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Focus: Increase in impaired driving due to legal marijuana?

Focus on: Personal Injury Law
|Written By Judy van Rhijn

The government is anticipated 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 Bergel 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 injuries; then it will decrease back to normal levels.”

The Ministry of the Attorney General of Ontario has the impending 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 legislative process.”

Bergel says due to the changes, an increase is anticipated in terms of criminal charges and civil cases, stemming from recreational use of marijuana.

“We would anticipate a bit of a boom from decriminalizing marijuana. What we’ve had in this country is medical marijuana,” says Christopher Dawson of Lerners LLP in Toronto, referring 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 marijuana 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 federal Task Force on Cannabis Legalization and Regulation released its report with 80 recommendations on how to address 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 recommended investment in research linking levels of tetrahydrocannabinol, or THC, the psychoactive component of marijuana 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 administrative 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 policing as a main concern.

“We have laws addressing sobriety testing for alcohol. As an officer enforcing the safety of the roads, how do you address marijuana impairment? There is no method to detect it.”

Ian McLeod, senior advisor at Justice Canada, says the department is currently examining ways to improve the ability to detect and prosecute drug-impaired drivers.

“The government’s scientific advisor is reviewing the scientific 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 Motor Transport Administrators, is piloting the use of oral fluid screening devices to test how well officers are able to use roadside drug-testing devices on motorists 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 underway, 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 unacceptable,” stresses Smith.

“Notably, as of Oct. 2, 2016, the Ontario Ministry of Transportation has implemented new provincial administrative sanctions 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, mandatory 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, including drug-impaired driving.

“This approach includes authorizing police to conduct roadside sobriety tests and to conduct drug recognition evaluations. 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 Canada (on a first offence),” he says.

Michael Lesage of Michael’s Law Firm in Hamilton, Ont. says, “Concerning criminal/quasi-criminal penalties, I would imagine 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 degrees 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 recovered by those involved in accidents.

“In terms of accident benefits, entitlement to income replacement benefits, non-earner benefits and other expenses are excluded by s. 4.4 of the [Ontario 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 contravened the policy and is not under any penalty,” he says.

In the civil arena, Lesage foresees the legalization of marijuana leading to unintended consequences.

“In the third-party context — where a plaintiff sues a driver who was impaired or a restricted driver — it may be possible for the insurer to argue that same constituted a breach of a statutory policy condition, allowing the insurer to limit itself to paying the statutory minimum of $200,000, provided the insured [the intoxicated driver] can’t defeat the defence,” he says.

“The existing standard Ontario auto policy excludes coverage under s. 7.2.2 for accidents caused by drivers under the influence of intoxicating substances. This means that in the first-party context — claims against your own insurer for loss or damage claims to your automobile — coverage is voided by the exclusion, leaving the insured up the creek.”

Dawson thinks proof of marijuana impairment will be very relevant in respect to civil liability.

“If you have got evidence that someone caused an injury to others, say an at-fault motorist or other tortious act, and they were impaired because of marijuana, that is grounds for negligence and instructive for tort action,” he says.

Dawson speculates that “it might be a battle of experts for a time while they are developing data and studies regarding the relevance of composition of the body, body mass and toxicology.

“It can affect the body differently from person to person. Different chemicals enter the bloodstream, different strands of marijuana are used and there are different methods of ingesting it,” he says.

“It’s a lot more complicated than alcohol — for which you ask how many drinks were consumed within an hour or within an evening, and take a blood alcohol reading. It’s all very open for a lot of debate and lot of research.”


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