The Legalization of Cannabis in Canada and the Québec Highway Safety Code

On June 12, 2018, the Parliament of Québec passed the Act to constitute the Société québécoise du cannabis, to enact the Cannabis Regulation Act and to amend various highway safety-related provisions (S.Q. 2018, c. 19, the “Act”). While the Parliament of Canada updated the Criminal Code in order to reflect the decriminalization of cannabis scheduled for October 17, 2018, the Act governs the production, sale and use of cannabis in Québec. It will also enable a Crown corporation, the Société québécoise du cannabis (SQDC), to handle the sale of cannabis. Moreover, the Act makes changes to the Highway Safety Code (“HSC”) regarding driving under the influence of cannabis or other drugs, adopting a policy of “zero tolerance.”

Once these provisions of the HSC come into force, they will prohibit any person from driving a road vehicle (or having custody or control of one) “if cannabis or any other drug is present in the person’s body, subject to the exceptions provided for by government regulation”. If a person drives with detectable levels of cannabis in his or her system or refuses to obey a police officer and undergo a cannabis test, his or her driver’s licence will be suspended immediately for 90 days. A ban on the consumption of cannabis or other type of drugs is also provided for the passengers of a road vehicle, cyclists and users of an off-highway vehicle.

Under the Act, the HSC provisions concerning the “zero tolerance” policy for cannabis will come into force when satisfactory devices are available to detect cannabis in saliva. Since the federal government has recently approved the use of a device for the detection of cannabis in saliva for the purposes of the Criminal Code, it is expected that Québec will, in a short period of time, approve detection devices for the purposes of the HSC. In the meantime, current assessments used by peace officers to detect impairment will continue to be used. The Act also provides that the government may, by regulation, establish standards of detection or provide for exceptions, which may include a maximum level of concentration of cannabis in the blood for the application  of the new provisions, or special rules for users of therapeutic cannabis.

The provisions of the Criminal Code still apply along with those of provincial penal law. As such, driving under the influence of cannabis will result in the penal and administrative sanctions described above under the laws of Québec, but could also result in a criminal charge and conviction. This is also the case for drivers who exceed the maximum permitted drug concentrations under the Criminal Code, regardless of the degree of impairment. The Blood Drug Concentrations Regulations (SOR/2018-148) provide that driving with a blood concentration of 2 ng/mL of tetrahydrocannabinol (“THC”) will be a federal contravention punishable by a fine, whereas driving with 5 ng/mL or more of THC will be a hybrid criminal offence with a punishment equivalent to driving with a blood alcohol concentration of 80 mg per 100 mL.

Regulations under the Act have not yet been enacted and the timing of the coming into force remains unknown. Despite possible tweaks by regulation, the prohibition in its current form appears to infringe on liberties and raises concerns for the transportation industry.

Cannabis may remain present in saliva for at least 13 hours according to a study published by the National Institutes of Health, while the period of impairment may be closer to six hours “or more,” according to the government of Canada. A driver who will have legally consumed cannabis at home could thus be prohibited from driving long after he or she is no longer impaired, and his or her licence could be suspended immediately for 90 days due to trace quantities of THC whose connection to impairment or to highway safety may be tenuous. The prevalence of driving in Canada as elsewhere suggests that the validity of such a blanket prohibition will be challenged in court as soon as it is implemented.

For the transportation industry, it will be difficult for drivers and operators in both the road and rail modes to ascertain when a person may drive after consuming cannabis, and to negotiate the terrain paved by a total ban on even trace amounts of THC. Motor carriers and rail operators in particular may find themselves in a difficult position, especially given the current capacity crunch and labour shortage in the transportation industry. Those who impose “zero tolerance” policies on their drivers may run afoul of human rights legislation, as such policies necessarily encroach on the private lives of drivers, while those that do not may incur the regulatory risk associated with putting drivers on the road who may not comply with provincial highway safety legislation. In our view, the federal threshold of 2 ng/mL is preferable as it avoids imposing a de facto total ban on a legal activity while still ensuring road safety.

This article was prepared by McCarthy Tétrault’s Transportation and Logistics Group. For more information, please contact David F. Blair or Brian Lipson.

Authors