Unless you have been living under a rock, you probably heard this week that marijuana will officially be decriminalized in the near future. A date of October 17 has been set for when it will be legal across Canada.
The Cannabis Act, or Bill C-45, received Royal Assent, meaning it officially passed Parliament. Although the long-talked-about legalization of cannabis dominated the headlines, the bill was just one of a number of pieces of legislation that also passed. One of those pieces of legislation was Bill C-46.
Regular visitors to this blog will be aware that we have been highly critical of Bill C-46. We’re not the only ones. The final version of the controversial piece of legislation will change the provisions of the Criminal Code that relate to impaired driving. It will allow the government to set blood-drug concentration levels, so if you are found to be over a certain limit, you commit an offence. It will also give police the power to demand blood, saliva or urine samples from drivers suspected of having consumed cannabis as well as certain other drugs.
Perhaps, the most controversial aspect is the mandatory roadside screening provision which allows officers to demand fluid samples from drivers without any reasonable suspicion of impairment, meaning they can stop any driver at random. The Senate took exception to this provision but after some toing and froing with the government it relented and agreed to pass the bill with mandatory roadside screening provision intact.
Problems with Bill C-46
There was wide-ranging disapproval of Bill C-46 and we were deeply disappointed to see it receive Royal Assent. A point that is often overlooked is that Canada already has marijuana and drug-impaired driving laws so it could be argued this one is surplus to requirements and is only going to complicate the existing system. If a police officer suspects someone is driving with a drug in their body, they can make the driver perform what is known as a standard field sobriety test – things like asking people to walk in a line and turn, stand on one foot or follow a pen with their eyes, for example.
“The bill is so laden with loopholes, any lawyer worth their salt will be able to exploit them.”
One of the biggest criticisms of the legislation is that it will unfairly impact the lives of Black and Indigenous Canadians. Data shows that these ethnic minorities were disproportionately stopped for street checks by Vancouver Police Department last year. Including a provision for random roadside sampling in Bill C-46 means ethnic minorities will have their Charter rights affected more than others.
A glaring omission on the part of the government all along – which is yet to be resolved – is exactly what devices the police will use to detect marijuana impairment. The technology simply is not, and may never be, at the stage where it can detect drug-blood concentration with the same accuracy as a breathalyzer has for alcohol-blood content, for instance.
Strong arguments against setting a limit on the amount of marijuana you can consume before driving ultimately fell on deaf ears. THC concentration is often tested by way of a urine sample. The problem is, THC may remain in the body for several weeks after the drug is used. This means it is possible for someone to fail one of these tests even if they have not consumed cannabis recently. This could be a huge problem for marijuana users who now face the very real prospect of being convicted of drug-impaired driving charges without being impaired at the time of driving.
What impact might Bill C-46 have on the justice system?
In an odd way, the passing of Bill C-46 could be good news for people who drive while under the influence of marijuana. The bill is so laden with loopholes, any lawyer worth their salt will be able to exploit them.
Acumen Law’s Kyla Lee has been leading the charge against Bill C-46, including testifying before the Senate Committee on Legal and Constitutional Affairs about its legal flaws. She warned there will be so many challenges made under the new law, it will clog up the courts and increase the cost to the government.
The real problems will arise when people opt to represent themselves at trial. Defendants may decide to plead guilty to something they know they did not do because they feel they have no other option. This is unacceptable.
For this reason, we recommend that anyone charged under the new regulations challenges it but first seek legal assistance.
Acumen Law has been on the frontline of challenging the constitutionality of impaired driving legislation. We know this new legislation inside-out and we have the tools to take it on.
Remember our number, 604-685-8889, because, after October 17, you may need it.