Backgrounder for former Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, as enacted

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Part 1 – Strengthening Drug-Impaired Driving in the Criminal Code

1. Preamble

The Preamble sets out nine considerations that motivate the reforms, including that:

• dangerous and impaired driving injure or kill thousands of people in Canada every year;
• dangerous and impaired driving are unacceptable at all times and in all circumstances;
• it is important to deter persons from driving while impaired by alcohol or drugs;
• it is important to give law enforcement better tools to detect impaired drivers;
• it is important to simplify the law relating to proving BAC;
• it is important to deter persons from consuming alcohol or drugs after driving in circumstances where they have a reasonable expectation they will be required to provide a breath or blood sample;
• it is important to protect the public from those who consume large amounts of alcohol before driving;
• it is important that federal and provincial laws work together to promote safety; and
• the Parliament of Canada is committed to adopting a precautionary approach in relation to driving and the consumption of drugs.

The Preamble is intended to be read as part of the Bill and to assist in explaining its purpose and objectives, but it does not form part of the consolidated Criminal Code.^{Footnote 3}

2. Offences

Three new offences have been enacted. These offences prohibit having a blood drug concentration (BDC) at or above a prescribed limit for that drug within two hours of driving. Two of the new offences are hybrid offences, and one is a straight summary conviction offence.

The two-hour timeframe guards against the conduct of consuming impairing drugs immediately before or after driving in order to frustrate the testing process.

The Act authorizes the Governor in Council to set the BDC limits by regulation. This approach is consistent with the approach used in other jurisdictions, including the United Kingdom (UK). It allows for a more flexible and prompt response to the evolving science with respect to drug impairment than having to amend the Criminal Code whenever a change is proposed (e.g., to add a prohibited level for a new drug, or amend an existing prohibited level). The current BDC levels have been set based, in part, on the advice of the Drugs and Driving Committee (DDC) of the Canadian Society of Forensic Science (CSFS).^{Footnote 4}

The jurisprudence relating to the elements of the “over 80” offence is relevant in interpreting these new offences, with any necessary modification to reflect the context of drugs.

2.1. Having a Prohibited BDC within Two Hours of Driving (paragraph 253(3)(a))

The prohibited drugs levels have been set by regulation as follows:

The DDC did not specifically make a recommendation with respect to tetrahydrocannabinol (THC). Rather it outlined the pros and cons of two different BDC levels that have been used recently in other jurisdictions. The regulation adopts the 5 nanograms (ng)/millilitre (mL) concentration as it is a level that is associated with recent consumption, and therefore some impairment can be expected to be found at or above that level in the blood.

The levels for Lysergic acid diethylamide (LSD), Psilocybin, Psilocin, Phencyclidine (PCP), 6-Monoacetylmorphine, and Ketamine were recommended by the DDC to be set at “any detectable level”. This reflects the evidence that any level of these drugs in the body is incompatible with safe driving.

The levels for Gamma hydroxybutyrate (GHB), cocaine, and methamphetamine are lower than those levels that were recommended by the DDC. These are illicit and impairing drugs and it is not in the interest of public safety for drivers to have these drugs in their body when they are driving. The level for GHB takes into consideration that the human body can naturally produce GHB at low levels.

Several jurisdictions have established BDC levels while driving, including the United Kingdom (UK) that has limits for 16 drugs, and Norway that has limits for 20 drugs. Both of these countries have set prohibited levels for THC. The new approach to drug-impaired driving is also consistent with that of other international jurisdictions that have enacted BDC levels for THC and other drugs. In Colorado, the legal limit of 5 ng THC/mL of blood leads to a permissible inference of impairment, whereas in Washington, 5 ng THC/mL of blood is sufficient on its own for a conviction. As indicated, the UK prohibits driving with 2 ng THC or more/mLof blood and Australia prohibits driving with any THC in the body, (proven through oral fluid), although cannabis remains prohibited in both jurisdictions. Norway has graduated sanctions starting at 1.3 ng/mL blood. It should be noted that the UK government prohibited BDCs for many drugs at lower concentrations than those which were recommended by their expert scientific expert panel (The Wolff Report, 2013). For example, the UK expert panel recommended 5 ng THC/mL and the UK Government enacted a 2 ng THC/mL level.^{Footnote 5}

Aggravated offences of having a prohibited BDC causing bodily harm and death have also been created (subsections 255(2.1) and (3.1)).

