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Cannabis in Your Car

We’re a few months out from cannabis legalization, and I decided to go ahead and look at some of the statistics for why people have received cannabis related tickets in the last while. Statistics for Manitoba aren’t as widely available as I’d like them to be, compared to what you might see out of BC or Ontario, but that’s pretty reasonable, considering our much lower population; less folks, less sample size. That said, I have taken a look at some of the statistics from Ontario, and there’s some interesting things to note.

As of January 22nd, police in Ontario were writing about 21 cannabis related tickets per day. Quite a number of the tickets went to youth under the age of 19 who were in possession of cannabis; in Ontario, these youth are charged 200$, or can go to an approved drug education program. Some of the tickets went to dispensaries who were operating illegally; the police in Ontario and BC have begun to crack down on the grey market retailers that used to operate with impunity. The vast majority of tickets, however, didn’t have anything to do with youth possession, illegal sales, or intoxicated driving; rather, they were almost all for having cannabis available in a vehicle.

Would you drive with a half-drunk bottle of rum in your lap? No, you definitely wouldn’t. You don’t want to attract that kind of attention from police, and it looks like you’ve probably been drinking and driving. In the same vein, please don’t drive with an open baggie of weed in your lap; it’s a really bad look, and it gives police a reason to suspect that you’re driving high. There are ways you can transport cannabis in your vehicle without it being considered “available”. When your cannabis is still unopened and in its original packaging, it’s not considered available in Ontario, but the laws differ from province to province. Here in Manitoba, your cannabis must be stored in the trunk to be considered unavailable. Failing to properly store your cannabis for transportation carries with it a $237 fine.

Before reading that, were you aware of the regulations surrounding transportation of cannabis in Manitoba? Did you know that it differs from province to province? I suspect that you did not, and that, in fact, most people reading didn’t. One of the biggest challenges when new legislation comes into play is informing citizens about how the law actually works; while the Government of Canada and Manitoba are trying their best, there is a huge disconnect between what people need to know and what they actually know. Should you be arrested or fined for reasons you don’t understand, getting an attorney is essential for exactly this reason; you don’t know all the laws. This is especially true for impaired driving, because the legal consequences can be so dire; an impaired driving defence lawyer is the best bet to keep you informed and give you the best results in court.

The New Impaired Driving Laws, Part 2

To fully understand this post, it would be best if you read Part 1. You should also take the time to peruse some previous blog posts that go into more detail about the impaired driving changes, including changes to the level of THC you can have in your blood as part of Canada’s legalization of marijuana. In our last post, we discussed what advocates of the new laws appreciate about the changes, namely that it discourages risk-taking behaviour and aids in the prosecution of drunk drivers. Today, we’ll look at the flip side of the laws, and why those against them are tense about the possible consequences.

Police can now ask for a breath sample without probable cause. There have been many concerns about implicit bias in policing. Add those two things together, and you get what critics of the law say is a noxious brew; police racially profiling drivers, pulling them over and asking for breath samples because they don’t need probable cause. Critics worry this might aggravate an already toxic relationship between police and minorities, and could create more tensions between at-risk groups and police. They go on to say that those who would dismiss this as a minor inconvenience are not properly equipped to understand the fear that such interactions can instill in minorities.

The second part of the law critics are concerned about is the “within two hours” clause, because it’s not entirely clear what the consequences might be. Let’s say you drive completely sober, get home after a long day, and decide it’s time to pound a few back. While critics certainly aren’t encouraging binge drinking, they point out that it is a reality, and that if police show up at your house asking for a breath sample because you were driving erratically on the road, you might be put in a very compromising position, as your BAC may very well be over .08, and it’s certainly within 2 hours of you driving. This is, in some sense, a fairly charitable possibility; it’s assuming the police saw you driving erratically, or that they got a genuine report that you were. Now, instead, imagine that you have a vindictive neighbor or relative who wants to see you suffer; they might tell the police you were drinking before driving, and you might end up in a very compromising position even if it wasn’t true at all.

