The Ottawa Citizen,
Sunday 17 September 2000
for more info: www.ottawacitizen.com
http://www.friendlystranger.com/info/recreational/potanddriving.htm

JR: Marijuana and driving:
No legal limit
Victims' parents, experts demand law to stop drivers
impaired by drugs

By Jake Rupert

Forensic scientists' inability to determine a driver's level
of impairment after smoking marijuana has left a gaping hole
in the Canadian Criminal Code, say experts and the parents
of five youths who died in a horrific traffic collision.

JCT: And if there is no impairment, it's doomed to failure
forever. Government-funded failure looking for impairment
where none exists.

JR: Gregg Thomson's son Stan was one of those youths. At the
time, Mr. Thomson didn't know anything about Canada's
impaired driving laws. He does now. He doesn't like what he
sees and he vows to get the law surrounding marijuana and
driving clarified. What Mr. Thomson has found out in the
trying months since his son's death is that while there are
two offences under the Criminal Code dealing with
intoxication -- Section 253a., covering a blood alcohol
level exceeding .08, and Section 253b., covering driving
while impaired -- proving the degree of impairment by drugs,
especially when that drug is marijuana, is next to
impossible.

Stan was killed at the age of 17 in a horrendous chain-
reaction crash on Highway 7 near Perth when a youth -- who
had traces of marijuana in his system -- attempted an ill-
advised pass and caused a multiple-vehicle collision the
night of June 27, 1999. All five young men who died were
popular Kanata teenagers who had been returning from an end-
of-school party in a convoy of four cars along with 11
others. Two men in an oncoming truck that the youth hit were
also injured. The youth has pleaded guilty to five counts of
dangerous driving causing death and three counts of
dangerous driving causing bodily harm. He will be sentenced
in the coming weeks.

After the crash, the youth was almost immediately charged
with the dangerous driving counts, but five counts of
impaired driving causing death and three of impaired driving
causing bodily harm were added when toxicology reports
revealed the presence of the active intoxicant in marijuana
(THC) in his system that night. There was no alcohol in his
system. At the sentencing hearing, evidence came out that
the 18-year-old youth, who was 17 at the time of the crash,
had shared in three joints -- not his -- in the six hours
leading up to the crash with the last being consumed one
hour to 11/2 hours before he pulled out to pass. Two months
ago, when the youth pleaded guilty to dangerous driving, the
impaired driving charges were withdrawn.

On Friday, at the youth's sentencing hearing, Lanark County
Crown attorney John Waugh, at the behest of the youth's
lawyer, Norm Boxall, admitted impaired driving couldn't be
proved, making a low criminal threshold for impairment
useless when marijuana is suspected. "If the evidence of
impairment establishes any degree of impairment from slight
to great, the offence has been made," wrote Ontario Appeal
Court Justice J.A. Labrosse in his watershed decision on the
issue. This means that even if a person has less than the
legal limit of alcohol in their system, they still can be
charged with impaired driving.

Mr. Waugh agrees the test for impairment is relatively low,
but he says until science can find a way to prove smoking
marijuana causes impairment beyond a reasonable doubt,
there's not much Crown attorneys can do. "An awful lot of
work is being done as we speak in this area, and it is
something that should be cleared up," he said. "There's a
pretty strong feeling that you can be impaired by marijuana,
but until we can prove it to a criminal standard were kind
of out to lunch."

JCT: There's a feeling you can be impaired, just no
statistical evidence to back up the feeling indoctrinated
into the Canadian population.

JR: Nobody is disputing that large amounts of marijuana can
impair people's ability to drive a car, but there is no
agreement on what that level is or should be. This is mainly
because the effects of ingesting THC are hard to quantify.
The issue of impairment is pretty clear when it comes to
alcohol, driving, impairment and the law. Not so is the case
with marijuana, driving, impairment and the law. The reason
for this is there is no standard toxicological or psycho-
pharmacological test -- like a blood alcohol reading -- that
is reliable enough to be accepted by a court as proof of
impairment beyond the criminal standard of a reasonable
doubt. This doesn't just apply to the case of the five dead
youths. It applies to all cases of impaired driving when the
alleged impairing substance is marijuana without any other
intoxicants.

At the moment, scientists can test for traces of THC, but
there is no way to tell how long ago the drug was ingested,
how much was ingested, or what the level of impairment was.
Therefore, unless there is eyewitness evidence stating a
person saw another person smoke marijuana, then act impaired
by falling down or walking into a wall or something similar,
then get in a car and drive, a conviction is extremely
difficult to obtain.

