British Columbia

Province way behind in dealing with marijuana-impaired driving, says lawyer

Kyla Lee says current roadside tests were not designed to be used for drugs

Christine Coulter - CBC News

December 06, 2017

Kyla Lee doesn't believe there is enough research to accurately determine the level of marijuana impairment. (CBC)

This week, the provincial government announced plans for the sale of recreational marijuana in British Columbia, but Vancouver defence lawyer Kyla Lee says roadside testing is lacking and there's no provincial plan for dealing with drug-impaired driving.

"Right now, we have a structure in place under the Criminal Code for dealing with marijuana-impaired driving, but it's a terrible system," Lee told Rick Cluff on The Early Edition.

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"We use, at the first stage, tests that were never designed to be used for drugs. They don't actually apply to ... marijuana's effects on the body."

Lee, who specializes in impaired driving cases, refers to the standardized field sobriety tests used by officers in B.C.

One of those tests is the Horizontal Gaze Nystagmus test.

"It looks for involuntary jerking of your eyeball, but that doesn't actually happen when you use marijuana, so the tests aren't even specific to the drug that we're using them for," she explained.

Vancouver defence lawyer Kyla Lee, who specializes in impaired driving cases, says officer training for recognizing drug impairment in B.C. is lacking. (Rafferty Baker/CBC)

The second is a one-leg stand where the driver's balance is tested by forcing them to stand on one leg for 30 seconds.

"Which most people can't really do anyway."

The third is the test where you are forced to walk in a straight line.

"Those tests were designed by the National Highway Traffic Safety Association in the United States to be specific to alcohol"

Lee says that during the tests' creation, it was determined these tests should not apply to drug impairment.

"Here in Canada, we used them almost exclusively for drugs."

Lee believes the province will go forward with immediate roadside prohibition, similar to alcohol, but says the province hasn't specified whether it will use saliva tests, admission of the drivers, discretion of the officer or the current standardized field sobriety tests.

"It's troubling, because the amount of training that police officers have ... for recognizing drug impairment is so far behind what it needs to be," she said.

Province waiting for feds to lead the way

Another issue is defining impairment. Federal Bill C-46, which seeks to do just that, has passed a third reading. It currently defines marijuana-impairment as being two nanograms of THC per millilitre of blood.

But Lee says the science isn't quite there.

"I think we can't define impaired by marijuana at this point. I think we need to do a lot more research in the area and learn a lot more about marijuana and its effects on the human body ... the science is so far behind where it should be."

B.C. Solicitor General Mike Farnworth says drug-impaired driving is a major concern for his government.

"We've been working with the federal government ... waiting for all their final regulations," he said.

Farnworth says his ministry is currently looking at the current system of roadside suspension as it relates to alcohol and determining whether the same type of system would work for marijuana.

"I fully expect, just as in alcohol, when the feds bring in the new rules, when this comes into place, you're going to see a lot of court cases."

With files from The Early Edition

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