Since the move toward legalization of recreational marijuana began after the last federal election, a lot of discussion has taken place surrounding marijuana-impaired driving. What has never been clear throughout all this discussion is what the existing state of the law is when it comes to cannabis impairment and driving. This has not been assisted by the introduction of Bill C-46, which creates separate offences involving marijuana and driving.
This post breaks down marijuana impaired driving as it currently stands in British Columbia and under federal criminal law.
The Senate is currently considering legislation aimed at targeting the problem of impaired drivers on our roadways. It's a noble goal to be sure. However, the law has the potential to significantly impact small business, and in particular businesses that rely on driving and transportation.
Part of Bill C-46 involves the creation of a criminal law scheme that addresses the potential risks of marijuana-impaired driving. However, the bill proposes adding a new criminal offence of impaired driving at certain blood alcohol concentrations of THC, and imposing particular sentences for these offences. These are known in law as per se limits.
Episode two of the Driving Law with Kyla Lee podcast is here. On this episode, I speak with former British Columbia Solicitor General and West Vancouver Police Department Chief of Police Kash Heed about impaired driving investigations, how we got the Immediate Roadside Prohibition scheme, and the pitfalls of rewarding police for issuing driving prohibitions.
You can find the podcast on SoundCloud at this link.
In a move that resembles what the Federal Government did with its overhaul of impaired driving laws, the Provincial Government has hidden some very disturbing changes to the alcohol-impaired driving provisions in the new law addressing cannabis-impaired driving.
Of course, the legislation was tabled with a variety of bills, all of which were designed to create a regulatory framework for cannabis legalization in British Columbia. So it was no surprise that the media did not notice or report on the surreptitious tweaks made to alcohol impaired driving provisions in the Motor Vehicle Act.
But I did. And I’m here to explain them, and why they are seriously problematic.
This morning, the Provincial Government finally unveiled its regulatory framework for dealing with the issue of marijuana-impaired driving, come legalization of recreational cannabis. The purpose of this blog post is to explain the changes to BC’s Motor Vehicle Act that are being proposed to deal with cannabis legalization. And, as usual, to offer my opinion on why these changes are not appropriate or effective.
The biggest hint to date about what British Columbia’s drug-impaired driving scheme is going to look like is finally here. Solicitor General Mike Farnworth was quoted in The Province today as saying that a legislative scheme not unlike the Immediate Roadside Prohibition scheme might soon become a reality.
It’s nice to know he’s creating a new prohibition scheme when the one that he criticized while in opposition remains unrepaired.
But what the article in The Province hints at is that roadside testing will be done by way of saliva testing. And this is inherently problematic.
Today, RoadSafetyBC made a major announcement regarding how it is going to start dealing with cases of street racing and stunt driving. You can read the announcement here.
At first blush, it sounds great for road safety. The Government makes it sound as though the current system allows only for fifteen-day prohibitions for street racing or stunt driving, and that these will now be replaced with longer prohibitions, between three and thirty six months, after this type of driving behaviour is observed. The problem with this announcement is that it sorely misrepresents the current state of affairs, and it misleads the public about why this action is being taken.
To understand this issue it’s necessary to understand the current system.
A few months ago, I wrote about the awful amendment to the Motor Vehicle Act that allow the Superintendent to prepare their own material, under the guise of “technical materials” to determine cases. This material, pursuant to the legislation, is only to be used for the purpose of determining issues raised by the applicant.
The problem with the Superintendent being able to do this was that the Superintendent is then presumed to be an expert on issues which he is, frankly, not. At the time, I predicted that the Superintendent would simply rewrite science in order to advance the goal of upholding IRPs. And, unfortunately, I was right.
Today, I received word on an IRP hearing that the Superintendent would be relying on Technical Materials, including a new version of the ASD manual that was posted on their site today. I dropped everything to read this new version of the manual, and I saw something I expected to see.
As mentioned in two previous posts, there have been significant issues with delay in deciding Immediate Roadside Prohibition review cases.
This has resulted in substantial problems for drivers who are affected by the delay, as the prohibition remains on the driving record during this time. The drivers have been made to pay the towing and storage costs, and there are consequences that are specific to many individuals like increased life insurance premiums or termination from employment.
So what is the Government doing to address the problem?
One of the biggest concerns that the public has when it comes to impaired driving is the problem with repeat or chronic offenders. You probably remember the story of the Victoria woman with 19 drunk driving prohibitions, who was recently found guilty of another offence related to impaired driving. The public was, rightly, outraged that this person can still drive and is still driving drunk.
The Government, for its part, has touted the success of the Immediate Roadside Prohibition legislation as the mechanism to reduce the carnage caused by impaired drivers on the road. It frequently points to the reduction in drunk driving deaths as evidence of the success of their anti-drunk driving legislation. But what they've been keeping mum about since the introduction of the scheme is whether there is any reduction in repeat offenders for impaired driving.
In short, do the swift and severe sanctions prevent people from making the same mistake twice? The answer might surprise you.
Vancouver Criminal Lawyer with a focus on impaired driving, marijuana legalization and related issues, and immediate roadside prohibition defence.