drug-impaired driving

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.

Fatal Accidents Increase Significantly after 4/20 Celebrations

Written on Behalf of Affleck & Barrison LLP

April 20 has become an international holiday where people gather to celebrate and consume cannabis. These mass marijuana festivities usually begin at 4:20 p.m. and continue well into the night.

A recent study has revealed that there was a slight increase in fatal U.S. car accidents on April 20 following an analysis of 25 years worth of data. Studies such as this one provide important information to the Federal and Provincial governments in deterring marijuana impaired driving in anticipation of the legalization of marijuana this summer in Canada.

WHAT DID THE STUDY ESTABLISH REGARDING THE USE OF MARIJUANA AND DRIVING ON APRIL 20?

Researchers from the University of British Columbia and the University of Toronto compared driver deaths on April 20 with deaths occurring on a day of the week before and the week after during the 25 year study of U.S. data. The study confirmed that fatal car crashes were increased by 12% (142 driver deaths) on the evening of April 20. The study also found that the risk of fatal accidents among young drivers (under the age of 21) increased by 38% in the evening of April 20.

Dr. John Staples, lead author and an internist and researcher at the University of British Columbia in Vancouver, stated,

The simplest explanation is that some drivers are impaired by cannabis use, and these drivers are contributing to fatal crashes. There should be very clear messaging to the public: don’t drive high.

Although the study lacks evidence on whether marijuana was involved in any of the April 20th fatalities (as there was no police data on drug testing to confirm that marijuana was involved), researchers believe that the drug was responsible for some of the crashes.

DOES MARIJUANA USE AFFECT DRIVING?

Although marijuana has the reputation of being a relatively harmless drug, it can have short-term affects on reaction time, motor co-ordination, divided attention, short-term memory and decision-making skills.

Marijuana affects each individual differently based upon factors such as the person’s tolerance, and the strain and potency of the marijuana being used. Some who use marijuana experience a sense of relaxation, while others may experience panic, fear, anxiety or psychosis.

Following alcohol, cannabis is the substance most commonly associated with “driving under the influence”.

In Colorado (one of the first states to legalize marijuana in the U.S.), the number of deaths caused by auto-related accidents involving marijuana increased by 145% from 2013 to 2016. By 2016, 20% of all fatal motor vehicle accidents involved marijuana (in comparison to 10% in 2013).

ONTARIO’S PLAN TO KEEP OUR ROADS SAFE FOLLOWING LEGALIZATION

As we have previously blogged about, Ontario has implemented new measures to keep our roads safe by implementing tougher drug-impaired driving laws.

Ontario has enacted zero tolerance rules prohibiting young (age 21 and under) and novice (G1, G2, M1, M2) drivers from having the presence of a drug in their system. For a first offence, young and novice drivers will face a three-day suspension and a $250 fine. A second offence will result in a seven-day suspension and a $350 fine and all subsequent transgressions will result in a thirty-day suspension and a $450 fine.

Commercial drivers will also be subject to zero tolerance rules prohibiting them from having any alcohol and drugs in their system. For any offence, a commercial driver will face a three-day suspension and a $250 to $450 fine.

Ontario has also introduced escalating monetary penalties to all impaired driving offences starting at $250 for a first offence and increasing up to $450 for third and subsequent occurrences.

RECOMMENDATIONS

As we prepare for the legalization of recreational cannabis in Canada this summer, we should consider ways to avoid driving while impaired and being a passenger with an impaired driver.

We should all be reminded to:

  • Always have a designated driver; or
  • Call a friend or loved one to pick you up; or
  • Call a cab or a ridesharing service; or
  • Stay overnight and sleep it off.

It is also strongly recommended that we have an open dialogue with our children and reinforce the dangers of driving while impaired by alcohol or drugs. It is also recommended that parents model safe driving behaviour by never driving any vehicle while impaired.

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

New Penalties for Drug-Impaired Driving in Ontario

Written on Behalf of Affleck & Barrison LLP

On October 2, new penalties came into effect for drug-impaired driving in Ontario. These new sanctions are part of the province’s Making Ontario’s Roads Safer Act, passed in 2015, and introduce immediate consequences for drug-impaired drivers that are similar to those that are already in place for drivers impaired by alcohol.

New Sanctions for Drug-Impaired Driving

Under the new changes, drivers impaired by drug use face the following consequences:

  • A $180 fine;
  • An immediate 3-day license suspension for the first occurrence; 7-day license suspension for the second occurrence; 30-day suspension for third and subsequent occurrences;
  • A possible 90-day license suspension and 7-day vehicle impoundment depending on drug testing at police station;
  • Mandatory education or treatment programs;
  • Installation of an ignition interlock device on vehicles for drivers with two or more license suspensions related to alcohol or drug in a 10-year period.

This is in addition to existing impaired-related criminal charges, which can result in jail time, loss of a driver’s license, and additional fines.

The intention of these new penalties is twofold. First and foremost, the penalties are intended to deter drivers impaired by drugs from going on the road. Secondly, the penalties are also intended to immediately take away an impaired person’s right to drive if they do go on the road and are caught.

What Does this Mean in Practice?

As Canada prepares to legalize marijuana, driving high has emerged as one of the biggest hurdles confronting the federal government’s task force on marijuana legalization.

At the same time, charging drivers who are high will be challenging. Unlike a Breathalyzer test for alcohol, there currently is no comparable cheap and reliable test for measuring THC or other drug content in blood. For instance, existing tests can reveal the presence of THC, but they do not establish how recently it was smoked as it may linger up to 12 hours after the person who smoked it felt any effect. The other option is using costly, invasive, and legally questionable blood tests. However, even if a blood sample comes back positive, there is currently no legally established limit for THC content as there is for alcohol.

Some clarity may be coming with respect to what will be needed to successfully convict someone of drug-impaired driving. The Supreme Court of Canada will soon be hearing the appeal of Carson Bingley. While driving in 2009, Bingley’s car crossed the centre line of a busy Ottawa street barely missing oncoming traffic and forcing other drivers out of the way. He then pulled into a parking lot and hit another car. Two separate drivers contacted police, suspecting Bingley of impaired driving. At the police station, Bingley admitted to smoking marijuana. The SCC’s decision will provide much-needed guidance on what kind of testimony will be admissible in a drug-impaired trial. The outcome of this decision will have an impact on criminal charges for drug-impaired driving.

Until further clarity is established, Ontario drivers should be aware of the new penalties that are already in place in the province.

If you are facing impaired driving charges, contact our office online or at 905-404-1947 to schedule a free consultation with one of our skilled Oshawa lawyers. We have 24-hour phone service for your convenience. Trust our experienced lawyers to handle your defence with diligence and expertise.