Q&A: Canada's new drug testing laws will be difficult to implement: lawyer

Last week, new legislation on impaired driving came into effect in Canada that includes tougher penalties and new, mandatory tests for drivers suspected of taking drugs. Under Bill C-2, the Tackling Violent Crime Act, effective July 2, if a driver is found to be impaired during a roadside test, he or she will be required to provide a mandatory sample of bodily fluids. Prior to the new law, the bodily-fluids test, known as a drug evaluation and classification assessment, or DEC, was voluntary. Motorists convicted of driving while under the influence of drugs or alcohol now face a minimum $1,000 fine for a first offence under the new law. Allison Dunfield of CBCNews.ca spoke with Alan Young, a criminal lawyer and a professor at Toronto's Osgoode Law School, about the new legislation and possible complications that may arise from it.

Really … it's just tinkering with the existing law. A slight incremental increase in penalty has no deterrent effect. The thing that deters people is the licence suspension. The reality is that's [the licence suspension is] what's forcing people to plead not guilty. One thing that people don't know is that impaired driving is the No. 1 charge being tried in our lower courts. Thirteen per cent of all cases are impaired [driving cases].

The actual penalty most people get is a fine, unless there is some sort of accident, so you're not really going to reduce the incidence of impaired driving through the penalty scheme. Any reductions we've seen in the last couple decades have largely been [the result of] public education. I grew up in an era where people did not take this seriously, including myself. I remember in high school, driving in cars where people were very inebriated and not realizing what the risks were.

What about the section of the new law that has to do with forcing drivers to submit to urine and blood tests?

The majority of the reform or amendments deal with drunk driving. There's no question it's a laudable objective. But the problem is, in terms of implementation, it's almost impossible to implement in any effective, meaningful way.

Can you go into some reasons for that?

Sure. Really, what the government had to do was to … determine how to detect the presence of …illicit drugs other than alcohol and what level of inebriation would put you over the top in terms of impairment — in the same way we arbitrarily said 80 milligrams of alcohol will do this. We needed to work on the research and we needed to develop the technology before we implemented a scheme that the police really can't effectively carry out.

'The false-positive rate is going to be soaringly high.' —Alan Young, criminal lawyer

First problem: Alcohol has such noticeable motor impairment. Everybody knows when someone is drunk. You can see it a mile away. There are so many different indicia of alcohol intoxication. So, the system works quite well in terms of the police picking up on this indicia. …Then they had a mechanism whereby they could take a blood sample, which could be mathematically converted into a blood alcohol level. So everything fit as a nice neat package. When you get outside of alcohol, the indicia of impairment is far more subtle.

Let's take marijuana as one of the drugs they [the government] claim is a problem. There is so little motor impairment for marijuana. Most people cannot detect when someone is stoned. You don't stumble over your own feet. You don't get necessarily bloodshot eyes, you don't slur your words, all those things.

That probably applies to almost every other illicit drug, with the exception of stimulants — you tend to race on stimulants, [but] there's not a lot of evidence of stimulant abuse leading to traffic violations.

So, the first problem for the cops is, they're not going to be able to tell the difference between someone who's sleepy, someone who's clumsy and someone who is stoned.

So, the law will be difficult for police to carry out in practice?

What's going to happen is they are going to give these physical-impairment tests that don't amount to much, and people are going to be dragged to the station to give bodily fluid samples, and the false-positive rate is going to be soaringly high.

I'm thinking you're going to be taking maybe nine innocent people to be tested to find one intoxicated person.

Then, to prove they actually have the drug in their body, you have saliva tests, urine tests and blood tests. The bottom line is the only effective way of measuring is a blood-plasma test.

The saliva test could work for marijuana, but the technology is primitive. Urine will not determine current levels of a drug. It only is an indication that you've taken drugs in the past, because urine gives you what are called the metabolites of the drug — what … [it's] broken into after a period of time.

Marijuana metabolites will stay for 30 days. Heroin will stay for a week. So you're not going to know unless you take a blood test whether or not someone actually has the drug in their body.

If you do the blood-plasma test, that would tell you what?

That would tell you what amount of marijuana is currently in their system. The blood test is the gold standard.

Here's the other problem: We've at least decided that 80 milligrams of alcohol will render you intoxicated. It actually doesn't for a lot of people, but we have to set an arbitrary limit so we have some certainty in the law. 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 coca intoxication and opium intoxication.

We haven't done the test because we had no reason to find out what is the level you need in your blood to be impaired, because our position is zero tolerance …so, no one has ever done these tests really to determine what level renders you intoxicated.

You might get a test result saying this person has so many nanograms of THC in their blood, and I guarantee you that any astute defence lawyer will simply say that can't prove anything beyond a reasonable doubt unless there is some science to say at a certain level you start to have the indicia of impairment.

So, any way you slice or dice it, the police are put in a very difficult position right from the beginning of the investigation on the street to the point where they call in a medical practitioner to take blood. They're not going to effectively get the types of information to prove beyond a reasonable doubt "impairment by non-alcohol substance."

What you are saying is, we are going to go through this whole process, and in the end, we probably won't convict many more people than we do now?

No. In fact, what you are going to do is create an enormous amount of work for lawyers in the next five years, not just in terms of defeating prosecutions but [also because] a lot of this will be challenged constitutionally. The reality is you can't really impose a requirement of invasion of the body to get non-conclusive results.

I think in their [the federal 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. And when the dust settles in five years, 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.

What about the part of the law that requires a person who is determined by a roadside test to be impaired to then have a second test with a drug-recognition expert?

Well, the one thing we know is that very few officers have been trained. I don't have the numbers, but I've heard we are talking about a dozen officers across the country. We don't have testing facilities ready for this, and we don't have the drug-recognition officers ready to do this testing.

So basically, this legislation might just sit dormant for a few years, but because it's on the books, there will be officers who will overextend themselves and pull people into stations, knowing that they can't complete the investigation because there isn't a drug-recognition officer to test the urine. But they are still going to do it.

Without going through all those steps, there is no way somebody could be convicted under this new law?

It's going to be unlikely, and I look forward to see what the first case will be, to see whether it will be an abject failure, which is my prediction. And don't get me wrong — as with most Canadians, I want to ensure that drivers are not intoxicated even though I don't believe [like] the government [does] that illicit drugs are contributing significantly to highway risk. I don't believe that.

I still think as a general principle that people should have their full faculties when they are behind a 2,000-pound weapon. I take this very seriously. But I don't want to waste the time of police, the time of drivers … sorting through the needle in the haystack to find the one impaired driver out of the 100 you've pulled over.

I'd like to see this legislation re-enacted in about a decade after we've done the research to do it properly.