Canadian Legal Expert Calls Cannabis Breathalyzers “Flawed Approach” to Legalization

Canadian Legal Expert Calls Cannabis Breathalyzers “Flawed Approach” to Legalization

This story was originally published in Straight Cannabis.

Changes to impaired-driving laws in preparation for cannabis legalization are not only proving flawed but are threatening the charter rights of all drivers on the road, even those who have never consumed pot.

Since amendments to Bill C-46 passed in June–adding more cannabis-specific laws to the Impaired Driving Act–Canadian motorists have mainly focused on what tools police will use to detect drug intoxication.

The Justice Department announced that it plans to introduce a roadside saliva test to detect cannabis-impaired driving. With a few swipes of an oral-fluid collection tip above a driver’s tongue and lips, police officers will have the ability to instantly identify traces of tetrahydrocannabinol (THC)–the primary psychoactive chemical found in cannabis–ingested within the past six hours.

Last month, Justice Minister Jody Wilson-Raybould announced a 30-day notice of a ministerial order to approve the German-made Dräger DrugTest 5000, a portable substance-detection device that looks like a small Keurig coffee machine for spit. Instead of a coffee, this machine will brew up a nice hot cup of reasonable grounds for an officer to move to a blood test or expert drug evaluation.

Drivers could then face a criminal conviction if found with as little as two nanograms of THC in their system, based on the recently set limits.

Sarah Leamon, a Vancouver attorney specializing in cannabis law, said these devices are on par with a faulty approach to cannabis legalization. “It’s a huge problem to treat cannabis impairment the same manner under the criminal law that we deal with alcohol impairment,” she told the Georgia Straight by telephone.

“The bottom line is that all these devices don’t have any reflection on the level of impairment at all when it comes to the subject of the test,” Leamon said, adding that, unlike alcohol, the way cannabis affects each consumer is highly individualistic.

Under the Criminal Code, 80 milligrams of alcohol per 100 milliliters of blood, or 0.08 percent, is deemed legal intoxication. Leamon said that, barring a few variables like weight, this is accurate for most alcohol users but the same approach can’t be applied when it comes to cannabinoids.

It’s not metabolized through the body in a consistent rate and there is really no formula for us to ascertain how it moves through each body,” she said.

Based on factors such as a strain’s cannabinoid concentration and intake method, impairment levels vary drastically from person to person. Cannabinoids can be detectable in frequent consumers, including those who rely on cannabis to treat medical conditions, weeks after their final use.

Leamon said drivers also have to be aware of amendments that effectively change the way alcohol is going to be policed in the roadside. Currently, as an example, if an officer has reasonable grounds to suspect a driver has consumed alcohol, they can make a breathalyzer demand. Bill C-46 will eliminate that.

“Now it’s going to be arbitrary mandatory breath-testing in the roadside.

With medication saliva tests, but the officer must have a reasonable suspicion before proceeding.

Leamon said she expects this to be one of several constitutional challenges come October, such as those stemming from a lack of information linking cannabis to impairment–an area to which Ottawa has allocated $1 million for future study.

Regardless of the recent changes, Leamon said she believes that enforcing criminal penalties isn’t necessarily the most effective means to produce safe-driving practices.

“Instead of passing all these laws that are potentially flawed and contrary to the charter, what they [the authorities ] ought to be doing is investing in a strong public education campaign. People today need to understand how to correctly use cannabis in a responsible and secure manner in relation to their motor vehicles,” she said.

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