Vol. 151, No. 41 — October 14, 2017

Blood Drug Concentration Regulations

Statutory authority

Criminal Code

Sponsoring department

Department of Justice

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

As part of its initiative to strengthen the criminal law approach to drug-impaired driving in advance of the legalization and regulation of cannabis, the Government has proposed new criminal offences in Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts. These offences would prohibit individuals from having certain levels of impairing drugs in their blood within two hours of driving. As proposed in Bill C-46, the drugs to be included under these offences as well as their prohibited levels would be established in regulations adopted by the Governor in Council. The Government is publishing the draft regulatory text in Annex A in order to seek public input on the development of offence levels for drug-impaired driving.

Background

The Criminal Code currently prohibits driving while impaired by a drug or alcohol or a combination of both (the impaired driving offence). This offence requires proof of impairment but does not require evidence of the level of drugs or alcohol in the body. The Criminal Code also currently includes a blood alcohol concentration (BAC) offence for alcohol that specifically prohibits driving with a BAC that is more than 80 milligrams (mg) of alcohol per 100 millilitres (ml) of blood (the “over 80” offence). This offence does not require proof of impairment, rather the offence requires proof that an individual had a BAC over 80. There is currently no similar offence for other drugs.

Bill C-46 proposes to create three new criminal driving offences of being at or over a blood drug concentration (BDC) level within two hours of driving: (1) a summary conviction offence for low drug levels; (2) a hybrid offence (see footnote 1) for higher/impairing drug levels; and (3) a hybrid offence for a combination of low BAC and low BDC. The proposed BDC offence level for tetrahydrocannabinol (THC, the primary psychoactive component of cannabis) under the summary conviction offence is not directly linked to impairment, but is, rather, based on a precautionary or a crime prevention approach. This is in contrast to the legal drug offence levels for the hybrid offences, which are based on two principles: the BDC levels that are expected to cause some driving impairment; and the fact that these are illicit drugs which are commonly found in drivers and have impairing effects. In addition to motor vehicles, the offences would also apply to the operation of vessels (boats), aircraft and railway equipment.

The penalties for the proposed hybrid offences would mirror the penalties for the current hybrid offences for alcohol-impaired driving. They would be punishable by mandatory penalties of $1,000 for a first offence with escalating penalties for repeat offenders (e.g. 30 days’ imprisonment on a second offence and 120 days on a third or subsequent offence). The penalty for the separate summary conviction offence for a low BDC would be punishable by a maximum fine of $1,000.

Objectives

The BDC levels set out in the draft regulatory text in Annex A would give effect to the proposed new criminal driving offences in Bill C-46, and are intended to make it easier to prosecute drug-impaired drivers and to send a clear message to the public about the dangers of using impairing drugs while driving.

Description

As set out in Annex A, the proposed regulatory text would establish BDC offence levels, within two hours of driving, for THC, THC in combination with alcohol, cocaine, gammahydroxybutyrate (GHB), methamphetamine, lysergic acid diethylamide (LSD), psilocin/psilocybin (magic mushrooms), phencyclidine (PCP), 6-monoacetylmorphine (6-MAM), (see footnote 2) and ketamine.

With respect to LSD, psilocin/psilocybin, PCP, 6-MAM, ketamine, cocaine and methamphetamine, it is proposed that any level of these drugs, detectable in blood within two hours of driving, be prohibited under the new hybrid criminal offence. It is anticipated that the three government laboratory systems [one federal (RCMP), one in Ontario, and one in Quebec] will determine the detectable level at which the laboratory has the ability to measure the presence of the particular drug. With respect to THC and GHB, specific blood concentrations are proposed as the BDC offence level.

In particular, the BDC offence level for THC under the proposed hybrid offence would be set at ≥5 nanograms (ng) per millilitre of blood. For the proposed summary conviction offence, a BDC level of ≥2 ng and <5 ng/ml of THC would be established. In addition, the BDC level for THC and alcohol in combination would be set at ≥2.5 ng/ml and ≥50 mg/ml, respectively. Given the unique properties of THC, in lieu of making a recommendation, the Drugs and Driving Committee (DDC) outlined the pros and cons of two different THC levels. It indicated that 2 ng of THC per millilitre of blood would reflect a public safety/crime prevention approach, whereas a 5 ng level of THC could be associated with some impairment.

It should be noted that THC is a more complex molecule than alcohol and the science is unable to provide general guidance to drivers about how much cannabis can be consumed before it is unsafe to drive or before the proposed levels would be exceeded. It is equally challenging to provide general advice as to how long a driver should wait to drive after consuming cannabis. In this context, the safest approach for anyone who chooses to consume cannabis is to not mix their consumption with driving.

The proposed “any detectable BDC level” for LSD, magic mushrooms, PCP, 6-MAM, and ketamine corresponds with the recommendations of the DDC, which indicated that any presence of these drugs in the body is inconsistent with safe driving.

The proposed BDC levels for GHB, cocaine, and methamphetamine are lower than those recommended by the DDC. For these drugs, the DDC based their recommended BDC levels on the levels of the drugs that would have a negative impact on driving skills (rather than recommending a BDC of “any detectable level”). The proposed lower BDC levels for these drugs set out in Annex A (“any detectable level” for cocaine and methamphetamine, and 5 mg/L for GHB) would reflect the Government’s position that these are impairing illicit drugs and drivers should not consume them and drive. The proposed BDC level for GHB reflects the fact that GHB can be produced naturally by the body and, as such, a BDC of “any detectable level” would not be appropriate for this drug.

