Bill C-46, which decriminalized marijuana possession October 17, 2018, creates three entirely new criminal offences that establish per se limits for Blood Drug Concentration (BDC). Like blood alcohol ‘over 80’, offences ‘over BDC’ now exist. The new legislation also creates a presumption of impairment by drug that applies when a drug evaluation officer correctly identifies a drug that is subsequently found in the accused’s blood.
For marijuana (tetrahydrocannabinol -THC) the proposed regulation refers to three different BDC levels.
- If the offence is (a) – equal to or exceeds 5 ng of THC in 100 ml of blood, this is akin to the ‘over 80’ offence in that it is a hybrid offence attracting the same type of minimum penalties and driving prohibition.
- If the offence is (b) – a BDC equal to or exceeding 2 ng of THC but less than 5 ng of THC in 100 ml of blood – this offence is a straight summary conviction offence, attracting a maximum fine of $1000 and a discretionary driving prohibition.
- If the offence is (c) – a combination of alcohol and THC whereby the BAC is equal or exceeds 50 mg of alcohol in 100 ml of blood and the BDC is equal to or exceeds 2.5 ng of THC in 100 ml of blood, this is a hybrid offence attracting the same penalties as (a).
The Regulations currently indicate that the per se limit for LSD, Cocaine, Psilocybin, Ketamine, Methamphetamine and other illicit drugs are ‘any detectable level in blood’. However, for the date-rape drug GHB, the level of prosecution is 5 mg of GHB in 100 millilitres of blood.
The New Screening Regime:
Akin to the traditional approved screening device demands (ASD) that officers have employed for years during RIDE programs when they demand a roadside breath sample, the Criminal Code now authorizes a roadside demand to provide a saliva sample into recently approved drug screening equipment (“ADSE”).
The only difference between the power to make the respective demands is that “reasonable grounds to suspect” will always be required to justify a demand for ADSE testing, whereas, with respect to an ASD demand an officer can make that without any grounds if he has the device with him.
Drug Recognition (DRE), blood and urine demands
If a peace officer has “reasonable grounds” to believe that a person has operated a vehicle while their ability to operate is impaired to any degree by a drug or by a combination of alcohol and a drug, he may, by demand, made “as soon as practicable”, require the person to:
to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person’s ability to operate a vehicle is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose
If on completion of the evaluation, the evaluating officer has reasonable grounds to believe that one or more of the types of drugs set out in the legislation (depressant, inhalant, a dissociative anesthetic, cannabis, stimulant, hallucinogen; or a narcotic analgesic) or that a combination of alcohol and one or more of those types of drugs is impairing the person’s ability to operate a vehicle, the evaluating officer shall identify the type or types of drugs in question and may, by demand made as soon as practicable, require the person to provide, as soon as practicable,
(a) a sample of oral fluid or urine that, in the evaluating officer’s opinion, is necessary to enable a proper analysis to be made to ascertain the presence in the person’s body of one or more of the specified types of drugs, or
(b) samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to enable a proper analysis to be made to ascertain the presence in the person`s body of one or more of the specified types of drugs to determine the person`s blood drug concentration for one or more of those types of drugs.
A sample of blood may be taken from a person under this section only by a qualified medical practitioner or a qualified technician, and only if they are satisfied that taking the sample would not endanger the person`s heath.
- Per Se Limits
There are serious issues regarding per se limits involving blood drug concentrations. A BDC is not the same as a blood alcohol concentration level. Whereas the effects of alcohol on driving skills have been measured and tested thoroughly, there does not appear to be a scientific consensus linking impairment to particular blood drug concentration levels, such as 5 ng of THC in 100 ml of blood, or a ‘detectable’ amount of cocaine or any of the other listed drugs. The Criminal Justice Section of the Canadian Bar Association made these submissions to Parliament:
“At a Marijuana Impairment Detection Technologies Workshop held in Quebec in September 2016, experts from Canada and the United States confirmed that the impairment of someone consuming marijuana cannot be reliably gauged by a set quantum. An experienced user may not be legally impaired at 5 nanograms, while a casual user or novice may be legally impaired at a much lower amount.”
In other words, these drug per se limits is not necessarily linked to impairment. Unlike alcohol, where impairment of driving ability can be found in all individuals at relatively low levels, drugs may not have the same impairing effect. Additionally, individuals who regularly use drugs can become tolerant and, when this occurs, the impairing effects of the drug are gradually lessened.
Until there is more research done, per se limits may be criminalizing harmless behavior.
- Test Results Reliability:
Various scholarly publications also raise concerns regarding oral fluid drug testing. One of these is The Final Report on the Oral Fluid Drug Screening Pilot Project issued by Public Safety Canada this year. (see: https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/rl-fld-drg-scrnng-dvc-plt/index-en.aspx ). The Report recounts that,
“in order to ensure that the devices are adaptable tools for police operations, officers were asked several questions that focused on the procedural steps taken to deploy the devices at the roadside and concerns related to officer safety. The two most common concerns mentioned by officers were the amount of time required for a screening and the physical proximity to the driver being screened.”
When asked to troubleshoot solutions for the length of time, which could take as long as eight minutes, officers noted that they might consider having a driver sit in the police vehicle.
Alarmingly, the report notes that data was collected on device malfunctions, which occurred in 13% of samples. Noteworthy, two of the ASDE devices that were tested began registering exclusively drug-positive results, including when tested on the police officers.
The Report also raises concerns with respect to the use of some ADSEs in cold Canadian weather. Given Canada’s harsh climate, one of the research areas in the pilot project was to determine how the devices work in all weather conditions. During this testing phase, police officers were asked to note any malfunctions that occurred due to temperature. This is important because the manufacturer’s suggested operating temperatures for the cartridges tested ranged between 5°C and 25°C for one of the devices tested and the range between 5°C and 40°C for another.
The research project revealed some temperature-related issues when the devices were used in extremely cold temperatures. The test data showed that tests conducted outside of suggested operating temperatures were more likely to produce drug-positive results (i.e., while 64% of all tests occurred outside of suggested operating temperatures, 80% of all positive results were produced outside the suggested range).
- Constitutional Issues:
8: The Right to be Free from Unreasonable Search and Seizure
Apart from the issue of the reliability of the devices it also remains to be seen how well front-line officers will be trained in the use of these new devices.
The warrantless seizure of roadside samples is presumptively unreasonable, and the Crown must show that the seizures are lawful.
“Reasonable and probable grounds” imports a subjective as well an objective component, meaning that it is not sufficient that an officer personally believes that a supposed fail on a roadside test provides grounds to take further investigative action. His decision has to be objectively defensible which raises issues as to the proper working order of the roadside testing apparatus as well as the proper administration of the test.
9: Arbitrary Detention
In the recent Supreme Court of Canada decision of Aucoin http://canlii.ca/t/ftzsm, our highest court has explained that even if detention is lawful the manner of detention can be arbitrary if less restrictive procedures are available.
Given that roadside drug testing is considerably longer and more intrusive than roadside alcohol measures one concern is where will the tests be conducted. Arguably the confinement of a driver for an extended period of time in the back of a police cruiser may violate the right against arbitrary detention.
Alternately, if the officer conducts the drug testing outside the cruiser on a frigid Canadian winter day, what confidence can there be that the results of the test are reliable?
10: Right to Counsel
The prolonged detention of a suspect at the roadside also engages the issue of the right to counsel. Given that roadside testing is required to be brief since the right to counsel is suspended for brief investigative purposes, what will the courts do when people are routinely detained for significant periods for the purpose of protracted drug testing?