Proposed legal limits for drug-using drivers likely to be challenged: criminal lawyer

The federal government released a draft of its planned legal limits for drivers under the influence of drugs, but criminal lawyer Kyla Lee has doubts about how well the legislation will hold up against constitutional challenges.

“I don’t think this law as it’s currently drafted is going to look anything like what it looks like when the courts have whittled it away,” says Lee, who practises at Acumen Law Corp. in Vancouver.

“There’s going to be so many challenges to this; it’s going to tie up the courts, it’s going to be expensive.”

The Blood Drug Concentration Regulations, posted Oct. 14, come as part of the federal government’s attempt to strengthen the laws against drug-impaired driving before the legalization and regulation of marijuana.

The regulations include a regulatory impact analysis statement where the government admitted it was unable to set general limits for marijuana use while driving, noting, “THC is a more complex molecule than alcohol.” The science used to set the limits is “unable to provide general guidance to drivers about how much cannabis can be consumed before it is unsafe to drive or before the proposed levels would be exceeded. It is equally challenging to provide general advice as to how long a driver should wait to drive after consuming cannabis.”

Bill C-46: An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts proposes three new criminal driving offences for being at or over the described BDC levels of certain impairing drugs within two hours of driving. 

“The proposed BDC offence level for tetrahydrocannabinol (THC, the primary psychoactive component of cannabis) under the summary conviction offence is not directly linked to impairment, but is, rather, based on a precautionary or a crime prevention approach,” reads the draft.

It goes on to say that the objective is to make it easier to prosecute drug-impaired drivers and “send a clear message” to the public on the dangers of driving while under the influence of drugs.

Lee says though the justice minister tries to justify the limits in the statement, what stood out to her the most was how senseless a lot of the limits they’re imposing are.

She says her firm will be covering these cases acting for defendants when the time comes. She predicts a “significant increase, particularly at the front end, while all of the unanswered constitutional questions in this legislation are being sorted out.”

“You’re going to see a lot of challenges taking place very quickly with the way blood samples are collected, the science behind this, whether the legislation actually creates a proper criminal law,” Lee says.

For example, with the amounts they picked for marijuana for the summary offence, “it’s not even criminal in their view, but they’re going to make it criminal to prevent a crime from happening.

“That’s so far removed from what the legal authorities say you can do in enacting criminal law,” she says.

But even with the limits on which they were able to decide — for drugs such as cocaine, GHB, methamphetamine, LSD, magic mushrooms, PCP, 6-MAM and ketamine — “the numbers that they picked don’t make sense when you actually look at the science — how they are metabolized by the body, how long the effect lasts and how long the metabolites of those drugs are detectable in blood and urine,” says Lee.

“Issues that we generally see in drug cases are now going to be the everyday issues in impaired driving cases, which is going to be an incredible problem,” Lee says. “You’re taking a prosecution that would otherwise take a day, maybe two days, and you’re going to turn it into a 14-day trial. If we’re trying to reduce delays in our legal system, setting these arbitrary limits and then making people have to challenge them by introducing evidence to the contrary and challenging the practice of the analytical process employed in the particular case is only going to cause more significant delays.”

Bill C-46 has passed first and second readings, and it was sent to a Standing Committee on Justice and Human Rights. The committee presented a report with suggested amendments to the House on Oct. 16.

The draft regulatory text is laid out in Annex A of the proposed regulations “in order to seek public input on the development of offence levels for drug-impaired driving,” but Lee calls it a formality and doubts any substantive changes will come from it. Despite vocal opposition, this government is “so resistant from backing down from its position.”

If the bill becomes law, it would also “permit a peace officer to demand a blood sample from a driver if they had reasonable grounds to believe that a driver was committing a drug-impaired driving offence.”

Lee says this is incredibly invasive and has the potential to be mishandled and abused by police.

“It’s ripe for a constitutional challenge not only on the personal privacy but also the personal safety,” she says.

She points to officers in the United States who are the ones that engage in the blood collection and says there have been “some very shocking cases — even in the last two years when it should be considered unacceptable — where people are forcibly held down” and their blood is extracted.

She predicts complaints against police, justified and unjustified, by people who think their blood was taken from them in wrong circumstances, not to mention sample reliability issues and safety concerns for all involved.

“How many times are you going to prick a person in the back of a police car with a needle to try and get their blood before you actually find the vein? It’s hard enough in the lab . . . and now you’re going to have people with no medical training doing this in the back of a police car in the dark with somebody who is arguably impaired.”

What if an officer is pricked with a used needle during an altercation?

“We could end up with the spread of IV drug-related diseases to police,” she says. “I don’t think anybody thought this through from a practical policing perspective.”