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Could drug-impaired driving laws result in wrongful arrests?

July 18, 2018   by Sarah-Cunningham-Scharf

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From coast to coast, one experience that strikes fear in Canadians is seeing flashing lights in the rear-view mirror.

That ice-cold dread will become worse for drivers who smoke pot recreationally, as a proposed bill to amend current drug-impaired driving laws—once the drug is legalized—leaves room for innocent drivers to be charged with the criminal offence.

The problem, according to two experts, is rooted in two of the amendments outlined in Bill C-46, an act to amend the Criminal Code. First, the prescribed roadside drug impairment tests are unsupported by science. Second, the bill presumes the driver is guilty.

The current drug-impaired driving test

Driving high is already a criminal offense in Canada. Throughout North America, there are drug recognition experts (DREs) on police forces who are trained to test for impairment based on the Drug Evaluation and Classification Program (DEC).

Dr. David Rosenbloom, a clinical professor in the department of medicine at McMaster University in Hamilton, Ont., says the roadside test is scientifically flawed. The 12-step system was developed by two cops and an optometrist in Los Angeles in 1976—which Rosenbloom says is the DEC’s first noticeable problem. None of the three creators was
a doctor of medicine.

Further, he says all 12 steps of the test are faulty due either to excessive subjectivity or scientifically inaccurate assumptions. The steps are:

  1. breath alcohol test;
  2. the DRE interviews the arresting officer;
  3. preliminary physical exam, including a pulse check;
  4. eye examination;
  5. divided attention and balance test;
  6. second physical examination, including blood pressure and pulse checks;
  7. pupil examination;
  8. muscle tone examination;
  9. search for injection sites;
  10. statement and interview of the subject;
  11. opinion of the DRE;
  12. toxicological sample (urine or blood).

Rosenbloom says step two illustrates the test’s intrinsic subjectivity. When the DRE interviews the arresting officer, “You’ll always hear the driver has red, glossy eyes. With smoking weed, you can get bloodshot eyes. But what if they weren’t sleeping the night before, [or] they have allergies? It’s just one hint, it doesn’t mean it proves it.”

As well, many of the tests involve medical examinations that police officers aren’t trained to administer. He says, “What if I say I have muscular dystrophy. That’s going to affect my ability to walk. What are the police going to do with that information?”

In 2017, a Toronto man named Harry Rudolph was arrested for driving high. The officers mistook his symptoms for drug impairment, when he was actually having a stroke. Since Rudolph was kept in a cell overnight rather than rushed to the hospital, he suffered permanent brain damage.

Rosenbloom says some of the science used to structure the DEC is not just subjective, but plain wrong. For example, during the eye exam, the DRE will move his or her finger in front of the subject’s eye to see if the eye jerks involuntarily. The DEC literature states that if the subject’s eye shakes—called a gaze nystagmus—it means he’s impaired.

Science disagrees. “That is a misstatement as to what the relationship is,” Rosenbloom says. “Marijuana doesn’t cause nystagmus.” Similarly, when the DRE checks for pupil dilation, Rosenbloom notes that “opiates can constrict the pupils. Marijuana doesn’t.”

Rosenbloom says flaws can be found in each of the 12 steps of the test. “If you’re going to legalize marijuana, don’t come up with pseudo-science to support your decision.”

The legal element

Bill C-46, which is currently being debated in Parliament, would change several aspects of the current drug-impaired driving laws.

The intentions of the bill may seem good, but Shayan Shaffie, a Toronto-based criminal defence lawyer, says the amendments “introduce a range of sweeping, consequential, and in some cases troubling reforms to the law.”

The street-level effects of the changes won’t be realized until the bill is passed, Shaffie says, but there are a few key aspects Canadians should prepare for to protect themselves. He found three areas of major concern, which include:

  • a lack of scientific consensus concerning the proposed THC limits and actual impairment;
  • a current lack of knowledge concerning the device(s) that front-line police officers will use to screen drivers; and
  • a statutory presumption of guilt that could incriminate innocent Canadians.

Let’s break it down.

Permissible blood-drug content

“There will be regulations introduced that set finite caps on the amount of THC in one’s bloodstream, just like we currently have with blood alcohol concentration,” explains Shaffie. The problem is, the science which supports these proposed limits—currently tabled at 5 nanograms of THC per millilitre of blood—is simply not known.

