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by Cedric Hughes, Barrister & Solicitor with regular weekly contributions from Leslie McGuffin, LL.B.   

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The Motor Vehicle Driver and Liberalized Attitudes Toward Intoxicants

Article Number: 
670

The Liberal Party of Canada’s website www.liberal.ca includes among the many various topics in its platform the promise to “legalize, regulate, and restrict access to marijuana.” The reason for this promise, it says, is because the current system of marijuana prohibition does not work: it criminalizes too many Canadians for minor non-violent offences; it finances the more threatening activities of organized crime; and it has failed to “keep marijuana out of the hands of children.”

Marijuana consumption and incidental possession will, presumably, no longer be sanctioned under the Criminal Code of Canada. New ‘stronger’ laws are promised, however, that will more severely punish “those who provide it to minors,” those who sell it outside of the “new regulatory framework,” and, of special note to Road Rules, “those who operate a motor vehicle while under its influence.”

At the time of writing, the program to stop marijuana-intoxicated individuals from driving remains unclear. Nevertheless, last week, Canada's health minister told the United Nations at a special session of the General Assembly in New York that the promised legislation will be introduced in spring 2017 explaining, “It's a great deal of work. It's important to do it right.”

Colorado is the one jurisdiction in North America that has legalized marijuana use and possession by adults since November 2012. As in all other US states and in Canada, driving while impaired by any drug is illegal in Colorado, but the perceived necessity to more precisely define and measure marijuana impairment resulted in six attempts over the course of three years for the Colorado legislature to draft specific marijuana intoxication language satisfactory to both political parties.

Ultimately, the Colorado legislators decided that juries may convict a person of marijuana intoxication if they have five or more nanograms of active tetrahydrocannabinol (THC) per milliliter of blood. Accused drivers reportedly can still rebut the presumption of intoxication at this level. The police, on the other hand, can legally arrest for observed impairment whether or not the prescribed level has been measured. While debate about Colorado’s legally defined metric remains ongoing, the latest research on the negative effect of marijuana on drivers clearly shows an increase in lane weaving and poor reaction time and attention to the road. And no surprise, alcohol with marijuana compounds the impairment.

The experience of Colorado law enforcement with marijuana legalization will no doubt become increasingly studied in other jurisdictions contemplating similar legislative change. Speaking recently at the International Conference on Urban Traffic Safety in Edmonton, Lt. Col. Kevin Eldridge, Colorado State Patrol said Canadian police agencies will be left scrambling if they fail to develop new officer training and enforcement policies well before legalization is adopted.

"There were several different policies we had to change," Lt. Col Eldridge said. "When they legalized, everyone focused on this one aspect, smoking marijuana is legal. But officer hiring, employment, and evidence — there were many different aspects that we really didn't think about as much as we should have before implementation." The upshot of all this is that detecting marijuana intoxicated drivers remains one of the biggest challenges for Colorado police officers.

Cedric Hughes

huges & company law corporation vancouver

 

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