Marijuana impairment will be tough to prosecute
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