Editor’s Note: Additional and up-to-date information around roadside THC testing and SGI’s zero-tolerance policy can be found here.
People have expressed concerns around cannabis use and driving in Saskatchewan, bringing into question what the rules are when it comes to police testing for impairment.
While SGI took the time to dispel some of the misinformation that is spreading, a discussion with a local criminal defence lawyer resulted in a message that might not be as clear cut as people may want.
Tyler McMurchy, a spokesperson with SGI, said police can only do oral fluid tests for cannabis if they have reason to suspect that the driver operated a vehicle under the influence.
“The rules are different when it comes to the roadside alcohol tests. Under federal legislation, police can demand a quick roadside breath of any driver they legally stop,” McMurchy said.
He said he’s seen some of the online chatter around the tests, saying that discussion has created unwarranted concern and confusion.
McMurchy said that SGI can’t give a definitive time frame of when someone would pass or fail after using cannabis, saying that there are a number of factors that come into play.
He said people are worried that if they used cannabis a week ago, they could still fail a swab test today. “And that’s not the case.”
He said police state that THC will show up in saliva 12 to 24 hours after cannabis use, and that habitual users could see that time stretched.
Mark Brayford, a criminal defence lawyer in Saskatoon, said that’s still cause for concern for people using cannabis.
“The daily user of THC is in significant legal jeopardy if they drive a car everyday,” Brayford said.
He explained that there isn’t a close correlation between the level of THC in a person’s bloodstream and their level of impairment.
“With respect to the science about THC levels in a person’s blood stream, the reality is if you’re going to be a daily user of cannabis, you’re not legally going to be able to drive your automobile. It’s that simple.”
Brayford gave an example of someone smoking cannabis every evening. He said that even if you are not actually impaired by cannabis the next morning, you might not be able to legally drive.
“Is it a real possibility that you have more THC than is legally allowed, even though you’re not impaired? Yes, it is.”
Bill C-46, which was passed in June 2018, established laws and penalties around driving under the influence of cannabis which created three new offences to the Criminal Code of Canada:
- driving with two nanograms (ng) but less than 5 ng of THC per millilitre (ml) of blood
- driving with 5 ng or more of THC per ml of blood.
- driving with a combination of 50 milligrams (mg) of alcohol (or more) plus 2.5 ng or more of THC per millilitre of blood.
Brayford said the rate at which THC leaves the body can vary greatly.
He added that it can also depend on how people consume cannabis. People who take an edible rather than smoking cannabis could see lower THC levels, he said.
“But that doesn’t mean they’re less impaired.”
He said there’s a predictability with alcohol and impairment, saying you can predict what your blood/alcohol level might be based on your body weight and what you consume.
“There’s no way to do that with a joint of cannabis.”
He said there is a debate that has been ongoing in regards to whether the levels set in Bill C-46 are catching people who are innocent of any wrongdoing.
Brayford gave an example of a case out of Ontario in 2022 called R. v. Robertson where a judge did an extensive review of whether it should be unconstitutional to have a law where the mathematical level could be a criminal offence for the accused even though that person is not impaired.
“She looked at both sides of the equation and said, ‘Yes, there are people who are going to get caught by the five nanogram level who aren’t impaired, and they’re going to get a criminal record and all the consequences of a criminal charge.'”
He said the judge questioned whether that should be constitutionally possible, and ultimately came to the conclusion that the law could stand.
Brayford said that’s not the end of the debate, however, saying that at some point the Supreme Court of Canada will be the final decision on this question.
“That’s a debate that will probably rage for the next 10 years.”
Global News’ Emily-May Simmonds reached out to RCMP to get further clarification and was directed to the RCMP’s website along with a statement.
“The RCMP’s message to anyone who consumes an intoxicant (whether legal or illegal) is ‘impaired is impaired.’ Individuals shouldn’t drive after drinking alcohol, taking prescription drugs that can impair or consuming cannabis or any other substance that could impair their ability to operate a motor vehicle,” RCMP said.
The website gives some general information around testing for alcohol and drugs.
Global News reached out to the Saskatoon Police Service for comment, but it declined, as did the Regina Police Service.