“The link between these limits and actual impairment are not, to my knowledge, supported by any science,” says Shaffie.

This lack of scientific foundation will result in litigation, Shaffie notes. “Whereas drinking and driving laws are supported by decades of scientific consensus, reliable technology, and massive amounts of litigation, the same can’t be said of the proposals with respect to permissible blood-drug concentrations. We just aren’t there yet.”

Also concerning is the fact that it can take a long time for the human body to rid itself of THC. “It’s conceivable that a person could have trace amounts of THC present in their bloodstream, despite not having consumed marijuana for a number of days,” says Shaffie. This could result in a false positive reading.

The drug screening device

Bill C-46 states police officers will carry a drug screening device once marijuana is legalized—but it doesn’t explain what the device is. From his research, Shaffie says the bill references a device similar to a roadside screening device, sometimes called a “breathalyzer.”

“Front-line officers are expected to deploy this device at the scene of an investigation in order to determine whether there’s enough evidence to actually arrest the inidividual for additional investigation back at the station,” at which point a DRE would conduct the DEC test, Shaffie explains.

Rosenbloom says one of the devices being considered for this function is a saliva test. The problem is, “the amount of THC in saliva has no correlation to the effects on the person,” adding another layer of scientific invalidity. As a doctor of pharmacy, Rosenbloom has never seen “a single study that links breath THC to impaired driving.”

“A lot depends on the accuracy and reliability of the device,”  Shaffie notes. “A person who fails the test will be subject to arrest, handcuffed, placed in a cruiser, driven back to the station and conscripted to participate in [the DEC] and potentially charged—which is to say nothing of the legal nightmare that will ensue.”

A statutory presumption of guilt

The third red flag, according to Shaffie, is what the criminal defence lawyer calls a “statutory presumption of guilt.”

“According to the new legislation, whatever prohibited drug or drugs turn up in the screening process are presumed to be the same drugs in the person’s body at the time that they were operating a car. This mirrors the law as it relates to alcohol – only Bill C-46 explicitly makes it a crime to be high up to two hours after you’ve stopped driving.”

The new presumption is as perplexing as it sounds.

“Practically speaking,” Shaffie says, “this means that if you’ve had the misfortune of having the police called on you while on your way to your friend’s house—where you decide to light up—you could be arrested and convicted of driving high even if you were sober at the time of driving.”

According to the language of Bill C-46, the only way out of this legal trap is to take the stand and convince the judge about the actual sequence of events. “Ordinarily, the Crown has the burden of proving the charge beyond a reasonable doubt.” Shaffie laments, “This presumption reverses that burden and will force innocent people to testify in order to protect their interests. It constitutes an unacceptable presumption of guilt.”

How Canadians can prepare

Shaffie has one piece of good news. He believes “aspects of the new laws proposed in Bill C-46 likely won’t pass constitutional muster, and likely won’t be on the books several years from now.” This would leave room for precedents to be set in the courtroom contesting the validity of both the laws and evidence gathered through scientifically fallible tests.

However, until precedents are set, he notes that “combining marijuana and driving is a recipe for a potentially very long and unnecessary legal ordeal.”

“Even once legalized, Canadians should be extremely wary of mixing any amount of marijuana with driving,” Shaffie says. “Not only are the science and technology behind blood drug concentrations unknown and potentially unreliable, Canadians should remember that an impaired driving conviction can result even if they are below the legal THC limit.”

His advice? “Until the legal dust has completely settled, avoid any combination of marijuana consumption and driving. Unless you like lawyers, of course.”

From an insurance perspective, the path forward is uncertain. Mario Fiorino, director of legal and senior counsel at the Insurance Bureau of Canada, says the onus is on the government to provide greater clarity around the laws prior to pot legalization.

“One of the public policy objectives of this legislation was to make sure our criminal justice system is not taxed with simple possession charges of cannabis,” Fiorino says. “Ironically, I think what will happen, if the impairment issue is left to be questioned repeatedly, is the court system is going to be even more taxed.”

Copyright © 2018 Transcontinental Media G.P. This article first appeared in the May edition of Canadian Insurance Top Broker magazine

This story was originally published by Canadian Insurance Top Broker.