Legalizing marijuana in Canada is coming down the pipeline, which poses some serious challenges for lawmakers.
First among those challenges is ensuring there’s a proper method to prove someone is actually impaired by marijuana use. In an effort to understand those challenges, Ponoka News reached out to Rod Clark, a counsellor with SIRRS LLP Law Group in Ponoka.
Clark was the chief Crown prosecutor in Wetaskiwin before joining SIRRS early last year.
He says there are two areas of law affected by the legalization of marijuana, the first is on the criminalization of marijuana and the second is on the civil side.
For the former he sees an issue with the province having the proper equipment and enough trained staff to conduct all the tests needed to confirm if someone is indeed impaired by marijuana, plus the court time if staff is called as a witness.
“It’s all very well and fine to say the technology exists or the law’s been passed so now the police can take bodily samples to look for evidence of THC in somebody,” said Clark. “But is there somebody there who’s going to have the time to test it, to write the reports and to testify?”
Added to that, Clark says police do not have enough people trained who can then give reliable evidence proving someone is impaired by any kind of drug.
“As a defence lawyer, the first thing you’re going to be looking at, if somebody is charged with impaired operation by reason of marijuana use, is well, what kind of training does this police officer have when it comes to drug recognition?” said Clark.
“There’s very few people designated and there’s been issues in the past of the training of some of the officers,” he added.
An open letter on Nov. 14 from the Alberta Association of Chiefs of Police (AACP) confirms some of those issues pointing out that roadside testing is difficult to prove.
“The science related to impairment due to cannabis use is unresolved, and the Federal Government has yet to approve instruments that would objectively measure roadside impairment,” states the letter.
Clark says to indicate someone is impaired, whether from alcohol or drugs, requires evidence of impairment. He points out the current law requires a designated drug recognition expert used by police, which there are not many of.
“Overall, the biggest problem is, the law may be changed but the resourcing has not been,” said Clark.
If additional charges are brought before the courts because of this new legislation, that will only add to an already overtaxed court system.
The other area that’s affected by the legalization of marijuana is in civil liability. Clark points out that if someone was to get behind the wheel of a car and cause an accident while being impaired by marijuana use or any other drug, they could be sued for being negligent.
“If you cause an accident while you’re high you will be sued and your insurance company will not cover you,” said Clark, pointing out this currently applies if someone is impaired from alcohol use.
“There’s no presumption of innocence in civil liability,” said Clark, pointing out that at this point someone who faces this reality would then have to sue the insurance company.
For Clark, regardless of if it’s drugs or alcohol, “Nobody should get high and drive.”
“It may be a legal drug next year but nonetheless it’s something that does impair and people should not use it and then drive,” he offered.
Clark also pointed out that if a person is caught smoking drugs while driving, they would be guilty of distracted driving or other traffic safety act offences.