ONTARIO COURT OF JUSTICE
DATE: 2022 04 07 COURT FILE No.: Brampton 20-8221
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
BRADY ROBERTSON
Before: Justice Caponecchia
Heard on: November 1-5, 8, and 9, 2021
Constitutional Challenge to Sections 320.14(1)(c), 320.14(3) of the Criminal Code and s. 2 of SOR/2018-148
Reasons Released: April 7, 2022
Counsel: P. Quilty, for the Crown C. Bottomley and M. Quenneville, for the accused B. Robertson
CAPONECCHIA J.:
Contents
- Introduction
- The Legislation in Question
- The Constitutional Challenge
- The Evidence on this Application
- Evidence of Dr. Uetrecht and Betty Chow
- Evidence of Dr. Beirness
- The Hypotheticals on this Application
- Hypothetical 1: Frequent and Cannabis Dependant Users
- Hypothetical 2: The Cancer Patient
- Hypothetical 3: The Occasional and Naïve Cannabis User
- Position of the Parties
- Issue 1: What is the Objective of the Legislation?
- Conclusion – The Objective of the Legislation
- Issue 2: Is the 5 ng/ml Per Se Limit Arbitrary?
- Conclusion – Arbitrariness
- Issue 3: Is the 5 ng/ml Per Se Limit Overbroad?
- Conclusion – Overbreadth
- Final Conclusion
Introduction
[1] Canadians live in a constitutional democracy. As such, Parliament and the provincial legislators may enact laws they deem necessary and appropriate for Canadian society. These laws, however, are subject to the Constitution Act, 1982, which includes the Canadian Charter of Rights and Freedoms (the Charter).
[2] Parliament has the exclusive jurisdiction to criminalize certain conduct through the Criminal Code of Canada (the Criminal Code) and other related statutes. In 2018 Parliament decided to legalize the possession of cannabis. When it did so Parliament also introduced Bill C-46, creating new criminal offences relating to driving. One of the new offences is a prohibition against a driver having more than 5 nanograms of tetrahydrocannabinol (THC) [1] per millilitre of blood (5ng/ml) within two hours of ceasing to operate a conveyance. This per se limit, is in addition to the offence of impaired driving by drug, which has been a criminal offence since 1925.
[3] For decades Canada and other countries have grappled with laws pertaining to the possession of cannabis. Should the possession, consumption and distribution of cannabis be legalized? If so, under what conditions? Should there be a limit set for THC in a driver's blood? If so, what should it be? The answers to these questions have not been without controversy amongst informed, reasonable minded individuals. Different approaches have been taken around the world. Some countries have imposed a total ban on driving with any THC in a driver's blood and others have imposed limits between 1ng/ml and 5 ng/ml. [2]
[4] This application gives rise to a review of the current science as it relates to THC levels and driver impairment. The Applicant takes the position that the 5 ng/ml per se limit violates s. 7 of the Charter and cannot be saved by s. 1. More specifically, the Applicant submits that the per se limit of 5 ng/ml is arbitrary and overbroad. To support this view, the Applicant advances multiple hypotheticals which they submit demonstrate the impugned legislation operates in a way that offends s. 7 of the Charter.
[5] The Crown takes a different view. The Crown contends that s. 320.14(1)(c) and s. 2 of SOR/2018-148 do not violate s. 7 of the Charter. In the alternative, the Crown submits that that if they do, the laws were enacted by Parliament in response to a legitimate and compelling concern in Canadian society pertaining to impaired driving and that the laws are justifiable in a free and democratic society and therefore saved by s. 1 of the Charter.
[6] This constitutional challenge arises because the Crown has proven beyond a reasonable doubt that Brady Robertson committed the offence of having more than 5 ng/ml of THC in his blood within two hours of ceasing to operate a motor vehicle. This court was satisfied that his THC level was 40ng/ml (+/- 3ng/ml) approximately 45 minutes after he caused the catastrophic collision which killed Ms. Ciasullo and her three young daughters. This court was not satisfied that the Crown proved beyond a reasonable doubt that his ability to operate a motor vehicle was impaired by a drug. [3]
[7] For the reasons that follow, I conclude that the impugned legislation which makes it an offence for a driver to have 5ng or more of THC per ml of blood in their body within two hours of driving does not infringe s. 7 of the Charter.
The Legislation in Question
[8] By way of summary, Bill C-46 introduced three new and different per se limits for THC in a driver's blood. [4] The defence did not seek to impugn the second or third newly created offences. This challenge only engages the first. [5]
a) The first new per se offence is set out in s. 320.14(1)(c). It is an offence to have a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation, within two hours of ceasing to operate a conveyance. Section 2 of Regulation SOR/2018-148 sets the per se limit for THC at 5ng/ml or more for the purpose of the making out an offence under s. 320.14(1)(c). It is a hybrid offence which carriers with it the possibility of imprisonment upon conviction.
b) A second new per se limit offence is set out in s. 320.14(1)(d). It is an offence to have a combined drug and blood alcohol concentration within two hours of ceasing to operate a conveyance. Section 3 of Regulation SOR/2018-148 sets the combined per se limits at 50 mg of alcohol per 100 ml of blood and the drug concentration for THC is 2.5 ng/ml or more. This second offence is also a hybrid offence, carrying with it the possibility of imprisonment upon conviction.
c) A third new per se limit offence is set out in s. 320.14(4). It is an offence for a driver to have between 2ng and 5ng of THC in their blood within two hours of ceasing to operate a conveyance. This per se limit is also set by operation of the same regulation, Regulation SOR/2018-148, s. 1 and 2. Unlike the other two new offences, this offence is a straight summary offence, and pursuant to s. 320.19(2) it does not carry with it the possibility of punishment by imprisonment.
[9] Pursuant to s. 320.14(3), it is a separate offence to cause the death of another person while committing an offence under s. 320.14(1).
[10] A driver's blood can be seized and analysed for the presence of THC in the following three specific circumstances:
a) By demand, where there are reasonable grounds to believe that an offence under s. 320.14(1)(c)(d) or s. 320.14(4) has been committed. [6]
b) By warrant, to compel the taking of a blood sample from an individual by a medical professional in the following circumstance: (i) where there are reasonable grounds to believe that a person operated a conveyance in the past 8 hours, AND (ii) the conveyance was involved in an accident that caused bodily harm or death, AND (iii) there are reasonable grounds to suspect the person has alcohol or drugs in their body, AND (iv) it is medically safe to do so AND the person is unable to consent to the taking of blood. [7]
c) By warrant, to seize blood samples taken for medical purposes and held at a hospital (as in this case). The warrant requires reasonable and probable grounds to believe an offence has been committed. [8]
The Constitutional Challenge
[11] Section 7 of the Charter guarantees to everyone the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[12] A criminal offence that carries the possibility of imprisonment engages the right to liberty. In this case the Crown acknowledges that an individual's right to liberty is triggered because violating the 5ng/ml per se limit carries with it the possibility of imprisonment upon conviction. That being the case, this court must decide if the legislation in question encroaches on an individual's liberty in accordance with the principles of fundamental justice.
[13] There are three principles a court utilizes to scrutinize whether a law is in accordance with the principles of fundamental justice: arbitrariness, overbreadth and gross disproportionality. In this case, the Applicant’s position is the 5ng/ml per se limit violates the principles of fundamental justice in two ways: the law is both arbitrary and overbroad. The defence does not submit the per se limit of 5 ng/ml is grossly disproportionate. The Crown's position is the 5 ng/ml per se limit is neither arbitrary nor overbroad.
[14] The onus is on the Applicant to establish a breach of s. 7 on a balance of probabilities.
[15] Given my conclusion that the impugned provisions do not violate s. 7 the Charter, the analysis ends, and I need not consider s. 1 of the Charter.
[16] I will return to my analysis of these material issues following a review of the evidence presented on this application and the hypotheticals posed by the Applicant.
The Evidence on this Application
[17] Both the Applicant and the Crown included the expert opinions they rely on in their respective Application Record. The experts were also called to give evidence and were cross-examined.
[18] The Applicant called one expert, Dr. Jack Uetrecht. Dr. Uetrecht holds a Ph.D in organic chemistry. He is a retired doctor who is currently a professor of Pharmacy, Medicine and Pharmacology at the University of Toronto. With the consent of the Crown, the defence also filed a transcript of the evidence of the forensic toxicologist called by the Crown at trial, Ms. Chow.
[19] The Crown called two experts. Ms. Chow and Dr. Beirness. Ms. Chow has a Master of Science Degree in pharmacology and has been employed as a toxicologist at the Centre of Forensic Sciences since 1998. She has written, reviewed and/or consulted in over 10, 000 cases related to the effects of alcohol, drugs and poisons to concentrations achieved in biological samples, with specific consideration to the forensic aspects of analytical testing, pharmacokinetics and pharmacodynamics. Dr. Beirness conducts impaired driving research. He has a Master of Applied Science and a Ph.D. in psychology, the focus of which is behavioural pharmacology.
[20] In addition to the evidence of two experts, the Crown's Application Record consisted of the following written materials:
a) Government of Canada, "Legislative Background: Reforms to the Transportation Provisions of the Criminal Code (Bill C-46)." May 2017. b) Department of Justice, "Background for former Bill C-46, An Act to amend the Criminal Code (offences related to conveyances) and to make consequential amendments to other Acts, as enacted." August 2019. c) The House of Commons Debates (Hansards), May 19, 2017 - June 20, 2018. d) Numerous studies and reports relied on by the experts.
Evidence of Dr. Uetrecht and Betty Chow
[21] The evidence of Dr. Uetrecht and Betty Chow were in general agreement. I accept their evidence as it relates to the following items of evidence.