This was news to Gregg Thomson, and he plans to do something
about it. "Myself and the rest of the parents (of the dead
youths) are trying to take an ugly, awful situation and make
something positive out of it," Mr. Thomson said. "The law
has to be clarified on this issue." For now, Mr. Thomson is
focusing on the sentence of the youth. He hopes Justice
Inger Hansen metes out a stiff penalty to send a message to
others that this kind of behaviour will not be accepted as a
mistake, but as a serious crime. But once sentence, whatever
it is, is passed down, Mr. Thomson plans to begin lobbying
the provincial and federal governments to get the issue of
impairment by drugs cleared up. He's planning to meet with
the appropriate people in government, give speeches, and
write letters. He's already had some success in getting
people to listen to the issue by joining Mothers Against
Drunk Driving and convincing officials there to move drivers
impaired by drugs to the top of the organization's agenda
for the coming year. "The significant positive outcome of
this tragedy might be exposing a problem with this law," he
said. "A solution might be five or ten years down the road,
but this issue doesn't have much attention, and maybe this
case may change that."

This case may bring more attention to the issue, but finding
a viable way to prove marijuana impairment may also prove to
be an uphill battle for a number of reasons. First, there is
ample recent scientific data showing marijuana smoking
doesn't significantly increase the likelihood of causing an
accident while driving. A recent study by the University of
Toronto suggests people with recreational amounts of
marijuana in their systems -- three or four joints of
average strength marijuana over three to four hours -- are
about half as likely to cause an accident as people who
drink enough to register 0.05 milligrams of alcohol per 100
millilitres of blood -- substantially less than the legal
limit.

JCT: They missed the point that straight drivers also are
half as likely to cause an accident! The stats were always
that the odds of having an accident are the same for
straight and enhanced drivers and doubled for the drunks.

JR: Also, the results of the largest study ever done on the
subject in the world were recently released in Australia.
This study, by the University of Adelaide in conjunction
with the South Australian Transport Ministry, looked at
2,500 drivers involved in accidents in southern Australia,
their blood alcohol and marijuana levels, and culpability
for the accident based on police reports. Researchers found
nearly 90 per cent of drivers with a blood alcohol level of
0.05% or more were deemed to have caused the accident after
a police investigation. However, drivers with marijuana in
their systems were responsible for only 50.8 per cent of the
accidents they were involved in, meaning they were only
slightly more likely to have caused an accident than
somebody with no intoxicant in their system.

JCT: Drunks caused 90% of the accidents while cannabis
smokers and straights caused the expected half. So this
study says that smoking increases the chance you're
responsible for the accident from 50:50, half the time, to
50.8:49.2, about half the time.

JR: A recent study by the British government, commissioned
to show marijuana smoking impairs driving ability, found no
increase in the likelihood of causing an accident after
ingesting a fairly high level of THC.

JCT: Must cause a fairly high level of caution.

JR: Psychopharmacologist Dr. Barry Beyerstein of Simon
Fraser University in Vancouver, who has been qualified as an
expert on the effects of marijuana in court, says the reason
for these results lie in the way marijuana affects people.
"Alcohol makes people tend to be aggressive, and, at the
same time, makes people think they are making correct
decisions," he said. "It also impairs motor skills and
reaction time. The results of alcohol when driving is clear
from the statistics. "Marijuana tends to do the exact
opposite to people. They are more cautious. They tend to
overcompensate for their impairment. They tend to go slower;
be more careful. Where the danger with marijuana comes in,
is it affects people's attention. They'll be driving and a
old song will come on, and they stop concentrating on the
road. The lapse in attention is the danger when driving
after ingesting marijuana."

JCT: More likely to bump into you than crash into you.

JR: Dr. Beyerstein admits heavy use would constitute
impairment, but he is reluctant to say what level of
marijuana in someone's blood is acceptable while driving for
a number of reasons. Chief amongst these is the accuracy of
current testing techniques. Unlike alcohol, marijuana isn't
eliminated from a person's blood stream rapidly. It stays
around for weeks and even months. So when a level of THC is
found in somebody's blood, it's impossible to know when it
got there. "The same level could be the result of very heavy
use days or even weeks ago or a small amount taken
recently," Dr. Beyerstein said. "The methods we have now
just aren't precise enough to show impairment."

An exhaustive search of Canadian criminal law data shows the
result of this is Canadian Crown attorneys rarely prosecute
cases where impairment is the result of drug use only and
rarely are they successful when they do.

