Danger Ahead: Weed, Driving and Policing Alternatives

Canadians are funny; they will rally in their thousands against the hazards of gun ownership, denounce occurrences of hate speech, and show outpourings of support for bullied children in our schools. Yet, every year, so many of us, including some of the very same individuals who decry the above wrongs, choose to get behind the wheel of a motor vehicle while impaired. Often nothing comes of it; person X makes it from point A to point B without incident. Until one day they do not. On that day, the consequences can be tragic, and often not for the individual whose decisions led to the tragedy. Impaired driving is a serious problem and it needs to be addressed. Legalization of Cannabis has rendered this problem even more pressing, while at the same time introducing additional tools to combat it.

The following blog responds to and builds off of the findings of Solomon, Chamberlain and Vandenberghe [the authors] in their paper published in the Canadian Criminal Law Review.1 It is a very interesting article that examines some of the statistics related to impaired driving, particularly cannabis impairment, and makes some predictions about the effectiveness of Canada’s new legislative scheme. In short, the authors predict a rise in cannabis-related impaired driving and a modest strengthening of enforcement. The main barrier to improved enforcement identified is the lack of quick, affordable and reliable cannabis screening equipment. After considering some of the authors’ findings in greater detail, I propose (in broad terms) an alternative approach to the policing of impaired driving, where the focus is on the driving ability of individuals, and it is this that forms the basis for a charge against them.

Data from the United States suggests that legalization will lead to a significant increase in cannabis-impaired driving in Canada. In Colorado, large-scale commercialization of medical cannabis was followed by a 70% increase in drivers involved in fatal accidents testing positive for the drug, while in Washington State the number of such drivers more than doubled after legalization.2 To help combat this, the legalization scheme established by Parliament included several changes to impaired driving laws. Included amongst these are three new driving offences based on blood-THC content and expanded police powers to demand bodily samples for analysis or submit to a Drug Recognition Evaluation (DRE).3 Additions and alterations were also made to the existing impaired driving framework, the most significant of which address evidentiary matters.4 The authors delve into greater detail, and there is ample material relating to these developments available from other sources. For the present purposes, the take away is that legalization, arguably, can be expected to result in an increase in cannabis-impaired driving, and that the Parliament is attempting to address this through creating new offences, expanding police powers and making it easier for the Crown to meet its evidentiary burden in such cases.

Parliament’s actions need to be taken in context. As was established above, impaired driving is a significant problem that can lead to dire consequences for Canadians. I doubt anyone could seriously debate this point, and it is further borne out by the statistics presented by the authors. However, most criminal activities are serious, and carry serious consequences. Although the impaired driver is an unsympathetic accused, the legislative response to the issue of policing cannabis and impaired driving should be considered with caution. Every expansion of police powers carries with it a corresponding reduction in individuals’ rights. Any easing of the evidentiary burden on the Crown bears with it an increased risk to the accused. These are not always negative developments; indeed they are sometimes necessary. However, they must be considered with great care, lest the protections of the law for the individual against the incomparably powerful state be gradually eroded.

The authors raise several points which should cause us to question the government's present approach to the impaired driving issue. First, traditional approaches to policing impaired driving are hardly bullet-proof. A recent BC study referenced by the authors indicated that officers were failing to detect drug-positive drivers involved in accidents at an alarmingly high rate.5 Second, there is evidence that field sobriety tests, of the sort used to assess potential alcohol-impaired drivers, are far less effective at assessing drug impairment, and may produce a high rate of false-positives.6 The authors also noted that the field sobriety test and DRE process is lengthy, highly technical, has a high training cost with relatively few officers qualified to administer it, and is less effective at assessing certain drugs. In one DRE study, the presence of cannabis was only accurately predicted 79.1% of the time.7

Beyond the accuracy issues that come with the present methods of impairment detection, there is little data on the relationship between DRE results and impairment of driving skills. These evidentiary issues have not escaped the notice of courts, whose skepticism of such methods is effectively demonstrated by the authors in their quotation of R v Abbasi-Rad, 2016 ONCJ 542.8 On the authors’ view, this skepticism is reflected in the length, cost, complexity and uncertainty of drug-impaired prosecutions. In 2015, 59% of police reported drug-impaired driving incidents and 71% of alcohol incidents were cleared by charge. The median length of drug and alcohol impaired cases were 227 and 121 days, respectively. In 2014/2015, 81% of alcohol impaired cases completed in court resulted in a guilty disposition, as did 61% of drug impaired cases.9 On top of all of these issues, the methods already in place appear to have had no appreciable deterrent effect.10

