LOW TOLERANCE FOR HIGH DRIVERS

the Federal Conservatives Want to Amend the Criminal Code to Better
Target Stoned Motorists. Is It a Safety Measure, an Electoral Ploy,
or a New Way to Bust Potheads?

"E" likes to smoke pot, and he smokes a lot of it. He has since he
was a teenager. The 35-year-old entrepreneur is also a flagrant and
chronic scofflaw, seeing as he regularly gets behind the wheel after
smoking a joint or two. And if new federal legislation gets pushed
through, he might be standing tall before the man sooner rather than
later if cops pull him over.

Which is fine by him. He knows he shouldn't be driving under the
influence of anything. "I just hope they don't abuse it," he says.
"There are all kinds of things that can influence your safety on the
road. I think they should even go as far as to include people on
prescription meds or people who are suffering from psychosis."

That's doubtful. The new legislation, a revamped version of a
previous bill proposed by the Paul Martin-era Liberals that died when
the last federal election was called, was tabled in Parliament by
Conservative Justice Minister Vic Toews on Nov. 21, and is aimed at
the current societal bugbear of impaired driving. It would amend the
Criminal Code by increasing penalties for drivers found under the
influence or who are found to be in possession of an illicit drug. It
also allows for the taking of bodily fluids, by taking blood or urine
samples, and submitting them to toxicology tests, if roadside tests
and examination by an authorized drug recognition expert (DRE)
indicate impairment. Training police and DREs will cost around
$2-million a year.

Heavy on Symbolism, Light on Science

The bill, C-32, gels well with the Conservatives' promise to get
tough on crime. First-time impaired offenders will face a fine of
$1,000, up from $600, second-timers 30 days in the clink, up from 14,
and third-timers a whopping 120 days, up from 90. If an impaired
driver causes another bodily injuries, he's looking at 10 years
imprisonment. If he kills someone, it's life. "I can't seriously see
people (being) opposed to this type of legislation," Toews said when
the bill was tabled.

At a press conference immediately following the bill's presentation,
he presented a copy of it to Mike and Barb Rider, whose 16-year-old
son and four other teens were killed seven years ago in a car crash
that occurred after the driver had smoked marijuana. The family had
lobbied with Mothers Against Drunk Driving since then to get some
kind of drugged-driving law passed.

But the bill has its skeptics, if not outright opponents. Few would
doubt that getting stoned drivers off the road is a good thing in and
of itself. Even marijuana advocates like Marc-Boris St-Maurice,
founder of the Bloc Pot, current Liberal Party member and executive
director of the National Association for the Reform of Marijuana Laws
(NORML)-Canada, says the idea "isn't a bad thing." But it's the
mechanics of the bill that present some significant problems.

"Nobody really knows how marijuana affects your driving," he says.
"They don 't have solid ground to stand on because there's no
research to prove how marijuana impairs you."

Because the marijuana issue is so politicized, it's difficult to get
solid, scientifically-derived data on its effects, says St-Maurice.
Drug opponents will say smoking pot is detrimental to judgement and
motor skills, while pot smokers, like E, say "my senses are
heightened and I become more focused" when done in moderation. "But
it's always different. Some people can smoke bats and bats and bats
and be fine, but others can get fucked up on just a couple of tokes."

"The research shows both," says St-Maurice. "The results depend on
your political agenda."

Mark Quinlan, Justice Minister Toews' press secretary, says that in
the minister's home riding in Manitoba, one in 10 drivers on two-lane
highways was found to be impaired, although he couldn't break down
the numbers between those who were high on booze or illicit drugs.
"This bill isn't a moral judgement," he insists. "It's about getting
impaired drivers off the road." He says the bill's aim is to heighten
awareness among drivers that driving while baked just isn't a good idea.

The American Experience

Whenever politics is mentioned in the drug debate, it always helps to
look to the United States and its often draconian laws. Paul
Armentano, a senior policy analyst at NORML in Washington, D.C., says
drug-driving laws have existed in the States for around 20 years. "To
be honest, I'm surprised you don't have them in Canada already," he says.

Thirteen American states have per se laws, meaning that, if minimal
traces of marijuana are found in a driver's blood, the driver is
considered guilty of driving under the influence of drugs (DUID). Ten
of those states have zero tolerance per se laws, meaning that any
traces of marijuana leads to a guilty verdict. That decision was
deemed constitutional by the Michigan Supreme Court this summer.

According to NORML's Web site, the Michigan Supreme Court found that
the state's DUID law "does not require [driver] intoxication,
impairment, or knowledge that one might be intoxicated; it simply
requires that the person have 'any amount' of a Schedule I substance
in his or her body when operating a motor vehicle. It is irrelevant
that an 'ordinary' marijuana smoker does not know that [cannabis
metabolites] could last in his or her body for weeks."

Other zero tolerance states include Arizona, Georgia, Illinois,
Indiana, Iowa, Minnesota, Rhode Island, Utah and Wisconsin. Nevada,
Ohio, Virginia and Pennsylvania also have per se laws, although some
exclude cannabis and cannabis metabolites. Nevertheless, the trace
threshold for conviction can be very low, between two and five
nanograms per millilitre of blood. Quinlan says the level of THC
traces to determine impairment has not been determined yet for the
Canadian law.

Roadblocks

The bill has several obstacles to overcome before it becomes law. One
is its constitutionality. Julius Grey, a Montreal civil rights
lawyer, dislikes the law for two reasons. First off, he agrees with
St-Maurice. "There are no universally recognized tests," he says. "As
a result, there might be arbitrary searches and seizures without any
useful information obtained therefrom." He also points out that the
legislation wants to weaken the two-beer defence, which can be used
if witnesses testify that the defendant only had a beer or two before
starting the car.

The Canada Safety Council, which presented a brief for the Liberals'
version of the same bill at a committee hearing and supports the law
in principle, also has questions about C-32. "If you look for
marijuana [in bodily fluid samples]. you have to establish what
levels of THC are acceptable," says Raynald Marchand, their manager
of the road safety and training section. He doesn't think a zero
tolerance per se approach would work here, and doesn't want to see it
applied in Canada.

Also, it may not even get to the committee stage (it goes to
committee after its second reading in Parliament) because the first
whiffs of election fever are in the air. If, as expected, a federal
election is called for the spring, the bill will likely die-although
it will probably be resurrected and passed in some different form by
a future government.

But Grey and St-Maurice's suspicions aren't allayed by the
government's assurances that this law is simply to increase road
safety. By testing people for drug use, the law "can be used as a
fishing expedition to determine which people are using which drugs,"
says Grey. As cannabis metabolites can stay in the blood system for
up to 30 days, there are fears that police can keep tabs on known
users for their own reasons.

By including stiffer fines, and up to five years in jail for
possession while driving, the law "looks to me like a sneaky way to
modify the Controlled Drugs and Substances Act," says St-Maurice.
"It's a roundabout way to increase penalties without opening up the
debate on drugs.. [The legislation] is a little premature and
half-cocked. But it's pre-election stuff, and it looks great."