2.2. Having a Prohibited BDC that is Lower than the BDC set under paragraph 253(3)(a) (paragraph 253(3)(b))

Paragraph 253(3)(b) sets out a straight summary conviction offence for having between 2 and 5 ng THC/ mL of blood. There are no aggravating offences of being over the prohibited level in situations involving bodily harm or death. At this time, only THC is the subject of a prohibited BDC level for this offence.

The level of THC in this offence is based on a number of considerations, but primarily on a precautionary approach. It recognizes that THC is an impairing drug but that setting BDC limits for THC is more complex than for alcohol. It is also based on the understanding that it is not possible to simply overlay the criminal approach to alcohol-impaired driving on the drug-impaired driving regime.

Practitioners should be aware that there is strong evidence of an increasing trend of drug-impaired driving in Canada^{Footnote 6}, and the risk of a further increase following the legalization and regulation of cannabis. The legislative approach with respect to low levels of THC reflects the fact that the scientific literature is unable to provide definitive guidance with respect to what level of THC, if any, can be considered safe, and therefore Parliament has considered that the best approach at this time is to take a precautionary approach and to set a low limit.

2.3. Having a Prohibited BAC and BDC in Combination Within Two Hours of Driving (paragraph 253(3)(c))

Paragraph 253(3)(c) sets out a hybrid offence of operating a conveyance with a combined BAC and BDC that is equal to or exceeds the limit prescribed by regulation for the combination of alcohol with that drug.

This offence recognizes that, although individuals may have a BAC or BDC that does not reach the prohibited hybrid offence level for each substance on their own, when the substances are combined – even at low levels – the impairing effects are magnified. At present, the regulation only sets levels for a combination of alcohol and THC. Alcohol and THC are often found in combination in drivers and the impairing effect of this combination is more impairing than either substance alone.

2.4. Limiting the Intervening Drug Defence and the “Innocent” Intervening Exception (subsection 253(4))

The legislation enacts an “innocent intervening drug” defence to avoid criminalizing individuals who consume the impairing drugs after driving, but before blood testing in “innocent” situations. It would be a defence to the charge if the following conditions are met:

• The person consumed a drug after ceasing to operate the conveyance; and
• The person had no reasonable expectation that they would be required to provide a sample of blood.

Unlike the criteria for the “innocent intervening drink” defence (which comes into force in Part 2 of the Act), the criteria for the drug legal limit exception does not require a third condition of requiring a BDC consistent with being under the limit at the time of driving. This is because, unlike alcohol, it is not possible to determine at what rate drugs are absorbed and eliminated from the body. As such, a driver who has consumed drugs would not be able to establish that the level of drugs in their blood was consistent with their consumption and with being under the prohibited BDC at the time of driving.

This limitation placed upon an “intervening drug” defence signifies the Government’s determination to deter drivers from consuming drugs in situations where they should reasonably expect to provide a blood sample. There is nothing in the legislation that shifts the burden of proving this defence to the accused. Where there is an air of reality to a claim that such innocent conduct has occurred, the Crown would then have the burden of disproving the “intervening drug” defence.

