Now that marijuana is legal in Canada, the likelihood of people driving high (or mpaired by marijuana) has risen. Unlike alcohol, however, there is no easy test to determine if someone is legally impaired by marijuana. The Federal Government has approved a device, the Drager DrugTest 5000, that tests saliva to determine the concentration of THC, but there has been concerns raised surrounding this machine to the point both the Ottawa Police Service [link: https://globalnews.ca/news/4441503/no-plans-roadside-device-saliva-pot-ottawa-police] and the RCMP [link: https://www.cbc.ca/news/canada/drug-impaired-driving-tests-1.4891163].
There are many questions on the minds of Canadians regarding the use of recreational cannabis and driving. How long do you have to wait after consumption to drive? How does cannabis impair your driving ability? Is cannabis treated the same way as alcohol?
As of October 17th 2018 there has been a massive overhaul to the marijuana laws in Canada. As adults we can now purchase, possess, and consume marijuana legally, subject to a number of restrictions. But like with any big change, you can expect some confusion, some modifications and some bumps in the road in the coming months as these new and massive changes to the law get interpreted, applied and then tested in courts all over the country. Because of the complexity and multi-faceted impact of marijuana legalization, a lot remains up in the air at this early stage. School policies, policing policies and administrative policies are all also undergoing massive reviews to reflect the significant changes that will need to be implemented in response to marijuana legalization.
In May 2018, the Ontario Court of Appeal in R v Vu, 2018 ONCA 436 has struck down mandatory minimum sentences (MMS) in relation to the productions of marijuana. Parliament had implemented a sliding scale of MMS for marijuana production offences. The MMS go from 6 months to 3 years imprisonment depending on the number of plants produced and whether there are statutory aggravating factors covered by section 7(3) of the Controlled Drug and Substances Act. The Court found that section 7(2)(b)(iii), (v), (vi) and 7(3)(c) are unconstitutional and violate section 12 of the Charter of Rights and Freedoms to be free of cruel and unusual punishment.
With the Government's announced intention to legalize the recreational use of marijuana there has been increased attention to the issue of impaired driving as a result of the consumption of a drug.
A recent Court of Appeal decision ruled that a man who ran a garden supply store utilized by various marijuana grow-ops. At trial he had been convicted for aiding and abetting the people with the grow-ops, as well as conspiring with them. The Court of Appeal dismissed the conspiracy charges, but also un-stayed the aiding and abetting charges and imposed the same sentence. While the end result is the same for the accused - 20 months incarceration - the Court's decision provides some guidance on the issue of to what degree of criminality can be attached to someone selling supplies to a grow-op.
There have been some serious amendments to drug offences in Canada in the last year, with substantial changes made to sentencing. Harper's conservative government brought in a series of mandatory minimum sentences, including for marijuana offences. While this change reflects the Conservative's "tough on crime" agenda, it is often increasing sentences beyond what would otherwise be an appropriate sentence. Since these new sentences are mandatory, the only way to avoid jail is to successfully defend the charge. This often means hiring competent and skilled counsel.