Despite the fanfare and attention, the reality is this: the battle for sensible cannabis-impaired driving laws will not be won in a dispute of a 24 Hour Prohibition for drugs.
And the police know that, which is why many police forces are electing to use these provisions to address these concerns.
And here’s why.
Briefly, to dispute a 24 hour prohibition from driving, a driver must file for judicial review in BC Supreme Court. And while the provisions have been criticized for their “surreal and artificial” qualities, they are nevertheless considered to be an effective means to remove impaired drivers from the road.
In order for a constitutional challenge to a law such as this to be successful, the Court would have to be persuaded that the means chosen by government exceed the reviewability of the prohibition. There is already precedent from the BC Court of Appeal that indicates that the minor nature of the administrative sanction justifies a truncated right of review. So any challenge for lack of reviewability would inevitably fail.
When it comes to cannabis impaired driving, the provision is also not, in my opinion, vulnerable to a constitutional challenge.
First, let’s look at the argument that the provision discriminates against or otherwise interferes with medical users. In order to make out an effective claim for discrimination, it would have to be shown that the law disproportionately affects medical users. But does it?
The 24-Hour Prohibition provisions require that a peace officer have reasonable grounds to believe a driver’s ability to drive is affected by a drug, other than alcohol. It does not single out cannabis, nor was the law enacted to deal with cannabis-impaired drivers. It existed prior to medical cannabis, after it, and now after legalization in roughly the same form it is in now.
The reasonable grounds standard is also an important safeguard against interference with medical users. By requiring that an officer have reasonable grounds, the law requires the police to consider all information, inculpatory and exculpatory, that is available to them at the time. If a person admits to being a medical user, or provides a medical explanation for a symptom interpreted as of impairment, the officer is required to consider it.
But an ex-post-facto explanation will not suffice. That was the case for Brittany Wilson, who provided evidence to show that she was not impaired by any drugs whatsoever at the time of her prohibition. Despite the clear evidence of sobriety, her behaviour and driving pattern were enough for the officer to have formed reasonable grounds to believe her ability to drive was affected by a drug.
Does this put drivers in a position of having to admit to being a medical user, if the prohibition is given to them? Perhaps. But even admitting that does not necessarily cancel the prohibition in the officer’s mind.
When determining whether a prohibition is valid, a reviewing court will look at whether the officer had reasonable grounds. This is typically made out where there is either evidence of erratic driving or evidence of an impaired physical ability. If the driving is erratic, and there is no other explanation apparent, an officer could be justified in issuing the 24-Hour Prohibition, regardless of medical user status. Similarly, if the person’s physical ability is impaired, the prohibition may be justified, depending on other explanations for the physical impairment.
A review of a 24-Hour Prohibition for drugs really comes down to whether it was reasonable for the officer to believe what he did. It does not come down to whether a person was or was not impaired by a drug.
Which again is why the fight for sensible cannabis impaired driving laws will not begin or end with a challenge to a 24-Hour prohibition. A medical user, taking their prescription in accordance with their doctor’s recommendations, should not display erratic driving or an impaired physical ability. If they do, removing them from the road for 24 hours is going to be considered by a court as a reasonable decision.
Does that mean that medical users are screwed by this law? Absolutely not.
What this means, instead, is that people who are taking their medication properly and who are not impaired should be sorted out from those who pose a potential risk. And if an officer exceeds his authority in issuing the prohibition on the basis of, say, cannabis in the car or an admission to being a medical user, the prohibition should be sorted out by the court.
Having argued several 24 Hour for Drugs cases, including at the BC Court of Appeal, I know the concern the courts express over why these cases are being litigated. This is because of the Court of Appeal’s finding that the minimal sanction seems to outweigh the cost of a dispute, particularly since the penalty has come and gone by the time the dispute rolls around. The Attorney General routinely takes the position in the hearings that there is something nefarious in drivers not explaining their desire to have a prohibition revoked.
A medical user wanting to clear his or her name is certainly a valid goal. But the law does not permit any person on any medication to drive when that medication impairs their ability to drive. And these provisions of the Motor Vehicle Act only apply to impaired driving, not to blood THC concentration or presumptions.
It is premature to say that the battle for sensible cannabis impaired driving laws has now commenced in court. And to try to litigate those issues over a 24 hour prohibition may do more harm to the fight than good.
