Pubdate: Sun, 17 Sep 2000
Source: Ottawa Citizen (CN ON)
Copyright: 2000 The Ottawa Citizen
Contact:  1101 Baxter Rd.,Ottawa, Ontario, K2C 3M4
Fax: 613-596-8522
Author: Jake Rupert


Victims' Parents, Experts Demand Law To Stop Drivers Impaired By Drugs

Stan Thomson was killed at age 17 when a youth, who had traces of marijuana in his system, caused a multiple-vehicle collision on June 27, 1999.

Brigitte Bouvier, The Ottawa Citizen / Gregg Thomson, whose son Stan was killed in a car accident last year, vows he will get the laws surrounding marijuana and driving clarified. 'There has got to be a way of testing marijuana levels that can be proven in court.'

Forensic scientists' inability to determine a driver's level of impairment after smoking marijuana has left a gaping hole in the Canadian Criminal Code, say experts and the parents of five youths who died in a horrific traffic collision.

Gregg Thomson's son Stan was one of those youths. At the time, Mr. Thomson didn't know anything about Canada's impaired driving laws.

He does now.

He doesn't like what he sees and he vows to get the law surrounding marijuana and driving clarified.

What Mr. Thomson has found out in the trying months since his son's death is that while there are two offences under the Criminal Code dealing with intoxication -- Section 253a., covering a blood alcohol level exceeding .08, and Section 253b., covering driving while impaired -- proving the degree of impairment by drugs, especially when that drug is marijuana, is next to impossible.

Stan was killed at the age of 17 in a horrendous chain-reaction crash on Highway 7 near Perth when a youth -- who had traces of marijuana in his system -- attempted an ill-advised pass and caused a multiple-vehicle collision the night of June 27, 1999.

All five young men who died were popular Kanata teenagers who had been returning from an end-of-school party in a convoy of four cars along with 11 others. Two men in an oncoming truck that the youth hit were also injured.

The youth has pleaded guilty to five counts of dangerous driving causing death and three counts of dangerous driving causing bodily harm. He will be sentenced in the coming weeks.

After the crash, the youth was almost immediately charged with the dangerous driving counts, but five counts of impaired driving causing death and three of impaired driving causing bodily harm were added when toxicology reports revealed the presence of the active intoxicant in marijuana (THC) in his system that night. There was no alcohol in his system.

At the sentencing hearing, evidence came out that the 18-year-old youth, who was 17 at the time of the crash, had shared in three joints -- not his -- in the six hours leading up to the crash with the last being consumed one hour to 11/2 hours before he pulled out to pass.

Two months ago, when the youth pleaded guilty to dangerous driving, the impaired driving charges were withdrawn.

On Friday, at the youth's sentencing hearing, Lanark County Crown attorney John Waugh, at the behest of the youth's lawyer, Norm Boxall, admitted impaired driving couldn't be proved, making a low criminal threshold for impairment useless when marijuana is suspected.

"If the evidence of impairment establishes any degree of impairment from slight to great, the offence has been made," wrote Ontario Appeal Court Justice J.A. Labrosse in his watershed decision on the issue.

This means that even if a person has less than the legal limit of alcohol in their system, they still can be charged with impaired driving.

Mr. Waugh agrees the test for impairment is relatively low, but he says until science can find a way to prove smoking marijuana causes impairment beyond a reasonable doubt, there's not much Crown attorneys can do.

"An awful lot of work is being done as we speak in this area, and it is something that should be cleared up," he said. "There's a pretty strong feeling that you can be impaired by marijuana, but until we can prove it to a criminal standard were kind of out to lunch."

Nobody is disputing that large amounts of marijuana can impair people's ability to drive a car, but there is no agreement on what that level is or should be. This is mainly because the effects of ingesting THC are hard to quantify.

The issue of impairment is pretty clear when it comes to alcohol, driving, impairment and the law. Not so is the case with marijuana, driving, impairment and the law.

The reason for this is there is no standard toxicological or psycho-pharmacological test -- like a blood alcohol reading -- that is reliable enough to be accepted by a court as proof of impairment beyond the criminal standard of a reasonable doubt.

This doesn't just apply to the case of the five dead youths. It applies to all cases of impaired driving when the alleged impairing substance is marijuana without any other intoxicants.

At the moment, scientists can test for traces of THC, but there is no way to tell how long ago the drug was ingested, how much was ingested, or what the level of impairment was.

Therefore, unless there is eyewitness evidence stating a person saw another person smoke marijuana, then act impaired by falling down or walking into a wall or something similar, then get in a car and drive, a conviction is extremely difficult to obtain.

This was news to Gregg Thomson, and he plans to do something about it.

"Myself and the rest of the parents (of the dead youths) are trying to take an ugly, awful situation and make something positive out of it," Mr. Thomson said. "The law has to be clarified on this issue."

For now, Mr. Thomson is focusing on the sentence of the youth. He hopes Justice Inger Hansen metes out a stiff penalty to send a message to others that this kind of behaviour will not be accepted as a mistake, but as a serious crime.

But once sentence, whatever it is, is passed down, Mr. Thomson plans to begin lobbying the provincial and federal governments to get the issue of impairment by drugs cleared up.

He's planning to meet with the appropriate people in government, give speeches, and write letters. He's already had some success in getting people to listen to the issue by joining Mothers Against Drunk Driving and convincing officials there to move drivers impaired by drugs to the top of the organization's agenda for the coming year.

"The significant positive outcome of this tragedy might be exposing a problem with this law," he said. "A solution might be five or ten years down the road, but this issue doesn't have much attention, and maybe this case may change that."

