Canada: BC passes marijuana driving-impairment law, but confusion remains

B.C.’s top cop says he’s frustrated by Ottawa’s slow pace in selecting the roadside testing equipment that provinces will use to police drivers under the influence of soon-to-be-legal marijuana.

Solicitor General Mike Farnworth said it was difficult for B.C. to pass new legislation this week that sets out a ticketing and policing regime for drivers and cannabis, because it still doesn’t have details from Ottawa on what will be considered the federal standard for roadside drug-impairment testing.

“That’s again what is frustrating for us as a province,” he said Thursday. “And so what we’ve got to do is at least get the legislative framework that we can operate in place.”

B.C.’s new law, which passed Wednesday, sets up a particularly labour-intensive system to test and penalize people who drive under the influence of cannabis.

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It starts with a police officer pulling over a driver, and then suspecting the person might be impaired by marijuana. If that happens, the driver is taken back to the police station where a certified drug-recognition expert will put them through a 12-step test to determine if they should be penalized with a ticket or their licence revoked through an immediate roadside prohibition that is similar to existing immediate roadside prohibition penalties for alcohol.

The various steps involve numerous officers and could take hours. It will present a difficulty for police resources, admitted Farnworth: “It’s going to be very challenging. But we’re doing the best we can.”

If there was an approved roadside testing device — the way a breathalyzer is used for alcohol — then police could test for cannabis impairment at the scene after pulling a driver over. But the new B.C. law states that even if such a device is approved by Ottawa in the future, police will still be required to take a person back to the local department to go through the drug-recognition expert process, which involves things like checking a person’s pupils and heart rate, and conducting the standard field-sobriety test that checks a person’s ability to walk a straight line.

“This is going to have a very significant impact on policing resources,” said Liberal MLA Mike Morris during legislative debate on the bill.

The Senate is currently debating Ottawa’s marijuana legalization bill, and it’s unclear when it will pass or when the technical legalization of cannabis will occur this summer. The Senate delays also affect the selection of technology for roadside cannabis testing.

“I have no sense of the timeline, I have no sense of when the bill will be passed, I’m not sure of the technology,” said Farnworth. “I suspect from what I heard that it will be a saliva-based technology. But that’s all we know right now.”

Vancouver lawyer Kyla Lee, whose firm Acumen Law had successfully challenged the provincial roadside prohibition process for alcohol several times, said a drug-testing system that involves taking all drivers back to a detachment for lengthy testing will spark Charter challenges over unfair detention and become an unwieldy problem for police.

“It’s going to be impossible to administer,” she said. “You are going to have two different officers tied up for hours conducting these investigations.”

Lee took the drug-recognition expert training in December and said it’s “not very reliable” and doesn’t really pertain to marijuana impairment anyway. “It’s a test designed to make you fail it,” she said.

Even if a driver passes the drug tests and is considered sober behind the wheel, B.C.’s new law could still penalize them. The legislation forbids any consumption of cannabis, in any form, by anyone inside a vehicle, whether driver or passenger. Fines range form $5,000 to $10,000 and could include a prison sentence of six months, though the Ministry of Public Safety said it expects to simply issue tickets for such offences and not attempt court prosecution. The provision is similar to existing laws that forbid open alcohol and consumption inside vehicles.

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