Using cannabis and driving? Learn more about Bill C-46 (Part III)

Where there’s smoke there’s uncertainty: Details of Bill C-46

Today, as a continuation of our last article, we conclude our series on the legislation introduced by Bill C-46 with a discussion on the currently approved testing equipment.

The recently passed Bill C-46 amends laws in the Canadian Criminal Code pertaining to impaired driving offenses, in response to the upcoming legalization of Cannabis in a few weeks. The federal laws Bill C-46 amends will come into effect this December, but many lawyers have raised concerns that this overhaul of impaired driving laws may in fact be unconstitutional in that it opens up a real possibility of criminal charges being laid on sober drivers.

In this series of articles, we explored some of the issues Bill C-46 creates that you ought to be aware of.

Problems with actually measuring THC roadside.

Unlike testing for a driver’s blood alcohol content by using a breathalyzer roadside, driver’s blood THC levels will be measured with a saliva sample via a mouth swab. The most recent device for analyzing saliva samples that has been approved is the “Drager DrugTest 5000”. This equipment will be made available to local authorities all over the country, but local police forces will ultimately decide on what equipment they wish to use.

Although these saliva-screening devices have proven to be accurate and effective in the lab, they do have a fairly large problem when used roadside: they are likely to register false-positives when they get cold.

The optimal working temperature range for the Drager DrugTest 5000 is 4-40°C. While this isn’t a huge concern in more temperate parts of the country, this could prove to be an issue during our famously long and cold Canadian winters – especially in the prairie provinces and territories. This opens up the possibility that sober drivers who have never consumed cannabis products could face criminal charges if testing temperature conditions fall outside this range.

Furthermore, as we mentioned in our first article of this series, there is no scientifically agreed upon blood THC level to definitively indicate impairment. As such, these devices only quantify a certain metabolite produced by the body’s breakdown of THC to accurately estimate  blood THC levels – not actual impairment. In a statement released with the draft of the legislation Bill C-46 introduces, Ottawa indicated that the low level offense of having a THC blood concentration of 2-4ng/mL, was not created as a means to link a driver to impairment, but rather as a “precautionary or crime prevention approach”.

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