These numbers tell a sobering story about the difficulties associated with present methods of policing impaired driving, especially where impairment is drug-related. Present approaches are expensive, inefficient, open to legal challenge and uncertain in outcome. Through the Cannabis Act and the Transportation Act, Parliament seems to be expressing that expanded police search powers, offences targeting drug use rather than impairment, and new, Crown-favourable rules of evidence are the answer. In light of these facts, it is incumbent upon us to question whether this truly is the best approach to policing impaired driving.

I would suggest that we may be able to approach this problem in a different way altogether. The underlying theme that unites all of the challenges in policing impaired driving is discerning and proving impairment. However, fundamentally, impairment is not the evil that the law is seeking to prevent. Rather, it is the inadequate and unsafe driving that flows from impairment that is the real concern. Perhaps more could be gained by shifting the focus of policing away from detecting and prosecuting impairment, and toward identifying and prosecuting unsafe driving practices on the road, regardless of the underlying cause of such practices.

Such an approach would remove as an issue the concern of the court in R v Abbasi-Rad, vis a vis the lack of proven relationship DRE results and driving skills. It would almost certainly be cheaper and easier to train and equip police officers to identify and prove unsafe driving than impairment. This would not require any searches, negating the need for expanded police powers and unbalanced evidence rules. Money going into technical training and testing equipment could instead be used to put dash-cams or other recording equipment into all police vehicles, for example, so that officers could readily provide a visual record of the impugned conduct. This type of approach would also encourage more active patrol-based policing, rather than setting up check-stops at choke-point and high-traffic areas. As the authors noted, present methods of catching impaired driving are of negligible effectiveness when compared to the frequency of the crime. According to the numbers they presented, an estimated 10.4 million trips were made by drivers after using cannabis in 2012, but only 1140 drivers were charged with drug-impaired driving offences that year.11 Perhaps check-stops are the more effective method of catching and preventing impaired driving, but considering the above numbers, there is much more to gain than there is to lose by trying a new method of policing.

An approach focused on detecting and punishing improper driving, rather than impairment, would also be less likely to result in a wrongful conviction. The signs of improper driving are much clearer, and less specific to the individual. One of the problems with the present approach to impaired driving offences, particularly those which prohibit certain blood-chemical levels, is that an individual’s driving ability is not necessarily impaired at that level. This is particularly true of the new 2 ng limit for blood-THC.12 These types of individualized, medical and scientific issues are sidestepped entirely by focusing on driver conduct. It is much easier to debate legally the quality and safety of an individual’s driving than it is to determine an individual’s level of impairment.

None of this is to suggest that such a shift would not come with its own share of problems. There may be difficulties in structuring such an approach. Deciding where the line is between acceptable and unacceptable driving may also be challenging, as could establishing sufficient patrol density to be effective. Once again, however, I think that it is worth attempting. As the numbers above show, present approaches to policing impaired driving are simply not very effective, at any stage. Before we risk upsetting the delicate balance between effective policing and individual rights, all options ought to be considered. Difficult though it may be, it may be time to admit that the Canadian justice system is trying to put in a screw with a hammer in its approach to policing impaired driving. Maybe, instead of simply grabbing a bigger hammer, it is time that we rummaged through the toolbox for something more effective. Perhaps that means adopting the type of approach I suggest; perhaps it means taking some other approach altogether. Regardless, given the findings of the authors above, it is a discussion that ought to be had.

Endnotes

1 R. Solomon, E. Chamberlain, M. Vandenberghe, “Canada's New Cannabis-Related Driving Legislation: The Elusive Quest for an Effective Deterrent”, (2018) 23 Can Crim LR 265.

2 Ibid, at 273-274.

3 Ibid at 285-286.

4 Ibid, at 284.

5 Ibid at 276-277.

6 Ibid at 277.

7 Ibid at 279-280.

8 Ibid at 281.

9 Ibid at 282.

10 Ibid at 283.

11 Ibid at 282-283.

12 Ibid at 285.