients that “go dry and don’t consume cannabis for six months” who still receive a positive test on the Drager device, due to the storage of THC in their bodies from longtime use. This is particularly common for medical users, he says.

Recommendations for impaired driving legislation in a classified Department of Justice Canada document entitled “Meeting of Federal-Provincial-Territorial Senior Officials Working Group on Cannabis Legalization and Regulation” suggested that there be investment made in research to “better link THC levels with impairment and crash risk to support the development of a per se limit.”

Lloyd says the sentence is a red flag.

“If they can't link to some sign of real impairment, then the law is violating Section 7 of the Charter,” he says.

Fontaine says more research is needed in the area to more accurately charge drivers with impairment and statutory offences related to impaired driving.

“In Canada, the ones that make the decisions ultimately made the decisions to set the limits that they chose. Now, I guess we'll see how things play out over the years.”

“I want the laws to change.”

Lee will soon represent Michelle Gray before the Nova Scotia Supreme Court, arguing that laws surrounding cannabis-impaired driving are in breach of the Charter.

Lee says Gray’s case will challenge the constitutionality of the law, questioning the validity of testing for impairment by cannabis using saliva. Once resolved, a subsequent hearing will determine if Gray’s rights were breached on Jan. 4, 2019.

“I don’t want anybody to have to go through what I went through,” Gray says. “I was thinking, I’m going to get fired if they’re going to print this in the paper. Cannabis, even if it is a medical use, it still has that awful stigma around it.”

Gray is not the only example of someone who was penalized or detained while not impaired by cannabis. Numerous defense attorneys in Toronto, Manitoba and B.C. have confirmed these cases are happening, though perhaps not as frequently as initially thought.

Lloyd believes the intent behind the bill was more politically motivated than legally necessary.

“Bill C-46 was really just designed to assuage concerns held by the Association of Chiefs of Police,” he says. “They kept watering down or beefing up various prohibitions so that they got support from law enforcement regarding the kind of radical choice to legalize cannabis.”

Spratt also sees “tough on crime” impaired driving legislation as highly politically motivated “bait and switch,” intended “to provide some political cover so they could more easily justify the partial legalization of cannabis.”

Gray says she now drives with the fear of getting pulled over. Still, an ongoing belief that cannabis users are endangering Canadian lives is prevalent.

“There may be some patients who feel, I don't know, that they're mistreated or bad, unfairly treated, but ... you have to put the safety of the public first above any individual,” Anne McLellan says.

Jutras-Aswad and Winnipeg defense attorney Mat Schwartz agree that laws surrounding impaired driving are needed, but question how they’re currently written.

“The decision to set rules around the ability for people to drive when they're consuming marijuana is probably a good idea,” says Schwartz. “The science seems to say it's probably a good idea to limit that. But in order for us to do that responsibly, we have to have a good system to monitor, to detect these things so that we're not catching innocent people in the net, which is my fear of what's happening now.”

According to Lee, there needs to be a balance struck between keeping Canadians safe and protecting their individual liberties.

“I think that the law is not based in good science. And if it was based in good science, then the law would be fair,” Lee says. “There's plenty of science out there about cannabis and impaired driving. It would be easy for the government to enact laws that protected the public and balanced the rights of people to use cannabis because we do now have that right.”