[22] Both experts agree that THC in cannabis can impair an individual's ability to operate a motor vehicle. The extent to which it does so depends on the dosage, time of administration, pattern of use and experience with the drug.
[23] Both experts agree that understanding the effects of THC on impairment to drive is more complex than alcohol. THC is absorbed and eliminated differently than alcohol. It is agreed that the neurological effects of THC occur in the brain, not blood.
[24] Dr. Uetrecht testified that the most reliable way to determine if THC is having an impairing effect on an individual is to examine their brain. However, it is not possible to measure THC levels in an individual's brain except in extraordinary circumstances such as autopsy. [9]
[25] Ms. Chow testified that testing for THC in blood is "the gold standard.” [10]
[26] Unlike alcohol, one cannot correlate any level of impairment from cannabis based on a single measurement of THC taken from blood. The correlation between THC levels in blood and impairment is imperfect.
[27] An individual can have a THC reading in excess of 5ng/ml and have no measurable impairment. Conversely, an individual can have less than 5ng/ml of THC in their blood and be impaired. [11] An expert would need to have more information to give an opinion as to impairment one way or another.
[28] For an expert to be able to give an opinion as to whether an individual is suffering from the impairing effects of THC in cannabis, it is necessary to know how recently they consumed the drug.
[29] Recent use of cannabis is highly associated with impairment. [12] Evidence of recent use is the most important factor in determining whether an individual is impaired by THC.
[30] A single blood THC reading can provide evidence of recent use. The higher the THC concentration, the more likely that the use of cannabis was more recent. [13] Ms. Chow agreed that a THC level of 20ng/ml or more is a reasonable indicator of recent use that takes into account the spectrum of users from naïve to habitual. A lesser level can also imply recent use. [14]
[31] Ms. Chow's opinion was that studies demonstrate a strong correlation between recent use of THC and increased crash risk. [15] One large scale study [16] of fatal motor vehicle collisions reported drivers with blood THC concentration greater or equal to 5ng/ml were 6.6 times more likely to be responsible for the crash compared to alcohol and drug free drivers.
[32] The impairing effects of THC will vary depending on how cannabis is consumed.
SMOKING CANNABIS
[33] The impairing effects of THC are almost immediate, within minutes and in most individuals are pronounced within the first one to two hours of smoking. [17] The impairing effects of THC in cannabis can last between 4-6 hours after smoking. [18] Chronic users can experience the impairing effects of THC for a shorter period. [19]
[34] THC is detectable in blood within minutes of smoking. [20] THC levels in blood peak sharply and then decline. [21] Studies show that you will see a rise and fall in THC concentrations within about one to two hours after smoking, then it will start to decline to a baseline level over the next four to six hours. [22]
[35] A peak THC level depends on the potency and quantity of cannabis consumed. Peak readings can range from 30-40 to as high as 200 ng/ml. 5ng/ml is not a typical peak THC concentration following smoking. Two measurements of THC in blood taken over a period of time can provide further evidence of recent use if there is a rapid decline in the second THC level. [23]
[36] A peak reading of 5ng/ml is not typical, even in naïve users. Both experts agreed that a measurement of 5ng/ml of THC is indicative of recent use in naïve users, which is the best possible indicator or impairment, though not full proof. [24] Dr. Uetrecht's opinion was there was a 50% chance that a naïve user with a 5 ng/ml reading was impaired if they had not used cannabis in a month. [25]
[37] According to Ms. Chow, a THC reading of 20ng/ml in chronic users, within two hours of driving, is a good indicator of recent use of cannabis given the data related to residual THC in the blood of habitual cannabis smokers.
EDIBLES
[38] Ms. Chow testified that the impairing effects of THC could last up to 8 hours if cannabis is ingested orally. [26] Dr. Uetrecht estimated 5 to 7 hours. [27]
[39] The impairing effects are less immediate than smoking and can take up to 30 minutes to an hour to set in. [28] Studies show that detectable THC in blood will take a half hour to an hour to appear after consuming low dose edibles. Ms. Chow testified that a peak THC level is reached usually in the two to four hour period after ingestion and then will slowly decline and reach zero after 8 hours. In the same studies the concentrations have never exceeded 5ng/ml. [29]
[40] Experts do not expect to see the same peak and decline in THC levels when cannabis is ingested orally compared to when it is smoked. [30] There are many variables, such as whether the edible is taken with food. The peak associated with an edible is a function of the dose. THC levels in blood would be flatter over time when cannabis is consumed orally.
[41] THC levels can expect to be zero 10 hours after consumption of an edible. [31]
RESIDUAL THC
[42] Due to the way the body processes THC, residual levels of THC can be found in a person's blood after they consume cannabis and are no longer experiencing the impairing effects of the drug.
[43] There is no way to distinguish between residual THC levels in blood and THC levels that appear from recent consumption.
[44] There is no good scientific method to measure how much residual THC any person has in their blood. Nor is there is an average or normal amount of expected residual THC in a person's blood after the impairing effects of the drug have worn off. [32]
[45] Residual THC levels depend on an individual’s pattern, frequency of use and the dosage the user is accustomed to. [33]
RESIDUAL THC & THE NAÏVE & INFREQUENT USER OF CANNABIS
[46] Ms. Chow testified that a naïve user should have an undetectable amount of THC in their blood after 12 hours. [34] Dr. Uetrecht agreed that a naïve user would have a very low THC level after 12 hours, well below 5ng/ml. [35]
[47] Ms. Chow testified that she would expect an occasional user of cannabis, someone who consumes once a week or less, to have no detectable THC in their blood after a day. [36]
RESIDUAL THC & OCCASIONAL USERS OF CANNABIS
[48] Ms. Chow would be surprised to find someone who uses cannabis occasionally, two or three times a week, to have more than 5 ng/ml of residual THC in their blood. Studies have shown them to have none, or very low levels. She could not rule out the possibility of a residual THC level of 5ng/ml in an occasional user if they last used 12 hours before their blood was taken. It would depend on how much they last consumed. [37]
RESIDUAL THC IN FREQUENT & CHRONIC USERS OF CANNABIS
[49] Ms. Chow described a frequent user as someone who uses cannabis four or more times a week. [38] She stated that generally, residual amounts of THC in frequent users will fall between 0 to 5 or 6 ng/ml and it is rare for residual THC to be in the range of 5ng/ml. [39]
[50] Studies have shown that chronic cannabis dependant users (multiple uses a day for prolonged periods of time) can have residual THC levels of 5ng/ml or more in their blood after the impairing effects of cannabis have worn off. [40] The Odell [41] study contains the most extreme examples of residual THC levels amongst cannabis dependant individuals. [42]
[51] There is growing evidence that long term cannabis use has an effect on cognition (memory and attention), [43] which is necessary to drive.
[52] Dr. Uetrecht and Ms. Chow are both highly qualified experts in their field. Their evidence was in general agreement save and except in one instance. They disagreed as to the results of a 2006 study. More specifically, what is depicted in scatter plot graphs depicted on page 118 of the Ramaekers study. [44] The scatter plot graphs in that study track critical tracking task, stop reaction and cognitive performance of 20 test subjects against their respective THC levels in serum. The highest THC level depicted in the scatter plot graphs was 32ng/ml. Dr. Uetrecht expressed the opinion that the scatter plot graphs showed that at the highest THC level in serum, 32ng/ml, many of the tested individuals were not impaired. [45] It was Betty Chow's evidence that the study illustrated the opposite: that persons with a THC level of 32ng/ml or greater in serum all demonstrated signs of impairment.
[53] I accept Ms. Chow's evidence on this issue. I do no accept Dr. Uetrecht's interpretation of the results of the Ramaekers study for the following reasons. For one, his evidence as to what the scatter plot graphs depicted lacked clarity. In cross-examination he was asked to clarify this part of his evidence and he failed to do so adequately. He explained that he was not a very good statistician. Second and more importantly, his evidence on this point is in direct opposition to what is specifically stated at three different locations in the study:
(i) The abstract: At THC concentration of >30ng/ml the proportion of observations indicative of significant impairment increase to a full 100% in every performance tests. It is concluded that serum THC concentrations between 2 and 5 ng/ml establish lower and upper range of a THC limit for impairment. [46]
(ii) On page 120, the last line of the first paragraph reads: Binomial tests showed a significant increase in the proportion of observations showing impairment in the critical tracking task for serum THC concentrations >2 ng/ml. Between 2 and 5 ng/ml the proportion of impaired observations was about 71% and gradually increased to a full 100% at THC concentrations >30 ng/ml. In the Stop signal task and the Tower of London task, significant increases in the proportion of observations showing impairment were found for serum THC concentration >5 ng/ml. Between 5 and 10 ng/ml the proportion of "impaired" observations were 75 and 90%, respectively, and increased to a full 100% at THC concentrations >30 and 20 ng/ml, respectively. [47] (Emphasis added)
(iii) By contrast to the scatter plot graphs, the data illustrated in bar graphs on page 119 are easy to follow. They confirm Ms. Chow's evidence. [48]
[54] All three of the above extracts taken from the Ramaekers study confirm Ms. Chow's evidence as to the results of the study and are inconsistent with Dr. Uetrecht's evidence.
Evidence of Dr. Beirness
[55] In 2017 Dr. Beirness was a member of the Canadian Society of Forensic Sciences Drugs and Driving Committee. The committee authored the report that recommended the various per se limits for drugs, included THC, that were enacted by Parliament. As in the case of the other two experts, the testimony of Dr. Beirness consists of his written opinion in the Crown’s Response and his viva voce testimony.
