January 31st, 2018

Legalization/Decriminalization Of Marijuana In Canada

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Recently, a bill was presented to Parliament which proposes to not only legalize but also regulate marijuana use in Canada. Currently, only those with a valid medical purpose are allowed to legally possess marijuana. The intent of this bill is for marijuana to no longer be criminalized when used recreationally by July 1, 2018. It is unknown whether cannabis use will increase once legalized but one thing is certain, that it would still be illegal to operate a vehicle while impaired by any drug. There will also be changes to the Criminal Code to include new impaired driving laws relating to driving while impaired by drugs and/or alcohol and there will be an escalation in policing itself and enforcement.

Amendments and enforcement
There are proposed amendments would make it illegal to operate a vehicle with prescribed concentrations of any given drug in a driver’s body, similar to alcohol, where it is illegal to have a concentration of 80 mg of alcohol per 100 mL of blood while driving. The proposed amendments to sentencing could see drivers face similar maximum and minimum penalties to current alcohol offences where lower, but still illegal, drug concentration levels provide straight-summary offence with a maximum fine of $1,000.00 and no minimum sentence.

Officers would also be able to demand tests roadside where they have reasonable suspicion that a driver is operating a vehicle while impaired by drugs, where even if this test fails, the driver would be required to submit to further testing. The main difference would be that a failed roadside drug test will not be admissible as evidence at trial and could only be used as a screening method for further testing. The proposed detection devices and roadside drug tests that would measure the active ingredient in cannabis (THC) in a driver’s saliva would be implemented by police services when officers have reason to believe a driver is impaired by drugs. These test would simply detect TCH and would not confirm a driver’s ability to operate a vehicle. This test would need to provide certainty that the driver was actually impaired while operating the vehicle because failed a saliva test may have serious consequences, similar to a positive alcohol test, which carries an automatic driving suspension in Ontario. Additionally, there are serious issues with restricting an individual’s liberty when required by police to submit to these tests as they would be required to be detained for a period of time and no driver should not be wrongfully detained, arrested and convicted until the science is able to fully detect impairment.

Final thoughts
While we are unsure at this point whether offences for impaired operation of a motor vehicle will increase with marijuana (cannabis) legalization, we already grant police the power to stop, detain and test drivers in order to deter, detect and punish those who commit these offences. The challenges that lay ahead are the unknown effects these cases will have on both civil and criminal courts, and although the Supreme Court held in R. v. Bingley1 that Drug Recognition Expert (DRE) evidence is statutorily permissible to relied upon, the effectiveness and reliability of these proposed devices is still in question.

  1. R.v. Bingley Supreme Court of Canada 2017 SCC 12, 2017 CSC 12

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