Pubdate: Sat, 01 Sep 2012
Source: Edmonton Journal (CN AB)
Copyright: 2012 The Edmonton Journal
Contact: 
http://www.edmontonjournal.com/opinion/letters/letters-to-the-editor.html
Website: http://www.edmontonjournal.com/
Details: http://www.mapinc.org/media/134
Author: Douglas Quan
Bookmark: http://www.mapinc.org/find?224 (Cannabis and Driving)

DOUBTS UNDERMINE DRUGGED-DRIVING LAWS

Acquittals Spark Calls for Enforceable Standard Like Blood-Alcohol Limit

The recent acquittal of a Saskatchewan driver on impaired driving 
charges - even though she admitted using marijuana before hitting the 
road and bungled a number of coordination tests - is raising 
questions about the ability of law enforcement to go after drugged drivers.

Some advocates say that Canada's drug-impaired driving laws 
introduced in 2008 are deficient and that federal lawmakers should 
move to adopt drug-intake thresholds similar to the 0.08 blood-alcohol limit.

The judge in the Saskatchewan driver's case said police and 
prosecutors failed to convince him that her use of marijuana actually 
affected her ability to operate a vehicle.

Saskatoon police set up a roadside checkpoint on June 19, 2011. An 
officer approached a vehicle and smelled an overwhelming odour of marijuana.

The driver admitted to the officer that she had smoked marijuana 
about 2-1/2 hours earlier.

The officer, who was a trained drug recognition evaluator, had the 
driver perform a number of co-ordination tests. During the 
walk-and-turn test, the driver missed a number of heel-toe steps and 
failed to turn, as instructed. During the finger-to-nose test, she 
was able to touch her nose only once during six attempts. The officer 
also noticed eyelid tremors and reddening of the drivers' eyes.

Following these and other tests, the officer concluded the driver had 
marijuana in her system, which was later confirmed by a urine analysis.

But in a court ruling Aug. 21, provincial court Judge Daryl Labach 
said the evidence presented in court only showed that the accused had 
used marijuana prior to being stopped and that some of it was still 
in her system when she was evaluated by police.

"What (the officer's) evidence does not convince me of is that at the 
time she was driving, her ability to operate a motor vehicle was 
impaired by marijuana," he said.

The judge said he was left with many questions: What signs of 
impairment would one expect to see in someone who has been using 
marijuana? How long after using marijuana would you expect to see 
these signs and how long would they last? Was the accused's 
performance in some of the tests just as consistent with someone who 
has poor balance or poor co-ordination as it was with someone who had 
used marijuana?

The lack of answers, and the lack of evidence of erratic driving, 
raised reasonable doubt the driver was driving impaired, the judge said.

There have been similar acquittals in other jurisdictions. Labach 
referred to a 2010 case out of Ontario.

A man had hit a mailbox with his car and went off the road. Police 
observed that the driver had droopy eyes, slow and thick speech, and 
was unco-ordinated.

A police drug-recognition expert concluded that the driver was likely 
impaired by a central nervous system depressant, which was later 
confirmed by a urine analysis.

But Ontario Justice Stephen J. Fuerth acquitted the driver, saying 
evidence of the driver's impairment was "far from compelling," and 
that the Crown had failed to show beyond a reasonable doubt that the 
drug had caused the driver to be impaired.

"The hurdle for the Crown in these cases is to relate back the 
findings of the evaluation, and the subsequent chemical analysis, to 
the time of the driving," the judge said in his decision.

Representatives of Mothers Against Drunk Driving (MADD) said Friday 
that data on drug-impaired driving convictions in Canada have been 
difficult to obtain. But they said there is now growing recognition 
that federal lawmakers need to remove some of the subjectivity 
contained in Canada's drug-impaired driving laws by simply adopting 
"per se" limits for certain common illicit drugs, as there is for alcohol.

"This is the way to go," said Robert Solomon, a law professor at 
Western University and MADD's national director of legal policy. "We 
need clear, bright line indicators ... that are capable of enforcement."

One challenge, however, is getting experts to agree how much of a 
certain drug needs to be found in someone's system to constitute impairment.

Solomon said that "there's no reason for Canada to reinvent the 
wheel" as many jurisdictions in the United States, Western Europe and 
Australia have adopted standards.
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MAP posted-by: Jay Bergstrom