[56] Dr. Beirness’ evidence includes up to date statistics, the outcomes of various surveys and studies that were beyond the area of expertise of Dr. Uetrecht and Ms. Chow. Highlights of his written opinion and viva voce testimony includes the following:
a) Data on driver fatalities in Ontario for 2016 through 2018 indicate that 54% tested positive for alcohol and or drugs. Cannabis was detected in 27.2% cases. Alcohol was detected in 26.1% cases; [49]
b) While there was an overall decrease in impaired driving incidents in 2020, one study found a 16% increase in drug impaired violations after cannabis was legalized; [50]
c) After alcohol, cannabis is the most common psychoactive substance used for recreation in Canada. In 2018, 14% of survey respondents reported using cannabis in the previous three months. In 2020, two years after the legalization of cannabis, 20% of respondents reported using cannabis. Among those who reported use, 35.7% reported using cannabis daily or almost daily. [51]
d) Data from another 2020 survey revealed that of those respondents who reported using cannabis for medical purposes in the previous 12 months, only 24% had documentation from a medical professional. [52]
e) A 2020 survey revealed that 19.6% of cannabis users for medical reasons reported driving within 2 hours after smoking or vaping. 15.9% reported driving within 4 hours of the consumption of cannabis for medical purposes. [53]
f) The results of a 2019 survey revealed that 13.2% of those who reported cannabis use also reported driving within two hours of consuming within the previous 3 months. [54]
g) Using data from 2004, a study attributed the social cost of collisions due to drugs and alcohol in Ontario to be $6.2 billion. Another study estimated the social costs of crashes attributed to cannabis use in 2012 to be $1.09 billion. When adjusted for 2019 data, this figure is estimated by Dr. Beirness to be approximately $4.4 billion. [55]
h) There are three approaches that jurisdictions have adopted for dealing with the impaired driving by drug: behaviour-based statutes, per se laws, and zero tolerance law.
i. Behaviour based statutes require evidence that the driver was exhibiting behaviour inconsistent with the operation of a motor vehicle and that the impairment was the result of a psychoactive substance. They require officers to be trained in techniques and can require considerable time to conduct the tests. Behavior based approaches are used in many countries around the world, including several that have implemented hybrid strategies that combine evidence of impaired driving behavior along with blood test results to determine whether a violation has occurred.
ii. Per se laws consider drivers to have committed an offence if the concentration of a specific drug in their blood exceeds a specific threshold value. The introduction of per se limits for drugs has proceeded cautiously.
iii. A variation of per se limits, setting the drug concentration limit at 0 - often referred to as zero tolerance. In most cases, this approach applies to illicit and controlled substances. The rationale often cited for this approach is simple, if a substance is illegal to manufacture or possess, it would be inconsistent to give the impression of allowing one to drive a vehicle after using it, even at low levels. Zero tolerance approaches send a very clear message that driving under the influence of illicit drugs is not acceptable. [56]
i) The THC per se limits in many countries within Europe, the UK, and various jurisdictions in the United States range from 0 to 5 ng/ml blood. Australia has a zero tolerance for illegal substances. No country has adopted a higher limit than 5ng/ml. [57]
j) Some studies show the beneficial effect of the introduction of per se laws and laws that set a new lower per se limit for alcohol. The beneficial effects were deemed to be attributable to general deterrence and were not restricted only to drivers with BACs specifically affected by the law but were evident across all drinking drivers.
For example, in Canada, one study found an 18% reduction in the number of drinking driver fatalities over the period examined following the introduction of per se limits for alcohol. There was no change in driver fatalities who had not been drinking. The impact was largely attributed to the effect of deterrence. [58]
The introduction of per se laws for alcohol also coincided with public awareness campaigns, enforcement and other administrative programs to deter impaired driving.
k) Part of the value of per se laws is that they serve to deter individuals who have consumed an impairing substance from driving and to remove high-risk drivers with excess BAC and excess drugs in their blood from the road.
Per se laws inform drivers that there is a quantifiable limit to the amount of alcohol or drug that can be present in the body and that exceeding this limit can have legal and personal consequences. Even though the average person is unable to determine his or her own blood alcohol or drug concentration, simply knowing there is a fixed limit serves to provide an objective threshold that drivers know they should not cross.
In contrast, an impairment standard only, is considered more arbitrary and leaves the average person with a good deal of personal latitude in terms of the extent of their own alcohol or drug use before they consider themselves to have crossed the impairment threshold.
l) In the last random road survey conducted in 2017 in Ontario, in which drivers volunteered breath and oral fluids, 7.8% of drivers tested positive for cannabis and 4.4% tested positive for alcohol. [59]
m) Testing for drugs in drivers is more difficult than taking breath tests for presence of alcohol. Converting oral fluid drug concentrations to blood concentration is not possible in most cases.
n) There are five studies that separated drivers with more than 5ng/ml of THC in blood with those who had less. Those with more, showed a substantial increase in crash risk, from twice to 14 times greater than those with less than 5 ng of THC per ml of blood. [60]
o) Unlike in the case of alcohol, there is no scientific consensus as to any amount of THC that corresponds with impairment.
The Hypotheticals on this Application
[57] The Applicant did not submit that the facts in Mr. Robertson’s case give rise to an evidentiary foundation for a s. 7 Charter breach. There is also no dispute that the court can consider the effect of the challenged provisions based on reasonable hypothetical scenarios. [61]
[58] In using hypotheticals, the onus is on the party challenging the legislative provision to provide reasonable hypotheticals that demonstrate that the impugned provisions violate the Charter right in issue. [62]
[59] In this case the Applicant advances more that one hypothetical.
Hypothetical 1: Frequent and Cannabis Dependant Users [63]
A daily cannabis user who drives after the impairing effects of the THC have worn off can have residual THC in their blood of 5 ng/ml or more.
[60] Both Ms. Chow’s and Dr. Uetrecht’s evidence provide a basis for this court to be satisfied that this hypothetical is a reasonable one.
[61] Both experts agree that studies show that habitual cannabis users can have 5ng/ml or more of residual THC after the impairing effects of the THC have worn off.
[62] It was Ms. Chow's evidence that frequent users (4 or more times a week) will generally have residual THC levels that fall between 0 and 5 or 6 ng/ml.
[63] The Applicant in this case focused the court's attention on one study, the 2015 Odell [64] study. Ms. Chow acknowledged that this study contains the highest findings of residual THC levels amongst chronic cannabis users. The 21 subjects of the study had a history of using cannabis multiple times a day for a minimum of three months and many for several years. Nine of the 21 subjects had blood THC levels above 5ng/ml on the second day, 24 hours or more after the last reported use. Table 3 in the study also revealed:
Four of the subjects had THC levels in excess of 5ng/ml on the first day of the study, twelve hours or more after having last consumed cannabis. One subject had a THC level over 5ng/ml eight and half hours after last using cannabis. [65]
Six subjects had readings of less than 5ng/ml, six or more hours after they last consumed cannabis. [66]
Nine subjects started the study on day one with THC level in excess of 5ng/ml, however, they each had reportedly consumed cannabis recently, within 6 hours of testing [67] (when the impairing effects could be present).
Only 11 of the 21 cannabis dependent subjects completed the study. Seven days after having last consumed cannabis the remaining subjects had between 1 and 4 ng/ml of THC detectable in their blood. Only one of the 11 subjects had no THC detected in their blood by day seven.
All but one of the 11 chronic users who completed the study showed reduced THC readings over the course of the week. [68]
[64] Having consider all the evidence on this application, I am satisfied that a reasonable hypothetical is before the court as it relates to frequent and chronic cannabis users. It is a reasonable hypothetical that these users could find themselves behind the wheel of a car with 5ng/ml or more of residual THC after they are no longer experiencing the impairing effects of the drug. I am satisfied that the per se limit of 5 ng/ml of blood could impact these users.
Hypothetical 2: The Cancer Patient [69]
A cancer patient undergoing chemotherapy who smokes cannabis at dinner time to help with nausea/or as a sleep aid at night and gets up the next morning to drive their kids to school. [70]
[65] The details of any protocol for cannabis use by cancer patients undergoing chemotherapy were not provided to either Ms. Chow or Dr. Uetrecht.
[66] Dr. Uetrecht testified that he is currently not practicing medicine and is not familiar with the protocol for cannabis use by cancer patients. [71] Without being familiar with any protocol for cancer patients and without being given any specific details regarding dosage, frequency, or history of use by the patient, he testified that a cancer patient "could" have 5ng/ml of THC in their blood after the impairing effects have worn off. [72] He acknowledged the details regarding prescribing cannabis for cancer patients was an important question and deferred to the doctors who prescribed it. [73] He also testified that the benefits of cannabis for medicinal purposes are sometimes overstated. [74]
[67] Ms. Chow was also unaware of any protocol for the medicinal use of cannabis by cancer patients. Unlike Dr. Uetrecht, she was not prepared to speculate. She testified that to provide an informed opinion as to whether it is reasonable to expect a cancer patient to have residual THC in their blood over 5 ng/ml it would be important for her to have details regarding dosage, THC concentration, and history of use by the patient.
[68] This hypothetical is an important one, especially given the data included in Dr. Bierness' written opinion in relation to the use of medicinal marijuana. A 2020 survey indicated that of those respondents who reported using cannabis for medical purposes, only 24% had documentation from a medical professional. What is more, 19.6% of cannabis users for medical reasons reported driving within two hours after smoking or vaping (when the impaired effects could be expected to be active). 15.9% reported driving within 4 hours of the consumption of cannabis for medical purposes.
