Mar­i­juana im­pair­ment will be tough to pros­e­cute

Toronto Star - - OPINION - IAN COOPER Ian Cooper is a Toronto-based lawyer.

With the com­ing le­gal­iza­tion of recre­ational mar­i­juana, the On­tario gov­ern­ment has stum­bled to­ward readi­ness like a teenager cram­ming for a big exam.

To be­gin with, the gov­ern­ment de­cided to grant it­self a mo­nop­oly over le­gal sales, a move that was widely crit­i­cized for fail­ing to meet mar­ket needs, thereby en­sur­ing a thriv­ing black mar­ket would re­main in­tact.

That pill was fol­lowed by a spoon­ful of sugar for the law-and-or­der crowd when Premier Kath­leen Wynne and her Trans­porta­tion Min­is­ter Steven Del Duca un­veiled their pro­posal for stiffer im­paired­driv­ing penal­ties that would “en­sure that On­tario’s roads re­main safe af­ter July 1st, 2018.”

As the premier and her trans­porta­tion min­is­ter must know, a suc­cess­ful pros­e­cu­tion is a pre­cur­sor to the im­po­si­tion of any kind of penalty.

Un­for­tu­nately, the unique na­ture of mar­i­juana will make those pros­e­cu­tions chal­leng­ing.

To be­gin with, there is the prob­lem of es­tab­lish­ing an ob­jec­tive mea­sure of mar­i­juana im­pair­ment.

The stan­dard for al­co­hol — blood al­co­hol con­cen­tra­tion (BAC) — is the prod­uct of years of re­search. All things be­ing equal, a driver with a higher BAC is less fit to drive.

Mar­i­juana im­pair­ment is much harder to mea­sure be­cause the drug is fat sol­u­ble, per­sists in the body for long pe­ri­ods of time and me­tab­o­lizes in dif­fer­ent ways depend­ing on the in­di­vid­ual.

Heavy users — in­clud­ing those us­ing the drug daily for med­i­cal pur­poses — may show high THC lev­els in their blood­stream sev­eral hours af­ter the drug’s ef­fects have worn off. Mean­while, oc­ca­sional users will do bet­ter on a drug test even though they re­main im­paired.

Even if one could es­tab­lish a uni­ver­sal le­gal limit, it is not clear how users are sup­posed to know when they have reached it or when it is safe to drive again.

Our rules of thumb with al­co­hol (e.g. a glass of wine, a cock­tail and a beer are roughly equiv­a­lent; we me­tab­o­lize about one drink an hour; any­thing more than one or two drinks is too much) are the prod­uct of years of re­search and leg­isla­tive ex­pe­ri­ence.

With a drug that’s in­gested in gum­mies, cook­ies, in­haled in many dif­fer­ent ways and avail­able in all man­ner of po­ten­cies, good luck giv­ing users any sense of how much is too much or how long they need to wait be­fore they are com­pe­tent to get be­hind the wheel.

On­tario can have a “zero tol­er­ance” pol­icy for new driv­ers, but what does that ac­tu­ally mean for the 20-year-old who smoked a joint three days ago, hap­pens to get into a car ac­ci­dent and fails a blood test?

More prob­lem­atic is the fact that the ev­i­dence around pot and driv­ing is am­bigu­ous. Un­like al­co­hol, which is a cen­tral ner­vous sys­tem de­pres­sant and af­fects peo­ple in a uni­ver­sal way, mar­i­juana’s ef­fects are so unique that it is usu­ally placed in a class of its own among drugs.

It is gen­er­ally ac­cepted that mar­i­juana does af­fect driv­ing abil­ity, but the strong­est ev­i­dence is based on the in­ter­ac­tion be­tween mar­i­juana and al­co­hol. When used alone, there is lively de­bate over how much mar­i­juana im­pacts driv­ing abil­ity and whether in­di­vid­ual ex­pe­ri­ence and tol­er­ance can com­pen­sate to the point of elim­i­nat­ing the risk.

Some stud­ies show that reg­u­lar users — the ones who are most likely to fail a drug test — learn to com­pen­sate for the drug’s ef­fects.

A 2015 U.S. Na­tional High­way Traf­fic Safety Ad­min­is­tra­tion study raised fur­ther doubts by con­clud­ing that af­ter ad­just­ments were made for age, gen­der, eth­nic­ity and BAC, mar­i­juana was not found to cause a sig­nif­i­cant in­crease in the risk of a car ac­ci­dent.

This is not to sug­gest that peo­ple should be driv­ing high. But any ca­pa­ble de­fence lawyer will point to this ev­i­dence when try­ing to raise rea­son­able doubt on be­half of a client.

Last of all, there is the re­al­ity of pros­e­cut­ing any crime in Canada.

In the wake of the Supreme Court’s R. v. Jor­dan de­ci­sion, which set a clear stan­dard for un­rea­son­able de­lays in crim­i­nal tri­als, lawyers have scram­bled to turn an over­bur­dened ju­di­cial sys­tem into an op­por­tu­nity to get pros­e­cu­tions against their clients sus­pended.

Given the num­ber of se­ri­ous crimes that are al­ready fac­ing stay ap­pli­ca­tions, it is hard to imag­ine stoned driv­ers be­com­ing a pri­or­ity for On­tario’s Crowns with­out a mas­sive in­crease in polic­ing, pros­e­cu­to­rial and ju­di­cial re­sources. Putting stiff penal­ties on the books re­quires only a ma­jor­ity gov­ern­ment and a pen. Polic­ing and suc­cess­fully pros­e­cut­ing crimes is a far more com­plex and ex­pen­sive task.

If the cur­rent gov­ern­ment in­tends to make the happy talk about safe roads a re­al­ity, it has a lot more home­work to do in the next nine months.

It is hard to imag­ine stoned driv­ers be­com­ing a Crown pri­or­ity with­out an in­crease in polic­ing, pros­e­cu­to­rial and ju­di­cial re­sources

Premier Kath­leen Wynne’s gov­ern­ment has a lot of home­work to do to make their safe-road plan a re­al­ity, Ian Cooper writes.

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