Who Says How High?

FEDS' ROADSIDE DRUG TESTS TARGET POT WITH FUZZY SCIENCE

Just as it was sinking in that they were allowing the bill to
decriminalize pot to wither on the election vine, the Libs introduced
a strange twist in an already confusing epic. Last month, Justice
Minister Irwin Cotler jolted the pro-liberalization lobby by
announcing the government's intention to change the Criminal Code to
permit police to order urine, blood or saliva samples from drivers
suspected of being drug-impaired.

Sounds sort of logical at first. Who wants substance-addled drivers
weaving their way along our roadways? But pot activists, wary about
the further targeting of users, are asking a number of questions. Like
why bother creating a specific amendment when driving while impaired -
by alcohol, pharmaceuticals or street drugs - is already a serious
offence in Canada?

And who exactly gets to define what impairment is anyway? While there
is a recognized protocol on the amount of alcohol that affects driving
skills, there is no agreed-upon definition of impairment levels when
it comes to drugs, particularly marijuana.

"This is primarily going to be an attack on cannabis," warns Eugene
Oscapella, an Ottawa lawyer and founding member of the Canadian
Foundation for Drug Policy.

Justice Canada denies this. The department says its only motive is
road safety and that "drug users are disproportionately involved in
fatal accidents." To back up this claim, Justice cites a study by the
Societe de l'assurance automobile du Quebec that "determined that more
than 30 per cent of fatal accidents in the province involved drugs or
a combination of drugs and alcohol."

But Justice Canada doesn't have its numbers right. All evidence
indicates that booze is still the intoxicant of choice among impaired
drivers. The Quebec study examined 354 fatally injured drivers between
April 1999 and November 2001 and determined that alcohol was present
in 35 per cent of cases and "drugs other than alcohol" in 30.2 per
cent of cases. The most common non-alcoholic drug was cannabis, which
turned up in 19.5 per cent of cases.

A similar study, entitled Estimating The Presence Of Alcohol And Drug
Impairment In Traffic Crashes And Their Costs To Canadians, published
in 2002 by the University of British Columbia, came to a somewhat
different conclusion. The BC report examined 227 fatally injured
drivers and determined that 37 per cent of cases involved alcohol
only, 11 per cent involved alcohol and drugs, and 9 per cent drugs
only.

Still, that's a sizable percentage of stoned, dangerous drivers. But
how will the system avoid charging pot smokers weeks after their high
has worn off? While hard drugs such as amphetamines, cocaine, LSD and
heroin can be detected for a period of only one to four days after
ingestion, pot traces remain for a month or longer.

Shockingly, even the feds agree they have a major problem on their
hands when it comes to the issue of defining when a stone becomes
incapacity. "Unlike alcohol, for the vast majority of drugs there is
no scientific consensus on the threshold drug concentration in the
body that causes impairment," admits Pascale Boulay, spokesperson for
Justice Canada.

So why is the department proceeding on this daunting mission to put
extra discretionary power in police hands when the science is so
fuzzy? Besides the contentious limits issue, there's also the fact
that relatively little research has been done on how drug use actually
affects driving behaviour. One of the few studies was published in
1994 by the University of Limburg at Maastricht, the
Netherlands.

It found that "marijuana produces only a moderate degree of driving
impairment. Drivers under the influence of marijuana retain insight
into their performance and will compensate where they can. As a
consequence, [mar ijuana's] adverse effects on driving performance
appeared relatively small," the report concluded.

Some wonder if the feds' move is just a way of making the much-delayed
Bill C-10, the decriminalization bill, more politically palatable.
Pascale is clear that this is not the motivation and says the bid to
change the Criminal Code comes from the Senate special committee on
illegal drugs, which was specifically struck to examine Bill C-10, and
also from the House of Commons special committee on the non-medical
use of drugs.

"Drug-impaired driving legislation is not just about marijuana, but
any drug that has an effect on your ability to drive," says Boulay.

That's not the way Libby Davies, NDP MP for Vancouver East and a
former member of the House of Commons special committee, reads it. She
says the measures were introduced strictly to deflect criticism of pot
law reform. "The Liberals have been back-pedalling since introducing
C-10," says Davies, who worries that the bill will fade to oblivion.

If it's unclear what the feds will do with the decriminalization hot
potato, they certainly have clarity on the newly devised impaired
driving system. Drivers suspected of being drug-impaired are supposed
to be pulled over and subjected to roadside sobriety exams. The latter
would involve "divided-attention tests" such as touching your nose
with your finger.

If subjects fail the test, they could be taken to a police station for
a drug recognition expert (DRE) evaluation. Here they would be put
through another round of divided-attention tests along with a medical
investigation of pupil size, vital signs, muscle tone, etc. If the
subjects flunk, police could demand blood, urine or saliva samples.
Failure to comply would be a criminal offence.

Bob Mann, a senior scientist at Toronto's Centre for Addiction and
Mental Health and an expert on impaired driving, says the protocol
proposed by Ottawa is designed to nail drivers who are truly under the
influence. "Behavioural indicators (of being stoned) will not turn up
if it's been two weeks (since you've used drugs)," says Mann, but only
"when the drugs are active in your system."

In other words, if you don't look or act like you're drug-addled,
police aren't supposed to take samples of your bodily fluids - at
least in theory. It remains to be seen how police will perform their
new duties in the field.

Critics worry that these new powers will be vulnerable to abuses. The
legislation "might be ripe for a very powerful constitutional
challenge," warns lawyer and long-time drug reform crusader Alan
Young. It "will end up occasioning unnecessary and unjustifiable
intrusions into privacy - privacy in terms of bodily security," he
says, pointing out that courts and human rights commissions have
repeatedly ruled against workplace drug testing.

None of this is to say that driving while stoned is a good idea. "The
impaired driving issue is a very serious one," notes Mann. "It's one
of the leading causes of death in this country, one of the largest
causes of health care expenses and serious disabling injuries. In my
personal view, it's very important to find effective means to prevent
these collisions."

Drug law activists agree. They have no problem with legislation
designed to get drivers who are actually high - as opposed to just
bearing inert traces of past drug use - off the road.

"Even people who want to reform drug laws are vulnerable to highway
traffic," notes Oscapella.