[69] The reasonableness of a hypothetical cannot be overstated. [75] Laws should not be set aside based on speculation. [76] Neither Dr. Utrecht nor Ms. Chow were able to provide an informed opinion to support the reasonableness of this hypothetical. This court is in no better position to do so. In the absence of more particulars, it would be speculative for me to be satisfied that this hypothetical is a reasonable one.
Hypothetical 3: The Occasional and Naïve Cannabis User [77]
An individual who rarely consumes cannabis, decides to do so at dinner (instead of consuming alcohol) and drives to work the next day after the impairing effects of THC have worn off.
[70] I am not satisfied this hypothetical is a reasonable one based on the evidence before me.
[71] Unlike in the case of frequent and cannabis dependant users, neither Ms. Chow, nor Dr. Uetrecht testified that it was reasonable to find residual THC levels of 5ng/ml or more in the blood of naïve or infrequent users of cannabis after the impairing effects of the drug have ceased.
[72] The evidence was that studies have shown that occasional users have no or very low residual THC in their blood. It was Ms. Chow's expert opinion that it could take up to a day or two following the consumption of cannabis for THC to be completely undetectable in the blood of an occasional user. She did not testify that the undetectable amount would be as high as 5ng/ml. Her testimony was that she would be surprised to find an occasional user with a residual THC reading of 5 or 6ng/ml, but she could not rule it out if the individual had last consumed 12 hours prior to their blood was taken. [78]
[73] Dr. Uetrecht was asked to provide his opinion regarding residual THC levels in the blood of occasional users of cannabis. He was not prepared to define what he considered to be an occasional user of cannabis. His evidence was that a THC level of 5 ng/ml blood is consistent with recent use by an individual who either has never used cannabis, used a long time ago or used again after they no longer had residual THC in their blood. Like Ms. Chow, at no point did he give evidence that it was reasonable to expect naïve or occasional users of cannabis to have a residual THC level of 5ng/ml or more after the impairing effects of the drug have worn off.
[74] Based on the totality of evidence, I am not persuaded that a naive or occasional user of cannabis would be impacted by the 5ng/ml per se offence. As in the case of the second hypothetical, I find this hypothetical is not a reasonable one to contemplate setting aside the legislation in question.
Position of the Parties
[75] This court is satisfied that the first hypothetical is reasonable and I will turn to the issues that pertain to an analysis of s. 7 of the Charter.
[76] The principles of fundamental justice set out the minimum requirements that a law that infringes upon a person's life, liberty, or security of the person must meet. The term 'principles of fundamental justice' is not a right, but a qualifier of the right not to be deprived of life, liberty and security of the person. Its function is to set the parameters of each right. [79]
[77] The overarching lesson that emerges from the s. 7 case law is that laws run afoul of our basic values when the means by which the state seeks to attain its objective is fundamentally flawed, in the sense of being arbitrary, overbroad, or having effects that are grossly disproportionate to the legislative goal. [80]
[78] As explained by the Supreme Court in Bedford, a law’s compliance with s. 7 of the Charter turns on a proper assessment of the impugned provision’s objective. [81]
[79] The defence position is the purpose of Bill C-46 is:
a) To criminalize and prevent impaired driving by THC for public safety. [82]
b) To hold impaired drivers accountable by "strengthening" the existing laws and by providing new tools to assist in the detection and prosecution of impaired drivers. [83]
c) The purpose of the legislation is not to create a new offence in the name of public safety. Rather, the objective of the 5ng/ml per se law is to provide another avenue by which to detect and prosecute impaired drivers. [84]
[80] The defence submits s. 320.14(1)(c) and s. 2 of SOR/2018-148 are both arbitrary and overbroad for the following main reasons:
a) The limit of 5ng/ml is arbitrary because it does not correlate to impairment, and therefore, does not further the objective of detecting or prosecuting drivers who are impaired from the consumption of cannabis.
b) The limit of 5ng/ml is arbitrary as it cannot be effective in preventing individuals from driving after consuming cannabis because they do not know their THC blood concentration.
c) The 5ng/ml per se limit is overbroad because it has the effect of criminalizing conduct that is not harmful. The experts agree that frequent and chronic users of marijuana can have a residual level of 5ng/ml or more while not suffering the impairing effects of THC.
[81] The Crown submits that the purpose of setting the 5ng/ml per se limit for THC is not simply to detect and hold impaired drivers accountable. Parliament opted to take a precautionary approach to manage risk when they decided to legalize the possession of cannabis. That approach included creating new offenses and setting the 5ng/ml per se limit for THC with a view to reducing the risk posed by individuals who decide to consume cannabis and drive. I agree. I do not accept that the objective of the legislation was limited to “catching impaired drivers” as suggested by the Applicant.
Issue 1: What is the Objective of the Legislation?
[82] The Supreme Court of Canada summarized the considerations that guide the task of properly characterizing Parliament's purpose in a s. 7 analysis:
a) The law’s purpose is distinct from the means used to achieve that purpose. A law's means may be helpful in determining its objective, but the two must be treated separately.
b) A law's purpose should be characterized at the appropriate level of generality, which resides between the statement of an "animating social value" -- which is too general -- and a "narrow articulation" that amounts to a virtual repetition of the challenged provision, divorced from its context.
c) The statement of purpose should be both precise and succinct.
d) The analysis is not concerned with the appropriateness of the legislative purpose. The court must take the legislative objective at face value and assume it is appropriate and lawful. [85]
[83] A law's purpose can be inferred from explicit legislative statements, the text of the law read in its context, extrinsic evidence such as legislative history and evolution, as well as judicial interpretations. Although legislative debates cannot override specific text and legislation, they may still inform the interpretation process. [86]
(i) Judicial Interpretations
[84] This is the first challenge to the 5 ng/ml per se limit for THC. There is an absence of binding authority regarding the objective of Bill-C-46 and in particular the 5ng/ml per se limit.
(ii) The text of Bill C-46
[85] There is no question that Parliament undertook a complete revision of the driving provisions of the Criminal Code in Bill C-46. Part I of the amendments came into force on June 21, 2018. Part 2 came into force on December 18, 2018.
[86] Combined, the changes included five impaired operation offences with three new per se limits for drugs, the elimination of "bolus drinking" prior to driving as a defence and restrictions on the "intervening drink" defence. The presumption of accuracy now limits defences to those which show an error in approved instrument operation. Section 320.27(2) authorizes random road sites testing, following an example set in Australia and other jurisdictions. Section 320.34(1) prescribes relevant disclosure. Sentencing for driving offences was also harmonized.
[87] In short, the first section of Bill C-46 enacted a new regime for the detection and prosecution of drug impaired driving. The second section of Bill C-46 revised all the Criminal Code provisions dealing with transportation offences.
(iii) The preamble
[88] The primary function of a preamble is to recite the circumstances and considerations that gave rise to the need for legislation or the "mischief" the legislation is designed to cure.
[89] Bill C-46 – An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, S.C. 2018, C. 21 included a preamble. The preamble sets out nine considerations that motivated the reforms, including:
Whereas dangerous driving and impaired driving injure or kill thousands of people in Canada every year;
Whereas dangerous driving and impaired driving are unacceptable at all times and in all circumstances;
Whereas it is important to deter persons from driving while impaired by alcohol or drugs;
Whereas it is important that law enforcement officers be better equipped to detect instances of alcohol-impaired or drug-impaired driving and exercise investigative powers in a manner that is consistent with the Canadian Charter of Rights and Freedoms;
Whereas it is important to simplify the law relating to the proof of blood alcohol concentration;
Whereas it is important to protect the public from the dangers posed by consuming large quantities of alcohol immediately before driving;
Whereas it is important to deter persons from consuming alcohol or drugs after driving in circumstances where they have a reasonable expectation that they would be required to provide a sample of breath or blood;
Whereas it is important that federal and provincial laws work together to promote the safe operation of motor vehicles;
And whereas the Parliament of Canada is committed to adopting a precautionary approach in relation to driving and the consumption of drugs, and to deterring the commission of offences relating to the operation of conveyances, particularly dangerous driving and impaired driving;
[90] Section 320.12 of the Criminal Code states:
It is recognized and declared that
(a) operating a conveyance is a privilege that is subject to certain limits in the interests of public safety that include licensing, the observance of rules and sobriety;
(b) the protection of society is well served by deterring persons from operating conveyances dangerously or while their ability to operate them is impaired by alcohol or a drug, because that conduct poses a threat to the life, health and safety of Canadians;
(c) the analysis of a sample of a person's breath by means of an approved instrument produces reliable and accurate readings of blood alcohol concentration; and
(d) an evaluation conducted by an evaluating officer is a reliable method of determining whether a person's ability to operate a conveyance is impaired by a drug or by a combination of alcohol and a drug.
(iv) Legislative history
[91] The history of impaired driving laws in Canada starting in 1925 is very helpfully set out in Chapter One of the latest edition of Justice Joseph Kenkel's book "Impaired Driving In Canada." [87]
[92] The history and legislative background to Bill C-46 is also contained in the Crown's responding materials in a paper from the Department of Justice entitled "Legislative Background: reforms to the Transportation Provisions of Bill C-46."
[93] Suffice to say, Bill C-46 represents the next chapter in the evolution of Parliament’s response to strengthening impaired driving laws and road safety. The amendments coincided with Bill C-45 in the same session of Parliament, the de-criminalization of marijuana possession.
