A Vancouver lawyer warns new rules forbidding flight crews from using cannabis for 28 days before flying could be unconstitutional.
The new Transport Canada policy instructs flight crews to abstain for almost a month, effectively creating a full-time ban. Critics say this is in stark contrast to alcohol rules, which allow crew members back at work 12 hours after drinking.
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The policy is designed to protect the public as Canadian Aviation Regulations require pilots, cabin crew and air traffic controllers to not be “under the influence of any drug that impairs the person’s faculties to the extent that aviation safety is affected.”
But some critics are calling the rules confusing and, the length of abstention, excessive.
The policy doesn’t distinguish between different cannabis compounds, like psychoactive THC and non-psychoactive CBD; which is isolated and used to treat pain. Critics say these compounds, called cannabinoids, are detectable in a user’s body far after the physical effects have worn off.
Transport Canada, however, thinks 28 days is fair and because impairment level tests are in their infancy, the rules are a proportionate response to protect passengers.
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“Cannabis, like many other substances such as narcotics, muscle relaxants, anti-depressants, etc., causes impairment that can affect the judgement and actions of members of a flight crew, including pilots. There is scientific consensus regarding the long-lasting effects of cannabis on individuals, even after impairment is no longer felt. However, current tests for the psychoactive chemical in cannabis do not correspond with impairment levels.”
Vancouver Lawyer Sarah Leamon, experienced in cannabis law, believes the rules are likely to be challenged and might prove unconstitutional.
“I believe this may be challenged under Charter S. 7, which is the right to life, liberty and security of the person, but other legal challenges may be foreseeable as well. I am of the view that this ban could potentially compromise the charter rights and personal liberties of medical cannabis users who require access to their prescribed medications in order to manage their medical conditions or illnesses.”
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While flight safety is paramount to Transport Canada and the rules are being implemented to protect passengers, many believe a clear scientific consensus has not yet emerged, especially regarding the length of time crews are instructed to abstain. Cannabis advocates also cite the lack of evidence of cannabis hangovers compared to the well documented effects of hangovers due to alcohol.
“There does not appear to be any scientific evidence to support the notion that cannabis will continue to affect or impair the faculties of a subject for a prolonged period of time, extending into 28 days,” says Leamon.
Presently, the ban seems to extend to all air crew members, pilots and air traffic controllers, although it is unknown if any employee has fallen foul of the new rules.
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