Lawyers say ‘flawed’ cannabis law likely means more impairment battles

Lawyers say flaws in B.C.’s new proposed rules to stop people from driving while high on cannabis will mean plenty more billable hours.

Minister of Public Safety and Solicitor General Mike Farnworth’s legislation to regulate recreational cannabis and amendments to the Motor Vehicle Act, announced Thursday, include a new 90-day administrative driving penalty for drivers found with pot in their system, as well as stiff penalties and zero tolerance for new drivers.

But how police will test drivers for impairment remains unclear.

Farnworth hopes Ottawa will unveil technology to accurately test the concentration of pot in a driver’s blood.

“The feds have told us there is technology they are confident in, but we have yet to know what exactly it is,” he said.

Kyla Lee of Acumen Law, who wrote a blog post in reaction to the proposed legislation, said such uncertainty will mean “a lot of work” for lawyers like her who specialize in immediate roadside prohibition and driving law.

“I will be filing a constitutional challenge on the first case I get because there is so much inherently flawed about this process,” Lee said.

“It puts an impossible burden on people trying to challenge the prohibitions in circumstances where (police are) not obtaining information that is scientifically consistent with impairment.”

Kyla Lee of Acumen Law, who specializes in immediate roadside prohibitions and driving law.

Drug-impaired driving is already an offence in Canada and police can screen drivers using a standard field sobriety test at the roadside, then later do more testing with specially trained officers or a toxicology report. 

The federal government proposes changes to law that allow police to do roadside saliva tests if they suspect a driver is high. An officer who gets a positive reading and has grounds to believe there’s been an offence can demand more testing by an “evaluating officer” or a blood sample.

Under federal rules, drivers caught with between two and five nanograms of THC (the main psychoactive compound in cannabis) per millilitre of blood within two hours of driving could be found guilty of a summary-conviction criminal offence and face a maximum fine up to $1,000.

But more than five nanograms becomes a hybrid offence, potentially leading to an indictment or summary conviction, meaning mandatory penalties that would escalate to 30 days in prison for a second offence and 120 days for subsequent offences.

Maximum penalties on summary convictions would be two years less a day or 10 years on indictment.

Lee said B.C. should be wary of saliva testing because it is susceptible to false results. Federal Public Safety Minister Ralph Goodale said a trial of two roadside screening devices that concluded last year was a success, even though officers found the tests were more likely to give a positive result in cold conditions.

As well, “we know that THC will stay in your body even long after exposure,” said Lee, pointing to studies that found a person could test positive eight days after moderate use and up to 77 days after a period of chronic, heavy use.

That should worry drivers in B.C.’s graduated licensing system, for whom there is zero tolerance and who could test positive after merely being near someone who has smoked a joint, Lee said.

Lee said motorists who find themselves with a drug conviction on their driving record may face a lifetime ban from crossing the United States border, even when crossing into Washington, which legalized recreational cannabis in 2012. People looking to get a job that requires driving may also face challenges, she added.

Lee said the proposed process for challenging 90-day driving prohibitions is “unwieldy” and would lead to lengthy disputes in the courts, as well as overwhelm forensic scientists with blood and urine samples who already face a backlog of work.

The legislation’s reliance on “flawed” impairment testing is a concern for lawyer Kevin Filkow, who also specializes in driving law.

“One fundamental problem with it is that it’s really the police who are dealing with the drivers in a very brief encounter,” he said. “There’s really no Crown counsel or judges, or any checks or balances, on the regime.”

Kevin Filkow of Filkow Law, who specializes in driving offences.

Filkow said the process proposed by B.C. is unfavourable to those who dispute what happened at the roadside with police, and gives no opportunity to cross-examine the officers who fill out a report and provide it to Road Safety B.C. in support of the driving prohibition.

“It’s even, perhaps, more troubling with the drug testing because the science is not good and it will capture people who are not driving while impaired by a drug,” he said.

“To have legislation that doesn’t have science to support it and is really being rushed out to support it to be in line with the legalization of marijuana is a bad combination.”

Filkow believes there will be a push on police to use the legislation, which could double his number of clients disputing prohibitions and other consequences of failing a test.

He expects plenty of opportunities to challenge all aspects of the legislation, “from the science of the machines, to the training of police, to the burden of proof, to the presumption of innocence,” he said.

neagland@postmedia.com

Twitter.com/nickeagland

— With files from Rob Shaw and the National Post

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