(v) Statements by the Minister of Justice
[94] Statements made in the legislature leading up to the enactment of a provision may supply evidence of its purpose. [88] In this case various statements made by the Minister of Justice made it clear that Parliament was aware of the difference between cannabis and alcohol and that a blood reading for THC does not correlate well to impairment. Knowing this, Parliament decided to take a precautionary approach by adopting per se limits with the objective of deterring and reducing the risk of impaired driving from cannabis consumption when it became legal.
[95] On May 19, 2017, then Minister of Justice Jody Wilson-Raybould introduced Bill C-46 to the House of Commons as follows: [89]
I introduced the bill with the ultimate goal of reducing the significant number of deaths and injuries caused by impaired driving, a crime that continues to claim innocent lives and wreak havoc and devastation on Canadian families…
Every year, drivers impaired by drugs and alcohol cause devastation on our roads and highways. Impaired driving continues to be the leading criminal cause of death and injury in Canada this is completely unacceptable.
That is why I'm proud to have proposed legislation to enact an impaired driving regime that would be amongst the strongest in the world. It would ensure as much as possible that no one has to live through tragedies…
Part one of the bill proposes new tools to detect drug impaired drivers at the roadside. It would also create three new driving offences of being over illegal drug limits… this part of the bill would come into force upon royal assent to ensure that a more robust drug impaired driving regime is in place before the legalization and regulation of cannabis.
Part two of the bill would repeal all the transportation related provisions of the Criminal Code and replace them with a clear, coherent structure. Overtime, the Criminal Code provisions have become too complex and difficult to understand. Part 2 also proposes substantial reforms to strengthen the law of alcohol impaired driving and address existing challenges with detection, enforcement, and prosecution.
Overall, the bill proposes to strengthen the criminal law approach to both drug impaired and alcohol impaired driving …
The bill also builds on the existing drug impaired driving offensive by proposing new offences for being over illegal drug limits. This offence structure will be familiar to many, as it is similar to the offence that prohibits driving over the legal limit of alcohol, otherwise known as the "over 80" offence.
Although the proposed offences would apply to several impairing drugs… I intend to focus on the proposed levels of THC. The legal limits would be set by regulation and proven through blood analysis. The bill would authorize the taking of a blood sample from a driver when an officer has reasonable grounds to believe that either a drug-impaired or legal limit offence has occurred.
These proposed drug offences have been developed in recognition of the differences between alcohol and THC, in particular, the difference in the way that they are absorbed, metabolised, and eliminated by the human body.
This bill takes a precautionary approach by establishing a low level, fine only drug offence for THC that would prohibit having between two and five nanograms of THC per milliliter of blood within two hours of driving. Additionally, Bill C-46 proposes a hybrid offence for a higher level of THC where a driver has five nanograms or more of THC per milliliter of blood.
Finally, I am proposing an offence of low levels of THC in combination with low levels of alcohol. This new offence would convey to Canadians that combining THC and alcohol intensifies impairment…… The higher drug offence of having five nanograms of THC in the body or more and the combination offence of having a mixture of THC and alcohol in the blood would have escalating penalties that mirror the existing impaired driving penalties…
It is important to note that drug impaired driving has been an offence in Canada since 1925. However, our government is committed to strengthening these existing measures before strictly regulating and legalizing cannabis.
The proposed drug levels to be prescribed by regulation are based on the advice of the drugs and driving committee of the Canadian Society of Forensic Science…
In developing this approach, we are mindful of other jurisdictions. In the United Kingdom, where cannabis remains illegal the legal limit is 2 nanograms of THC per milliliter of blood. In Colorado and Washington for cannabis is legalized the legal limit is 5 nanograms. The approach in Bill C-46 to drug impaired driving would be among the toughest in the world, particularly in jurisdictions where cannabis is legal.
[emphasis added]
[96] When questioned about the per se drug limits at the Standing Committee on Justice and Human Rights, the Minister stated the following on June 13, 2017:
From the outset, in terms of drug impaired driving, as I said in my comments, were taking a precautionary approach, the premise being that no level of drug impairment or no level of ingestion of drugs is appropriate if you're planning on getting behind the wheel of your car. As you quite rightly point out, the science with respect to impairment by drugs is not as clear as it is with respect to impairment by alcohol, which is why, with respect to Bill C-46 and the per se limits we have been taking and continued to take expert advice from the best scientific evidence that the drugs and driving committee presented to us. They are part of the Canadian Society of Forensic science. We're going to continue to empower and embrace recommendations that come from them as the science continues to evolve in terms of the levels that have been set. We have taken advice from them, as well as from levels that have been set in other jurisdictions. [90]
[97] On October 27, 2017, the Minister of Justice further explained:
At the outset I would like to extend my heartfelt thanks to members of the standing committee on justice and human rights for the thorough review in consideration of this Bill. Committee members heard over 45 witnesses and reviewed a significant amount of material on a highly complex topic …
As I have indicated on previous occasions, the primary objective of this legislation is to save lives, lives that have continued to be tragically cut short by irresponsible and reckless decision to drive after consuming alcohol or drugs …
This bill aims to reduce the impact of impaired driving on those who suffered traumatic, lifelong injuries caused by another person's irresponsible decision to drive drunk or high…
Despite great efforts by government and advocacy groups to raise awareness of the dangers of impaired driving, we still see far too many headlines about these tragic incidents. There is no excuse for this type of conduct in our society, yet by some estimates more than 1000 people lose their lives every year to this entirely preventable crime. Countless more are injured.
In my view, it is my responsibility as the Minister of Justice and Attorney General of Canada to take any and all reasonable measures to increase deterrence and the detection of impaired drivers.
Bill C46 aims to strengthen the criminal law response to both drug and alcohol impaired driving…. although it is difficult to predict the impact of cannabis legalization on the rate of impaired driving, information from other jurisdictions that have legalized cannabis suggests that there could be a slight increase. Canada needs to be prepared.
The measures proposed in Bill C46 would increase the deterrence, detection and conviction of those who engage in reckless and irresponsible conduct …
… [T]hree legal drug limit offences are proposed…
Some witnesses who appeared before the standing committee did not support this approach. They expressed concern that the science with respect to THC, in particular, was not clear enough to justify setting legal limits. However, let me be perfectly clear. One thing that all witnesses agreed on was that THC is an impairing drug.
Our government is aware that unlike alcohol, it is difficult to correlate the blood concentration of THC with impairment …
I would like to add that the new perceived offences for drug impaired driving would contain several inherent protections to avoid charging drivers who are not actually impaired. These protections would include the requirement that the officer in questioning develop reasonable suspicion of drugs in the body of the driver before administering the roadside drug screeners or other roadside sobriety tests. Where the driver failed the drug screening test, this itself would be highly indicative of recent consumption. Ultimately the officer would have to have reasonable grounds to believe that an impaired driving offence had been committed before testing the individual and carrying out further testing at the station.
To sum up, the drug levels that are proposed for these new provisions are consistent with the approaches take in other jurisdictions, and I'm confident that they reflect the best available scientific evidence while at the same time ensuring that we are proceeding in a manner that protects the safety of the public. [91]
[emphasis added]
(vi) Reports to government
[98] Other acceptable documentary sources of legislative history include government policy papers such as a white paper, green paper, budget paper and even reports or studies produced outside government which existed at the time of the enactment, and which were relied on by the government that introduced the legislation. [92]
[99] In this case, the recommendations for the per se limits that Parliament adopted in Bill C-46 were made by The Canadian Society of Forensic Sciences Drugs and Driving Committee who produced the Report on Drug Per Se Limits in September 2017. The report forms part of the Crown's materials on this application.
[100] The Committee advised the Department of Justice as follows with respect to residual THC in chronic users:
THC is a lipophilic compound which means that blood concentrations rapidly decline as THC preferentially distributes to lipid-rich tissues. This same proclivity results in a slow release of THC from these tissues and resultant low levels of THC detectable within the blood of chronic users for prolonged periods of time; this would be further exacerbated by the intensity of the exposure. Individuals who use cannabis products daily or multiple times throughout the day may have THC blood concentrations above the per se limit despite having had a period of cessation for hours or possibly days.
In a study of 11 occasional and 12 heavy cannabis users, none of the occasional users tested positive at the beginning of the study prior to smoking, and at 8 hours after smoking a cannabis product, all had THC concentrations less than 1 ng/mL in blood.
In contrast, one individual who was a chronic user had a THC concentration greater than 5 ng/mL in blood both at the beginning of the study prior to smoking, and 8 hours after smoking a placebo cigarette (Toennes et al., 2008).
In this same study, 3 of the chronic users had THC blood concentrations of 2 ng/mL or greater 8 hours after smoking a cannabis product due to, at least in part, the residual THC present prior to smoking.
In a study of daily cannabis users, blood THC concentrations approximately 6 days since last use ranged from not detectable to 4.2 ng/mL; additionally, 7 of 11 subjects had concentrations of 2 ng/mL or greater at this time (Odell et al., 2015). In this same study, 9 of 21 subjects had THC concentrations above 5 ng/mL on the second day which was at least 24 hours since reported last use. Thus, these individuals would have blood THC concentrations above potential per se limits well beyond the period during which they would be expected to experience the acute intoxication and impairing effects of cannabis administration.
However, the potential for development of cognitive deficits due to chronic cannabis use becomes a relevant discussion point in this driving population. There is evidence to suggest that repeated administration of cannabis may result in impairment past the expected duration of action. This may be due to residual THC in the brain having a continued impact, withdrawal effects due to abrupt discontinuation of use, or alterations in brain functioning associated with years of cumulative cannabis exposure. The mechanism is difficult to determine considering the confounding issues that are inherent in retrospective studies and the ethical issues that are inherent in prospective studies. Regardless, these deficits are possibly related to duration of use, the age that the individual started cannabis use, and/or frequency of use (Bolla et al., 2002; Pope et al., 2003). Deficits in memory, learning, attention, and manual dexterity have been postulated to be attributable to regular cannabis use (Bolla et al., 2002; Pope and Yurgelun-Todd, 1996).
