Thank you, Madam Speaker. I hear the groans of disappointment from my colleagues across the House.
Canada's New Democrats have long stood for effective measures to stop impaired driving, the leading cause of criminal death in Canada. We have always supported legislation and policies that give the police the tools they need to save lives by keeping drunk drivers off our streets. With one of the worst impaired driving records in the OECD, we need new evidence-based initiatives to stop impaired drivers in their tracks. Given that our impaired driving laws have historically been focused on alcohol consumption, there is a clear and pressing need to update the Criminal Code to prevent an increase in cannabis-impaired driving as recreational cannabis is legalized in the months and years ahead.
That is why Canada's New Democrats look forward to studying the legislation at committee, and working with experts and stakeholders of all types across Canada to help ensure the legalization of recreational cannabis, and indeed medicinal cannabis, will not lead to an increase in impaired driving. Ultimately, we will need a far more sophisticated regime to address cannabis-impaired driving than we currently apply to alcohol. That is because cannabinoids possess relatively unconventional pharmacokinetics, meaning the process by which a drug is absorbed, distributed, metabolized, and eliminated by the body, particularly compared to alcohol.
This poses a number of distinct enforcement issues. Unlike with alcohol, peak THC blood levels do not necessarily correspond with the subject's maximum levels of behavioural impairment. This phenomenon is defined as counter-clockwise hysteresis, meaning that the effects of the psychoactive substance lag behind observed maximal drug concentrations. This phenomenon is contrary to the pharmacokinetic profile of alcohol, whereby peak blood alcohol levels positively correspond with the subject's peak level of drug impaired performance.
Also unlike alcohol, cannabis has a variety of medicinal applications and can be authorized for use by physicians in Canada. That is the case presently. At the end of 2016, there were some 130,000 Canadian patients authorized and prescribed to use medicinal cannabis. Since the very first Canadian veteran was reimbursed on compassionate grounds in 2007, Veterans Affairs Canada now covers the cost of medicinal cannabis for over 3,000 Canadian veterans. That is why, as the NDP's health critic, I would like to use this opportunity to specifically examine the bill's potential impacts on Canadian patients who are legally authorized to use medicinal cannabis.
Last summer, in response to the federal court's decision in Allard v. Canada, Health Canada announced the access to cannabis for medical purposes regulations. The ACMPR replaced the previous regulations governing Canada's medical cannabis program, and came into force in August of 2016. These regulations were designed to provide the immediate solution required to address that court judgment. However, they were not meant to be comprehensive and they did not provide guidance on driving restrictions for patients.
That is why Health Canada was clear that these regulatory changes “should not be interpreted as being the longer-term plan for the regulation of access to cannabis for medical purposes, which is presently being determined as part of the Government’s commitment to legalize...regulate and restrict access to marijuana.” Indeed, new regulations specifically dealing with the operation of motor vehicles for medicinal cannabis patients will be necessary to supplement the legislation before us today.
Constructing effective cannabis driving regulations will require us to understand the unique properties of the effects of ingesting cannabis.
Following consumption, THC accumulates rapidly in body fat, where it is stored in various tissues and then slowly redistributed to the blood. While occasional, i.e., recreational, consumers of cannabis will likely test negative for the presence of THC in blood within 12 hours following inhalation, THC's lipid solubility may cause some chronic users, such as those legally authorized to consume cannabis therapeutically for the treatment of a chronic medical condition, to potentially test positive for residual concentrations of THC even after several days of abstinence, long after any behavioural influence of the substance has worn off.
Chronic consumers may also experience intermittent spikes in THC blood levels in the absence of new use during this terminal elimination phase. The potential presence of residual low levels of THC in the blood, combined with the possibility of periodic increases in THC blood levels absent use, may potentially confound the ability of toxicologists or prosecutors to interpret whether the presence of THC in the blood in a single sample is evidence of new cannabis consumption by an occasional consumer, or instead, indicative of past consumption by a more frequent user.
Because the process by which cannabis is absorbed by the body may be influenced by the subject's prior pattern of use, as well as by the specific route of cannabis administration, rather than solely by the single use of cannabis itself, the U.S. National Highway Traffic Safety Administration said, “It is difficult to establish a relationship between a person's THC blood or plasma concentration and performance impairing effects.” Therefore, under the cannabis-specific per se standards being proposed by the legislation, the detection of THC or its metabolites could result in a criminal conviction regardless of whether the defendant has recently consumed cannabis or whether the crown can establish that a person was behaviourally impaired by cannabis.
Given that the legal use of cannabis will soon be sanctioned by the federal government, we must be cautious that traffic safety laws, in order to be equitable, impartial, and effective, mandate sufficient evidence of a subject's cannabis use immediately prior to driving, as well as objective evidence of behavioural impairment as a legal requirement. Such requirements would ensure that the traffic safety laws are not inadvertently punishing unimpaired individuals who have engaged in the legally protected behaviour of consuming medicinal cannabis and we must make sure that we catch and prosecute impaired drivers who are impaired by cannabis.
Indeed, the omission of such requirements would have particularly negative impacts on those authorized to use medicinal cannabis since those patients will never be able to know with certainty that the THC presence in their blood is below the per se limit, even if they have not consumed cannabis for days prior to driving. This could have serious unintended consequences for thousands of patients.
I want to pause for a moment and comment on the legal test that the bill proposes for police officers prior to their requiring a blood sample. My understanding is that the test being proposed is that a police officer must have “reasonable suspicion” of ingestion of cannabis or impaired driving prior to requiring drivers to subject themselves either to roadside tests or subsequent blood sampling. That, of course, is a lower standard than the current test of “reasonable and probable grounds”, which is much more common in the Criminal Code.
I, for one, will be very interested in hearing from experts both on the constitutional enforceability of such a standard, as well as some of the policy considerations around it. Personally, I can state that I do not have a problem with a lower standard before a police officer can require a sample from a driver, because I believe that the overarching public interest in keeping cannabis-impaired drivers off the road takes precedence in that case. However, we still must be sure that random testing or the testing of drivers in the absence of objective evidence of some type is prohibited.
It is axiomatic that we need a clear and consistent set of rules for cannabis impairment so that we can ensure that we have an effective law to target and prevent impaired driving in all of its forms. Equally, it is common ground that impaired driving is a deadly, senseless, and preventable crime. As legislators, I think our first obligation is to keep our streets safe and do everything we can to make sure that, as the government moves to legalize cannabis, we have smart, effective, targeted legislation that is geared toward keeping those drivers off the road, giving our police officers the tools they need to adequately and effectively enforce the law, and strike the balance to make sure that Canadians' rights are protected.
I sincerely hope that members from all parties will work together to study the legislation at committee, with the goal of making it the most effective law possible and effectively addressing impaired driving caused by cannabis and all other intoxicants.
With so much at stake, let us work together to get this right.
