DRIVING WHILE DRUGGED

Canada's Parliament should protect us from drivers whose judgment is
impaired. It must also protect us from bad laws.

Prime Minister Stephen Harper announced on Friday that he'll bring in
legislation to reduce drug-impaired driving. Given what Canadians
know of this legislation so far, there are many reasons for
Parliament to take a careful look.

Mr. Harper wants to provide police with more power to test drivers
for drugs; to increase the penalties for drug-impaired driving; to
promote awareness of the dangers of impaired driving; and to try to
change the way courts deal with evidence in impaired-driving cases.

Cracking down on impaired driving could be called a motherhood issue:
It's hard to oppose the argument that impaired drivers should be
caught and punished. And because Mothers Against Drunk Driving is the
main force behind the government's new legislation, it's a motherhood
issue in more ways than one.

MADD has lobbied the government to eliminate some defences commonly
used by people accused of drunk-driving charges -- defences that MADD
calls "loopholes."

One is the so-called Carter defence. Here's how it works: If you
produce witnesses to say you had (for example) two glasses of wine
and a toxicologist who says that two glasses wouldn't put someone of
your body type over the limit, that evidence can counteract a damning
blood-alcohol reading.

It's easy to understand why MADD doesn't like this defence. But it's
not a loophole, it's a safety valve. It's a way to ensure that
verdicts are produced by judges in courtrooms, not by breathalyser
machines. A blood-alcohol reading is evidence, not an automatic conviction.

Besides, judges are not obliged to believe what they hear. A year
ago, the Supreme Court upheld a guilty verdict against Eric Boucher,
a driver who had tried to use the Carter defence. He tried to
establish a reasonable doubt but in the end wasn't successful; in
other words, the judge didn't buy it. So is the Carter defence as
dangerous a loophole as MADD says it is?

Mr. Harper's proposed legislation will "strengthen presumptions of
breath and blood tests." That's fine, but he must be careful not to
weaken the presumption of innocence while he's at it.

The legislation will also give police more power to test for drugs.
There is already an impaired-driving law on the books, one that
covers drugs as well as alcohol. There is, however, no
driving-over-the-limit law for drugs. It's possible that establishing
a legal limit for drugs would be an extra deterrent, especially for
people who don't feel impaired. Stronger sentences against all
impaired drivers would also help.

The problem is, testing for drugs isn't quite as easy as testing for
alcohol. Saliva swabs are one option. They're not much more invasive
than breath tests, so Canadians might be willing to have police
administer swabs based on the same level of suspicion they use to
administer breathalysers.

But it's unreasonable for police to demand blood or urine tests
unless they've got very good reason to believe that the person is
under the influence of drugs. The more invasive the test, the more
careful the police must be.