As noted in the Charter statement, “bolus drinking” and post-driving consumption that may obstruct the investigation of an over 80 BAC offence are both categories of reckless, morally culpable conduct. The same applies to bolus consumption of drugs or consuming drugs after driving where the person reasonably expects that there may be a demand for a blood sample to prove the BDC offence. Prohibiting this conduct serves the Government’s objective of combatting impaired driving and is a consideration to support the consistency of these provisions with the Charter.^{Footnote 7}

2.5. Scientific Foundation (Offences)

Detecting and proving impairment caused by drugs is different and more complex than detecting and proving impairment caused by alcohol. Alcohol is an exceedingly simple molecule with predictable impairing effects. Essentially, as alcohol is consumed, the BAC rises; the higher the BAC, the more profound the impairment and the greater the risk of a fatal accident. The same correlation does not exist for drugs, which have various impairing effects and impacts on driving behaviour. Alcohol is unique in its simplicity, and as such it is difficult to draw direct parallels between the criminal law approach to alcohol-impaired driving and drug-impaired driving. It is also unrealistic to expect that the tools used to investigate drug-impaired driving will operate in the same way as those available for alcohol where there is a known correlation between breath alcohol concentration and BAC.

It was recognized several times during Parliamentary consideration of this legislation that the science with respect to drugs is more complex than it is for alcohol. However, as the former Minister of Justice and Attorney General of Canada stated in her remarks before the Senate Standing Committee on Legal and Constitutional Affairs, “[it] would not be prudent to delay this initiative, in my view, in the hopes that science will provide different or new conclusions. We will continue to invest in and monitor scientific developments in this area and will be responsive to any changes.”^{Footnote 8}

There is no dispute that THC can impair the ability to drive. However, the relationship between the concentration of THC in the blood and degree of impairment is more complex than with alcohol. If cannabis is smoked, the THC level in the blood rapidly rises and then declines quickly as the THC redistributes to the fatty tissues (sometimes before smoking is finished). As the THC level drops, impairment can persist such that a person can be significantly impaired even though they have a low level of THC in their blood. If cannabis is ingested (e.g., as an edible food product), the level of THC increases and declines more slowly than if it is smoked. Further, in chronic or regular users (including medical users), detectable levels of THC can persist in the blood (often called a “body burden”) long after the impairing effects have worn off.

The Government receives scientific advice on alcohol and drug-impaired driving from two volunteer sub-committees of the CSFS: the Alcohol Test Committee (ATC) and the DDC. The DDC has produced a number of publicly available documents on drug-impaired driving. These include:

• The final report on Drug Per Se limits outlining considerations and recommendations for enacting criminal offences for driving over a prohibited BDC^{Footnote 9};
• The Standards and Evaluation Procedures for oral fluid drug screening equipment which sets the requirements that drug screening equipment must meet before it can be recommended for use^{Footnote 10}; and,
• Report on Drug Screening Equipment – Oral Fluid which provides general information about oral fluid drug screening equipment.^{Footnote 11}

2.5.1. Blood Drug Concentration Offences

The BDC offence levels (commonly known as “per se” offences), including those for THC, are based, in part, on the report of the DDC. It should be noted that the DDC did not make a recommendation for THC levels; rather, they outlined the pros and cons of two possible approaches (2 ng THC/mL and 5 ng THC/mL), taking into consideration the scientific literature. The levels also take into account the approach taken in other jurisdictions, including in particular the jurisdictions where cannabis has been legalized. With respect to THC, the DDC report on Drug Per Se limits^{Footnote 12} indicates the following:

• THC impairs the ability to operate a motor vehicle; however, establishing a BDC level does not imply that all drivers below this limit are not impaired and that all drivers above this limit are impaired;
• Unlike alcohol, the effects of THC do not correlate well with THC blood concentrations;
• Impairment due to THC is related to the amount, route of administration, the time elapsed since use, and the inter-individual variability;
• THC is the most frequently encountered drug in Canadian drivers, after alcohol, and the two are often detected in combination in drivers; and,
• The 5 ng THC/mL BDC limit is based upon impairment considerations as this level of THC can be expected to be associated with recent use, while the 2 ng THC/mL BDC limit is based upon public safety considerations, although drivers may be impaired at this low level as well.

