Bill C-46, which decriminalized marijuana possession October 17, 2018, creates three entirely new criminal offences that establish per se limits for Blood Drug Concentration (BDC). Like blood alcohol ‘over 80’, offences ‘over BDC’ now exist….

For marijuana (tetrahydrocannabinol -THC) the proposed regulation refers to three different BDC levels.

If the offence is (a) – equal to or exceeds 5 ng of THC in 100 ml of blood, this is akin to the ‘over 80’ offence in that it is a hybrid offence attracting the same type of minimum penalties and driving prohibition.

If the offence is (b) – a BDC equal to or exceeding 2 ng of THC but less than 5 ng of THC in 100 ml of blood – this offence is a straight summary conviction offence, attracting a maximum fine of $1000 and a discretionary driving prohibition.

If the offence is (c) – a combination of alcohol and THC whereby the BAC is equal or exceeds 50 mg of alcohol in 100 ml of blood and the BDC is equal to or exceeds 2.5 ng of THC in 100 ml of blood, this is a hybrid offence attracting the same penalties as (a).

​The Regulations currently indicate that the per se limit for LSD, Cocaine, Psilocybin, Ketamine, Methamphetamine and other illicit drugs are ‘any detectable level in blood’. However, for the date-rape drug GHB, the level of prosecution is 5 mg of GHB in 100 millilitres of blood.

Akin to the traditional approved screening device demands (ASD) that officers have employed for years during RIDE programs when they demand a roadside breath sample, the Criminal Code now authorizes a roadside demand to provide a saliva sample into recently approved drug screening equipment (“ADSE”).

The only difference between the power to make the respective demands is that “reasonable grounds to suspect” will always be required to justify a demand for ADSE testing, whereas, with respect to an ASD demand an officer can make that without any grounds if he has the device with him.

If a peace officer has “reasonable grounds” to believe that a person has operated a vehicle while their ability to operate is impaired to any degree by a drug or by a combination of alcohol and a drug, he may, by demand, made “as soon as practicable”, require the person to:

to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person’s ability to operate a vehicle is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose

If on completion of the evaluation, the evaluating officer has reasonable grounds to believe that one or more of the types of drugs set out in the legislation (depressant, inhalant, a dissociative anesthetic, cannabis, stimulant, hallucinogen; or a narcotic analgesic) or that a combination of alcohol and one or more of those types of drugs is impairing the person’s ability to operate a vehicle, the evaluating officer shall identify the type or types of drugs in question and may, by demand made as soon as practicable, require the person to provide, as soon as practicable,

(a) a sample of oral fluid or urine that, in the evaluating officer’s opinion, is necessary to enable a proper analysis to be made to ascertain the presence in the person’s body of one or more of the specified types of drugs, or

(b) samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to enable a proper analysis to be made to ascertain the presence in the person`s body of one or more of the specified types of drugs to determine the person`s blood drug concentration for one or more of those types of drugs.

A sample of blood may be taken from a person under this section only by a qualified medical practitioner or a qualified technician, and only if they are satisfied that taking the sample would not endanger the person`s heath.

These recent amendments to Canada’s impaired laws are controversial and in a previously published article I have expressed several concerns as to their constitutionality – One Toke Over the Line in “News” [link]