Under the federal government’s new impaired-driving rules, a motorist can be fined up to $1,000 for having two to five nanograms (ng) of THC per millilitre of blood within two hours of driving, and can be punished criminally for pot-impaired driving for more than five ng.
“When I wake up in the morning, after not medicating since the night before I went to bed, I wake up with 25 nanograms in my blood. So that’s a huge concern to me if they’re swabbing you,” Kolewaski said.
“Later in the day, I’ve gone as high as 70 or 80 nanograms — none of that, however, being (impairing) to me. I’m not unable to operate or function. I can function completely normally.”
Kolewaski was prescribed cannabis in 2010 to ease the symptoms of his arthritis. Prescription drugs he took in the past gave him stomach problems and other issues, but cannabis has allowed him to function normally. He said he has never felt impaired from using the dose prescribed by his physician but now is at risk of pot-impaired driving legally.
He is a professional driver with a Class 1 licence to drive semi trucks and also has a motorcycle licence. Because of his worries about the impaired-driving limits, he has started getting regular blood tests so he will have records in case he ever ends up in court over an impaired-driving charge.
“I can show that I’m a flawless Class 1 driver with no accidents, no tickets, no nothing. Building my case before it actually happens is essentially what I’m doing,” he said. “Essentially with Bill C-46, if you follow the letter of the law, no medical patient will ever be allowed to drive ever again.”
Bill C-46, the cannabis legalization bill, will take effect on Oct. 17.
Under federal rules, police officers will be authorized to demand an oral fluid (saliva) sample if they suspect a motorist is high. Once the sample is analyzed, the officer will be able to demand a blood sample or a drug evaluation by a trained officer.
A driver will only test positive for THC and be referred to a blood test if their saliva registers 25 ng or more, federal Justice Department spokesperson Angela Savard said in an email.
“This cut-off level was selected to maximize the likelihood that individuals who are over this level of THC in their oral fluid will have recently consumed cannabis,” she said. “Recent consumption of THC is strongly correlated with impairment.”
Savard said the government is not proposing an exemption for medical cannabis users, staying in line with impairment rules for other prescription drugs.
The drugs and driving committee of the Canadian Society of Forensic Science, the government’s scientific adviser on issues relating to pot-impaired driving, is overseeing the approval process of a roadside saliva-testing device. It has not yet been approved.
Edmonton medical cannabis patient Mark Hope said he has never felt impaired taking his daily dosage, but he is not sure what the solution is to keep those who might be impaired off the road. As a motorist himself, Hope said he is also worried that police have received funding to crack down on drivers who use the drug.
“We seem to be trying to apply an alcohol logic to a completely different product,” he said. “It needs to be regulated in a way that’s based on data and not just on stigma.”
James O’Hara, president and CEO of Canadians for Fair Access to Medical Marijuana, said he has personally stopped driving just to be on the safe side.
“There’s this great unknown and general fear and anxiety amongst cannabis patients,” said O’Hara, who uses medical marijuana to treat seizures and osteoarthritis. “So many patients are not driving if they have that option, but many do not have that option simply because of work responsibilities or family responsibilities or various other reasons.”
He said patients tend to be very aware of their own impairment level. Many, he said, are afraid to drive not because they feel they are actually impaired, but because they fear they will be legally deemed impaired.
“There’s no doubt that this is going to be challenged in the courts,” O’Hara said. “There are just so many issues around this that there’s no question that it will be aggressively challenged.”
Phillip Drum, a pharmacist and anti-legalization activist, said a person cannot truly know their own impairment without undergoing a Standardized Field Sobriety Test. He believes roadside testing should be left to trained officers, and suggested it could be videotaped for court evidence to protect civilians from false accusations of pot-impaired driving.
The saliva sample could then be used solely to determine which substance a driver has used to get high if they are deemed impaired. Drum said because THC is fat soluble, sample levels taken from blood and saliva are “worthless.”
“They’re fantastical. They are just something that your lawmakers are trying to appease the public over,” he said. “If the officer determines impairment, it’s ballgame over.”
Drum’s sister, Rosemary Tempel, was killed six years ago in a motor-vehicle collision with a driver, Timothy Durden, who claimed to be a medical marijuana patient. According to an article in the Seattle Times, marijuana was found outside of the driver’s vehicle, but evidence about his marijuana use was not heard by the jury.
Durden was convicted of homicide and vehicular assault as a result of reckless driving, and had two prior DUIs that were reduced to reckless driving.
Edmonton’s city council approved $1.4 million in April for its police service to deal with one-time and ongoing cannabis legalization costs in 2018. In May, police said $300,000 of that is earmarked for roadside saliva tests.
Edmonton police Supt. Al Murphy said in May that police are estimating costs on the high end, assuming each test will run from $75 to $100 and that police will conduct 4,000 tests a year.