FEDS ROAD-TEST DRUG-DRIVING LEGISLATION

A man who admits he was high on heroin leads Edmonton police on a high-speed
car chase, running stop signs, smashing through fences and driving into
oncoming traffic. When police finally force him off the road, he refuses to
get out of the car and tries to punch the officers.

The man pleads guilty to a number of offences and is sentenced to a year in
jail. His case is one recent example of what police say is a serious problem
in Canada with drug-impaired drivers.

To address the problem, and perhaps also to counter the political fallout
from its plan to decriminalize the possession of small amounts of marijuana,
the federal government is proposing legislation to crack down on drugged
drivers.

Unfortunately for legislators and police, the task is not as easy as it
might seem. To combat drinking and driving, we set a benchmark for
impairment, then charge anyone caught exceeding it. Drugs are far more
complex.

For starters, their effects vary widely, from illegal drugs of differing
strengths to prescription drugs. Their impact on the body, and particularly
on driving ability, isn't as well-studied or understood as the effect of
alcohol.

As a result, there is no well-established impairment threshold for any
drug's use while driving, as there is for drunk driving.

Police already have the power under criminal law to pull drivers off the
road if they're impaired, whether by drugs or alcohol. They can be suspended
from driving on the spot for 24 hours or can be charged with impaired
driving. But because drug impairment is hard to determine, such charges
aren't often laid and convictions are infrequent.

Lawyers worry new drugged-driving legislation would rely too much on the
subjective assessment of individual police officers to determine whether an
individual is drug-impaired. Laura Stevens, vice-president of the Edmonton
Criminal Trial Lawyers Association, says details of the current legislation
against drinking and driving underwent rigorous scientific scrutiny and
testing before being put into law. There appears to be no such scrutiny
being applied to proposed drug-impairment laws, she adds.

DEFINITIVE DRUG TEST DOESN'T EXIST

Another significant concern for lawyers is the potential for drug-impaired
suspects to be detained without reasonable and probable grounds, says Shawn
Beaver, an Edmonton criminal and constitutional lawyer.

Unlike the roadside breath test for alcohol, there is no equivalent,
scientifically reliable test for drugs, so suspects would need to undergo
fairly lengthy drug testing at a police station. Beaver likened it to police
conducting a search without knowing what they'll find, then using the
results to help convict a suspect. Nor is it clear whether the accused would
have access to a lawyer.

"I think it's going to be a very difficult thing to draft and put into
action, and I'm sure it will be rife with constitutional challenges," he
adds.

Even the federal discussion paper on this issue, prepared in anticipation of
legislation this winter or early spring, acknowledges both the scientific
and legal shortcomings of such laws."Forensic scientists have advised that
drugs, unlike alcohol, are often extremely difficult to link to a particular
concentration level that will cause impairment in the general population of
drivers," says the discussion paper. "Moreover, analysis for some drugs in
certain bodily fluids may simply indicate drug use many days, or even
months, in the past."

The discussion paper calls proposals for laws against drug-impaired driving
"charter sensitive" because they "would require the suspect to participate
in a process that may result in incriminating evidence. . Consideration
would also have to be given as to the point in time at which a suspect must
be given information on the right to counsel."

This does not mean any attempt to penalize drugged drivers should be
abandoned. But in the absence of scientifically sound, easily administered
roadside tests for specific drugs, along with well-established benchmarks
for impairment by individual substances, such legislation is unlikely to
stand up in court.

As the Canadian Bar Association points out in its response to the federal
proposals, the much sounder laws against impaired driving are already among
the most heavily litigated criminal laws we have, particularly for alleged
violations of charter rights.

Adding ill-conceived, scientifically suspect and legally shaky rules against
drug-impaired driving is sure to only exacerbate the problem.