During her February 14, 2018 appearance before the Senate Standing Committee on Legal and Constitutional Affairs, the Chair of the DDC, Dr. Amy Peaire, testified that given the wide variety of drugs that can impair individuals in different ways, “we must be careful not to try to oversimplify drug-impaired driving by expecting it to be directly analogous to alcohol-impaired driving, or by considering all drugs as a single category”. Dr. Peaire also testified that while the link between THC blood concentrations and impairment is not straightforward, the largest link is “between the presence of THC in the body and impairment”. She further indicated that higher concentrations of THC are generally linked to more recent use and the more recently cannabis has been used, the more likely the individual is to be impaired.^{Footnote 13}

3. Investigative Matters

3.1. Approved Drug Screening Equipment / Oral Fluid Drug Screeners (subsection 254(2))

Subsection 254(2) authorizes an officer who has a reasonable suspicion that the driver has drugs in their body, to demand a standardized field sobriety test (SFST) test and/or a test on an ADSE. At this time, ADSE is limited to oral fluid drug screeners, but the legislation has been worded more broadly so that, as other technology becomes available, new equipment could be approved by the Attorney General of Canada without requiring a legislative amendment.

Oral fluid drug screeners indicate the presence of drugs in the oral fluid of a subject. If the oral fluid screener provides a positive result for any of the drugs for which it is approved at the side of the road, it will, in combination with the observations of the officer that led to the ADSE demand, assist in developing reasonable grounds to believe that either a drug-impaired driving offence or a BDC offence has been committed which is the standard that must be met before an officer may demand either a drug recognition evaluation (DRE) or a blood sample or both.

Although drug screening technology may have a weaker link to BDC than alcohol screening has to BAC, the link is nevertheless strong enough to support the use of this technology in assisting police officers to determine whether there are grounds to make a demand for DRE and/or a blood sample.

The Oral Fluid Standards and Evaluation Procedures^{Footnote 14} developed by the DDC have set the drug screening cut-off levels at: 25 ng of THC/mL of oral fluid; 50 ng of cocaine/mL of oral fluid; and 50 ng of methamphetamine/mL of oral fluid. As an oral fluid drug screener only indicates presence at these levels, the person could have concentrations in oral fluid well above them. These levels are intended to maximize the likelihood that the drugs found are the result of recent consumption, and therefore that the drugs will be found in the blood above the prohibited levels.^{Footnote 15}

With respect to THC, the impairing effects of cannabis are closely linked to how recently the substance has been consumed. There is general scientific agreement that THC in the oral fluid is caused by contamination from recent smoking or consumption of a THC-infused edible. Therefore, if the ADSE indicates that a driver has THC in their oral fluid at the cut-off level of 25 ng, it is likely that that they have recently consumed cannabis, that there will be THC in their blood, and that the driver may be above the proscribed BDC.

The prohibited BDC levels for methamphetamine and cocaine are set at any detectable level. Therefore, it is highly probable that a positive screen on the oral fluid drug screener will result in a finding of those drugs in the blood.

Therefore, it is expected that the information that gives the officer reasonable suspicion that a driver has drugs in their body, combined with a positive result on the oral fluid drug screener, will assist in developing reasonable grounds to believe that a drug-impaired or a BDC offence has been committed, which will permit them to move the investigation forward, either to a blood sample or a DRE or both.

Like the approved screening devices (ASD) and the approved instruments (AI), which test for alcohol, the ADSEs will only be approved for use by the Attorney General of Canada by Ministerial Order, following a recommendation by the DDC that a particular screener meets their standards and is suitable for use by law enforcement.