Whereas acute effects have been previously defined as 0-6 hours after smoking cannabis, residual effects are considered to be those occurring 7 hours to 20 days after last use, and long term effects as 3 weeks or longer after last use (Crean et al., 2011).
Chronic, heavy use by individuals can result in enduring deficits for both the residual and long-term categories (Crean et al., 2011). Days to weeks of decreased performance are possible with chronic heavy cannabis users (Bolla et al., 2002; Bosker et al., 2013; Pope et al., 2001). Baseline THC levels in chronic users within a placebo group were determined to be as high as approximately 5.4 ng/mL in blood equivalents (Ramaekers et al., 2016). These users still perceived a subjective high despite not being given active THC in the study. During the cannabis administration part of this study, the subjects, all cannabis users but of varying frequency, demonstrated decreased abilities in executive functioning, impulse control, attention, and psychomotor functioning. Furthermore, it was considered possible that impairment of neurocognitive functioning of chronic users could persist beyond the initial phase of intoxication (Ramaekers et al., 2016). This cognitive decline is less likely as the frequency of cannabis use declines and improvements are possible after a period of abstinence from cannabis products suggesting these deficits are reversible (Pope et al., 2002). Theories that these deficits could be permanent are likely attributed to those individuals who began chronic cannabis use at early ages and may have experienced deleterious effects of cannabis on the developing brain. Chronic users also achieve higher THC concentrations from smoking the same THC content in a cigarette as compared to occasional users, likely due to the more efficient smoking technique that they have acquired with experience. For example, in a study of 12 heavy (use more than 4 times per week) and 12 occasional (less than 2 times per week) users, the mean peak THC concentration after smoking was approximately 2.5 times higher in heavy users compared to the occasional users (Theunissen et al., 2012). Even accounting for the residual THC concentrations present prior to smoking that would contribute to the final resulting THC level, chronic users are able to capture more of the active ingredient through the inhalation process. [93]
(Emphasis added)
Conclusion – The Objective of the Legislation
[101] In this case the Applicant correctly observes that the overarching objective of Bill C-46, was to strengthen the law as it relates to all impaired drivers. That said, I am satisfied that the 5ng/ml per se limit was specifically put in place in anticipation of the legalization of cannabis with the objective to deter individuals who consume cannabis from getting behind the wheel of a car when they could represent a risk to the public. The preamble specifically declares that the new provisions were introduced to protect society and with deterrence in mind, and the Minister of Justice described the per se limits as representing a precautionary approach taken by government in preparation for the legalization of cannabis.
[102] Based on the totality of factors I am entitled to consider; I am satisfied that the 5 ng/ml per se limit for THC had a dual purpose. The objective was to strength the pre-existing impaired driving laws and increase road safety by deterring cannabis users from getting behind the wheel of a car after having consumed cannabis.
Issue 2: Is the 5 ng/ml Per Se Limit Arbitrary?
[103] Arbitrariness is used to describe the situation where there is no connection between the effect and the object of the law. [94]
[104] A criminal law that is shown to be arbitrary or irrational will infringe s. 7 of the Charter. [95]
[105] In determining if a law is arbitrary, one asks whether there is a direct connection between the purpose of the law and the impugned effect on the individual, in the sense that the effect on the individual bares some relation to the law's purpose. There must be a rational connection between the object of the measure that causes the s. 7 deprivation, and the limits it imposes on life, liberty, or security of the person. [96]
[106] The applicant argues that the impugned sections have no rational connection to the purpose of Bill C-46 for two main reasons. As I will explain, I do not agree.
i. The defence submits that the limit of 5ng/ml is arbitrary because it does not correlate to impairment and therefore does not further the objective of detecting impaired drivers.
[107] I am satisfied that the effect of 5 ng/ml per se limit is rationally connected to the objectives of detecting drivers who are impaired by THC.
[108] While a single THC reading cannot correlate to a specific level of impairment, it does afford evidence of recent consumption of cannabis. Evidence of recent consumption is evidence from which a court can infer an individual is under the influence of the impairing effects of THC while driving.
[109] The evidence of both Ms. Chow and Dr. Uetrecht is that a THC reading of 5 ng/ml (or more) in a naïve or recreational consumer of cannabis can be evidence of recent consumption.
[110] As for the reasonable hypothetical, while studies have shown that frequent and chronic users of cannabis can have residual THC levels of 5ng/ml or more while not being impaired, it cannot lightly be assumed that every reading of 5ng/ml or more in such users reflects a harmless residual THC level as opposed to evidence of recent consumption. The Odell study demonstrates that THC levels of 5 ng/ml or more in habitual users of on the first day of the study can reflect recent use by some individuals and residual levels in others. Therefore, it cannot be said that the effect of the 5 ng/ml on habitual users is not rationally connected to the objectives of legislation.
[111] I would also observe the 5ng/ml per se limit is also not arbitrary to the objective of the legislation given the studies referenced by Ms. Chow and Dr. Beirness that have observed an increased crash risk in cases of drivers found to have 5ng/ml or more of THC in their blood.
ii. The defence submits that the limit of 5ng/ml is arbitrary because it cannot be effective in deterring individuals from driving while under the impairing effects of THC because they do not know their THC blood concentration.
[112] Drivers who get behind the wheel of a car after consuming alcohol also cannot know whether they have over the per se limit for alcohol, 80mg alcohol per 100ml of blood. Yet, it cannot be denied that some individuals are deterred from driving after drinking alcohol because they do not wish to be impacted by the per se limits set for alcohol. It is hard to deny that setting a per se limit for alcohol deters some individuals from getting behind the wheel of a car prematurely, and encourages some to drink less, or not at all, if they intend to drive. The research that Dr. Bierness referenced regarding the positive effect of introducing per se laws for alcohol supports this common-sense inference and shared life experience. It is not irrational for Parliament to set a per se limits for THC in the interest of having the same deterrent effect on cannabis users.
[113] The Supreme Court of Canada has cautioned against accepting arguments about the alleged ineffectiveness of legal measures. The efficacy of a law, or lack thereof, is not relevant to Parliament's ability to enact it. It is important that deference be accorded to Parliament in assessing the utility of its responses to perceived social ills. [97]
[114] More to the point, with respect to the hypothetical involving frequent and chronic users, it is precisely because chronic users do not know their THC level that a per se limit can act to deter such users from getting behind the wheel of a car. Dr. Uetrecht testified that he would not trust a regular or chronic user to decide for themselves if it was safe for them to drive after consuming cannabis. The doctor also agreed that individuals are not the best judge of their own level of impairment. [98]
[115] Deterring habitual users of cannabis from getting behind the wheel of a car is consistent with the objective of the legislation. Recall that the subjects in the Odell study who were shown to have more than 5ng/ml more than 12 hours after they last consumed, all reported a pattern of using cannabis multiple times a day. It is not irrational for Parliament to wish to deter such frequent users from getting behind the wheel of car on any given day.
[116] This second argument fails because the effect of the legislation on chronic users of cannabis who can have residual THC levels of 5 ng/ml or more is consistent with a precautionary approach Parliament expressly adopted with the objective of deterring such users from driving.
Conclusion – Arbitrariness
[117] Arbitrariness is found when there is no connection between the effect and object of law. This is not one of those cases.
Issue 3: Is the 5 ng/ml Per Se Limit Overbroad?
[118] Overbreadth concerns a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. In this sense, the law is arbitrary in part. At its core, overbreadth addresses the situation where there is no rational connection between the purposes of the law and some, but not all, of its impacts. [99]
[119] The overbreadth analysis looks at the means chosen by the state in relation to its purpose. In considering whether a legislative provision is overbroad, a court must ask the following question: are those means necessary to achieve the state objective? [100]
[120] The test for overbreadth is whether the law goes too far and interferes with some conduct that bears no connection to its objective and not whether the legislature has chosen the least restrictive means. It is whether the chosen means infringe life, liberty, or security of the person in a way that has no connection with the mischief contemplated by the legislation. [101]
[121] In analyzing a statutory provision to determine if it is overbroad, a measure of deference must be paid to the means selected by the legislature. While the courts have a constitutional duty to ensure that legislation conforms with the Charter, legislatures must have the power to make policy choices. A court should not interfere with legislation merely because a judge might have chosen a different means of accomplishing the objective if he or she had been the legislator. [102]
[122] In this case, the Applicant submits that the impugned law is overbroad because the 5mg/ml per se limit criminalized conduct that is not harmful given the expert opinion that frequent and chronic users of marijuana can have a residual level of 5ng/ml or more while not experiencing the impairing effects of the THC.
[123] This argument fails for several reasons:
a) The Supreme Court of Canada has expressly rejected the "harm principle" as the sole justification for a criminal prohibition. [103]
In R. v Malmo-Lavigne; R. v. Caine [2003] 2 SCR 74, Mr. Caine argued that the offence of possession of marijuana violated the principles of fundamental justice because Parliament provided for a term of imprisonment as a sentence for conduct which results in little or no harm to some people.
The Supreme Court of Canada found that the absence of proven harm does not create an unqualified barrier to legislative action. On the contrary, the state may sometimes be justified in criminalizing conduct that is either not harmful or that causes harm only to some, not all. The Supreme Court also held that the use of marijuana is the proper subject matter for the exercise of criminal law power. [104]
b) As previously stated, it cannot lightly be assumed that a THC reading of 5ng/ml in every frequent or chronic cannabis user reflects a harmless amount of residual THC level, as opposed to evidence of recent consumption during which time the impairing effects of THC are still operating. Just the same, the law aims to impact those in the latter category because blood can only be seized when there are reasonable grounds to believe an offence has been committed.
c) Section 7 of the Charter does not protect an individual's lifestyle choice to consume marijuana habitually.