“One-for-One” Rule

The “One-for-One” Rule does not apply to this proposal, as there is no change in administrative costs to business.

Small business lens

The small business lens does not apply to this proposal, as there are no costs for small business.

Consultation

With respect to the proposed drug BDC offence levels, except for THC, cocaine, GHB and methamphetamine, the Government’s proposals would adopt the recommendations of the DDC. Although the DDC did not make a recommendation with respect to THC, the Government proposes to adopt both of the THC levels that were considered by the DDC, with the lower level corresponding to a less serious offence and the higher level being subject to a more serious offence.

Although not specifically consulted on the BDC levels, the Provinces and Territories have been consulted on drug-impaired driving through the Coordinating Committee of Senior Officials (CCSO) Working Group on Impaired Driving and the Federal-Provincial-Territorial (FPT) Senior Officials (Assistant Deputy Ministers) Working Group on Cannabis Legalization and Regulation. Additionally, the Government has considered the views of groups such as Mothers Against Drunk Driving (MADD) and the Canadian Association of Chiefs of Police, which have long called for legal drug limits to simplify investigation and prosecution of drug-impaired driving.

Rationale

Setting drug offence levels by regulation provides a flexible way of adapting to the evolving science of impairing drugs. The BDC offence levels currently proposed are based on the evaluation by the DDC of the available scientific literature on impairing drugs and driving, as well as on information from other international jurisdictions that have set BDC offence levels for driving. For example, with respect to THC, scientists in England had recommended the adoption of a 5 ng offence, plus an offence at 3 ng THC in combination with 20 mg of alcohol. However, England chose, instead, to adopt a single offence at 2 ng of THC. In the United States, both Colorado and Washington have adopted a single offence at 5 ng of THC.

The proposed Regulations would not have direct cost implications for the federal, provincial/territorial governments. Any costs relating to this initiative are related to other elements of the Government’s strategy to address drug-impaired driving, including detection and enforcement.

Implementation, enforcement and service standards

If Bill C-46 receives royal assent, the Government would seek Governor in Council approval of regulations to establish the new legal BDC offence levels, after consideration of public comments received on the draft regulatory text in Annex A. This would allow the offence provisions of Bill C-46 to become operative and enforceable. To facilitate the enforcement of the proposed BDC driving offences, Bill C-46 would also permit a peace officer to demand a blood sample from a driver if they had reasonable grounds to believe that a driver was committing a drug-impaired driving offence.

Contact

Monique Macaranas
Paralegal
Criminal Law Policy Section
Telephone: 613-957-4752
Email: monique.macaranas@justice.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council proposes to make the annexed Blood Drug Concentration Regulations, if Parliament enacts Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Monique Macaranas, Paralegal, Criminal Law Policy Section, Department of Justice, 284 Wellington Street, Ottawa, Ontario, K1A 0H8 (fax: 613-941-9310; email: monique.macaranas@justice.gc.ca).

Ottawa, September 28, 2017

Jurica Čapkun
Assistant Clerk of the Privy Council Office

Annex A

Blood Drug Concentration Regulations

[Note: The Regulations cannot be made before Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, is assented to.]

Blood Alcohol Concentration and Blood Drug Concentration

Summary offence

1 For the purposes of the summary conviction blood drug concentration offence, proposed in Bill C-46, the limit for tetrahydrocannabinol (THC) would be prescribed at 2 nanograms per millilitre of blood.

Hybrid offence — drugs

2 For the purposes of the hybrid blood drug concentration offence, proposed in Bill C-46, each drug set out in column 1 of the table to this section would be as prescribed in column 2.

Column 1

Item

Column 2

Drug

Concentration

1

THC

5 ng/ml of blood

2

Lysergic acid diethylamide (LSD)

Any detectable level in blood

3

Psilocybin

Any detectable level in blood

4

Psilocin

Any detectable level in blood

5

Phencyclidine (PCP)

Any detectable level in blood

6

6–Monoacetylmorphine

Any detectable level in blood

7

Ketamine

Any detectable level in blood

8

Cocaine

Any detectable level in blood

9

Methamphetamine

Any detectable level in blood

10

Gammahydroxybutyrate (GHB)

5 mg/L of blood

Hybrid offence — combined alcohol and drugs

3 For the purposes of the hybrid combined alcohol and drug offence, proposed in Bill C-46, the blood alcohol concentration would be set at 50 mg of alcohol per 100 millilitres of blood and the blood drug concentration for THC would be prescribed at 2.5 nanograms of THC per millilitre of blood.

Coming into Force

Registration

4 If Bill C-46 is enacted, the intent is that the proposed Regulations would come into force on the day on which they are registered.

[41-1-o]

  • Footnote 1
    Hybrid offences can be prosecuted either by summary conviction (less complex procedures and lower penalties) or indictment (more complex procedures and higher penalties). The mode of prosecution is elected by the Crown.
  • Footnote 2
    6-MAM is a metabolite of heroin, and its presence is a definitive indication of recent heroin use.