In short, critics worry that these new laws give police too much power, and that the power they get isn’t worth the reduction of risky behaviours. They point to the amount of times last drink defences have been successful as insufficient to change these laws to what they see as a draconian new reality.

There will undoubtedly be a plethora of court challenges arising from these new laws; if you’ve been arrested under suspicion of driving under the influence, find a Winnipeg DUI attorney to help you.

The New Impaired Driving Laws, Part 1

There are new impaired driving laws in Canada, the framework of which has been discussed on previous blog posts. In the next two blog posts, we’re going to try to take an impartial look at these laws by evaluating what proponents of the law think is beneficial about it in this post, and what those opposed to the law are worried about in the next post. Giving a survey of these new laws should help you have a more informed opinion about the potential benefits and pitfalls, and enable you to advocate for either side in good faith.

First, let’s describe the new laws in brief. Police can ask a driver to take a breathalyzer test without probable cause, and being intoxicated within two hours of operating a motor vehicle is illegal (where intoxication is a BAC of .08 or over). The reasoning behind this is two-fold. The first portion of the law was put into place because police were arresting drivers who were, in fact, intoxicated. When they got to the courts, however, drivers would sometimes be acquitted because the courts found that the police who pulled them over did not have the probable cause necessary to conduct a breathalyzer test. By eliminating the need for probable cause, the new laws take away this avenue to defense. The second part of the law is governed by the same principle, that defenses used for people who were legitimately endangering the population should be eliminated. The “within two hours of drinking” eliminates two possible defenses; the first is the “last drink” defense where an individual claims that when they were stopped, their blood alcohol content wasn’t actually that high, but by the time the police took a blood sample, the last drink they took had entered into their bloodstream. The second defense is that after a hit-and-run, the driver panicked, went home, and started stress-drinking alcohol, which is why their BAC was so high when a blood sample was taken.

Advocates of these legal changes cite risk reduction as their primary concern. The idea of impaired driving laws isn’t just to get dangerous drivers off the streets, but to serve as a deterrent; with such stark legal consequences for impaired driving, drivers will be less likely to engage in risky behaviour. The advocates for the changes say that they only serve to close loopholes that allowed dangerous drivers to continue acting poorly, making the law a less powerful deterrent.  Further to this, because the defense relies on drinking a bunch before leaving the bar, it encourages even riskier behaviour as a legal defense. They say these changes will discourage people from taking those risks.

You can find more details on the legal defenses that were employed before these changes here. For now, should you be charged with impaired driving, contact an experienced DUI lawyer who will be able to defend you adequately after these legal changes. On our next post, we’ll discuss why some are against these changes.

The Three Cannabis Markets

In Canada, there are three different markets in which you can procure cannabis. There’s the first market, which we might deem the white or legal market, the grey market, and the black market. To ensure that you are consuming cannabis safely and legally, you should know which market the cannabis you are consuming comes from, and what the possible ramifications of purchasing cannabis from that market are.

The legal market is the market that operates within the established framework of Canada’s cannabis laws, enacted October 17, 2018. The framework is incredibly complex, and it might help to peruse some of our earlier blog posts to understand that various cogs and gears that help move this market. Legal cannabis must follow strict packaging guidelines. The largest font on the label must be found within a yellow warning box describing risks associated with consuming cannabis. There must be a “stop sign” THC symbol on the label advising consumers that the product contains THC. The THC content must be displayed on the packaging, and an excise stamp indicating that appropriate excise taxes have been paid must be affixed to the packaging.

