The BC Humanist Association is welcoming legislation introduced by the Government of British Columbia today to regulate the sale and consumption of recreational cannabis but is expressing concerns at how some regulations may rely on pseudoscientific tests which put the civil liberties of British Columbians at risk.
The BC Government introduced the Cannabis Distribution Act, the Cannabis Control and Licensing Act and changes to the Motor Vehicle Act, which together will regulate the sale, supply and possession of legalized cannabis and create rules around drug-affected driving. These bills follow the ongoing debate in Parliament over Bills C-45 and C-46, which legalize and regulate cannabis. Both federal bills are currently at committee hearings in the Senate.
Humanists value personal autonomy and liberty, which includes “the right of every human being to the greatest possible freedom compatible with the rights of others.” These commitments are incompatible with the criminalization of activities that do not infringe on the health, safety or freedoms of others. We are therefore encouraged by moves to end the criminalization of the recreational consumption of cannabis.
Humanists also have a long commitment to civil liberties and human rights. The decades-long War on Drugs has resulted in the needless incarceration of many otherwise law-abiding citizens. This criminalization violates fundamental principles of justice, wastes public resources and disproportionately affects racialized and indigenous communities. Both the broad criminalization and the systemic racial effects of the War on Drugs are antithetical to Humanist values.
However, both the federal legislation and the bills introduced by the provincial government today fall short of the promise of full legalization. The bills perpetuate a prohibitionesque regime that raises numerous civil liberties issues. Most disturbingly for Humanists is the prospect of subjective and unscientific roadside tests being used to perpetuate the criminalization of people who use cannabis. By attempting to mitigate risks of drug impaired driving, our governments may ultimately require police to rely on flawed and inaccurate science. This puts individuals at risk of facing fines and other sanctions, up to and including arrest and incarceration.
Numerous experts, including substance use researchers, forensic scientists, toxicologists, criminal defence lawyers, the ACLU and others, question the scientific validity roadside drug tests that purport to show that someone is too impaired to operate a motor vehicle. Cannabis intoxication is a largely subjective effect, and can vary largely between individuals with the same quantifiable levels of THC in their blood or saliva. Further, many tests can register cannabinoids or THC in the body days to months after ingestion, well after psychological impairment has worn off. Other tests rely on the subjectivity of an officer and inevitably have limited accuracy.
Reliance on these inaccurate and subjective tests puts drivers at the will of the officer who pulls them over – and any biases they bring with them. In particular, this puts people of colour, who are more likely to be stopped by police, and people with disabilities, who are more likely to be arrested, at an even greater risk of being charged with driving under the influence on little scientific evidence.
These concerns were realized by the legislation introduced by the Government of BC today. Under the government's bills, drivers may face a 90-day driving prohibition if they’re deemed to be under the influence of cannabis. However, it’s still unclear which tests will be used to determine that impairment. BC's Solicitor General Mike Farnworth admits as much, telling the Vancouver Sun, “The feds have told us there is technology they are confident in, but we have yet to know what exactly it is.”
Further, the bills would ban new drivers from having any THC in their system. This is even more unscientific though, as tests for THC do not indicate when or how the material was encountered. THC may enter the bloodstream through second-hand smoke, for example. Again this penalizes people who may pose no risk to the public.
The use of administrative penalties, such as immediate roadside prohibitions, to deal with drug-affected driving in BC raises further concerns. Attempts to challenge these penalties are dealt with through provincially run administrative tribunals. In part because of the increasing number of traffic violations that tribunals are dealing with, backlogs have developed. Therefore, the presumption of innocence has effectively been reversed as individuals face consequences before they’ve even had a hearing. This disproportionately affects poor and marginalized individuals and those living in rural communities who may be left without a vehicle for days or months, as they cannot get to work, drop their children at school or childcare or otherwise complete the litany of tasks required to survive.
Our concerns around cannabis roadside tests are but one of a multitude of issues raised by civil liberties advocates regarding the proposed legislation. Others have spoken out, for example, about the continued criminalization of cannabis prior to its legalization and the continued criminalization of youth even after legalization.
Instead of continuing to treat cannabis as a criminal justice issue, as Humanists, we support taking a public health approach and putting more effort into tackling the systemic issues around substance use through education, harm reduction, rehabilitation and treatment. These approaches should be informed by the best available evidence and respect the fundamental legal rights enshrined in the Charter of Rights and Freedoms.
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