The provisions do not preclude the administration of more than one of the roadside screening tests, in appropriate circumstances. As indicated in the Charter Statement, there are a number of considerations that support the consistency of this section with the Charter:

Like the roadside alcohol screeners that are used under the existing framework, a drug screener is an investigative tool used at the roadside solely to help an officer determine if reasonable grounds exist to believe that an offence has been committed. It would not be used to prove the offence at trial. Like a roadside alcohol screener, a drug screener is a quick, non-intrusive search method that reveals information in which individuals have a limited expectation of privacy given the highly regulated highway context. The provision would require that an officer, before demanding a sample, have a reasonable suspicion that the individual has a drug in his or her body. This reduces the potential for unnecessary administration of the tests. The use of non-intrusive drug screeners subject to the existing framework for the use of ASDs represents a reasonable interference with privacy interests in service of the important purpose of detecting drivers who have consumed drugs.^{Footnote 16}

3.1.1. International Experience

Oral fluid drug screeners are widely used in other jurisdictions, including in the UK and Australia.

In 2017, the UK released a study of the first year of its new drug driving framework, which contains similar measures (i.e., they prohibit driving with 2 ng of THC/mL of blood and authorize police officers to use drug screeners). In addition, the UK legislation provides that an officer can demand a blood sample if, based on the results of the oral fluid drug screener they have reasonable grounds to believe (called reasonable cause) that a driver has a drug in their body. Therefore, in practice, a positive result on the oral fluid drug screener leads directly to a blood sample. The study indicated that, in the first year following the implementation of this legislation, in 70% of the 4,292 cases where a blood sample was taken after a positive oral fluid screen, the blood sample was over the 2 ng THC/mL limit.^{Footnote 17} The detection threshold on the drug screeners in the UK is set at 10 ng THC/mL of oral fluid, which is lower than the 25 ng threshold required by the DDC.

3.1.2. Scientific Foundation (Drug Screeners)

The DDC has adopted and endorsed the conclusions of an assessment of oral fluid drug screeners published online in the Canadian Society of Forensic Science Journal in 2016. Based on this report, the DDC has advised that oral fluid drug screeners could be a valuable tool in the detection of driver drug use in Canada.^{Footnote 18}

They employ immunoassay-based technology to identify target drugs in oral fluid (immunoassay technology is widely used in home pregnancy tests). The drug screeners detect presence (essentially a “yes” or “no” answer) of select impairing drugs, including THC, in oral fluid. However, unlike the ASD for alcohol, oral fluid drug screeners are unable to provide direct evidence of the level of drugs in the blood, nor do they provide evidence that the driver is impaired.

Due to the nature of immunoassay-based technology, the new legislation does not provide that the result on an oral fluid drug screener can form the basis of a criminal charge. Instead, a positive result would only provide the police officer with information that is highly suggestive that the driver recently consumed cannabis. Most cannabis users would not be expected to test positive on an oral fluid drug screener four hours after cannabis use.

3.2. Demands for a Drug Recognition Evaluation (DRE) (paragraph 254(3.1)(a))

The law relating to a DRE is essentially unchanged, although there have been some modifications to clarify and strengthen the process.

Subsection 254(3.4) provides the power for an evaluating officer to demand a bodily sample if they have reasonable grounds to believe the person’s ability to operate a motor vehicle is impaired based on a DRE. Under the previous law, the reasonable grounds to believe that the person’s ability to operate a motor vehicle was impaired had to be developed “based on the evaluation”. The words “based on the evaluation” have been removed from subsection 254(3.4) to ensure that the evaluating officer can use all of their observations, not just those specifically related to the DRE steps, when determining whether or not they have grounds to demand a bodily sample. For example, if the person is constantly twitching, that may indicate they are under the influence of a stimulant, although it may not necessarily relate to any of the prescribed DRE steps.

There is also a new power (subsection 254(3.3)) for an evaluating officer to demand a breath sample by means of an AI if this demand has not already been made during the investigation. This change addresses a challenge encountered under the previous legislation where an AI demand could not be made if there had already been an ASD demand. For example, in some jurisdictions a “WARN” on an ASD indicates that the person has a BAC of 50 to 99 milligrams (mg)/100 mg of blood but the ASD result cannot be used in court to prove BAC. Where the evaluating officer believes that alcohol is a factor, it is essential that there be an AI analysis to prove the person’s BAC. Even a low BAC combined with another drug, particularly THC, can produce impairment.

