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.
There is currently no scientific research that supports the imposition of per se limits for marijuana. There are two reasons for this. Unlike alcohol, which impairs people in a consistent and measurable way at various blood alcohol concentrations, the behaviour and impairment of individuals who have used marijuana is not correlated to a blood THC concentration. Impairment may not exist until extremely high THC levels for some individuals, while impairment may exist at lower levels than those proposed for others.
Ed Wood, the president of DUID Victim Voices Canada, a lobby group that is opposed to marijuana legalization and the per se limits, presented research to the House of Commons showing that a per se limit lack scientific support.
The second reason that per se limits for marijuana are not supported by the scientific community is because of the manner in which marijuana is stored in the body. THC concentration is often tested in Canada by way of urine sampling, which is inherently problematic as urine tests tend to show the metabolites of marijuana, which may remain in the body for several weeks after the drug is used. And we know that blood testing is also problematic, as has recently been seen in court cases involving marijuana impairment.
Nevertheless, it is likely that this legislation will pass with very few changes.
The problem this poses for small business is how it will impact the trucking and driving industry. It is likely that the Canadian Trucking Association and their provincial counterparts will regulate THC concentration for drivers. Louise Yako, the president of the BC Trucking Association, is currently advocating for zero-tolerance for truck drivers.
With the introduction of random roadside testing for alcohol, and saliva testing for drugs, the trucking industry is likely to be hit hard by the changes proposed to the impaired driving laws. The problem with these changes is that because of poor scientific foundation for the legislation, they will undoubtedly capture and impact people who are not impaired and who pose no risk.
It should not be forgotten that marijuana is also a prescription medication. Imposing a zero tolerance policy on drivers for THC concentration, when that may well reflect marijuana consumed ages ago and not at all affecting the ability to drive, or a valid medical prescription, will only result in drivers losing their livelihoods over pseudo-science and well-intentioned hysteria.
But the problems do not end there. Other proposed changes to the legislation include the introduction of random breath testing. This will undoubtedly impact businesses that rely on drivers. Any business that relies on drivers will feel the effects of this ill-conceived legislation. Not only will more drivers be stopped and investigated, delaying shipments and deliveries and sales, but there is a substantial risk that drivers will be wrongly singled out for further investigation based on unreliable test results.
This problem becomes even more severe in British Columbia, where provincial laws require police to immediately seize the licenses of drivers who refuse to comply with a roadside breath test, and to immediately impound the vehicle they were driving for 30 days. Now, employees who drive will be unable to do so for refusing a test.
It is reasonable to expect that refusal to blow charges will rise over the first six to twelve months of the implementation of the legislation. Many individuals will dispute the grounds for the roadside breath test demand, refuse to comply, and face these administrative penalties in British Columbia. And businesses will suffer the loss of valuable employees and work vehicles while drivers are punished based on a misunderstanding of their legal rights and obligations.
When people think about the changes to the impaired driving law, they often first think about the need to get impaired drivers off the road. But for businesses, and particularly small businesses that rely on drivers and vehicles, the hidden consequences of this scheme have the potential to significantly impact or even halt operations.
This is a consequence that will affect Canadians as a whole. The Government should think twice about imposing sanctions that will lead to a less productive society.
Vancouver Criminal Lawyer with a focus on impaired driving, marijuana legalization and related issues, and immediate roadside prohibition defence.