DRUGGED DRIVING LAW QUESTIONABLE

There was much applause in July when the federal government enacted a
new law aimed at curbing drivers flying over the moon on mind-altering
substances.

But the applause may be premature. The new law faces a rocky road. The
federal government may have ushered in the law with little thought,
pressured by certain vocal groups demanding a tougher stand on
impaired driving.

The primary target under Bill C-2, the Tracking Violent Criminal Act,
are drivers stoned on illicit drugs.

Suspected "drugged drivers" are now required to submit to a blood,
urine or saliva test upon demand by police. Refusal will result in a
charge similar to that of refusing to take a breathalyzer test - a
hefty fine and a driving suspension.

But a major obstacle will be proving the level of a drug in one's
system has rendered he or she impaired. Under drunk-driving laws, a
.08 per cent reading says the driver is impaired. Under the "driving
while drugged" law, there is no such litmus test.

Alan Young, a criminal lawyer and professor at Toronto's Osgoode Law
School, maintains the government enacted the legislation
prematurely.

"We really have no good science to tell us what level of THC (the
active ingredient in marijuana) must be in your blood plasma to . . .
say you are now intoxicated in terms of marijuana, and I would assume
it would be the same" for cocaine and opium intoxication, said Young.

Indications of marijuana use remain in the body for 30 days, according
to medical studies. The presence of heroin will stay for a week. These
factors could cast doubt on the validity of the fluid tests. Were the
drugs taken around the time of the alleged offence or were they
ingested last week, or maybe three weeks ago?

RCMP are training some officers to detect impairment by drugs. And
while it's been reported that these experts will have the power to
conduct the fluid tests, a senior RCMP officer and three criminal
lawyers contacted by the Red Deer Advocate recently could not
definitively say this will be the case.

Young maintains blood tests are the only effective way of measuring
drugs in one's system. The saliva tests could work for marijuana, "but
the technology is primitive." Urine tests will not determine current
levels of a drug. It's only an indication that you've taken drugs in
the past. When you get outside of alcohol, "the indicia of impairment
are far more subtle."

Young further argues the law can't impose a requirement of invasion of
a suspect's body (by demanding fluid tests) to obtain non-conclusive
results since a scientific standard is yet to be established on what
constitutes drug impairment.

If the courts rule a blood sample is the only reliable piece of
evidence, then let the constitutional arguments begin.

The law states that blood samples can only be taken "by or under the
direction of a qualified medical practitioner. . . ." But what if that
practitioner refuses to take part? Medical experts are not obligated
under the law.

With that discretion in place, it is impossible to apply the
blood-test demands equally to all citizens. The Constitution
explicitly states all laws must be applied equally. Anything short of
that is a violation against the Charter of Rights and Freedom, and the
law is void.

"I think in their (the government's) zeal to pass the law, they've
simply put together an ineffective piece of legislation that has the
advocates celebrating today because they don't realize how threadbare
it really is," said Young.

"We are going to regret that we actually did this and didn't invest
the money developing the right technology and testing to really
determine if someone is intoxicated by marijuana and cocaine."

Young maintains "We haven't done the tests because we had no reason to
find out what is the level you need in your blood to be impaired,
because our (Canada's) position is zero tolerance."

He predicts the new law will be an "abject failure," placing a heavy
burden on the courts. The government should have waited at least 10
years before enacting the legislation - "after we've done the research
to do it properly."