3.3. Demands for Blood by Investigating Officer (paragraph 254(3.1)(b))

Under the previous law, only evaluating officers were authorized to demand a bodily sample (including a blood sample) following a DRE. Now, paragraph 254(3.1)(b) authorizes any police officer who has reasonable grounds to believe a drug-impaired driving offence or a BDC offence has occurred to demand a sample of blood instead of demanding a DRE.

This change will facilitate the timely collection of blood samples, which is the only way to prove a BDC offence. Since levels of a drug in the bloodstream can decline rapidly after consumption, particularly for smoked cannabis, obtaining a blood sample in a timely manner is critical to proving these offences. As soon as an officer has developed reasonable grounds to believe that an offence has been committed, the officer should demand and obtain a blood sample. The delays associated with the DRE process would make it impossible in many cases to obtain the blood sample within two hours of driving. Further, these delays cannot be compensated for by back calculating the rate at which the BDC declines, because, unlike alcohol, rates at which drugs are eliminated from the body vary widely and are based on a number of variables. These considerations were cited in the Charter statement as supporting the consistency with the Charter.^{Footnote 19}

3.4. Persons Qualified to take Blood Samples (paragraph 254(3.1)(b))

Under the previous law, only medical practitioners (i.e., medical doctors) or those operating under the direct supervision were permitted to draw blood pursuant to a police demand. As drawing blood in a timely manner is critical to preserving the evidence, in particular for the BDC offences, paragraph 254(3.1)(b) has been amended to permit a qualified blood technician to take blood in ordinary cases without requiring the supervision of a doctor. Qualified blood technicians are to be designated by the provincial attorneys general and are only authorized to take blood if they believe that there is no danger to the person’s health. Requiring the oversight of a doctor is a time-consuming process, which often involves transporting a suspected drug-impaired driver to a hospital.

4. Evidentiary Matters

4.1. Admissibility of Evaluating Officer’s Opinion (subsection 254(3.5))

The legislation has been clarified to ensure that the evidence of an evaluating officer conducting the DRE is admissible at trial, without first qualifying the evaluating officer as an expert. This clarification reflects the confidence that Parliament has in the specially trained evaluating officers. It also reflects the Supreme Court of Canada’s decision in R v Bingley,^{Footnote 20} which held that the opinion evidence of an evaluation officer is admissible without first qualifying them through an expert witness hearing.

4.2. Presumption in DRE Cases (subsection 254(3.6))

Currently, some courts are reluctant to make the link between the results on a toxicological sample in a DRE case and the observed impairment by the arresting officer. The law has been changed to enact a presumption in the DRE context to draw the inferential link between the presence of drugs identified by the DRE as causing impairment at the time of the evaluation and the impairment observed at the time of driving. Subsection 254(3.6) provides that, if an evaluating officer identifies a type of drug as being in the system of a person and causing impairment and a drug of that type is confirmed by testing the bodily sample in a laboratory, it is presumed that the drug was also present in the person’s body at the time when they were operating the conveyance and the drug caused the signs of impairment observed by the peace officer at the roadside.

The presumption can be rebutted by the accused if they raise a reasonable doubt, for example, by presenting evidence that the signs of impairment could have been caused by something other than the drug.

As indicated in the Charter Statement, there are a number of considerations that support consistency of this section with the Charter:

The presumption reflects a logical consequence of observed facts, namely that the observed impairment was caused by the drug identified by the officer and found in the sample. It does not release the Crown from the burden of proving impairment or proving the presence of a drug. It is also rebuttable, meaning that the accused still has the opportunity to raise a reasonable doubt. The presence of other causes of observed impairment is also information that is uniquely within the knowledge of the accused and can be used to rebut the presumption.^{Footnote 21}

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