Should any of these elements not be present on your cannabis packaging, it’s possible you’re purchasing cannabis from an unlicensed vendor. Doing so is illegal, so precautions should be taken. There is a prominent grey market for cannabis sale, especially in Ontario and BC. Grey market retailers are those who are selling cannabis illegally, but without facing legal consequences from police. Police will often cite two reasons why grey market retailers are allowed to operate: an overabundance of grey market retailers, and a lack of police resources. Given that cannabis is now legal, the police in many districts opt not to bother shutting down grey market dispensaries; it’s simply not worth the effort. That said, running such a dispensary or purchasing from them is still illegal, and should police decide to enforce the law, the market goes from grey to black pretty quickly.

Black market cannabis is the most stereotypically illegal stuff, a guy pulling up in a Sunfire with a Ziplock bag full of cannabis and a cash-only exchange. These kind of deals are the most illegal, and thus carry the most risk; there’s no framework for checking the quality of the product you are purchasing, nor are there assurances if you are defrauded by the dealer.

There are other questions that enter the “grey” realm of legality. Take this one for example: if you have a friend who has purchased marijuana legally, then they give you an edible as a gift, is that legal? What about if you purchase the edible from them instead? What if they give you an edible made from grey market marijuana? Or if they sell to you that same edible? How the legality of it all changes might not seem perfectly clear, though there’s no doubt that the safest scenario is the first (the sale of edibles is illegal, and you can’t purchase cannabis from an unlicensed retailer). For any questions you have about the legality of cannabis you’re looking to purchase, or if you have a court case involving possession of illicit cannabis, a recognized Winnipeg criminal lawyer could be your best chance of getting the answers you need.

What Happens When You Drive High

Marijuana is now legal in Canada, but driving high remains illegal. We’ve addressed some of the unpractical aspects of this in previous blog posts; THC, the psychoactive component of marijuana, is hard to accurately measure, and the amount of THC in a person’s blood is not necessarily indicative of how impaired they are. That said, restrictions on driving high are there for a practical reason, even if measuring how high a person is can be difficult; when you’re high, you may not be able to drive as well as when you’re sober.

The effect of being high while driving is not particularly well-studied, and the studies that have been held contain conflicting results. One meta-study found that using marijuana is associated with an increased risk of motor vehicle crash; another meta-study found an increased risk, but not one that was statistically significant, especially when compared to the use of other drugs. The Government of Canada has decided to play it safe and discourage use of the drug through criminal penalties; this position is understandable. Given the conflicting evidence available, opting to “play it safe” helps to deter potential cannabis related accidents.

Those who say driving high is unsafe point to evidence that THC warps perception in ways that are detrimental to safe driving. When you’re high, your attention span is often lower, making it more difficult to focus on the myriad things that need your attention on the road. It may hamper reaction time, causing problems when drivers need to make split second decisions. Temporal and spatial awareness can also be affected by THC; drivers may find it more difficult to stay in the centre of their lane, or to keep a constant following distance.

Cannabis does not have the same effect as alcohol on inhibitions; when drivers are stoned, they are acutely aware of how stoned they are, and will make decisions to mitigate the effects of THC. They tend to drive more cautiously and more slowly, to give themselves more time to react. This and other factors might make driving stoned less dangerous than driving drunk; nonetheless, the penalties for both are similar.

A large number of Canadian marijuana users have admitted to driving shortly after smoking; 40% of marijuana users have driven within two hours of getting high. Some studies show that the effects of THC on your reaction time can last up to twenty-four hours after you’ve consumed, which may be one of the reasons that the government has opted to target the level of THC in your blood.

There hasn’t been an increase in marijuana-impaired driving so far, but there’s also relatively little data to work with. The laws around impaired driving and marijuana are clear, but it’s not clear that they’re fair. There are quite a few potential issues with how the THC is detected, as well as potential problems with the proof that police now need to conduct a roadside assessment. If you’re charged with impaired driving, you need a recognized Winnipeg criminal lawyer to make the best case for you.

Impaired Driving Amendments to the Criminal Code

In 2018, the Criminal Code saw two important amendments that relate to impaired driving. The first part of the amendment came into force on June 21st, 2018, and it pertains mostly to drug-impaired driving, in light of the then pending legalization of cannabis. The new offenses that were created for cannabis impaired driving, the devices used to detect THC, and the problems with these systems have been discussed at length in previous blog posts. The second part of these amendments came into force December 18th, 2018; the second part will be the focus of today’s post.