In R. v Malmo-Lavigne; R. v. Caine [2003] 2 SCR 74, Mr. Malmo-Levine argued that smoking marijuana is integral to his preferred lifestyle and that the criminalization of the possession and trafficking aspects of marijuana are an unacceptable infringement of his personal liberty.
The Supreme Court held that the desire to build a lifestyle around the use of marijuana does not attract Charter protection. There is no free-standing constitutional right to consume cannabis for pleasure. [105] Nor is their an unconditional “right” to drive when not impaired.
d) Driving is neither a common law, nor constitutionally protected right.
In saying this I do not mean to minimize the significance of driving in modern day society. That said, s. 7 does not apply simply because legislation gives rise to serious consequences. [106] Driving is not a constitutional right, but a statutory right, an important one to be sure, but a right that is subject to adherence to governing legislation and rules made under it.
Further, the right to liberty under s. 7 is not to be understood as a prima facie freedom from any restraint on action, as though it protects a right to do whatever one wants. Section 7 protects only those fundamental choices concerning which individuals have a genuine and legitimate claim grounded in the values of human autonomy and dignity. It is a protection of the fundamental and not the petty and of that which is rightfully claimed rather than what someone merely asserts to be important. [107]
The Supreme Court of Canada has recognized that, while movement in a vehicle involves a "liberty" interest in a general sense, it cannot be equated to the ordinary freedom of movement of the individual that constitutes one of the fundamental values of our democratic society. Rather, it is a licensed activity that is subject to regulation and control for the protection of life and property. [108] The need for regulation and control of the use of vehicles on the highway is heightened both because of the high prevalence of the activity and its inherent dangers. [109]
e) The current limitations in science related to correlating THC levels to impairment to drive, does not provide a Charter basis to incapacitate Parliament from taking any action to protect society.
The Applicant submits that the legislation is overbroad because currently there is no way to distinguish whether a chronic user’s THC level is 5 ng/ml as a result of having recently consumed cannabis or represents a harmless residual THC level while no longer experiencing the impairing effects of the drug.
This submission is analogous to the dissent in R. Malmo-Lavigne; R. v. Caine [2003] 2 SCR 74. In R. v. Caine it was recognized that it was not generally possible to distinguish chronic users of marijuana from the general population.
In paragraph 166 of Caine, Justice Arbour, in dissent, opined that it was unconstitutional for the state to attempt to prevent the general population, under threat of imprisonment, from engaging in conduct that is harmless to them on the basis that others may be harmed.
The majority rejected Justice Arbour's position because the impossibility of precise identification of "chronic users" would incapacitate Parliament from taking any action to protect others.
In this case, it is precisely because a single THC level may or may not represent evidence of recent use by a chronic cannabis user, that Parliament is entitled to take a precautionary approach to road safety by prohibiting everyone from driving with over 5ng/ml of THC in their blood.
The Odell study illustrated that chronic users who have more than 5ng/ml of residual THC, consume cannabis multiple times a day. Given how long the impairing effects of cannabis can last when smoked (4-6 hours) or consumed orally (8 hours), imposing the 5 mg/ml per se limit can preclude chronic users from being able to drive on any day they are consuming cannabis, which is consistent with the objective of deterring impaired driving.
Additionally, the experts testified that studies have shown that chronic long-time consumers of cannabis can suffer from cognitive defects that impair their ability to drive. The impugned law limits the risk posed by chronic users when they get behind the wheel of car.
Conclusion – Overbreadth
[124] The overbreadth test is a difficult test to meet [110] and it has not been met in this case.
Final Conclusion
[125] This application raised complicated policy considerations. Parliament has taken a precautionary approach when it imposed a 5 ng/ml per se limit. This limit will impact the ability of cannabis users to legally operate a motor vehicle. Public policy decisions are for the legislative branch to address, not the courts. [111] The wisdom of a particular measure, which is within its constitutional sphere, is up to Parliament. [112] The sole issue for this court to adjudicate is whether the legislative approach chosen by Parliament complies with s. 7 of the Charter. I am satisfied that it does.
[126] I am satisfied that while the 5 ng/ml per se limit may impact some frequent and chronic users of cannabis, it does so in a way that does not violate the principles of fundamental justice because on balance, the impact is neither arbitrary, nor overbroad. The impact is consistent with Parliament’s stated intention when the possession of cannabis was legalized: to strengthen the laws with a view to not only detecting impaired drivers but also deterring individuals who consume cannabis from getting behind the wheel of a car when they represent a risk to the public.
[127] The Applicant has not met its onus in establishing a s. 7 violation.
[128] The application is dismissed.
Released: April 7, 2022 Signed: Justice Sandra Caponecchia
Appendix "A"
Operation while impaired
320.14 (1) Everyone commits an offence who
(a) operates a conveyance while the person's ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug;
(b) subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood;
(c) subject to subsection (6), has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation; or
(d) subject to subsection (7), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration and a blood drug concentration that is equal to or exceeds the blood alcohol concentration and the blood drug concentration for the drug that are prescribed by regulation for instances where alcohol and that drug are combined.
Operation causing bodily harm
(2) Everyone commits an offence who commits an offence under subsection (1) and who, while operating the conveyance, causes bodily harm to another person.
Operation causing death
(3) Everyone commits an offence who commits an offence under subsection (1) and who, while operating the conveyance, causes the death of another person.
Operation - low blood drug concentration
(4) Subject to subsection (6), everyone commits an offence who has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation and that is less than the concentration prescribed for the purposes of paragraph (1)(c).
Operation causing death
(3) Everyone commits an offence who commits an offence under subsection (1) and who, while operating the conveyance, causes the death of another person.
Exception - drugs
(6) No person commits an offence under paragraph (1)(c) or subsection (4) if
(a) they consumed the drug after ceasing to operate the conveyance; and
(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of a bodily substance.
(emphasis added)
Regulation SOR/2018-148
1 For the purpose of subsection 320.14(4) of the Criminal Code, the prescribed blood drug concentration for tetrahydrocannabinol (THC) is 2 ng of THC per mL of blood.
Hybrid offence - drugs
2 For the purpose of paragraph 320.14(1)(c) of the Criminal Code, the prescribed blood drug concentration for each drug set out in column 1 of the table to this section is set out in column 2.
| COLUMN 1 | COLUMN 2 |
|---|---|
| ITEM | DRUG |
| 1. | Tetrahydrocannabinol (THC) |
| 2. | Lysergic acid diethylamide (LSD) |
| 3. | Psilocybin |
| 4. | Psilocin |
| 5. | Phencyclidine (PCP) |
| 6. | 6-Monoacetylmorphine |
| 7. | Ketamine |
| 8. | Cocaine |
| 9. | Gamma hydroxybutyrate (GHB) |
| 10. | Methamphetamine |
SOR/2018-149, s. 2
Hybrid offence - combination of drugs and alcohol
3 For the purpose of paragraph 320.14(1)(d) of the Criminal Code, the prescribed blood alcohol concentration is 50 mg of alcohol per 100 mL of blood and the prescribed blood drug concentration for tetrahydrocannabinol (THC) is 2.5 ng of THC per mL of blood.
SOR/2018-149, s. 3
[1] Tetrahydrocannabinol (THC) is the psychoactive substance that produces the “high” associated with consuming cannabis and can impair an individual’s ability to operate a motor vehicle.
[2] The per se limit set by Norway is 1.3ng/ml, U.K. is 2 ng/ml, Belgium, Ireland, Croatia, Luxenburg all set the THC limit at 1 ng/ml, Germany, France, Italy, Netherlands all have zero limits, and various states in the USA have limits of 0, 2 and 5ng/ml: See Exhibit 4, Tab H and Tab E of the Crown’s Response & Application Record, Legislative Background: reforms to the Transportation Provisions of the Criminal Code (Bill C-46) Government of Canada, May 2017 at p. 50-51; Exhibit 4, Tab E, Dr. Beirness’ Expert Opinion as contained in the Crown’s Response, Factum and Application Record
[3] Written reasons released November 2, 2021.
[4] Prior to Bill-C46 there was only one per se offence, for alcohol. Commonly referred to as “over 80.” See Appendix A for the revised Criminal Code provisions and Regulation.
[5] See Appendix “A” of this decision.
[6] See s. 320.28(2) of the Code.
[7] See s. 320.29(1) of the Code.
[8] See s. 487(1) of the Code. A Production Order for hospital records containing blood test results can also be obtained pursuant to s. 487.014.
[9] Testimony of Dr. Uetrecht, November 1, 2021, Excerpts of Proceedings, page 10 (Dr. Uetrecht)
[10] Testimony of Betty Chow, November 2, 2021, Excerpt of Proceedings, page 13 (Betty Chow – Nov. 2).
[11] Testimony of Betty Chow, November 1, 2021, Excerpt of Proceedings, page 71 (Betty Chow – Nov. 1)
[12] Ibid, page 71-72, 73.
[13] Betty Chow – Nov. 2 supra note 10 at page 34 and repeated elsewhere in her evidence; Dr. Uetrecht supra note 9, page 47.
[14] Betty Chow – Nov. 1 supra note 12 page 73.
