The Federal Government has been pushing their overhaul of Canada's impaired driving laws by reference to the big-bad-boogeyman of marijuana-impaired driving. But does the effective legalization of marijuana in Canada actually mean that we are all now in peril?
Of course not.
Canada has had marijuana and drug impaired driving laws throughout this whole process. And what is being proposed under Bill C-46 does not differ in too many respects from the current state of the law. Indeed, it appears that the biggest concern for the Federal Government is about THC concentrations in the blood. Everything else is basically a fine-tuning of measures already in place.
So in celebration of the Senate vote, I propose to outline just what those laws are.
Roadside Testing for Drugs
Yes, we already have a system in place that allows for roadside testing of drivers suspected to have drugs in their body. This is known as the Standardized Field Sobriety Test. The test, which is set out in Section 253 of the Criminal Code, is meant to be used where an officer has a suspicion that a driver has a drug in their body, but does not have grounds to make an arrest.
Essentially, the test boils down to a few divided-attention tasks that a person would never perform while driving. First, following a pen-like objects with the eyes. This is known as a Horizontal Gaze Nystagmus test. Second, standing on one leg for about thirty seconds. Or, creatively, the one-leg-stand. And finally, the walk-and-turn test. This one is perhaps the most complex, requiring the driver to take nine heel-to-toe steps down an imaginary line, do a special turn, and take the same nine heel-to-toe steps back.
One wonders how high you have to be to see an imaginary line.
But in all seriousness, these tests serve the same purpose for which the Federal government wishes to introduce saliva testing. And while critics of the tests, including myself, have pointed to the absence of any peer-reviewed scientific research that supports the validity of these tests for drugs, the legislation is written in such a way that an officer can use them despite the absence of scientific support.
The results of those tests then allow a police officer to make a demand for further evaluation to be conducted by a Drug Recognition Evaluator, and potentially, to demand a blood or urine sample.
Drug Recognition Evaluation
If a peace officer has grounds to arrest a person for impaired driving by drugs, or the person has failed the SFST test, the next step is to demand a Drug Recognition Evaluation. This is a multi-step procedure designed to discern 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. Effectively, it turns police officers into doctors.
The steps used in Canada are defined in the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations. They include the following:
Canada uses a modified version of the Drug Recognition Evaluation as it is taught and approved by the National Highway Traffic Safety Association. The modification is significant. It is the elimination of the "interrogation" portion of the test. Drug Recognition Evaluators in the United States will tell you that this aspect of the test is very valuable in making a determination about impairment.
The reason for the modification is significant. It is because in Canada it is an offence to refuse to participate in the test, while in the United States it is generally not. However, a person cannot be compelled to provide a statement and so removal of the interrogation step was necessary to make the DRE steps Charter-compliant.
None of this is changed by the laws set out in the impaired driving bill. Moreover, as a result of recent Supreme Court of Canada jurisprudence, the conclusion of the DRE officer is considered to be an expert opinion in court.
At the end of the evaluation, if the police believe the driver is impaired by a drug, a sample of blood or urine can be required. This will then be tested to corroborate the opinion of the evaluator. Again, nothing about Bill C-46 changes this. Instead, the only change is that there is a presumption of impairment if the drug test result is the same as the DRE opinion.
And so it does not appear that any significant modifications to our impaired driving laws were or are necessary in light of legalization. Rather, in the coming weeks as Canadians enjoy recreational marijuana I expect that we will see society functioning just fine without these changes. Our legal system is and has long been prepared to deal with this. Now that Bill C-45 has been passed by the Senate, it should not even be necessary to amend any driving legislation.