A bill was introduced in Parliament today that proposes to legalize and regulate recreational marijuana in Canada. The goal is to have the law come into effect by July 2018.
Of course, while it is currently illegal to possess marijuana without a valid medical purpose, it is also currently illegal to operate a motor vehicle while impaired by any drug. This includes marijuana. But hand-in-hand with the legalization of marijuana, the government proposes to add Criminal Code offences that address driving while impaired by drugs and/or alcohol.
Along with the legalization of cannabis, the government proposes to introduce new impaired driving laws. Whether or not the legalization of cannabis will increase its use is unknown; whether or not the legalization of cannabis will increase the prevelance of driving while impaired by that drug is also unknown. But what seems clear is that more will be done to monitor, deter and prosecute such offences.
(1) the proposed amendments make it illegal to drive while having a certain prescribed concentration of any given drug in one’s body (much like one is prohibited from driving with a concentration of 80 mg of alcohol per 100 mL of blood).
(2) a proposed two-tiered system with respect to drug-concentration in the body: a higher threshold (or a prescribed combination of drug-concentration and alcohol-concentration) would carry the same maximum and minimum penalties and drunk driving; a lower but still illegal level of drug-concentration would be a straight-summary offence with a maximum $1000 fine and no minimum. (Of note, the lack of a minimum sentence would seemingly allow for discharges as available sentences for this offence).
(3) a new law would permit police to demand a “approved drug screening” device at the roadside, on reasonable suspicion of the presence of a drug in one’s system while driving.
If the roadside drug test renders a positive finding for a substance that may impair one’s ability to operate a motor vehicle, the officer can then demand the person submit to a Drug Recognition Evaluation and/or provide a bodily fluid sample. By all indications, this “roadside drug test” seems to mirror the current Roadside “Approved Screening Device” used under the current law to screen for alcohol impairment. If this screening test is failed, the driver is required to submit for further testing – the results of which may be used to (attempt to) prove his or her guilt at trial.
It is comforting to presume that the roadside drug tests will only be used a screening device for further testing and not be admissible as evidence of impairment at trial. But this is cold comfort considering the questionable scientific basis for this test to indicate impairment as well as the questionable scientific basis for the ultimate tests to prove impairment.
The presence of THC (the active ingredient in cannabis) in a person’s saliva does not necessarily correlate to the fact of impairment – or more specifically the impairment of one’s ability to operate a motor vehicle. Even if the roadside drug test itself cannot be used to prove criminal guilt at trial, a “failed” roadside saliva test may carry consequences. A positive result from a roadside alcohol test in Ontario (and other provinces) carries with it an automatic driving suspension. If provinces institute similar suspensions for roadside drug test failures, we ought to be very certain that the test is proving something of actual significance (i.e. something actually related to a prohibited act, like driving while impaired).
Perhaps more importantly, the mere triggering of new obligations must be considered: a roadside failure would allow police restrict a person’s liberty, requiring that person to submit to a DRE test – probably following a formal arrest, and they will probably be brought to that DRE test in handcuffs. This may also authorize police to take a sample of a person’s urine or blood. Again, we ought to be very certain that there is a tangible connection between what the person has done (driven with THC in his or her saliva) and some prohibited act (driving while impaired). Nobody should be comfortable with the idea that we authorize suspending a person’s licence, arresting them, handcuffing them, transporting them, subjecting them to mandatory pseudo-medical testing in a police station, and taking their blood or urine unless there is a valid reason to believe they have done something wrong.
What is more, we must remember that the “ultimate” tests for impairment – for which we are willing to restrict the liberty of presumed innocent drivers, just for the sake of administering – are incredibly subjective and arguably unreliable in and of themselves. But the proposed law solidifies the DRE as a means to secure convictions based on the officers’ conclusions. For one, the new law codifies that for which a recent Supreme Court decision already paved the way: a DRE officer’s opinion may be tendered at trial without needing to be qualified as expert evidence. (That the DRE is not an expert is something with which the author takes no issue; that his or her opinion ought to carry any significant weight is something with which the author takes great issue.)
Another proposed amendment to the Criminal Code includes the following “declaration”, under section 320.12(d):
“an evaluation conducted by an evaluating officer is a reliable method of determining whether a person’s ability to operate a conveyance is impaired by a drug or by a combination of alcohol and a drug”.
What effect this may have on the weight judges give to DRE evidence remains to be seen; the constitutionality of this declaration – depending on the effect it is given as a matter of jurisprudence – remains to be seen as well.
The science (or lack thereof) behind the DRE scheme is fodder for another article – preferably a peer-reviewed article in a medical journal. Suffice it to say that we ought to be wary of arresting people based on unfounded suspicion of illegal activity, just to subject them to equally dubious testing, the conclusions of which can be put forth at trial to support a finding of criminal guilt.
There is no question that all stakeholders want to ensure impaired driving in all its forms is prohibited, deterred, and punished. But if the science to test for drug-impairment is not where it needs to be to ensure people are not wrongfully detained and wrongfully convicted, we ought not implement such a scheme.
Eventually the science will evolve to a point where police and courts can properly identify drug-impairment. Until then, Canadians may be subjected to questionable scientific schemes and subjective police arbiters on impairment. And the liberty of those Canadians will be at stake. Of course the option exists to either never consume legal marijuana, or never operate a motor vehicle – but those restrictions are themselves limits on the liberty of those Canadians: and if the new law come into effect, that damage will already be done.