Who says how high?

Feds' roadside drug tests target pot with fuzzy science

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Just as it was sinking in that they were allowing the bill to decriminalize pot to wither on the election vine, the Libs introduced a strange twist in an already confusing epic. Last month, Justice Minister Irwin Cotler jolted the pro-liberalization lobby by announcing the government’s intention to change the Criminal Code to permit police to order urine, blood or saliva samples from drivers suspected of being drug-impaired.

Sounds sort of logical at first. Who wants substance-addled drivers weaving their way along our roadways? But pot activists, wary about the further targeting of users, are asking a number of questions. Like why bother creating a specific amendment when driving while impaired – by alcohol, pharmaceuticals or street drugs – is already a serious offence in Canada?

And who exactly gets to define what impairment is anyway? While there is a recognized protocol on the amount of alcohol that affects driving skills, there is no agreed-upon definition of impairment levels when it comes to drugs, particularly marijuana.

“This is primarily going to be an attack on cannabis,” warns Eugene Oscapella, an Ottawa lawyer and founding member of the Canadian Foundation for Drug Policy.

Justice Canada denies this. The department says its only motive is road safety and that “drug users are disproportionately involved in fatal accidents.” To back up this claim, Justice cites a study by the Société de l’assurance automobile du Québec that “determined that more than 30 per cent of fatal accidents in the province involved drugs or a combination of drugs and alcohol.”

But Justice Canada doesn’t have its numbers right. All evidence indicates that booze is still the intoxicant of choice among impaired drivers. The Quebec study examined 354 fatally injured drivers between April 1999 and November 2001 and determined that alcohol was present in 35 per cent of cases and “drugs other than alcohol” in 30.2 per cent of cases. The most common non-alcoholic drug was cannabis, which turned up in 19.5 per cent of cases.

A similar study, entitled Estimating The Presence Of Alcohol And Drug Impairment In Traffic Crashes And Their Costs To Canadians, published in 2002 by the University of British Columbia, came to a somewhat different conclusion. The BC report examined 227 fatally injured drivers and determined that 37 per cent of cases involved alcohol only, 11 per cent involved alcohol and drugs, and 9 per cent drugs only.

Still, that’s a sizable percentage of stoned, dangerous drivers. But how will the system avoid charging pot smokers weeks after their high has worn off? While hard drugs such as amphetamines, cocaine, LSD and heroin can be detected for a period of only one to four days after ingestion, pot traces remain for a month or longer.

Shockingly, even the feds agree they have a major problem on their hands when it comes to the issue of defining when a stone becomes incapacity. “Unlike alcohol, for the vast majority of drugs there is no scientific consensus on the threshold drug concentration in the body that causes impairment,” admits Pascale Boulay, spokesperson for Justice Canada.

So why is the department proceeding on this daunting mission to put extra discretionary power in police hands when the science is so fuzzy? Besides the contentious limits issue, there’s also the fact that relatively little research has been done on how drug use actually affects driving behaviour. One of the few studies was published in 1994 by the University of Limburg at Maastricht, the Netherlands.

It found that “marijuana produces only a moderate degree of driving impairment. Drivers under the influence of marijuana retain insight into their performance and will compensate where they can. As a consequence, [marijuana’s] adverse effects on driving performance appeared relatively small,” the report concluded.

Some wonder if the feds’ move is just a way of making the much-delayed Bill C-10, the decriminalization bill, more politically palatable. Pascale is clear that this is not the motivation and says the bid to change the Criminal Code comes from the Senate special committee on illegal drugs, which was specifically struck to examine Bill C-10, and also from the House of Commons special committee on the non-medical use of drugs.

“Drug-impaired driving legislation is not just about marijuana, but any drug that has an effect on your ability to drive,” says Boulay.

That’s not the way Libby Davies, NDP MP for Vancouver East and a former member of the House of Commons special committee, reads it. She says the measures were introduced strictly to deflect criticism of pot law reform. “The Liberals have been back-pedalling since introducing C-10,” says Davies, who worries that the bill will fade to oblivion.

If it’s unclear what the feds will do with the decriminalization hot potato, they certainly have clarity on the newly devised impaired driving system. Drivers suspected of being drug-impaired are supposed to be pulled over and subjected to roadside sobriety exams. The latter would involve “divided-attention tests” such as touching your nose with your finger.

If subjects fail the test, they could be taken to a police station for a drug recognition expert (DRE) evaluation. Here they would be put through another round of divided-attention tests along with a medical investigation of pupil size, vital signs, muscle tone, etc. If the subjects flunk, police could demand blood, urine or saliva samples. Failure to comply would be a criminal offence.

Bob Mann, a senior scientist at Toronto’s Centre for Addiction and Mental Health and an expert on impaired driving, says the protocol proposed by Ottawa is designed to nail drivers who are truly under the influence. “Behavioural indicators (of being stoned) will not turn up if it’s been two weeks (since you’ve used drugs),” says Mann, but only “when the drugs are active in your system.”

In other words, if you don’t look or act like you’re drug-addled, police aren’t supposed to take samples of your bodily fluids – at least in theory. It remains to be seen how police will perform their new duties in the field.

Critics worry that these new powers will be vulnerable to abuses. The legislation “might be ripe for a very powerful constitutional challenge,” warns lawyer and long-time drug reform crusader Alan Young. It “will end up occasioning unnecessary and unjustifiable intrusions into privacy – privacy in terms of bodily security,” he says, pointing out that courts and human rights commissions have repeatedly ruled against workplace drug testing.

None of this is to say that driving while stoned is a good idea. “The impaired driving issue is a very serious one,” notes Mann. “It’s one of the leading causes of death in this country, one of the largest causes of health care expenses and serious disabling injuries. In my personal view, it’s very important to find effective means to prevent these collisions.”

Drug law activists agree. They have no problem with legislation designed to get drivers who are actually high – as opposed to just bearing inert traces of past drug use – off the road.

“Even people who want to reform drug laws are vulnerable to highway traffic,” notes Oscapella.

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