There are two major components of the December 18th changes to the Criminal Code. The first is known as “mandatory alcohol screening”; this means that if you are pulled over by a police officer, they can compel you to provide a roadside breath sample regardless of whether or not they have reason to suspect you’ve consumed alcohol. The second major change is to the time frame in which drunk driving is illegal; instead of being “over 80 at the wheel”, it has become “at or over 80 within two hours of operating”.

Mandatory alcohol screening is expected to be challenged repeatedly in court. The main potential problem is that an officer doesn’t have to have any evidence that you’ve been drinking in order to test you. One might defend this behaviour with “if you have nothing to hide, it’s not a problem”, but that’s simply not the case. You can be completely sober and have to pull over, get your breath analyzed, wait for the bureaucratic processes to take place, then finally be on your way; it could be five or ten minutes before you actually continue down the road. That might not be so terrible if the burden was evenly distributed amongst all innocent drivers; unfortunately, implicit bias is real, so we might see drivers of colour or drivers who look like they’re lower income taking the brunt of mandatory roadside tests. Refusing a roadside test carries criminal charges, so those who are not well educated in the law may end up with a court case, even though they were completely sober.

The second change was made chiefly to shut down a common criminal defense strategy for alcohol-impaired charges, the “Last Drink” or “Bolus” defense. This defense was predicated on the idea that if someone consumes alcohol then drives immediately afterwards, the alcohol they consumed would not be processed by their system until some time later. The amount of time it takes to get the breath tested could have been substantial enough that the motorist would have reached their destination before the alcohol had been fully metabolized; that means their BAC might be higher during alcohol screening than it would have been by the time they reached their destination. By stipulating that a driver’s BAC can’t have been at or over .8 within two hours of operating the vehicle, this defense is no longer usable.

These changes bring a substantial shift in how an experienced DUI lawyer will handle a case; drivers should be made aware of the potential consequences of refusing screening, and of the new “two hour” rule, as they have a substantial impact on the Criminal Code.

Impaired Driving Tests

Canada’s new impaired driving laws give police officers some extra leeway to pull over drivers and compel them to take a breath sample on an approved screening device (ASD). The legalization of cannabis has also led to the deployment of approved drug screening equipment (ASDE), which tests oral fluids for the presence of THC and other drugs. As a driver, you should be aware of the different legal requirements for both yourself and the officer conducting the screening, as well as the testing process.

ASDs can be used to screen for alcohol even if an officer has no reasonable suspicion that a driver has consumed alcohol. Failure to give a breath sample when an officer has pulled you over carries substantial legal consequences, including a minimum 2000$ fine for a first offense. ASDEs, conversely, may only be used when an officer has a reasonable suspicion that the driver has consumed non-alcoholic drugs, including cannabis. Reasonable suspicion is not necessarily a high barrier, however; red eyes are sufficient for an officer to ask for an oral fluid sample. Non-compliance with a request for oral fluid sample carries the same potential consequences as non-compliance with a request for a breath sample.

Presuming you’ve given samples for the ASD and the ASDE, an officer might continue to suspect you are intoxicated; if this is the case, you may be subject to a Standardized Field Sobriety Test (SFST). There are a variety of tests that can be used in the SFST, including asking a driver to recite the alphabet, to stand still with their eyes closed for 30 seconds, to stand on one foot, to walk in a straight line, and to follow an object using their eyes. Much like the rules about breath and oral fluid samples, refusing to take a SFST carries significant legal consequences.

