Law Times

Page 10 April 3, 2017 • lAw Times www.lawtimesnews.com 'Because it will be a novelty, a lot of people will try it' Increase in impaired driving due to legal marijuana? BY JUDY VAN RHIJN For Law Times T he government is antici- pated to move forward on its pledge to legalize recreational marijuana use by July 1, 2018 and lawyers, lawmakers and patient advocates are expecting a spike in driver impairment. There are calls for a review of police practices and proactive measures to ensure that the legal system is ready to respond if our roads become an even more dangerous place to be. "Because it will be a novelty, a lot of people will try it," predicts Andrew Bergel, a partner at Ber- gel Magence LLP in Toronto. "They will drive and there will be a lot more accidents and a lot more injured victims. In the first year or two, we will see more in- juries; then it will decrease back to normal levels." The Ministry of the Attorney General of Ontario has the im- pending changes on its radar. "We are aware of news reports that the federal government will introduce legislation next month to legalize cannabis," says spokeswoman Emilie Smith. "We look forward to seeing the federal government's bill, and we will be monitoring it closely as it progresses through the legisla- tive process." Bergel says due to the chang- es, an increase is anticipated in terms of criminal charges and civil cases, stemming from rec- reational use of marijuana. "We would anticipate a bit of a boom from decriminalizing marijuana. What we've had in this country is medical marijua- na," says Christopher Dawson of Lerners LLP in Toronto, refer- ring to laws permitting the use of medical marijuana that came into effect last April. "A lot of people who don't necessarily have access to mari- juana now will want to use it for the purpose of impairment. We're always concerned that they'll get behind the wheel or engage in reckless behaviour that does damage to themselves or others. That's the genesis of the idea that we may see a spike in impairment." On Dec. 13, 2016, the fed- eral Task Force on Cannabis Legalization and Regulation released its report with 80 rec- ommendations on how to ad- dress the impending changes. The report stressed the need for provincial public education campaigns regarding marijuana impairment, emphasizing the message to avoid consuming marijuana before driving. The task force has also recom- mended investment in research linking levels of tetrahydrocan- nabinol, or THC, the psycho- active component of marijua- na that causes intoxication, with impairment. This will inform the establishment of a per se limit similar to the limits for alcohol- impaired driving and graduated sanctions ranging from admin- istrative sanctions to criminal prosecution depending on the severity of the infraction. The federal government is expected to introduce a bill to legalize marijuana this spring. "The area needs to be given significant consideration by the government to ensure that the other laws in the country are equipped to handle it," warns Dawson, citing roadside polic- ing as a main concern. "We have laws addressing so- briety testing for alcohol. As an officer enforcing the safety of the roads, how do you address mari- juana impairment? There is no method to detect it." Ian McLeod, senior advisor at Justice Canada, says the de- partment is currently examin- ing ways to improve the ability to detect and prosecute drug- impaired drivers. "The government's scientific advisor is reviewing the scien- tific literature on whether or not blood drug concentration levels could be assessed for a number of impairing drugs, including cannabis," he says. McLeod draws attention to a Dec. 14, 2016 announcement that Public Safety Canada, in collaboration with the Royal Canadian Mounted Police and the Canadian Council of Mo- tor Transport Administrators, is piloting the use of oral f luid screening devices to test how well officers are able to use road- side drug-testing devices on mo- torists under different weather conditions. "The results will help inform how police services counter drug-impaired driving in Canada," he says. In Ontario, various initiatives regarding the detection of drug- impaired driving are already un- derway, including roadside data collection, THC research, device testing and an ongoing field test pilot of testing devices. "The Ontario government takes the issue of impaired driving very seriously — it is completely un- acceptable," stresses Smith. "Notably, as of Oct. 2, 2016, the Ontario Ministry of Trans- portation has implemented new provincial administrative sanc- tions for drivers impaired by drugs or a combination of drugs and alcohol." The Making Ontario's Roads Safer Act, 2015 escalates short- term driver's licence suspensions and introduces a long-term 90-day suspension, a seven-day vehicle impoundment, manda- tory remedial education and treatment and/or monitoring for repeat occurrences. "Ontario is well prepared," says Smith. In the criminal arena, McLeod says, the Criminal Code already includes a comprehensive approach to impaired driving, in- cluding drug-impaired driving. "This approach includes authorizing police to conduct roadside sobriety tests and to conduct drug recognition evalu- ations. Criminal penalties for drug-impaired driving include a minimum fine of $1,000 (on a first offence) and a one-year Criminal Code prohibition from driving anywhere in Can- ada (on a first offence)," he says. Michael Lesage of Michael's Law Firm in Hamilton, Ont. says, "Concerning criminal/quasi- criminal penalties, I would imag- ine the solution ends up looking quite similar to what we currently have in place for alcohol use. "You can have some in your system, but above a certain level, or if you're showing visible signs of intoxication, you are subject to various penalties," he says. "I imagine this will be good news for various device makers, who will no doubt make out well selling police various machines guaranteed to detect THC or other compounds, which will likely have widely varying de- grees of success and accuracy." Drugalyzers, which are saliva-based testing devices, are currently in use in Europe, Australia, the U.K. and Ireland. They have proved controversial because they test for the presence of the drug, not for impairment. As of yet, there are no devices or guidelines available to assist drug users to gauge when it is safe to drive after smoking marijuana. An increase in impairment cases, and increased detection of drug use, could have an impact on the benefits and damages re- covered by those involved in ac- cidents. "In terms of accident ben- efits, entitlement to income re- placement benefits, non-earner benefits and other expenses are excluded by s. 4.4 of the [Ontar- io Automobile Policy] 1 where the claimant was convicted of a criminal offence involving the operation of an automobile," states Lesage. Dawson says that insurance effects will depend on which behaviour the legislature sets as contravening a law. "It depends if the legislation equates it to that. If the driver is truly impaired but it's not in any legislation, the driver hasn't con- travened the policy and is not under any penalty," he says. In the civil arena, Lesage fore- sees the legalization of marijua- na leading to unintended conse- quences. FOCUS Michael Lesage says he foresees the legal- ization of marijuana leading to unintended consequences in civil law. Every time you refer a client to our firm, you are putting your reputation on the line. It is all about trust well placed. TRUST Thomson, Rogers Lawyers YOUR ADVANTAGE, in and out of the courtroom. TF: 1.888.223.0448 T: 416.868.3100 www.thomsonrogers.com Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. DAVID PAYNE | DAVID MACDONALD | MICHAEL BENNETT Untitled-4 1 2017-03-28 1:28 PM See Decriminalizing, page 12

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