Does Legal Weed Signal an Impending Impaired Driving Crisis?

In the spirit of reefer madness and fear-mongering, the decision by the Canadian Senate to back down from their amendments to marijuana legalization has already sparked debate about carange on our roadways. But does the effective legalization of marijuana in Canada pose any realistic risk?

Frankly, that’s doubtful.

This is not another article about the science behind marijuana and driving impairment. What it is instead is a look into Canada’s impaired driving legislation that already exists, to see how there is already an effective enforcement scheme set up in our existing laws. What the Federal Government is proposing in Bill C-46 for an overhaul of impaired driving legislation is just not necessary.

And here’s why.

Roadside Drug Impairment Testing
Canada already has legislation that authorizes roadside testing for drug impairment. Section 254 of the Criminal Code permits an officer, on suspicion of a drug in the body of a driver, to demand that the driver perform Standardized Field Sobriety Tests, also known as the SFST. These are then used to gather the evidence necessary to make an arrest and conduct further testing.

There are three tests, performed with specific instructions. The goal of the tests is really to trick the driver into not following instructions, or doing something so unnatural that you would never do it other than upon being demanded to do it. I mean, imagine trying to drive a car while standing on one foot, counting silently to thirty in your head. And yet that’s a step in the test.

Another step, called the horizontal gaze nystagmus test, measures the involuntary jerking of the eye. This phenomenon apparently does not appear with marijuana but nevertheless the police will conduct this test. And finally, there is the walk-and-turn test. This one is incredibly difficult to perform correctly, much less for the police to explain and demonstrate correctly.

You may be wondering why use tests that do not produce results consistent with marijuana impairment or that guarantee a high rate of false positives. The cynical answer is that arrests are much more easily justified that way. Just look at roadside saliva testing for marijuana, as proposed under Bill C-46. There are known issues with false positive results in certain circumstances, so it is hard to fathom that the Government thinks it is improving things.
If an officer has a suspicion and a driver performs poorly on the roadside tests, the officer can then rely on that performance to arrest the driver and take them in for further testing.

The Drug Recognition Evaluation Test
In Canadian law, officers who perform these drug recognition evaluations are considered to be experts. A 2017 ruling from the Supreme Court of Canada determined that the prosecution can rely on their opinion of impairment, arrived at after administration of the tests, in the same way as any other expert witness. This does not mean that the DRE Officer, as they are often called, is automatically believed, but it creates an evidentiary hurdle for the defence.

Those types of hurdles seem to mimic what Bill C-46 seeks to add, namely a presumption that the DRE Officer’s opinion is valid, so long as it is corroborated by the results of a urine or blood test.

According to the National Highway Traffic Safety Association, who designed the Drug Recognition Evaluation Program, the tests are meant to determine three things:

  • whether a person is impaired,
  • whether the impairment is as a result of a drug or a medical condition,
  • and, if it is a drug, what category or class of drugs is causing the impairment.

But the program, which is not without its numerous flaws, has been criticized for creating cynics of officers, who assume even completely sober individuals are on drugs as a result of it. And it is difficult to see how those attitudes will be stemmed by the passing of legislation that presumes the correctness of what an officer does.

Some things are better left as they are.

There is a modified version of the American format approved for use in Canada. The steps are set out in the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations. They include the following:

  • an examination of the pupils, heart rate, and tracking of the eye movement;
  • a repeat of the horizontal gaze nystagmus test, coupled with the vertical gaze nystagmus test and the lack-of-convergence test;
  • a repeat of the walk-and-turn and one-leg-stand tests, as well as a test called the Romberg balance test, and the finger-to-nose test;
  • a second heart rate measurement, this time with blood pressure and temperature;
  • another series of examinations of the pupils, including in a completely dark room, and a check of oral and nasal cavities for drug residue;
  • a third heart rate measurement, this time while checking muscle tone by grabbing flesh; and
  • checking the arms and legs for injection sites.

The modifications are designed to address issues related to the Charter of Rights and Freedoms, which protects against self-incrimination. The US programs focus also on interrogation of the driver, in the hopes they will admit to which drugs they used. Essentially, it becomes a lot easier to identify what drugs are present when someone has already told you.

But that does not mean that police do not interview suspects; it is merely not a mandatory component of the test. To regulate otherwise would create an abundance of problems because in Canada it is a crime to refuse the test or even a portion of it, while in the United States it is typically not.

At the end of the evaluation, police are permitted to demand a sample of blood or urine. Changes to impaired driving laws will make it easier for police to obtain the blood, as they will be permitted to draw it themselves. But the law already provides a mechanism by which this can be achieved. Again, the spectre of drug-impaired driving is not solved or really even assisted by C-46.

So carnage and mayhem on the roadways? Drug impaired drivers flocking to the streets to take lives and endanger public safety? Unlikely. And even if they did, the police are already well-equipped to stop it.

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