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Abstract
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Issues
As part of its initiative to strengthen the criminal law approach to drug-impaired driving in advance of the legalization and regulation of cannabis, the Government has proposed new criminal offences in Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts. These offences would prohibit individuals from having certain levels of impairing drugs in their blood within two hours of driving. As proposed in Bill C-46, the drugs to be included under these offences as well as their prohibited levels would be established in regulations adopted by the Governor in Council. The Government is publishing the draft regulatory text in Annex A in order to seek public input on the development of offence levels for drug-impaired driving.
Background
The Criminal Code currently prohibits driving while impaired by a drug or alcohol or a combination of both (the impaired driving offence). This offence requires proof of impairment but does not require evidence of the level of drugs or alcohol in the body. The Criminal Code also currently includes a blood alcohol concentration (BAC) offence for alcohol that specifically prohibits driving with a BAC that is more than 80 milligrams (mg) of alcohol per 100 millilitres (ml) of blood (the "over 80" offence). This offence does not require proof of impairment, rather the offence requires proof that an individual had a BAC over 80. There is currently no similar offence for other drugs.
Bill C-46 proposes to create three new criminal driving offences of being at or over a blood drug concentration (BDC) level within two hours of driving: (1) a summary conviction offence for low drug levels; (2) a hybrid offence (see footnote 1) for higher/impairing drug levels; and (3) a hybrid offence for a combination of low BAC and low BDC. 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. This is in contrast to the legal drug offence levels for the hybrid offences, which are based on two principles: the BDC levels that are expected to cause some driving impairment; and the fact that these are illicit drugs which are commonly found in drivers and have impairing effects. In addition to motor vehicles, the offences would also apply to the operation of vessels (boats), aircraft and railway equipment.
The penalties for the proposed hybrid offences would mirror the penalties for the current hybrid offences for alcohol-impaired driving. They would be punishable by mandatory penalties of $1,000 for a first offence with escalating penalties for repeat offenders (e.g. 30 days' imprisonment on a second offence and 120 days on a third or subsequent offence). The penalty for the separate summary conviction offence for a low BDC would be punishable by a maximum fine of $1,000.
Objectives
The BDC levels set out in the draft regulatory text in Annex A would give effect to the proposed new criminal driving offences in Bill C-46, and are intended to make it easier to prosecute drug-impaired drivers and to send a clear message to the public about the dangers of using impairing drugs while driving.
Description
As set out in Annex A, the proposed regulatory text would establish BDC offence levels, within two hours of driving, for THC, THC in combination with alcohol, cocaine, gammahydroxybutyrate (GHB), methamphetamine, lysergic acid diethylamide (LSD), psilocin/psilocybin (magic mushrooms), phencyclidine (PCP), 6-monoacetylmorphine (6-MAM), (see footnote 2) and ketamine.
With respect to LSD, psilocin/psilocybin, PCP, 6-MAM, ketamine, cocaine and methamphetamine, it is proposed that any level of these drugs, detectable in blood within two hours of driving, be prohibited under the new hybrid criminal offence. It is anticipated that the three government laboratory systems [one federal (RCMP), one in Ontario, and one in Quebec] will determine the detectable level at which the laboratory has the ability to measure the presence of the particular drug. With respect to THC and GHB, specific blood concentrations are proposed as the BDC offence level.
In particular, the BDC offence level for THC under the proposed hybrid offence would be set at ≥5 nanograms (ng) per millilitre of blood. For the proposed summary conviction offence, a BDC level of ≥2 ng and <5 ng/ml of THC would be established. In addition, the BDC level for THC and alcohol in combination would be set at ≥2.5 ng/ml and ≥50 mg/ml, respectively. Given the unique properties of THC, in lieu of making a recommendation, the Drugs and Driving Committee (DDC) outlined the pros and cons of two different THC levels. It indicated that 2 ng of THC per millilitre of blood would reflect a public safety/crime prevention approach, whereas a 5 ng level of THC could be associated with some impairment.
It should be noted that THC is a more complex molecule than alcohol and the science 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. In this context, the safest approach for anyone who chooses to consume cannabis is to not mix their consumption with driving.
The proposed "any detectable BDC level" for LSD, magic mushrooms, PCP, 6-MAM, and ketamine corresponds with the recommendations of the DDC, which indicated that any presence of these drugs in the body is inconsistent with safe driving.
The proposed BDC levels for GHB, cocaine, and methamphetamine are lower than those recommended by the DDC. For these drugs, the DDC based their recommended BDC levels on the levels of the drugs that would have a negative impact on driving skills (rather than recommending a BDC of "any detectable level"). The proposed lower BDC levels for these drugs set out in Annex A ("any detectable level" for cocaine and methamphetamine, and 5 mg/L for GHB) would reflect the Government's position that these are impairing illicit drugs and drivers should not consume them and drive. The proposed BDC level for GHB reflects the fact that GHB can be produced naturally by the body and, as such, a BDC of "any detectable level" would not be appropriate for this drug...
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