This case may bring more attention to the issue, but finding a viable way to prove marijuana impairment may also prove to be an uphill battle for a number of reasons.

First, there is ample recent scientific data showing marijuana smoking doesn't significantly increase the likelihood of causing an accident while driving.

A recent study by the University of Toronto suggests people with recreational amounts of marijuana in their systems -- three or four joints of average strength marijuana over three to four hours -- are about half as likely to cause an accident as people who drink enough to register 0.05 milligrams of alcohol per 100 millilitres of blood -- substantially less than the legal limit.

Also, the results of the largest study ever done on the subject in the world were recently released in Australia. This study, by the University of Adelaide in conjunction with the South Australian Transport Ministry, looked at 2,500 drivers involved in accidents in southern Australia, their blood alcohol and marijuana levels, and culpability for the accident based on police reports.

Researchers found nearly 90 per cent of drivers with a blood alcohol level of .05 or more were deemed to have caused the accident after a police investigation.

However, drivers with marijuana in their systems were responsible for only 50.8 per cent of the accidents they were involved in, meaning they were only slightly more likely to have caused an accident than somebody with no intoxicant in their system.

A recent study by the British government, commissioned to show marijuana smoking impairs driving ability, found no increase in the likelihood of causing an accident after ingesting a fairly high level of THC.

Psychopharmacologist Dr. Barry Beyerstein of Simon Fraser University in Vancouver, who has been qualified as an expert on the effects of marijuana in court, says the reason for these results lie in the way marijuana affects people.

"Alcohol makes people tend to be aggressive, and, at the same time, makes people think they are making correct decisions," he said. "It also impairs motor skills and reaction time. The results of alcohol when driving is clear from the statistics.

"Marijuana tends to do the exact opposite to people. They are more cautious. They tend to overcompensate for their impairment. They tend to go slower; be more careful. Where the danger with marijuana comes in, is it affects people's attention. They'll be driving and a old song will come on, and they stop concentrating on the road. The lapse in attention is the danger when driving after ingesting marijuana."

Dr. Beyerstein admits heavy use would constitute impairment, but he is reluctant to say what level of marijuana in someone's blood is acceptable while driving for a number of reasons.

Chief amongst these is the accuracy of current testing techniques.

Unlike alcohol, marijuana isn't eliminated from a person's blood stream rapidly. It stays around for weeks and even months. So when a level of THC is found in somebody's blood, it's impossible to know when it got there.

"The same level could be the result of very heavy use days or even weeks ago or a small amount taken recently," Dr. Beyerstein said. "The methods we have now just aren't precise enough to show impairment."

An exhaustive search of Canadian criminal law data shows the result of this is Canadian Crown attorneys rarely prosecute cases where impairment is the result of drug use only and rarely are they successful when they do.

One high-profile Ottawa case clarified the cloudiness plaguing this area of law.

On July 18, 1994, Don Dumoulin, 39, plunged a 30-tonne tractor-trailer off a Queensway exit ramp and on to the Transitway, killing two women and maiming a 10-month-old girl in a stroller.

Blood tests showed Mr. Dumoulin had THC in his blood -- nothing else.

He was charged with two counts of impaired driving causing death, impaired driving causing bodily harm, and two counts of criminal negligence causing death and criminal negligence causing bodily harm.

At the trial, the Crown called Marthe Dalpe-Scott, an RCMP forensic toxicologist and a leading expert in drug impairment.

Ms. Dalpe-Scott said results from the toxicology tests showed hashish or marijuana -- likely one or two joints -- were likely consumed three to five hours before the blood sample was taken, by someone who was used to consuming drugs more than once a week.

However, Ms. Dalpe-Scott said she couldn't conclude that the amount of THC found in the blood sample left Mr. Dumoulin impaired. Even the most cutting-edge research into the effects of drugs on human behaviour is inconclusive, she said.

On Feb. 1, 1997, Justice Hugh Poulin cleared Mr. Dumoulin of impairment by drugs and criminal negligence. He said, according to Ms. Dalpe-Scott's testimony, there was not enough evidence to prove the Orleans man was impaired by what he had smoked.

Instead, Judge Poulin convicted Mr. Dumoulin of the lesser and included offences of two counts of dangerous driving causing death, and one count of dangerous driving causing bodily harm. Two months later, Mr. Dumoulin received a conditional sentence of two years less a day.

This might as well be the test case for impairment by drugs.

In an interview, Ms. Dalpe-Scott, who sits on a committee of forensic scientists examining the issue, says in controlled situations, where the variables of how much dope is smoked, when it was smoked, the strength of the marijuana, and when the blood sample is taken, there is evidence that impairment sets in at a level between two and six nanograms per one millilitre of blood.

The youth had a reading of 5.8 nanograms per one millilitre of blood. Still, there are too many variables to says if this level would have caused impairment in this person.

"We're in a real predicament at the moment," Ms. Dalpe-Scott said. "It does impair people's driving ability, but we can't say 100 per cent at what level."

So, the odds of clarifying the law to allow the successful prosecution of people driving while impaired by drugs alone seem stacked against Gregg Thomson and the parents of the four other dead youths, but his resolve and will have become strong in the months since his son's death, and he is determined to see this through no matter how long it takes.

Mr. Thomson says the more he learned the law, the more convinced he became of the need to address the situation, and he's sure that, with the right campaign, something will be done.

"Years ago, they didn't have the .08 level to work with either, but they worked at it and it became accepted," Mr. Thomson said. "There has got to be a way, or someone should come up with a way, of testing marijuana levels that can be proven in court.

"There's a push right now to legalize the stuff, but we don't even know what levels -- if any level at all -- are safe to drive at. I think this is something that should be cleared up for a number of reasons."
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