Should you pass the above tests, the officer may let you go. Failure on any of these tests may lead to your arrest. When you are arrested, you may be subjected to evaluation by a drug recognition expert. Many different things can occur during this evaluation. They may take a blood sample, they may search your body for needle marks, evaluate the size of your pupils, take your blood pressure, and look for other clinical signs of drug use. They will also interview the arresting officer. They may find that you were not impaired, or they may find that you were; depending on the answer, you may face a variety of legal consequences.

When you are arrested, you should get in contact with a lawyer immediately; the police will inform you of this right. You want to get in contact with an experienced impaired driving defense lawyer; they’ll be able to guide you through the process, advise you about your rights and help you make the best case for yourself.

Driving on CBD

It’s illegal to drive impaired. There’s obvious reasons for this; we want to reduce risk for everyone on the road, and an impaired driver can pose an enormous risk to themselves as well as to others. What exactly constitutes impairment is a problematic line to draw. On the one hand, it’s important to create measurable limits in order to create a law that can be upheld in the courts; subjective judgments of impairment are far less useful. On the other hand, measuring every possible impairment is exceedingly difficult. The legalization of cannabis presents a unique challenge, because there are so many different compounds present in the plant. The two of concern for our purposes are THC and CBD.

THC is the compound that’s most often discussed when evaluating the impairing effects cannabis; in other words, it’s the compound that gets you high. CBD does not seem to have the same intoxicating effects. There are a variety of CBD products on the market, in flower, capsule and spray form. Some studies have shown that when CBD is consumed, it reduces the psychoactive effect of THC, but most cannabis related studies need to be evaluated more deeply; after all, it was just legalized. The question that’s relevant to us, then, is this: if you’re pulled over by a police officer, and you’ve consumed CBD, will you be charged with impaired driving?

The answer, of course, is murky. CBD shouldn’t have a psychoactive effect, but some individuals report getting high after consuming it; cannabis is complex, and the effects of CBD aren’t clear. Obviously, if you feel high, you shouldn’t drive, as you might pose a danger to yourself or others, but this is true even if you haven’t consumed psychoactive drugs recently. Imagine a scenario where you’re so tired you’re delirious; you obviously wouldn’t drive, and to do so would be reckless. That said, let’s imagine you’re feeling completely fine, but you get pulled over, and because you have red eyes, you’re subjected to a saliva test. What then?

The saliva test, legally known as the oral fluid test, is used to detect THC. That means if the CBD you consumed has THC in it, and the amount of THC in your blood is 2 ng+, you will face the appropriate legal penalties. You should be careful about consuming CBD dominant cannabis, as many of these products still contain THC. Assuming no THC was found, and you weren’t found to be driving recklessly, you may well avoid any legal penalties.

There’s a lot of uncertainty around the legalization of cannabis, so it’s impossible to predict what might happen were you to drive on CBD and get stopped by an officer. For the time being, it’s probably best to avoid driving on CBD. That said, should you face legal consequences for driving on CBD, get a Winnipeg DUI attorney immediately; we can help your case in these murky legal waters.

Purchasing Cannabis in Canada

 

Cannabis was legalized in Canada on October 17th, but as with anything legal, there are a lot of stipulations as to how and where it can be used and purchased. We’ve gone over many of the stipulations in previous blog posts; today, we want to focus on the purchase of cannabis, specifically online purchasing and grey market vendors. This is an important issue to understand so that you can avoid unintentionally purchasing cannabis from grey market vendors.

Each province has different rules about cannabis retailers; in Manitoba, there are four different retail outlets currently operational at which you can purchase cannabis: Delta 9, Tweed, Meta Cannabis Supply Co. and Tokyo Smoke. You cannot purchase cannabis from any other brick-and-mortar retailer in Manitoba legally, though new licenses may be granted as time goes on. Given that the list of available retailers may change, here’s a list of all licensed cannabis retail distributors in Manitoba.

Where things get a little sticky (pardon the pun) is with online purchasing. The Government of British Columbia has turned a blind eye to grey market cannabis distributors for many years now; these shops are able to operate with such impunity that they sell cannabis online without having the proper authority. When you purchase from these websites, it’s evident that the cannabis is illicit because it does not carry the proper government markings, including warning labels about the use and standardized limits on graphics and text size.

