As experts warn of flaws with the cannabis-impaired driving provisions of Bill C-46, a high-profile Canadian cannabis industry executive has vowed to bankroll a future court challenge against that aspect of the proposed law.
Chuck Rifici, the CEO of cannabis industry investment firm Wheaton Income Corp., and the former chief financial officer of the Liberal Party of Canada, said he would commit up to $25,000 to fund such a challenge.
"As obviously a very public, hard-core, card-carrying Liberal, I'm personally disappointed to see the government putting in a policy that's not fact-based," Rifici said in an interview.
The policy in question would establish legal limits known as "per se" limits on the amount of THC present in drivers' blood. (THC is a psychoactive chemical compound contained in cannabis.)
Bill C-46, which is not yet law and is currently under consideration by the Senate, would allow police to use blood tests to measure the concentration of THC in the blood of suspected impaired drivers, in much the same way blood-alcohol levels are used to determine a driver's impairment by alcohol. Drivers over certain limits, starting at two nanograms of THC per millilitre of blood, would be subject to penalties ranging from fines to imprisonment.
There are two major problems with using per se blood-THC limits to determine impairment by cannabis, say scientific and legal experts. First, unlike existing legal limits for blood-alcohol concentrations, scientists have not established an exact threshold of blood-THC levels beyond which drivers are objectively impaired. Second, the fat-soluble nature of THC means frequent users of cannabis could have much more than the proposed legal limit of THC in their blood at any given time, even if they aren't currently under the influence of cannabis.
Testifying before the Senate Committee on Legal and Constitutional Affairs last Thursday, Vancouver defence attorney Kyla Lee described the drug-impairment provisions and related mandatory minimum penalties laid out in Bill C-46 as "particularly troubling."Advertisement
"The result of this is that more Canadians are going to be left with criminal records, and I also predict that because more people will be left with criminal records for something that's not criminal, the overall stigma in our criminal justice system associated with a criminal record will eventually become decreased, and it will have an unexpected effect on the severity of punishment in other offences and in other arenas," said Lee, who specializes in impaired-driving law.
According to the federal Department of Justice, the specific legal limit for blood-THC levels proposed in Bill C-46 was based partly on a report of the Canadian Society of Forensic Sciences' Drugs and Driving Committee. The authors of that report, however, described the task of setting an appropriate per se limit for cannabis impairment that "minimizes the potential for an individual to be 'wrongly' convicted of a drugged-driving offence" as "an exercise in selecting the least objectionable alternative."
"THC impairs an individual’s ability to operate a motor vehicle; however, setting a per se limit does not mean that all drivers below that concentration are not impaired and all drivers above that concentration are impaired," wrote the authors.
"More research is needed to help define an acceptable per se limit for THC that would be based on the same robust scientific testing and epidemiological research that supports the per se laws in place for alcohol," wrote the federal task force on cannabis legalization in its 2016 report to the government.
Despite that, the task force also wrote that establishing a per se limit for cannabis impairment "would nevertheless be an important tool for deterring cannabis-impaired driving."
"As the scientific knowledge base continues to grow, a per se limit should be revisited and adjusted as necessary," said the report.
Rifici said he's especially concerned about the impact of the proposed per se limits on Canadians who use cannabis for medical purposes, because "it basically makes it so that they can't drive, almost immediately."
"Anybody with a high cannabis tolerance, even if they didn't consume for a day or a week, or even a month, would still blow past those limits," he said.
A future legal challenge against the limits, said Rifici, "would be a very quick challenge, and I intend to rally other CEOs and other people in the (cannabis) industry to contribute as well, to just have a very aggressive fund to stamp it out fast."
B.C. attorney John Conroy, who is known for his work on key Canadian court rulings related to cannabis, said he has "no doubt that there will be challenges to the impaired-driving legislation."
Those challenges, he said, could potentially rely on Sec. 7 of the Canadian Charter of Rights and Freedoms to argue that someone charged with cannabis-impaired driving using per se blood-THC limits was deprived of their liberty in a way that's "not in accordance with the principles of fundamental justice."
"The whole idea is to catch people and deter people from impaired driving, and not presume them to be impaired when we can show that they're not, in fact, impaired," said Conroy.
Kirk Tousaw, another B.C. attorney with extensive experience in cannabis-related law, said the invasive nature of blood testing by law enforcement could also bring Sec. 8 of the charter into play.
"You're invading people's privacy to yield irrelevant evidence that does not go to the issue to be determined, and that is their guilt, presumably, of a criminal offence," said Tousaw. "So it's very serious business."
A legally registered user of medical cannabis who gets pulled over and charged with impaired driving after failing a blood test would offer a good opportunity to challenge the law, Tousaw said, describing such a case as "eminently winnable."
"But it should be just as applicable to a recreational consumer — you smoke a few joints on a Friday night, you're not impaired Saturday morning but you could easily be over two nanograms per millilitre in your blood of THC metabolites."
Rifici, Conroy and Tousaw all pointed out that driving while impaired by drugs is already a crime in Canada.
"This, I think, is an instance where politics does not always make good public policy," said Tousaw.
"I think, as part of the political sell for legalization in broad swathes of Canada, it was important for the Liberals to assuage a concern — and not a completely illegitimate concern — that there would be some negative consequences in the realm of driving while impaired."
Rifici said the process of challenging the per se limits in Bill C-46 "is going to start very fast, if the bill passes unchanged."
If publicizing the problems with blood-THC limits prompts the government to rethink its approach, Rifici suggested, "we could save a couple years of pain through that process."