An Increase in Drug-Impaired Driving? Highly Unlikely

Police in Hamilton, Ontario are supposedly sounding the alarm after an increase in drug-impaired driving arrests. But surprisingly, the police are actually laying the blame where it appropriately lies: at their own feet. Okay, so they are being slightly more nuanced than that. The police in Hamilton are claiming that their “better training” is helping them to spot more impaired drivers who need to be taken off the road. They are celebrating the increased number of arrests.

And I want to break that down.

In 2016 and 2017, there were 29 arrests each year for drug-impaired driving in Hamilton. It is now mid-July, and the Hamilton Police have already effected 32 arrests of so-called drug-impaired drivers. This is a huge spike in numbers, largely attributable to the fact that Hamilton Police now have fifty two officers who have the Drug Recognition Evaluation Training. There are at least two on every patrol squad, and seven breath technicians who also have the DRE training.

This sounds fantastic, but in reality is a sharp depiction of how woefully inadequate police response to drug-impaired driving has been up until now in Canada. For the police to see an increase of this many arrests already, shows that the police were largely ignoring a significant problem that affected the general public. And while I am a criminal defence lawyer, and while I do not agree with the DRE as a reliable indicator of impairment, or even that cannabis produces impairment in the way the government thinks it does, as a citizen I am troubled by this.

The real truth is that there are very few Canadians who were or are abstaining from marijuana and cannabis products simply because it is illegal. Recreational cannabis is effectively a way of life for many people in Canada, and it has been a long time since a first-time simple possession of marijuana case went to trial in Vancouver. The Vancouver Police Department, like many police and RCMP detachments, have a policy of “no case seizures” for personal use amounts of marijuana.

When the police say arrests are up, what they are really saying is that they were failing to meet a public need over the past several decades. And as a result of not having many officers trained in drug recognition until now, and not making this a priority until now, the police have disadvantaged the Government, the courts, and defence lawyers (though I’m sure they don’t care about the latter) by taking this lackadaisical approach to drug-impaired driving.

We now are left in a situation in which we are headed into marijuana legalization with no reliable data surrounding rates of drug-impaired driving pre-legalization, such that we cannot reasonably track or comment on whether there are increases or decreases post-legalization. Similarly, the absence of reliable pre-legalization data creates a vacuum from which we can ascertain whether certain messaging or deterrent approaches are working after cannabis is made lawful in Canada. This means that it will be hard to track what works and does not work in cannabis legalization, as it relates to driving. And it will be difficult to give guidance to other nations seeking to legalize the substance.

Say nothing of the fact that there are probably numerous people who were killed or injured by a drug-impaired driver that either went undetected, or was improperly investigated. It is possible that a person could file a lawsuit against the RCMP or a municipal police force for their failure to act and the breach of their duty to warn. I mean, it’s not like they didn’t know people were out there driving on drugs, right? They did know this, right?

And what of the state of the law? There is only one significant Supreme Court of Canada decision surrounding drug impaired driving investigations. And it stands for a very narrow legal point that will become obsolete upon the implementation of Bill C-46. The absence of drug-impaired driving arrests means that legal tests, defences, and obligations on the police, the Crown, and defence counsel remain uncertain. The law is unsettled and about to be changed, which only creates chaos in our courts.

All of this could have been avoided with better training and better implementation by the police. Rather than celebrating the fact that arrests are up, the Hamilton Police Department and other police forces in this position should be hanging their heads and acknowledging that they have done far too little until now.