Legal Challenges Expected for Drug-Impaired Driving Charges

Written on Behalf of Affleck & Barrison LLP

Now that cannabis has become legal in Canada, there are still many questions that remain unanswered. Impaired driving is one of those murky subjects.

Impaired driving is the leading criminal cause of death and injury in Canada. Drivers that are killed in car accidents that test positive for drugs (40%) now exceed the number of those who test positive for alcohol (33%).

Cannabis can impair everyone differently depending on the method of consumption (smoked, inhaled, ingested), quantity of cannabis consumed, and the variety of cannabis and its THC levels. Therefore, there is no direction as to how much cannabis can be consumed before you are considered an “impaired” driver or how long a driver should wait to drive after consuming cannabis. The Government of Canada is therefore recommending that you should not drive high.

Justice Minister Jody Wilson-Raybould recommends:

For the sake of safety on the roads, we recommend people not get behind the wheels of their car if they’ve consumed any alcohol or drugs.

TRAINED OFFICERS

The Government of Canada reports that they have trained police officers, also known as Drug Recognition Experts, to determine if you are under the influence of drugs while driving.

Durham Police Services has trained 130 officers in standardized field sobriety testing, and an additional 6 officers are trained in drug impairment recognition.

According to the Government of Canada’s website, there are over 13,000 trained Standardized Field Sobriety Test officers across Canada and 833 certified Drug Recognition Experts. As the federal, provincial, and territorial governments continue to invest money into training, these numbers will continue to increase.

THE OFFENCE OF IMPAIRED DRIVING

New impaired driving offences came into force at the end of June setting limits on how much THC (the primary psychoactive element in marijuana) a person can legally have in their system while driving before facing penalties.

According to the new rules, police can lay a summary conviction charge against a person driving with between two and five nanograms of THC per milliliter of blood (subject to a maximum fine of $1,000). Charges may be laid either as a summary or indictable offence for those who have more than five nanograms of THC per milliliter of blood. The latter is a more serious crime with fines and jail time as penalties.

DETECTING DRUG-IMPAIRED DRIVING

Drivers who are suspected of driving high will be asked to take a field sobriety test, this includes an assessment of how the individual’s eyes react to light and movement, and their ability to perform a series of activities designed to gauge their physical co-ordination.

If an officer forms grounds to believe a driver is impaired, they may place the driver under arrest and demand a more extensive examination by a drug recognition officer. This test is conducted at a police station and relies upon physiological evidence, such as blood pressure, pulse rate, and the examination of muscle tone and eye reactions. This examination will also involve the extraction of bodily fluids, in most cases urine, which will be sent to the Centre of Forensic Sciences for analysis.

It is a criminal offence to refuse to submit to the drug recognition officer examination, similar to the refusal to submit to a breathalyzer test during a drunk driving investigation.

ROADSIDE DRUG-SCREENING EQUIPMENT

Durham Police are anticipating that they will be equipped with devices to test saliva samples for the presence of drugs, but they are not currently available.

The Ontario Provincial Police force has confirmed that it will be purchasing federally approved roadside drug-screening equipment to identify impaired drivers. However, it is uncertain at this time how many of these devices will be purchased or when they will become available.

The device is known as the Drager DrugTest 5000, which has the ability to test saliva for cocaine and THC (the main psychoactive agent in cannabis). Canada’s Department of Justice approved this device this past August.

If a driver is suspected of being high, an officer would ask the driver to provide a saliva sample, using a cassette. The cassette is then inserted into the analyzer to be tested. Within approximately four minutes, the results of the test will determine whether the driver is over the nanogram limit (positive or negative). If so, the driver will then proceed to the police station for a blood test.

LEGAL CHALLENGES AHEAD

Government officials have acknowledged that although they are prepared for cannabis legalization, it is expected that the courts will set clearer interpretations of the new impaired driving laws as charges are laid and cases move through the criminal legal system.

It is particularly complicated to measure the concentration of THC in someone’s blood and determine when it came from. Thus, the problem arises when determining how the police can prove that the amount of THC in the blood was impairing the driver or whether the THC was lingering in the driver’s blood from consumption days earlier as THC can be detected several days after someone has smoked.

Justice Minister Jody Wilson-Raybould has said that officers will have to make a decision on a “case-by-case” basis when determining whether a driver will face a charge for drug impaired driving.

Many are concerned that there is no conclusive way to determine that someone is driving high. The roadside saliva drug tests approved by the government have also been criticized for being an unreliable testing method. Furthermore, some criminal defence lawyers have suggested that these tests could face challenges under Canada’s Charter of Rights and Freedoms.

We will continue to provide updates and developments following the legalization of marijuana in Canada in this blog as they become available.

If you have been charged with an impaired driving or any other driving offence, or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times. Contact our office online or at 905-404-1947.