The B.C. government recently revealed its regulatory framework for dealing with marijuana-impaired driving. B.C. is among the last of the provinces to do so. Bill 17 is by no means an easy read. I spent some time delving into this bill so drivers can be informed about the proposed consequences.
The proposed changes to the Motor Vehicle Act create two types of driving prohibitions: prohibitions for L and N drivers, and prohibitions for all drivers. These are divided into 12-hour prohibitions for the L and N drivers, and 90-day prohibitions for all drivers.
Learner and novice drivers to receive 12-hour prohibitions
Currently, 12-hour prohibitions are issued to any N or L driver who has alcohol in their body. Bill 17 expands that to also include drugs. Determining whether a person has a drug in their body is no exact science. The new legislation relies on testing using an "approved drug screening device."
What this likely means is saliva testing. A saliva test positive for drugs will lead to a 12-hour suspension for drugs. Twelve-hour suspensions rely on a demand under the Criminal Code, which means that an officer must first suspect that there is a drug in the body before demanding the sample. However, there is no practical ability to challenge the prohibition on the basis of the officer lacking a reasonable suspicion. In fact, there is no ability to challenge the prohibition at all. The legislation lacks any review mechanism for driving prohibitions issued to N or L drivers for drugs.
Essentially, your driving record can be treated as proof that you have used drugs, and can render you inadmissible to the United States.
This may violate the Charter of Rights. It is likely that this law will be constitutionally challenged as we have seen with previous cases. And while it may appear that a 12-hour prohibition does not have serious consequences and does not need to be reviewed, this is incorrect. There are serious concerns about how drug-impaired driving incidents will impact travel to the United States and employment.
Essentially, your driving record can be treated as proof that you have used drugs, and can render you inadmissible to the United States. The consequences are more severe than a short suspension. Moreover, this will disproportionately affect young people, who are most likely to have L or N licenses.
Relying on the presence of drugs is also problematic. THC can be detected in the body, in some cases, for weeks after use. Similarly, THC can be measured in bodily samples from inhalation of second-hand smoke. Teenaged siblings or family members who use marijuana at home may cause younger relatives who abstain to nevertheless register drugs in the body.
90-day administrative driving prohibition for drugs
The other type of prohibition is the 90-day administrative driving prohibition for drugs. Ninety-day prohibitions for drugs will also have significant consequences for immigration and cross-border travel if they are recorded on the record as such.
These prohibitions will be issued on the basis of one of three factors:
- A blood drug concentration above the legal limit;
- A combined blood drug and blood alcohol concentration above the combined legal limit;
- A Drug Recognition Evaluation test which shows impairment by a particular type of drug, corroborated by a blood or urine test showing the presence of the drug, and poor driving.
Do not be fooled by the indication that poor driving is a requirement for the prohibition. In the dispute provisions, evidence of bad driving is irrelevant.
The dispute mechanism has two parts. First, the officer must establish certain facts in order to have the prohibition upheld. Those facts are:
- A blood drug concentration, or a combined blood drug and alcohol concentration in excess of the legal limit; or
- That the Drug Recognition Evaluation was done properly, by a qualified officer, and that the drugs from the analysis matched the opinion of the Drug Recognition Evaluator.
If the officer establishes one of these, the burden then shifts to the driver to prove why the prohibition should be revoked. This is concerning because while it is easy for police to collect the evidence to show why the prohibition should be upheld, it is not so easy for drivers to obtain evidence to cause the prohibition revoked.
This requires any of the following:
- The blood drug concentration or combined blood alcohol and drug concentration did not exceed the legal limit;
- The drugs or alcohol were taken after the driving finished, and in circumstances where the driver did not expect to be given a blood test;
- The Drug Recognition Evaluation was not conducted properly, by a qualified officer, or that the test did not confirm the presence of the drug the officer identified;
- The driver was not impaired by a drug or a by alcohol and drugs, but instead by a medical condition.
If the prohibition was served on the basis of a Drug Recognition Evaluation, the driver must prove they were not impaired by a drug but also that the impairment was caused by a medical condition. Other causes of impairment do not appear to matter.
There is no right to silence. Positive evidence is required from the driver in virtually all cases, thereby increasing the cost and complexity of reviews. It is likely that this will also complicate matters on judicial review in B.C. Supreme Court, as the case of competing affidavits has led to numerous problems for existing alcohol-related driving prohibition reviews.
There is no right to silence. Positive evidence is required from the driver in virtually all cases.
It is not clear how drivers will be able to prove any of these grounds of review. Clearly, hopping out to the local drug lab to get a test done in the middle of the night is not feasible. There are few private drug labs. Further, the absorption and elimination of drugs in the human body is different than alcohol, and a blood test taken later can say little about what the level was at the time of driving.
This legislation is likely to be successfully challenged in court on its constitutional validity and the ability to administer it. It creates impossible burdens, shifts the onus, and fails completely to address the problem of drug-impaired driving in any meaningful and efficient way.
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The big unknowns
There are a lot of big unanswered questions here. The method of drug screening is not defined in the legislation, other than to say that an approved device will be used. Whether that is saliva testing, or opthalight, or a marijuana breathalyzer remains unknown.
It is also unclear what the legal limit for blood drug concentration will be, or how it will be determined. Will it mirror the federal regulations or will the government create their own limit? And how will the government analyze blood samples? The RCMP laboratory is already overloaded. How can testing be done in an efficient manner when the wait time for blood test results can be months?
Answers to these questions will likely come quickly, but until then we know this legislation is deeply flawed and does more harm than good.
A version of this blog originally appeared on KylaLee.ca.
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