On April 13, 2017, the Federal Government of Canada presented Bill C-45 (the “Cannabis Act”) to the House of Commons, which was passed and is slotted to come into effect as of July 1, 2018 (Kirkup, 2017). The act will allow adults over the age of 18 to publicly possess up to 30 grams of dried marijuana or its equivalent, to grow up to four marijuana plants per residence and to make legal marijuana-containing products at home.
The objective of the legislation, according to the Government, is to better restrict access to youth under 18 which have not been successfully deterred by its criminal nature, to make the drug safer for those who choose to consume it by providing access through regulated distribution channels rather than through an illicit cannabis market and to reduce the costs incurred by the legal system for Canadians possessing small amounts of the drug, which the government claims is a “minor, non-violent offense.” (Liberal Party of Canada, 2018)
While there is no denying that action needs to be taken to address the widespread marijuana use amongst youth, is legalization of the drug really the answer? Washington and Colorado legalized the recreational use of marijuana in 2012 with little success seen to date in curbing the illicit market. Statistics show that despite the legalization of the drug, cannabis obtained from the illegal drug market continues to account for 33% and 40% of the drug use in Washington and Colorado, respectively (Police Foundation, 2015). Furthermore, as seen in Appendix 1, both these states have seen an increase in the number of car accidents caused by drivers under the influence of marijuana. This is not a problem that, as Canadians, we can afford to have. As it stands, the legal system has failed when it comes to controlling impaired driving. As illustrated in Appendix 2, Canada has the highest incidence of alcohol related vehicle deaths as a percentage of total motor vehicle deaths amongst wealthy countries. Given these statistics, it is unfathomable that the Government would propose to legalize another mind-altering substance that will lead to even more impairment related traffic fatalities, a trend that has been clearly observed in Colorado and Washington.
This analysis will demonstrate that the Federal Government’s legal position to decriminalize the recreational use of marijuana is incorrect as it violates the Charter of Rights and Freedoms by compromising public safety and security, creates negative externalities by placing an increased amount of liability on employers without just cause and threatens an individual’s ability to seek damage relief, and is in violation of International Laws.
2. Enforcement and Impact on Public Safety
The Constitution, inclusive of the Charter of Rights and Freedoms, has been put into place to limit many aspects of government action and to protect human rights. Section 52 (1) of the Constitution specifically states that any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. As such, a statute is considered invalid if it violates the Charter of Rights and Freedoms. While the Charter addresses many basic human rights that all Canadians are privy to, Section 7 is the most salient in this case. Section 7 states that “Everyone has 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.” It is interesting that section 7 was also used to argue for the legalization of marijuana; however, that argument focused on the liberty aspect in isolation rather than viewing it from a holistic perspective. In reality, the objective of Section 7 is to ensure that actions taken will not compromise public safety and security unless not taking that action would be a violation of the fundamental justice system. This view was supported by the Canadian Courts in (R. v. Clay, 2003), where the courts concluded that “the marijuana prohibition does not exhibit a degree of overbreadth that violates the accused’s entitlement to fundamental justice provided under Section 7, as it is not grossly disproportionate to the state interest in avoiding harm to users and others caused by marijuana consumption…the effects of a psychoactive drug like marijuana on users in the acute phase, where for example operation of motor vehicles or other complex machinery by any user constitutes a public danger, provide a rational basis for extending the prohibition to all users.” The legalization of marijuana compromises public safety due to the lack of objective measurement of how “high” a person may be at any given timeand the ramifications on enforcement in impaired driving cases and when workplace security is concerned, the legalization does so without any obliging reason.
Marijuana contains a unique phytochemical, ?9-tetrahydrocannabinol, commonly referred to as “THC”, which produces a feeling of euphoria (“high”), altered perception, increased appetite and can also have negative effects on balance, coordination and reaction times ( National Academies of Sciences, Engineering, and Medicine, 2017). While most drugs and alcohol produce similar side effects, there are 3 unique challenges with THC that will make it much more difficult for the government to enforce compliance with the legislation (Huestis, 2007). Firstly, THC can be detected in the blood and the urine for days after consuming the drug and the number of days that it stays in your blood is not only impacted by how you’ve consumed it (i.e. smoked it or ingested via edibles) but also based on how frequently you take the drug. For example, residual THC will show up in urine sample results for up to 9 days on average for infrequent users and 19 days for regular users (Huestis MA, 1992). This poses an issue as to how to test for impairment at a given time by being able to isolate the impact of residual THC. The current means of testing for impairment have not been able to adequately isolate the impact of residual THC and therefore could not be used as an objective measurement of impairment at a point in time to legally enforce punishment. Other means of testing for impairment are via blood and saliva but accurate predictions of the time of consumption and level of impairment remain elusive and there continues to be significant debate in interpretations of what constitutes impairment based on THC levels from blood analysis and saliva analysis (Huestis, 2007). Additionally, many saliva tests on the market are still designed on the basis of modified urine tests and the adulteration of saliva with other substances (i.e. mouth wash, chewing gums etc.) renders these tests highly ineffective and unreliable. (Drury, 2017) (NarcoCheck, 2015)
The second issue with THC is that individuals react to this chemical very differently. That is, frequent users of the drug can consume large amounts without appearing visibly impaired whereas infrequent users might show obvious signs of impairment with little intake. This poses a significant challenge when it comes to monitoring programs similar to RIDE as the police officer that is stopping a vehicle might not be able to detect signs of impairment even if the individual has consumed large quantities of marijuana.