JCT: So few dangerous drivers who are pulled over end up
being high. Most dangerous drivers who have been pulled over
end up being drunk.

JR: One high-profile Ottawa case clarified the cloudiness
plaguing this area of law. On July 18, 1994, Don Dumoulin,
39, plunged a 30-tonne tractor-trailer off a Queensway exit
ramp and on to the Transitway, killing two women and maiming
a 10-month-old girl in a stroller. Blood tests showed Mr.
Dumoulin had THC in his blood -- nothing else. He was
charged with two counts of impaired driving causing death,
impaired driving causing bodily harm, and two counts of
criminal negligence causing death and criminal negligence
causing bodily harm. At the trial, the Crown called Marthe
Dalpe-Scott, an RCMP forensic toxicologist and a leading
expert in drug impairment. Ms. Dalpe-Scott said results from
the toxicology tests showed hashish or marijuana -- likely
one or two joints -- were likely consumed three to five
hours before the blood sample was taken, by someone who was
used to consuming drugs more than once a week. However, Ms.
Dalpe-Scott said she couldn't conclude that the amount of
THC found in the blood sample left Mr. Dumoulin impaired.
Even the most cutting-edge research into the effects of
drugs on human behaviour is inconclusive, she said.

On Feb. 1, 1997, Justice Hugh Poulin cleared Mr. Dumoulin of
impairment by drugs and criminal negligence. He said,
according to Ms. Dalpe-Scott's testimony, there was not
enough evidence to prove the Orleans man was impaired by
what he had smoked. Instead, Judge Poulin convicted Mr.
Dumoulin of the lesser and included offences of two counts
of dangerous driving causing death, and one count of
dangerous driving causing bodily harm. Two months later, Mr.
Dumoulin received a conditional sentence of two years less a
day. This might as well be the test case for impairment by
drugs.

In an interview, Ms. Dalpe-Scott, who sits on a committee of
forensic scientists examining the issue, says in controlled
situations, where the variables of how much dope is smoked,
when it was smoked, the strength of the marijuana, and when
the blood sample is taken, there is evidence that impairment
sets in at a level between two and six nanograms per one
millilitre of blood.

JCT: A government number! Certainly not an easy number to
get the brain around. Since a millilitre of water weighs 1
gram, and .08% alcohol of the blood causes impairment,
they're saying that 6/1,000,000,000 or 0.0000006% THC in the
blood is impairment for marijuana. Alcohol's 0.08% impairment is
133,333 times the required percentage for marijuana's
than alcohol. Takes a lot less to do the sedation.

JR: The youth had a reading of 5.8 nanograms per one
millilitre of blood. Still, there are too many variables to
says if this level would have caused impairment in this
person. "We're in a real predicament at the moment," Ms.
Dalpe-Scott said. "It does impair people's driving ability,
but we can't say 100 per cent at what level."

JCT: All she had to do was leave out the compensating factor
so her true statement now effects a lie. It does not impair
people's ability to avoid accidents. Sure, I wouldn't bet on
a race-car driver smoking a joint but I would bet on a
driver calmly staying in his own lane at the right speed.

JR: So, the odds of clarifying the law to allow the
successful prosecution of people driving while impaired by
drugs alone seem stacked against Gregg Thomson and the
parents of the four other dead youths, but his resolve and
will have become strong in the months since his son's death,
and he is determined to see this through no matter how long
it takes.

JCT: Usually, impairment can be deduced by the evidence.

JR: Mr. Thomson says the more he learned the law, the more
convinced he became of the need to address the situation,
and he's sure that, with the right campaign, something will
be done. "Years ago, they didn't have the .08 level to work
with either, but they worked at it and it became accepted,"
Mr. Thomson said. "There has got to be a way, or someone
should come up with a way, of testing marijuana levels that
can be proven in court. "There's a push right now to
legalize the stuff, but we don't even know what levels -- if
any level at all -- are safe to drive at. I think this is
something that should be cleared up for a number of
reasons."

JCT: The statement presumes danger when they admit that they
don't know what levels -- if any level at all -- is "safe"
to drive at rather than that they don't know what level it's
dangerous to drive at.

Pot makes drivers drive more slowly and more carefully.
Maybe a gentle sedation that does not impair isn't such a
bad idea for teen-drivers! I wouldn't feel endangered and I
might even feel safer knowing they're comfortably cruising
along listening to the radio rather than speeding by in the
passing lane.


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