Alberta’s impaired-driving enforcement is careening toward major logistical and court challenges over marijuana, a top Calgary defence lawyer said Wednesday.
Uncertainties over the effects of cannabis on individual motorists, the lack of roadside testing devices and constitutional vulnerabilities stemming from a court ruling earlier this year will undermine legal reforms, said Ian Savage, who specializes in impairment cases.
“There’ll be constitutional challenges to the criminal law,” said Savage, president of the Calgary-based Criminal Defence Lawyers’ Association.
Key to that, he said, is last May’s Alberta Court of Appeal’s Sahaluk decision, which struck down as a violation of charter rights indefinite driving suspensions for those suspected of being behind the wheel while impaired by alcohol.
“The province made a big mistake in not appealing the Sahaluk decision,” said Savage.
“It moves driving to be between a right and a privilege, and might have more charter protection compared to other privileges.”
On Tuesday, the province announced changes to impaired-driving legislation that would impose a maximum $1,000 fine for a blood test positive for two to five nanograms per millimetre of tetrahydrocannabinol (THC) and a minimum $1,000 fine for a fist-time conviction on a reading above five ng/mL.
But Savage said differences in individuals’ tolerance to cannabis and the fact its active ingredient, THC, is detected in the blood a month after it’s ingested suggest a legal minefield.
“Depending on tolerance and usage, individuals will be affected differently and there’s no uniform scientific acceptance on that . . . it’s arbitrary, the number of nanograms is meaningless,” he said.