Skip to main content

The Globe and Mail

The law is hazy when dealing with drug-impaired motorists

Incidences of drugging and driving are, according to some metrics, more prevalent than drinking and driving.

Ji?ÃÂí FlÃÂögel/Getty Images/Hemera

It's not news that driving after having too many drinks is a bad idea. But what happens if you drive after smoking a joint? It's also a bad idea, but the answer is a bit, um, cloudier.

If you hit the road high in Canada – where driving under the influence of drugs is illegal – chances are slim that police will catch you – and slimmer that you'll end up with a criminal code conviction, even if you deserve one.

This is in spite of an ongoing cross-country effort to take drug-impaired drivers off the roads. Detecting drug impairment, which varies drastically by person and by drug (each class is metabolized differently) is very different than detecting alcohol, which goes directly into the blood stream. And while specific alcohol impairment levels are written into law, making it easy for police to measure physiological impairment, the same guidelines have yet to be established for drugs. There is also no roadside equivalent of a breathalyzer for drugs.

Story continues below advertisement

Still, in recent years police forces have spent hundreds of thousands of dollars to send officers to the United States for sophisticated drug recognition training. They leave qualified to visually detect impairment by seven classes of frequently used illegal drugs.

But their results have been scant. In 2012, just 1,126 drug impairment charges were laid against Canadian drivers compared with 60,000 charges for alcohol-impaired drivers. This is in part because the ranks of qualified drug recognition experts are thin – only 570 are on active duty across the country. And training new officers is expensive, ranging from $5,800 to $17,000 per officer in recent years.

The low numbers are not for lack of drug use, though. In fact, incidences of drugging and driving are, by some metrics, more prevalent than drinking and driving. A 2010 study published in the journal of Traffic Injury Prevention showed that more than 10 per cent of drivers randomly pulled over for the survey tested positive for drug use, while only 8 per cent had been drinking alcohol. More than 15 per cent tested positive for alcohol and drugs. Among high-school age students, while drinking is at an all-time low, one in 10 licensed drivers reported driving an hour after smoking cannabis, according to a survey published by the Centre for Addiction and Mental Health. This represents 31,500 adolescents in Ontario alone.

"It is obvious the system does not work," said Andrew Murie, president of Mothers Against Drunk Driving (MADD), the powerhouse national advocacy group.

For Murie, this reality has been tough to swallow. He and his organization lobbied heavily in favour of the current drug-impairment recognition system, which began in 2008. Until then, police struggled to apprehend drug-impaired drivers. Unlike alcohol impairment, which could be gauged initially by smelling alcohol on the breath of a driver and subsequently confirmed by a roadside breathalyzer test (failure of which results in an additional lab test that is admissible in court) there was no equivalent testing procedure to confirm drug impairment.

"Unless you had a bag of pot sitting on your lap … there was no means for police to apprehend," Murie said.

In 2008, the policy makers amended the Criminal Code to allow police who suspected drug impairment to conduct physical co-ordination tests at roadside. If the driver fails, an officer may then bring in a specially trained Drug Recognition Expert to conduct an exam. It's only at the end of that exam, which can last up to two hours, that officers can legally demand a sample of bodily fluids – typically urine – to be lab-tested for confirmation of impairment.

Story continues below advertisement

There are many limitations to this approach: it is highly subjective, time-consuming and leaves a long gap between the moment a driver is pulled over on the road and the time he or she submits a physical sample. More problematic for courts, though, is the fact that there are no blood concentration limits for drug impairment written into law. While the Criminal Code is clear on what constitutes alcohol impairment – blood alcohol concentration of .08 milligrams or more for every 100 millilitres of blood – it remains silent on what constitutes impairment for virtually all drugs.

"I knew all of those limitations," Murie said of his initial support for the policy. "But at the time, it was the best there was."

Murie has since devoted himself to researching technology that could both improve police odds of charging drug-impaired drivers and deterring users from driving altogether. He has zeroed in on a handful of oral fluids tests – the drug test equivalent of a breathalyzer – that police in Australia, the European Union and other countries use at the roadside to test for impairment. Typically drivers lick the sticks or swirl them in saliva; used in conjunction with legislated limits for drugs, Murie believes the tests would dramatically aid in improving road safety and convictions for drug-impaired drivers.

