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Cannabis Legalization And First-Time Users

Will cannabis legalization increase the number of first-time drug-impaired driving offenders? Health Canada's second annual survey of cannabis users showed 60 per cent of respondents know consuming marijuana affects a person’s driving ability. In 2017’s survey, only 50 per cent of respondents admitted consuming marijuana affected the user’s ability to drive.

Despite this, the 2018 Health Canada survey reveals 43 per cent of cannabis users drive within two hours of using cannabis. Men are more than twice as likely as women to do this. Nearly half of the respondents who drove after using marijuana did so within 30 days of completing the survey. Three in ten respondents said they had driven within two hours of consuming cannabis within the last year, and a third did so over a year ago.

How New Criminal Penalties For Cannabis Use Could Affect You

The federal government created three new criminal offences for driving while impaired by cannabis when it legalized cannabis in October 2018. The offences are based on the amount of Tetrahydrocannabinol (THC) in a person’s bloodstream. They are:

  • A summary conviction offence for having more than 2 but less than 5 nanograms (ng) per millilitre (ml) of blood
  • A hybrid offence for having 5 nanograms or more per millilitre of blood
  • A hybrid offence of having a combination of 50 milligrams of alcohol per 100 millilitres of blood and 2.5 nanograms of THC per 1 millilitre of blood

These are not large amounts of cannabis. Studies by the Canadian Centre on Substance Abuse suggest even one puff or one hit will put a person over the legal limits, though perhaps only for a short time. It’s unclear how much time must pass before THC leaves your bloodstream. This varies according to a person’s body size, gender, how much you take, and your history of cannabis use.

If you are convicted of an offence, the penalties are severe:

  • 2 to 5 ng offence: a maximum $1,000 fine
  • 5 ng or more offence:
    • First offence – mandatory minimum $1,000 fine
    • Second offence – mandatory minimum of 30 days imprisonment
    • Third and subsequent offences - mandatory minimum of 30 days imprisonment
  • Alcohol / cannabis combined offence:
    • First offence – mandatory minimum $1,000 fine
    • Second offence – mandatory minimum of 30 days imprisonment
    • Third offences - mandatory minimum of 30 days imprisonment

The maximum penalties for drug-impaired driving are:

  • 18 months imprisonment on summary conviction, and 5 years imprisonment on indictment, for an offence that does not cause bodily harm or death.
  • if the drug-impaired driver causes bodily harm, the maximum penalty is 10 years imprisonment; if a death results, the maximum penalty is life imprisonment.

How Police Test You For Drug-impaired Driving

The police must have reasonable grounds before they can test you, and must have evidence you are impaired before laying charges. Currently, they use Standard Field Sobriety Tests to determine if a driver is impaired.

The federal government approved the Drager DrugTest 5000 saliva-testing device for police roadside tests, but few police forces use it. The Drager does not always perform well in temperatures below four degrees Centigrade, and returns ‘false positive’ results up to 20 per cent of the time.

Other devices are being tested, and the manufacturer is upgrading the Drager. Police expect to use saliva-testing devices in 2019.

Will The Courts Accept Device Results As Evidence?

It is unclear whether Canadian courts will immediately accept test results from these devices as evidence. It took some time before courts accepted alcohol breathalyzer test results into evidence.

Criminal defence lawyers will bring challenges under the Charter of Rights as soon as police begin using them, asking:

  • Are the device’s test results reliable?
  • Was the test properly administered by the police officer?
  • Was the test administered within two hours of the driver’s consuming cannabis?

You should seek legal counsel if police stop you for driving within two hours of consuming cannabis. This area of criminal law is evolving as police, courts and defence lawyers grapple with the changes caused by cannabis legalization. You will need an experienced defence lawyer to represent you, especially as the penalties for drug-impaired driving are severe – even for first-time offenders.

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