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Nearly a year after legalization, many police forces slow to use new THC blood charges for impaired driving

OTTAWA —  New and controversial criminal charges that allow police to charge drivers based on THC levels in the blood are off to a slow start in most parts of the country, provincial data shows.

The RCMP’s national forensic labs had also anticipated a large spike in impaired driving blood toxicology work after cannabis was legalized, but so far it has failed to materialize. The number of samples sent in has been a quarter of what was expected.

The new charges, part of Bill C-46, took effect more than a year ago and are expected to be heavily litigated due to the unsettled science around THC blood levels and impairment. But there are no known court decisions on this yet, and the slow pace of charges means it may be a while until their constitutionality is settled.

Police do not need to rely on blood tests to lay a drug-impaired driving charge. They can instead have a drug recognition expert evaluate the driver, and use urine samples as supporting evidence.

But the new charges, called blood drug concentration offences, make it much easier to prove the offence — as long as police can get a blood sample within two hours of driving and have it analyzed. The new charges create a legal driving limit for THC in the blood , just as there’s a legal limit for blood alcohol concentration. However, toxicologists warn there isn’t a direct link between blood THC levels and impairment (as there is with alcohol), in part because THC stays present in the blood for much longer.

It is difficult to get detailed, up-to-date Canadian justice statistics. The federal justice department refers reporters to the provinces. Some provincial justice ministries can provide an estimate, but even then, most can’t say how many blood drug concentration charges were for THC and how many were for drugs such as methamphetamine or cocaine (for which the legal limit is zero).

The provincial stats thus provide an imperfect view, but they show that as of July 2019, B.C. had laid zero blood drug concentration charges; Alberta laid 16; Ontario laid 116; Quebec laid 37; Nova Scotia had laid 8; Newfoundland just one. Other provinces didn’t respond or didn’t have statistics.

Another indication that the charges are not being heavily used is the RCMP’s National Forensic Laboratory Services (NFLS), which serves every province except Ontario and Quebec (who have their own labs). The NFLS had estimated it would need to process 800 drug-impaired driving blood samples in the first year of cannabis legalization. In the first nine months, it’s only received 160 samples.

There are two main obstacles to laying the new charges. One is that it’s difficult to get a blood sample drawn in time; some police forces have agreements with paramedics, while others try taking the driver to the closest hospital. The other major challenge is simply how long it takes for the NFLS to process a sample — sometimes up to six months or longer.

“We’ve got tests from the beginning of December that we still haven’t got back yet, so that’s the challenge,” said Winnipeg Police Insp. Gord Spado in a recent interview. The Winnipeg police have an agreement with the city’s fire paramedic service to draw blood samples, and Spado said it’s working “great.” But as of the end of July, the police had only gotten two blood toxicology results back, one of which led to a charge.

Help may be on the way. The NFLS introduced a new protocol in July so that instead of testing blood samples for a wide variety of drugs, police can opt for a targeted analysis of just a handful, including THC. This may cut processing times by as much as a third or half, though “it is too early to assess whether these new protocols have had an impact on turnaround times,” the NFLS said in a statement.

Elsewhere in the country, there appears to be patchwork enforcement of the new charges. A recent Global News analysis of the Ontario and Quebec charges showed most of the charges were laid in more rural detachments. Toronto police had laid just two charges due to the difficulty in getting blood samples drawn.

In B.C., where zero charges have been laid, the provincial prosecution service said it has gotten “very few” referrals from police on laying the new charges. A statement from the B.C. RCMP said hundreds of drug-impaired cases are still waiting for toxicology results, but it didn’t specify how many of those are for urine or for blood. Vancouver Police didn’t respond by deadline.

One police force regularly using the charges is the Nova Scotia RCMP, whose officers take drivers to the closest hospital to get a blood sample drawn.

Cst. Chad Morrison said they’ve made “dozens” of blood draws now, though many are still waiting for toxicology analysis. But he said there’s still a learning curve as officers decide when to go for the blood test, or when to call in a drug recognition expert.

“It’s taken some getting used to in order to figure out what what makes the most sense in each given circumstance,” he said. “So far, it’s gone pretty smoothly. Of course, the courts will ultimately be the judge of how smoothly it’s gone.”

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