Criminal Law

Drug-impaired driving law vulnerable to Charter challenges

By Staff

Ordinary drivers will suffer as challenges to the federal government’s drug-impaired driving legislation make their way through the courts, Toronto criminal lawyer Caryma Sa’d tells

Bill C-46, which passed both houses of Parliament last year, creates three new offences for drivers with certain levels of particular drugs in their system within two hours of driving and allows police to demand saliva samples from drivers suspected of operating a vehicle under the influence of drugs.

But Sa’d, founder and principal of SADVOCACY Professional Corporation, says the new law is vulnerable to Charter challenges on several fronts.

“I think the constitutionality of this law will be hotly contested, and it will ultimately be amended or repealed,” she says. “But getting to that point will be a slow process, and in the interim, there are going to be unfair convictions.

“I suspect that, like the lopsided criminalization of cannabis, the enforcement of Bill C-46 will disproportionately affect marginalized communities. It takes time and money to launch a successful constitutional challenge, which affects access to justice,” Sa’d adds.

Sa’d was one of the signatories to a letter that warned the federal government of the dangers of criminalizing very small levels of THC, the active ingredient in marijuana, in the blood of drivers.

While breathalyzers offer a very accurate reflection of the level of alcohol in a person’s bloodstream and how it is likely to affect them, she explains that metabolites of THC have been shown to linger in fluid samples long after use at levels that differ on an individual basis.

“Just because you have THC in your system, doesn’t mean you’re impaired to drive,” Sa’d says. “It depends on your individual body chemistry and tolerance level, including how often you consume cannabis.

“The idea was to develop a system similar to the testing regime for alcohol, but the problem is the substances aren’t perfectly analogous,” she adds.

Medical marijuana users are among the most likely to retain THC in blood samples, potentially for days after use, at levels above the legal limit set by C-46 — two nanograms per millilitre of blood — raising questions about their rights under s. 7 of the Charter.

The National Post reports that the federal government is moving ahead with a German-made roadside testing device for THC, even as concerns persist about its accuracy.

The device has been approved in other countries but was not part of a formal pilot project which took place last year in Canadian provinces.

“It hasn’t really been tested in the harsh Canadian winter,” Sa’d says.

In addition, she says C-46’s revamp of alcohol testing rules also raise constitutional issues, since it gives police the ability to demand roadside breath samples effectively at random and removed the requirement for suspicion the driver has been drinking.

“Whenever police are given discretion, the law enforcement tends to affect some groups more than others,” Sa’d says. “It would not surprise me if we see the same thing here, especially along the lines of race, class, and socio-economic status.”

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