In the six years since its inception, courts have made a mockery of the law. In one memorable 2012 case in Saskatoon, a woman who admitted smoking marijuana before getting behind the wheel was acquitted of impaired driving after a judge said he was left with reasonable doubt.

This was in spite of the fact that the woman failed numerous physical co-ordination tests, including being able to touch her nose with her finger (out of six attempts, she only landed on her nose once).

"Being in a vehicle, you have to mentally and visually understand you're in your own lane, what other traffic is doing, what stoplights are doing … you have to be able to understand your speedometer … apply the gas, adjust heaters, windows," said Randy Marshall, a retired RCMP officer who spent five years co-ordinating the province's DRE program. "You can't do it all when you're on drugs."

Story continues below advertisement

Tests done on fatally injured motorists illustrate this clearly. Between 2000 (the first year postmortem drug testing became routine) and 2010, 33 per cent of fatally injured drivers who were tested for drugs had positive results (38.5 per cent were positive for alcohol) while 56 per cent died with alcohol and drugs in their system, according to a paper presented at the International Conference on Alcohol, Drugs and Traffic Safety in Australia last year. The most common drugs found were depressants and cannabis.

In an interview, the paper's lead author, Doug Beirness, called the numbers "overwhelming."

"We've all of a sudden discovered there's a whole other problem that we didn't see coming. Now, when we look at the data, we find it's almost as many drivers who die in crashes after drug use as die in after alcohol use. We just ignored this before … we didn't know how big the problem is. But this is not a good situation for road safety," he said.

Marshall, a former RCMP officer who now works as a private drug-detection expert, said the 2008 changes have made scant improvements. "The carnage is still on the roadway," he said.

Experts predict the situation is poised to get worse quickly with the push for marijuana legalization and changes to Canada's medical marijuana laws that came into effect last April. While 28,000 medical users were licensed to smoke the drug in 2012, Health Canada predicts the number could nearly double by next year. By 2024, 435,000 users are forecast.

As the law stands, there are no guidelines for cannabis – or any other drug – users to gauge when it is safe to drive after smoking up.

"There is a belief that smoking [marijuana] and driving is not a big deal, and it's not just kids," said Susan, a Toronto mother of a 19-year-old chronic marijuana user who asked that her name be changed. Her son has used pot since he was 13. When he set out to buy himself a car, Susan went online looking for guidance on what to tell him regarding drug limits and driving. She was stunned at both the lack of regulations in Canada and the swirl of misinformation.

"You end up in some chat room … and your answer will be, 'Dude, it makes me a better driver,'" Susan said. "My son will say, 'I don't smoke to get high, I smoke to be normal.' He truly believes he's not impaired. Does that mean he's safe to drive? No. There's no question it affects your ability to drive."

If you have questions about driving or car maintenance, please contact our experts at globedrive@globeandmail.com.

Follow us on Twitter @Globe_Drive.

Add us to your circles.

Sign up for our weekly newsletter.

Report an error
About the Author
Global food reporter

Before taking on the global food beat, Jessica reported extensively from Haiti to document the nation's recovery from a catastrophic earthquake that struck in January, 2010. The resulting multimedia series, Project Jacmel, won a National Newspaper Award. Jessica has also reported from Afghanistan. More

Comments

The Globe invites you to share your views. Please stay on topic and be respectful to everyone. For more information on our commenting policies and how our community-based moderation works, please read our Community Guidelines and our Terms and Conditions.

We’ve made some technical updates to our commenting software. If you are experiencing any issues posting comments, simply log out and log back in.

Discussion loading… ✨

Combined Shape Created with Sketch.

Combined Shape Created with Sketch.

Thank you!

You are now subscribed to the newsletter at

You can unsubscribe from this newsletter or Globe promotions at any time by clicking the link at the bottom of the newsletter, or by emailing us at privacy@globeandmail.com.