Criminal lawyer Kyla Lee says new drug-impaired-driving laws will create uncertainty about what it means to be impaired
Originally published on The Georgia Straight.
A few weeks ago, I tweeted something that would, unwittingly, ruffle a few feathers.
“Someone needs to tell the guy ashing a joint out of his sports car sun roof that his days are numbered,” I wrote. “Wonder if he’s heard of C-46?”
I’ll be straight up: It was deleted out of sheer embarrassment after a few people pointed out that it came across as a moral assessment of the driver’s choice to smoke a joint while at the wheel.
While my intention—to point out that cops across the country are preparing for an all-out roadside offensive against drivers like the one I saw—was poorly conveyed, a follower noted that instead of making it sound like the driver deserved what was coming to him, I ought to “use my platform as a journalist” to discuss the bill’s flaws.
It’s a challenge I quickly decided to take on.
My personal take on whether or not someone should be smoking weed while driving is irrelevant. The reality is, I’m genuinely concerned that neither the police nor the law will be able to make the distinction between a person like myself, a medical-cannabis user who might have a higher-than-average blood-THC ratio, and a driver who is genuinely impaired.
Criminal lawyer Kyla Lee of Acumen Law Corporation specializes in cases of immediate roadside prohibition (IRP) and was happy to discuss the fundamental flaw of the act that will in all likelihood amend the Criminal Code. (Bill C-46 passed a second reading in the Senate and was referred to the standing committee on legal and constitutional affairs in December 2017.)
“As far as its changes to the law related to drug-impaired driving, my biggest concern is the imposition of the two nanograms per millilitre blood-THC limit,” she said by phone from her office in Vancouver.
The bill introduces three new impaired-driving offences and will allow police officers to require drivers suspected of being under the influence of drugs to submit a blood sample for testing.
A driver with two to five nanograms of THC per millilitre of blood could face a summary conviction with a maximum fine of $1,000. But a driver with more than five nanograms of THC per milliliter of blood—or a combination of both alcohol and THC in their system—could face indictment, as both are considered hybrid offences.
If the bill is passed as is, Lee said, it could have a significant impact on drivers who are chronic users of marijuana.
So where does the bill fall short? For one, determining impairment by testing a driver’s blood for THC (the compound in cannabis that causes euphoria) doesn’t take into account the way the compound is processed within the body.
“The way THC is stored in your fat cells, it can break down over time, which means that even after months of abstinence, you can still have an elevated THC level, high enough to get yourself a criminal charge,” she said.
“It creates a lot of uncertainty for people, because nobody’s going to know how long you have to wait after using marijuana to be able to drive lawfully.”
The problem, she said, is that while a driver might think the impairing effects of cannabis have worn off and they are okay to get behind the wheel, the only way to know for sure is to measure their blood-THC level—not exactly as easy as blowing into your friend’s breathalyzer keychain.
“It’s not like alcohol, where it’s absorbed consistently by people and eliminated consistently by people and you can get a pretty good idea of where your blood-alcohol-content is based on what you drank, your weight, and the time that has passed,” Lee said.
Sending the wrong message
Anyone who has been to a movie theatre recently may have been forced to sit through one of the federal government’s “Don’t Drive High” advertisements, in which a car full of dopey-looking young adults gets into an accident. In my recent experience, it’s the only pre-movie ad that employed SilverCity’s enhanced D-box seats, nearly shaking audience members out of their chairs at the moment of impact.
While inside I wondered how much extra money it cost taxpayers for my seat to vibrate during the ad, I asked Lee if there was anything inherently wrong with the message that is being communicated to Canadians about driving and cannabis use.
In Lee’s mind, the law should either be changed or tossed altogether before the government distributes messages that could potentially mislead people into confusing not feeling “high” with being legally safe to drive.
“Just the language used in something like ‘Don’t Drive High’ misinforms people, because the government is not just targeting ‘high’ driving—they’re targeting driving where people aren’t impaired but they have an elevated blood-THC level.”
While the bill says otherwise, Canadians are being told that it’s how you “feel” that makes you impaired, exacerbating an already-existing uncertainty around what the word impairment actually means.
“It’s not just confusion on the part of users; there’s also confusion on the part of the government and the people who enforce the law—the ones who are asking for these limits,” she said.
Impairment is complex
When it comes to alcohol, the connection of consumption and impairment has been made repeatedly. It’s why few people argue with the government’s drunk-driving regulations: They’re based on evidence. But with cannabis, science has yet to come to a clear consensus on whether or not its use leads to impairment.
A recent post on the lawyer’s blog references a meta-analysis of 24 articles from 11 different countries that analyzed the link between “unfavourable” traffic events and cannabis use.
“One study suggested that THC in blood decreases quickly after use, but can still be clinically detected for a much longer period, as I have often suggested,” Lee writes.
“Additionally, the same amount of cannabis can affect one person differently from another. One person may completely be impaired while another displays a normal driving ability.”
While it’s common for lawmakers insistent on blood-THC levels to compare cannabis to alcohol, one thing Lee said they fail to take into account is that unlike alcohol, cannabis is used as a medicine.
“When you have a substance like marijuana… that somebody is supposed to be taking for a medical purpose, there’s a difference between being impaired by it, and actually being improved by it,” Lee said.
Take an individual suffering from a chronic-pain condition, for example. Would it not make sense for that person to be able to drive without being impaired by their pain?
With specific blood-drug concentrations written into legislation, Lee argued that it will be medical users and not the people who are actually impaired in their ability to drive that will be subject to roadside prohibitions.
“You create a category of people that have to choose between being impaired because of their medical condition, versus being ‘over the limit’, because the law doesn’t draw a distinction between the two,” she said.
Putting the government on notice
Lee isn’t the first lawyer I’ve spoken with who said she’s already preparing for her first case under the new bill.
“I’ve put the government on notice,” she said. “As soon as I get one of these cases, I’ll be filing a constitutional challenge.”
Asking what sort of changes she might make to the bill opens a can of worms too large for our intended discussion, but she does say that the first thing to go should be the bill’s per se limits. Instead, police should rely on roadside assessments that combine a person’s physical ability with their actual driving to determine whether or not they are impaired.
That sort of testing, she said, would do the most public good without having the potential to negatively impact people, “who aren’t impaired, but just over the limit—to no detriment.”