One toke over the line
Two-thirds of Manitobans don’t want to share road with marijuana users, support zero tolerance: poll
ORE than two-thirds of adult Manitobans favour an uncompromising approach to policing marijuana-impaired driving, at least until an accurate roadside test becomes available, a Probe Research poll conducted for the Winnipeg Free Press reveals.
That finding shows “a really solid feeling that there ought to be zero tolerance for people that are driving while they’ve used pot,” Probe senior researcher Mary Agnes Welch said.
“I think this number is driven by an abundance of caution on the part of most Manitobans, and I think that’s not unreasonable, given how new this is.”
Legal recreational cannabis will certainly be new, but drug-impaired driving isn’t — and it is a criminal offence in Canada.
But unlike breathalyzers that can quickly test drivers’ blood-alcohol levels at a roadside stop, there is currently no government-approved device to test for cannabis impairment.
Under current laws, a police officer who suspects a driver is under the influence of drugs could conduct an initial field sobriety test, then detain the driver for examination by an officer qualified to perform a so-called Drug Recognition Evaluation. The results of that evaluation, paired with a drugpositive urine sample, could be used as evidence of a crime.
The federal government is overhauling that approach in light of the pending legalization of cannabis later this year. Bill C-46 was passed by the House of Commons last October, and is currently under Senate review.
The new law will allow police to use roadside saliva tests to confirm the presence of cannabis, establishing reasonable suspicion of drug-impaired driving. Then, police could demand a sample of the driver’s blood to test for specific levels of THC, the chemical compound that’s responsible for marijuana’s high.
Linking certain levels of THC in the blood to impairment, however, is where Bill C-46 runs into trouble.
Blood-alcohol limits for drivers are backed up by decades of research that show a clear link between certain levels of alcohol in the blood and a degree of impairment that makes it dangerous to drive — hence the federal criminal offence for driving with a blood-alcohol content greater than 80 milligrams of alcohol per 100 millilitres of blood (.08).
But researchers have yet to agree on a specific level of blood-THC content
Mat which a person is objectively too impaired to drive safely, a fact highlighted by a 2017 report by the drugs and driving committee of the Canadian Society of Forensic Sciences. Setting legal limits on blood-THC concentration, that report said, “does not mean that all drivers below that concentration are not impaired and all drivers above that concentration are impaired.”
Regardless, proposed regulations under Bill C-46 will do exactly that, establishing specific legal boundaries on blood-THC content.
A driver with two to five nanograms of THC in one millilitre of blood within two hours of driving could face fines; a nanogram is one-billionth of a gram. Drivers with five or more nanograms of THC, or mixed levels of alcohol and THC, could face stricter penalties ranging from fines all the way up to 10 years in prison. Courts could also impose driving prohibitions.
“These new measures reflect a precautionary approach intended to discourage people from endangering themselves and others by operating a motor vehicle after consuming cannabis or any other impairing drug,” federal Public Safety Minister Ralph Goodale said in February.
Because trace amounts of THC can remain in the human body long after its psychoactive effects wear off, however, critics say C-46 risks criminalizing regular cannabis users who get behind the wheel, even if they’re not impaired.
Advocacy group Canadians for Fair Access to Medical Marijuana is “extremely concerned” about the impact of the bill on medical cannabis users, president and CEO James O’Hara said. Those people could easily exceed the proposed blood-THC limits long after having used the drug, he said.
“One of the key reasons you can exceed the limit after a good amount of time has passed is that THC is fatsoluble and it’s released into the bloodstream over time,” he said. “There’s also no way for patients to test themselves to know if they exceed that limit, and there’s a general lack of science correlating levels of THC to actual impairment in medical users.”
There were 6,650 legally registered users of medical cannabis in Manitoba at the end of 2017, Health Canada says. •••
For the two-thirds of Manitobans who back a zero-tolerance approach to marijuana-impaired driving, the provincial government’s proposed Bill 26 could be just the ticket. The law adds a series of strict sanctions to the criminal penalties proposed in Bill C-46.
Some of those sanctions could even apply to Manitobans who haven’t been convicted of a crime.
Under Bill 26, Manitoba drivers who fail an initial roadside saliva test — which would show the presence of cannabis, but not impairment — could face immediate roadside suspension of their driver’s licence ranging from three to 60 days. Drivers with two or more such suspensions in a three-year period would be forced to undergo an Addictions Foundation of Manitoba assessment and complete any ordered interventions.
Manitoba drivers convicted under federal law of driving with a blood-THC content of two to five nanograms per millilitre of blood (the less serious federal offence) would also have their licences suspended for six months, and repeat offenders would face longer suspensions.
Manitobans accused of the more serious Criminal Code offences (more than five nanograms of THC or mixed levels of alcohol and THC) could have their licences suspended for three months before being convicted, and their vehicles temporarily impounded. If convicted, they would have their licences suspended for a period starting at one year and escalating to life for repeat offenders. After the suspension ends, they would also require vehicle ignition interlocks.
Bill 26 is meant to bring existing provincial sanctions for alcohol- and drug-impaired driving into line with the upcoming federal law, a government spokesman said.
The “suspend first, ask questions later” approach does not sit well with some members of Winnipeg’s legal community.
“What we have is people starting to get penalized even though they’re not committing a crime,” defence lawyer Michael Dyck said, referring to the provincial sanctions.
“The biggest concern I have is — probably for most people that are going to be consuming marijuana recreationally — even if they consume marijuana, they feel the effects have passed, they feel that they’re back to normal, so to speak, if they still test positive for THC on these (roadside saliva tests) at that point, they’re going to start to lose their driver’s licences even though they’re not posing a risk to the public, they’re not posing a driver-safety risk, and they’re still going to have these consequences where they can’t drive for the period of time they get suspended for.” •••
Manitoba Justice Minister Heather Stefanson said the province asked Ottawa “to hold off on the legalization of cannabis until they have a reliable oral testing device in place.”
“Right now our government does have concerns about those roadside testing devices and whether or not they will be ready,” she said in a statement. “We believe it’s imperative that these devices are in the hands of officers that need them so they’re able to properly enforce rules against drug-impaired driving and protect Manitobans on our roads. In the interim, our government is taking action right now to keep Manitobans safe from drug-impaired driving.”
The Probe Research/Free Press poll results are a strong indication of widespread public approval for the province’s stance, as did an online Probe Research/CTV Winnipeg poll last summer that suggested one-half of Manitoba’s adults don’t think “driving while under the influence of alcohol is worse than driving while under the influence of marijuana.”
Thirty-four per cent of respondents to that poll said alcohol-impaired driving was worse than marijuana-impaired driving, and 16 per cent were unsure.
Welch said she was surprised by that result, speculating that it might have something to do with the familiarity of alcohol for many Manitobans, compared to cannabis.
“There’s all these stereotypes that would make you think that (cannabis-impaired driving) wouldn’t be quite as bad as being a drunk driver — but that is not how people feel, and I think again, that is part of the newness of this,” she said.
“People kind of know what it’s like to drive drunk; we’ve talked about this for generations. We don’t have the same innate understanding of what driving under the influence of cannabis actually does to your reflexes.”
Bill C-46 will allow law enforcement to use saliva swab devices, similar to ones used in California, to test for levels of THC in persons suspected of drug impairment.
Results from a drug testing device.