[15] Exhibit 4, Tab C, Crown’s Response, Factums & Application Record, Expert Opinion Betty Chow, page 2, last paragraph; Betty Chow – Nov. 2 supra note 10 at pages 41-47.
[16] Drummer et al, Accident Analysis and Prevention 36:239-248, 2004 at page 245 (included in Exhibit 6, Crown’s Responding Materials, Part 1 of 2, Tab 3)
[17] Testimony of Betty Chow, July 16, 2021, Excerpt of Proceedings at pages 21, 27, 52, 63 (Betty Chow – July); Dr. Uetrecht supra note 9 at page 7.
[18] Betty Chow – Nov. 2 supra note 10 at page 30 and repeated elsewhere in her evidence; Dr. Uetrecht supra note 9: Dr. Uetrecht testified that he does not claim to be an expert on how long one could expect to be impaired after smoking cannabis.
[19] Betty Chow – July supra note 17 page 47; Dr. Uetrecht supra note 9: Dr. Uetrecht testified he was not expert in tolerance with respect to THC.
[20] Ibid, page 22.
[21] Ibid, page 22-23 and repeated elsewhere in her evidence; Dr. Uetrecht supra note 9, page 10.
[22] Betty Chow – Nov. 1 supra note 12 page 68 and elsewhere in her evidence.
[23] Ibid, pages 74-75.
[24] Betty Chow – Nov. 2, supra note 10 pages 2-3; Dr. Uetrecht supra, note 9 page 31
[25] Dr. Uetrecht supra note 9, pages 31-32.
[26] Betty Chow – Nov. 2 supra note 10 page 30 and elsewhere in her evidence.
[27] Dr. Uetrecht supra note 10, page 9.
[28] Betty Chow – July, supra note 17, page 22; Dr. Uetrecht supra, note 9, page 9.
[29] Betty Chow – Nov. 1 supra note 12, page 69.
[30] Dr. Uetrecht supra note 9, page 11.
[31] Betty Chow – Nov. 1 supra note 12, page 69.
[32] Betty Chow – Nov. 2 supra note 12, page 6.
[33] Ibid.
[34] Ibid, page 4 and elsewhere in her evidence.
[35] Dr. Uetrecht supra note 9, page 31.
[36] Betty Chow – July, supra note 17 page 24;
[37] Betty Chow – Nov. 2, supra note 10, page 33-34
[38] Ibid, page 7.
[39] Ibid, page 7-8.
[40] Ibid, page 8.
[41] See Exhibit H: Odell et al, 2015. Residual cannabis levels in blood, urine, and oral fluids following heavy cannabis use. Forensic Science International 249 (2015) 173-180.
[42] Betty Chow – Nov 2, supra note 10 pages 5-6.
[43] Ibid, page p. 11; Dr. Uetrecht supra note 9, page 38, 60: Dr. Uetrecht testified that he is not an expert on the long term cognitive effects of cannabis on chronic users.
[44] See Exhibit 7. Ramaekers et al, 2006. Cognition and motor control as a function of Delta9-THC concentration in serum and oral fluid: limits of impairment. Drug alcohol Depend 85:114-122. [Ramaekers 2006].
[45] See Exhibit 2, Dr. Uetrecht’s Statement, page 2, Answer to question 2 in the Applicant’s Application Record. In submissions counsel for the Applicant also re-produced an edited version of the graphs to assist in understanding Dr. Uetrecht’s evidence, Exhibit 7a.
[46] Ramaekers 2006, supra note 29, last 2 lines of the abstract on page 114.
[47] Ibid.
[48] Ibid.
[49] Exhibit 4, what Tab E, Dr. Beirness’ Expert Opinion as contained in the Crown’s Response, Factum and Application Record, para. 4 [Dr. Beirness].
[50] Ibid. paragraph 7.
[51] Ibid, paragraph 23.
[52] Ibid, paragraph 25.
[53] Ibid, paragraph 29.
[54] Ibid, paragraph 28.
[55] Ibid, paragraphs 47-48.
[56] Ibid, paragraphs 49-51
[57] Ibid, paragraphs 51-53, 55.
[58] Ibid, paragraphs 58.
[59] Ibid, paragraphs 10,11.
[60] Ibid, paragraphs 43-45.
[61] R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773 (Nur).
[62] R. v. Plange, 2019 ONCA 646, [2019] O.J. No. 4097, at paras. 31-33.
[63] See Exhibit 3, Applicant’s Factum Page 22, para. 47.
[64] See Exhibit H on this Application: Odell et al, 2015. Residual cannabis levels in blood, urine, and oral fluids following heavy cannabis use. Forensic Science International 249 (2015) 173-180.
[65] Subjects 3, 8, 10, 12, all had residual THC levels in excess of 5ng/ml on the first day of the study, twelve hours after having last consuming cannabis. The subject’s respective THC levels on day one were 6ng/ml, 13ng/ml, 6ng/ml, 11ng/ml. Subject 18 had a THC level of 14ng/ml eight and half hours after last consuming cannabis.
[66] Subjects 2, 5, 11, 14, 16, 19 had THC levels of less than 5ng/ml after six or more hours from their last consumption of cannabis. The subject’s respective THC levels on day one were 1ng/ml, 2ng/ml, 3ng/ml, 2ng/ml, 3ng/ml, 1ng/ml.
[67] Subjects 1, 4, 6, 7, 9, 13, 15, 17, 20 all had THC levels in excess of 5ng/ml, however they each had reportedly last consumed cannabis within 6 hours of testing. Only Subject 21 had 1ng/ml at two and a have hours after last consuming cannabis.
[68] In the one exceptional case, Subject 13 began on day one with a THC reading of 15ng/ml, two and a half hours after having last consumed cannabis. Subject 13’s THC level declined to 2ng/nl on day two, rose to 4 ng/ml on day three, rose again to 11ng/ml on day four and declined to 2ng/ml on days 5-7. This caused Ms. Chow to question whether the subject had abstained throughout the study.
[69] See Exhibit 3, Applicant’s Factum, page 27, para. 54.
[70] A variation of this hypothetical was also put to Dr. Uetrecht: someone who uses cannabis as a nightly sleep aid. While the doctor acknowledged such an individual might have some residual THC in their blood, he declined to give an opinion as to what it might be. He did not testify that it was reasonable that such a user would have a residual THC level as high as 5ng/ml or more without being given more details. See page 19 of his evidence on November 1, 2021.
[71] Dr. Uetrecht supra note 9 pages 21, 57-58.
[72] Ibid, pages 21-22.
[73] Ibid, pages 53-54, 57.
[74] Ibid, page 39.
[75] Nur supra, note 60, para. 5.
[76] Ibid, para. 62.
[77] Applicant’s Factum, page 22, para. 46.
[78] Betty Chow – Nov. 2 supra note 10, pages 33-34.
[79] Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101, at para. 94 (Bedford)
[80] Ibid. at para. 106.
[81] Ibid. at para. 123.
[82] See Exhibit 1, Notice of Constitutional Question, para. 18; and Exhibit 3, Applicant’s Factum, paras. 32 and 33.
[83] Ibid.
[84] See Exhibit 3, Applicant’s Factum, para. 34.
[85] R. v. Safarzadeh-Markhali, 2016 SCC 14, paras. 25-29.
[86] Ibid. at para. 31.
[87] 6th Edition, LexisNexis Inc, 2021.
[88] R. v. Appulonappa 2015 SCC 59, [2015] S.C.J. No. 59, para. 64.
[89] See Exhibit 5, Crown’s Supplementary Application Part II: Legislative Assembly, Official Report of Debates (Hansard), 42nd Parliament, 1st Session, No. 181 (19 May) at p.11459-11460 (Jodi Wilson-Raybould) [Hansard] May 19].
[90] Ibid, June 13, 2017, at p. 6.
[91] Ibid, October 27, 2017, at 14616.
[92] P.W. Hogg and Wade Wright, Constitutional Law of Canada, loose-leaf (2021-Rel. 1) 5th ed. (Toronto: Carswell, 2007), at s. 60:1; see also Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014), at para. 9.48.
[93] See Exhibit 4, Tab J, Crown Response, Factum and Application Record, Report on Drug Per Se Limits, Canadian Society of Forensic Sciences Drug and Driving Committee, September 2017, page 15.
[94] Bedford supra note 78, para. 98.
[95] R. Malmo-Lavigne; R. v. Caine [2003] 2 SCR 74, para. 135 (Malmo/Caine).
[96] Bedford, supra note 78, para. 111.
[97] Malmo/Caine supra note 94, para. 177.
[98] Dr. Uetrecht supra note 9, p. 37.
[99] Bedford supra note 78, para. 112.
[100] R. v. Heywood, [1994] 3 S.C.R. 761, at para. 49. See also Bedford supra note 78, at para. 101.
[101] Tanase v. The College of Dental Hygienists of Ontario, 2021 ONCA 482, para. 47. (Tanase)
[102] R. v. Heywood, [1994] 3 S.C.R. 761 paras. 51 and 52.
[103] Malmo/Caine supra note 94 at paras. 111 and 123.
[104] Ibid, para. 115.
[105] Ibid, para. 87.
[106] Tanase supra note 100 para. 45.
[107] Ibid, para. 36.
[108] Dedman v. The Queen, [1985] 2 S.C.R. 2, at p. 35.
[109] R v Orbanski; R v Elias, 2005 SCC 37, [2005] 2 SCR 3, para. 24.
[110] Tanase supra note 82, at para. 48.
[111] Reference re ss. 193 and 195.1 (1) (c) of the Criminal Code (Man.), [1990] 1 S.C.R., 1123, at paras. 66-67.
[112] Malmo/Caine supra note 94 at para. 123.