Canada’s top cop says officers ready for pot-smoking drivers; lawyers say issues still linger

Law360 Canada (October 17, 2018, 9:28 AM EDT) -- “Measured” to “overly optimistic” is how some lawyers are describing a declaration by Canada’s top police chief that officers are ready to deal with drivers impaired by marijuana.

Criminal defence lawyers are weighing in following an Oct. 15 press conference in Vancouver by Canadian Association of Chiefs of Police (CACP) president Adam Palmer, who said “police agencies are ready” for the coast-to-coast legalization of marijuana on Oct. 17.

At one point, Palmer turned to the subject of police preparedness for impaired driving due to marijuana — a touchy spot for some who feel there remains a lack of concrete science behind what constitutes impairment from marijuana.

“Although … it may take time to work out certain issues related to the new legislation and regulations, I can tell you that police are ready to target drug-impaired drivers,” said Palmer, noting that while police “may see an increase in the number of drug-impaired drivers on our roads once cannabis is legalized,” they are prepared for the potential spike.

“We have well established techniques to detect impairment that have successfully passed the test of the courts for many years now,” said Palmer, adding there are now more than 13,000 officers trained in field sobriety testing and around 830 “drug recognition experts.” “We will continue to rely on standard field sobriety testing and drug recognition experts to detect and deal with drug-impaired drivers. We’re very confident in our present processes which will continue to improve with time, as we build more capacity.”

But Toronto criminal defence lawyer Bruce Daley, of Daley, Byers, said that while Palmer undoubtedly has his finger on the pulse of policing in Canada, his comments were “overly optimistic” in this area.

“I can tell you that to me it does sound overly optimistic and it doesn’t accord with what I’m hearing on the ground … from police officers that I’m friendly with and do cases with,” said Daley. “My sense of what he is saying — now, he may be taking a broader national look, and I would not pretend to have any expertise outside of Southern Ontario — but I know that the people I speak to here, both prosecutors and front-line police officers, I don’t think they would share the same view of the level of preparedness.”

Daley said Palmer failed to address a big issue: the potential constitutional challenges when it comes to the testing and laying of charges for alleged marijuana impairment.

“Dealing with cannabis is a far different creature than alcohol when it is being enforced as a criminal matter,” said Daley. “With alcohol, we have a clearly defined quantitative measure which is extremely well accepted in both the scientific and legal community. Almost universally, you’ll have agreement … that at certain levels of blood alcohol concentration even the most tolerant drinker is going to have some level of impairment. That’s just not the case with cannabis. Cannabis can act very differently among individuals over protracted periods of time.”

Daley sees constitutional challenges ahead.

“You’re going to see some serious constitutional challenges to the per se limits, the roadside testing regime for cannabis,” he said. “There are going to be a lot of constitutional issues to get ironed out. … “I think you’re going to see a constitutional challenge as to whether or not there is sufficient scientific validity to those levels. … If you look at the history of alcohol, in the early days, there were challenges to the 80 milligrams of alcohol per 100 millilitres of blood and they were ultimately unsuccessful because there is a very broad scientific consensus on that. … I don’t think you are going to have the same consensus at all with respect to cannabis.”

Since the time legalization was but a twinkle in the eyes of Canada’s federal government, lawyers such as Daley have held concerns around the science — or lack thereof — behind cannabis impairment.

In November 2017, more than 50 lawyers sent a letter to Ottawa about its new Blood Drug Concentration Regulations, which outline “new offences for having specified levels of a drug in the blood within two hours of driving.”

Someone found to be having 2-5 nanograms (ngs) of drugs per millilitre of blood would be given a fine and a summary conviction criminal charge, and anything over the 5 ngs would result in criminal charges akin to that of impaired driving.

Critics in Canada’s legal circles have maintained that someone falling within the 2-5 ng range may not actually be impaired.

“A major concern is that the current scientific research about impairment and THC [the main psychoactive compound in cannabis] is throwing up some red flags about criminalizing individuals who in the past who have smoked marijuana or who may use it medicinally and don’t become impaired from it,” said Michael Spratt, of Ottawa’s Abergel Goldstein & Partners LLP. “Those individuals … are at real risk of being criminalized despite not committing a dangerous activity. That is a major issue. … At the same time, it would be naive to say that marijuana never impairs and that there should be no rules. We need to make sure the rules are based on evidence and comply with the [Charter].”

Spratt said that, overall, Palmer’s comments were “measured.”

“I think they were actually very measured comments that I think with reflect reality. With the legalization of marijuana, we may see an increase in impaired driving due to marijuana, but I don’t think that this is a tidal wave that some of those who oppose legalization … suggested it’s going to be.”

Comment from the Canadian Bar Association was not immediately available, nor was comment from the CACP.