The third and perhaps most significant issue,a by-product of the first two issues noted, is the practical implementation of the legislation. There is currently no equivalent of a breathalyzer tool that will effectively measure how high an individual is. The government did run a pilot program to test a device that could potentially be used to monitor impairment using saliva samples however this test would only indicate that the individual has used drugs but the results would need to be validated by the DRE. With estimated requirement of 2000 DRE officers Canada has less than 600 certified DRE’s (Laucius, 2017), we can certainly expect a large backlog in producing any conclusive results if this device becomes our gold standard. It is also worth mentioning that the manufacturer’s suggested temperature thresholds on this device clearly states that it is not intended to operate in temperatures colder than 5 degrees Celsius (Public Safety Canada, 2017). It is certainly a good thing that this device hasn’t been introduced as this report is being written, where temperatures outside are close to -30 degrees Celsius. While it is true that the government did not identify any malfunctions in the device as a result of extreme weather conditions, if the device was to malfunction when in use, the supplier of the device could not be held liable for any resulting damages. Furthermore, as noted above, detecting impairment induced by marijuana is very subjective as the drug effects individuals very differently. In order to have the police force be responsible for the monitoring and compliance of impairment in public places, the police need to be adequately retrained to be able to recognize signs of impairment. However, doing so is a very costly and impractical business (Tang, 2013). Based on recent articles published, each officer would have to be sent to the United States to be undertaking a 2 week training course which costs approximately $2,500 per officer. So aside from the impracticality of sending our entire police force (approximately 70,000 officers) to the US, there is a substantial cost associated with this training (Ferrier, 2017). So, while the new legislation aims to severely penalize those driving under the influence, it will not be able to practically enforce those penalties based on the current limitations, thereby wreaking havoc on our streets.
3. Implications for Tort Law
In Section 2 of this report, we discussed the ramifications of this proposed legislation on public security due to the lack of objective measurement standards for assessing impairment. This section focuses on the implications of that conclusion. That is, how will this new legislation affect organizations and how will it impact an individual’s ability to seek damages.
First we consider that the proposed legislation places a significant, unjust burden on employers and organizations by increasing the duty of care owed as it relates to workplace safety and by increasing the liability of an employer to compensation for torts committed by an employee during the course of his or her employment (i.e. vicarious liability). Although the legislation allows for public consumption of marijuana, similar to alcohol, we would expect that companies will mandate new human resource policies to prohibit consuming recreational marijuana while at work. While this makes sense in theory, as noted in Section 2 above, signs of being impaired vary greatly amongst individuals therefore an employer may not be able to detect if an employee is impaired. Additionally, at the time, randomized drug testing is prohibited as it is considered discriminatory and an invasion of privacy. The combination of these facts could result in an individual operating heavy machinery under the influence of marijuana, causing harm to the individual or to a co-worker as a result of the altered perception and impaired judgment. While it would be completely within reason to give the individual a drug test after the incident occurs, the trouble is that if the drug test cannot accurately determine when the marijuana was consumed, the employer has no means of disciplining that employee or holding them accountable for their actions. However, the risk posed is not only in manufacturing concerns. In fact, one could argue that the risk is greater in corporate environments, especially where the organization is engaged in a professional services field. According to the principle of vicarious liability, an employer will normally be held liable when at fault for an act committed by the employee when those acts arise in the course of employment, even if the employer has given strict instructions to take proper care and not to do the particular act that causes the damage and may result in them being held accountable for the intentional and unintentional tortious acts of an employee (Smyth, 2016). One of the most common types of case in which an employer is found to be vicariously liable for an injury caused by its employee is when the employee becomes intoxicated at a holiday party or business-related event and then causes a car accident on the drive home (Wadley v. Aspillaga, 2001). Statistics show that an increasing number of Canadians have work email on their phone and respond to it regularly. In these instances, implementing HR policies of not being impaired at work becomes a very grey area as individuals are often engaged in work activities and acting on behalf of the organization when they are not at work (i.e. on weekends or on vacation). Therefore, if employees choose to engage in work activities in their personal time, such as responding to a client’s email, while under the influence, the employer would be held liable for any damage that arises as a result. These scenarios present an uphill battle for organizations who are unjustly being forced to assume increased levels of risk and liability for the recreational choices of a few employees.
