As legislators from all levels of government prepare for the coming of new laws that legalize the recreational use of marijuana, the Alberta Government proposed new legislation to bolster impaired driving laws.
The Government of Canada is moving towards legalizing the use of non-medical use of cannabis and is making changes to impaired driving laws in the criminal code. This announcement from the provincial government proposed to update the Traffic Safety Act to reflect these changes and align these with those in place for alcohol-impaired drivers.
This means zero tolerance for holders of a graduated driver’s license, expanded administrative sanctions for drivers with a blood drug concentrations and blood drug alcohol concentrations over the criminal limits proposed by the federal government. It also includes 90 days fixed term license suspension for drivers found over the criminal limits, followed by the option to participate in the one-year ignition lock program to have their license reinstated. The latter is in response to previous legislation overturned by the Alberta court of appeal.
Local criminal defense lawyer Hugh Sommerville says the changes bring the provincial and federal regulation inline. He is interested in how these changes will bear out in court.
Under the new law, the legal limit for THC ( the active component in Cannabis ) in the body will be 5 nanograms per milliliter of blood. There is also a new hybrid charge.
“If you have a blood alcohol concentration of 50 milligrams per 100 milliliters of blood, and 2.5 nanograms of THC, you fall into the impaired category,” he said. “It used to be really hard to deal with because if you were under the influence on the alcohol, they didn’t know how to deal with the THC unless they could prove you were impaired, whereas now they actually have a legal limit.”
One question he has was what five nanograms mean. “I don’t know how stoned that is,” he said.
“Most people don’t know what five nanograms are. With a .08 alcohol, most people know ‘I can drink this many beer’ and have some sense of it.” He believes there will need to be education.
“With alcohol, we are all pretty clear… there will have to be a lot of education and a lot of trial and error, meaning convictions by people who didn’t think they were stoned, to figure out what this means.”
He is curious about the direction that the province will take in regards to prosecuting, using administrative sanctions or criminal charges.
“In B.C., if you blow .120, they don’t even charge you criminally, they deal with you administratively. They pull your license for a couple months and get you in an interlock.
They don’t even charge with a criminal impaired. Whereas in Alberta we are losing important cases due to the court being backed up dealing with impaired driving charges,” he said.
There will be even more changes coming that will add another level of uncertainty.
Somerville says there are plans to amend the Criminal Code.
“The federal bill is in two parts. The first part simply allows them to charge based on THC with the existing legislation, the federal bill also has a second part, which, when passed, after six months completely reworks whole sections of the Criminal Code from scratch,” said Sommerville.
“The idea is they think this will be simpler and involve less technical defenses… There is a reason why the Martin’s Criminal Code has multiple pages of cases of impaired driving because these sections of the law have been argued over strenuously for many years so everybody knows what he means. When you reword everything, you start from scratch. I expect it is going to cause huge litigation over what the new sections really mean.”
It is going to take a while for this to play out,” he said.