The problem is, it’s often not evident until you actually receive the cannabis; the websites look above board, and there’s no way to access a national database of legal cannabis retailers because the licensing element is mostly handled by the province. What this means is you may end up purchasing illicit cannabis without even realizing it. We hope that at some point in the near future, the provincial governments will collaborate with the federal government to create an updated list of legal online retailers.

In the interim, be very careful about where you purchase online; most mail-order-cannabis shops you’ll find with a Google search are illicit, so you should check their names against lists of provincially licensed retailers before buying online. When you’re not sure of whether or not a shop is legal, try phoning them, find out what province they’re located in, and ask if they’re licensed in their province. At that point, it’s easy enough to verify their legality; currently, in British Columbia, only the government-run online store is a legal mail-order retailer.

If you’ve purchased cannabis online and realize it wasn’t from a legal retailer, don’t panic; you always have options. You can consult with a recognized Winnipeg criminal lawyer for free; they’ll tell you whether or not the purchase you’ve made could come with legal consequences for you, and how to proceed. The realm of legal cannabis is all about staying informed, and that includes if you’ve made a mistake.

Driving High: Canada’s New Drug-Impaired Driving Laws

Cannabis became legal in Canada on October 17, 2018. Anytime something becomes legal, there is a framework created for its legal use; when you fall outside of this framework, the activity becomes illegal. We’ve covered a lot of the issues pertaining to the legalization of cannabis on the blog already, but we haven’t gone in depth on what might be one of the most important – and contentious – issues. It is illegal to drive high. What exactly that means is made clear by legislation, but it’s unclear whether or not that legislative framework actually works.

Here’s the framework: you cannot drive with 2 or more nanograms (ng) of THC per ml of blood. Between 2 and 5 ng THC/ml of blood, you face a maximum fine of 1000$, unless there is also alcohol in your blood. For individuals with over 5 ng THC/ml blood, or individuals with (50+ mg alcohol/ml of blood) + (2.5+ ng THC/ml blood), you face much steeper penalties, including a mandatory minimum 1000$ fine for a first offense and 30 days imprisonment for a second offense. Here’s a more complete list of alcohol and cannabis related impaired driving charges.

The main problem with this legislative framework is how THC is processed by the system, and how it can be detected. THC is a complex molecule, more so than alcohol, and the method by which you consume it will also change how it affects you. You won’t see a chart explaining how many puffs you can take before you reach the legal limit, because one person might process the THC quite rapidly, while another might have it linger in their bloodstream. Additionally, how impaired a person gets is not necessarily clear based on how much THC is in their bloodstream; some folks might be impaired for hours after the THC has left their bloodstream, while others might not be impaired while it’s still present.

THC will enter and leave the bloodstream in relatively short order; it usually peaks in the bloodstream about 3-10 minutes after inhalation, but about 1-2 hours after being ingested. THC is fat soluble, unlike alcohol, which is water soluble. That means detecting alcohol in the bloodstream is a much more accurate measure of how much can be consumed; THC, on the other hand, can enter the bloodstream days after it was consumed, as it’s slowly released by fatty tissues.

There are roadside saliva tests to check for THC. They have not been proven to be accurate. Their accuracy may be impeded by the cold. That means that in order to have an accurate test, a blood sample must be taken and, as we’ve discussed, even that might not be totally accurate. The rules for the level of THC indicate that it cannot be above the stated amounts within 2 hours of driving; what that two hours will do for each person depends highly on their metabolism, level of fat, and frequency of smoking.

You should never drive high. That said, you may be pulled over, get tested, find you have high levels of THC, get a blood test, and find you had THC in your system above the legal limit – even if you weren’t high. What all this boils down to: if you get charged with impaired driving for THC in your system, get an impaired driving defense lawyer. Immediately.