Individuals will likely face similar frustrations when seeking to claim damages arising from a marijuana impairment related accident. Similar to alcohol, it is expected that marijuana will be outside the scope of most insurance schemes and damage relief must be sought via private civil action. However, in order to successfully pursue a private civil action under the negligence defense, which is the type of tort most frequently associated with impaired driving, the burden of proof is on the plaintiff, who is required to prove 4 requirements (Smyth, 2016);
• The defendant owed the plaintiff a duty of care ? assuming the tort arises from an accident associated with impaired driving, this should be relatively easy to prove as all drivers owe a duty of care to the other drivers on the road.
• The defendant breached that required standard of care ? similar to the facts noted above, this should be relatively straight-forward to uphold.
• The plaintiff suffered injury or damage ? again, relatively simple to prove.
• The defendant’s conduct caused the plaintiffs damage ? similar to most negligence lawsuits, this is very tricky requirement to prove, especially under the current circumstances. Given the lack of consensus surrounding what level of THC constitute impairment and a lack of objective measurement tool, proving that the defendant was impaired at the time of the accident will prove to be very challenging, thereby denying the plaintiffs the ability to seek damages in instances where they were legitimately wronged.
Based on the consequences noted above, the proposed legislation creates a significant amount of negative externalities and creates an air of uncertainty in regulating an organization’s interactions with its employees and individual’s interactions with one another.
4. Violation of International Law
Canada is party to three legally binding United Nations Drug Control conventions: Single Convention on Narcotic Drugs (1961); Convention on Psychotropic Substances (1971); Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988). These conventions require members to limit the possession, purchase and cultivation of narcotic drugs (including marijuana) to medical and scientific purposes and require members to consider non-medical possession, distribution, and consumption of such drugs as a criminal offence. Bill C-45, which is in direct violation of these treaties, will not only harm Canada’s reputation in the international space, but it could also lead to a referral to the International Court of Justice and ultimately losing our seat on the UN.
In 2013, Uruguay became the first country to legalize the possession and cultivation of marijuana for non-medical purposes and the United Nations International Narcotics Control Board (INCB) deemed these developments a clear and direct breach of the conventions. Uruguay was able to successfully argue against this using a human rights justification to reduce the level of organized criminal activity and to protect the safety of their citizens. In a Canadian space however, these arguments do not hold true given the lack of comparability in the two-country’s social and legal fabric (i.e. Canada has much less violence, significantly less homicides etc).
The second exemption allowed by the treaties is if the treaties are in direct violation of the country’s constitution. That is, if the Canadian constitution specifically included the right to consume non-medical marijuana, then legalizing its use would not be in contravention of the UN treaties. However, the current Constitution does not include any such references and there have been several precedents established where the Canadian courts have struck down any amendments to the Constitution in relation to the use of non-medical marijuana. Firstly, in R vs. Clay (2003), the defendant was charged as a result of the illegal sale of hemp and marijuana products at a local store in Ontario and his defense largely relied on the fact that the prohibition on possession and sale of marijuana infringed S7 of the Charter of Rights and Freedom but the constitutional challenged was dismissed by the Court, both and trial and upon appeal (R. v. Clay, 2003). Additionally, Canadians are unlikely to support amending the constitution to provide a right to non-medical cannabis considering other long-standing issues that remain including indigenous rights, senate reform and division of powers matters (Hoffman SJ, 2016). Amending the Constitution has been largely unsuccessful in the past, with the two most comprehensive attempts to revise it since 1982 being defeated. The only changes that have been allowed since 1982 have been minor, limited scope changes dealing only with matters affecting specific provinces (wikipedia.org, 2017).
Therefore, given that we cannot claim the human rights justification and that it is highly unlikely that a constitutional change would be passed, negotiating an amendment to the treaties is highly unlikely and so is amending the constitution. Another way for amendment is getting a special exemption from other countries’ parliaments for Canada to legalize cannabis; however, based on University of Ottawa law professor Steven Hoffman, such approval would be very unlikely to get passed by other nations (Cain, 2017).
Therefore, Canada has only one legal option and that is to formally withdraw from the treaties on the basis that they are outdated. However, this requires that the country submits a formal withdrawal notice in writing to the Secretary-General of the UN by either July 1 of the preceding year for 1961 and 1971 treaties or one year in advance for the 1988 treaty. Therefore, all three treaties would have required that a written notice be provided by July 1, 2017. This deadline has passed and Canada has failed to provide the withdrawal notice and as such if it moves forward with the July 1, 2018 deadline then it will be noncompliant with UN treaties (Munro J, 2017). Additionally, it is worth noting that even though technically feasible, such withdrawal would play paint a negative image of Canada in international stage as “we can’t just pick and choose which treaties to follow, without encouraging other countries to do the same.” (Cain, 2017)
Given the lack of clear consensus for a safe limit for consumption and the inadequacy of monitoring tools as well as the lack of training for the professionals responsible for enforcement, this legislation will put several lives at risk, without being able to penalize those responsible for the damage they have caused. While the freedom to make choices and act of your own accord is granted by the Constitution, it certainly does not allow you to compromise the life and security of others in a drug induced haze.