EASTERN PASSAGES: Lots for governments to ponder on the road to marijuana legalization

Russell Wangersky

In British Columbia this past week, the provincial government was told liquor store employees wanted to be the ones to sell legalized marijuana, should that legalization occur. (It was a federal Liberal election promise.)

Their argument? “We believe this is an incredible opportunity for British Columbia,” Stephanie Smith, president of the B.C. Government and Service Employees’ Union, said at a press conference. “We have an excellent track record for distributing and retailing alcohol.”

That track record, they argue, includes the responsible sale of alcohol.

Interesting point.

But despite all that responsibility at the point of sale, as a nation, we don’t always do so well with personal responsibility.

Right across the country, provincial courts strain to deal with drinking and driving cases — and that’s despite the fact the courts are only dealing with those who don’t plead guilty quickly. Police news releases across the country are equally filled with drunk-driving charges. There seem to be plenty of people committing an offence that we are all supposed to realize is both stupid, criminal and potentially fatal.

As I’ve written before, scores of people successfully fight their drunk-driving charges on technicalities — they weren’t given the tests quickly enough, they weren’t given the maintenance records of Alert devices for their defence, they were too drunk to understand their ability to speak with a lawyer, police officers didn’t have enough cause to pull them over — even when an empirical device like a breathalyzer has shown them to be grossly impaired.

So, what’s going to happen when there’s no such device for legally impaired marijuana users? Right now, police forces use drug recognition experts who look for a series of indexes to establish whether drivers are impaired by drugs. Problem is, unlike the breathalyzer, there’s a fair bit of subjectivity in their analysis; it is observational, and while it can lead an expert to believe someone is impaired, it doesn’t identify the amount or type of impairment.

It seems to me that leaves a fairly large grey area for skilled defence lawyers to exploit.

You can test for marijuana use in drivers using a blood test — but it’s involved, requires a trip to the hospital, and is therefore rarely done.

The Supreme Court of Canada already maintains that merely taking a breath sample constitutes an invasion of personal liberties — it’s hard to imagine they’d agree to more invasive sampling procedure that would involve something like a roadside blood sample. There are options being developed to test saliva for drug tracee, but they aren’t in place yet either.

It’s all something that governments might want to ponder on the road to marijuana legalization — not whether to legalize or not, but what offshoots have to be addressed to protect everyone else from those who don’t act responsibly with their new legal high.

This is not to say there aren’t already drug-impaired drivers on the road. There clearly are, and occasionally — far less often than drunk drivers — they get caught.

What’s going to serve as the equivalent to the breathalyzer in the marijuana-legalized world?

If endless technicalities can get breathalyzer results tossed from courts, how much more easily will a drug recognition expert’s findings be tossed out? And what does that mean for the safety of the other drivers on the road?