The right to be high: Why cannabis enforcement isn't working

(Article 2/3)

In criminal law, Blackstone’s Ratio is a cornerstone of a democratic justice system. It states that it is better that ten guilty persons escape than one innocent person suffer.

Defense attorneys fear the opposite is happening on Canadian roadsides as a result of cannabis legalization.

“I’m seeing a lot of people who are concerned about their ability to drive,” says B.C. defense attorney Kyla Lee – and not because they’re impaired. Lee says she is talking about users who might smoke before bed every night, and they get up in the morning and worry, “Can I drive to work?”

In an investigation into policing cannabis on the road, [name of publication] found that drivers’ fears are well-founded. Interviews with police and lawyers across the country reveal an uneven legal landscape that depends on local police training, resources, procedures and attitudes.

Roadside tests: The police side

In Edmonton, for example, Constable Krista Gavin says the police force owns just two oral fluid screening devices that test a driver’s saliva for cannabis, compared to the Winnipeg Police Service’s (WPS) fourteen roadside testing devices – seven Drager DrugTest 5000s and seven SoToxas. As a result, Edmonton officers rely mainly on a standardized field sobriety test, which requires drivers to walk a straight line in a particular manner, stand on one leg, and follow a pen tip with their eyes.

“You're not supposed to lift your arms to keep your balance walking on that straight line,” says medical user Michelle Gray, who was detained by police in Nova Scotia for nearly five hours. “Well, I cannot do that. Like, I don't even think I could do that if I didn't have MS or the balance issues. It's really hard.”

Even with their extra devices, Winnipeg police patrol Sgt. Stephane Fontaine says the service relies on the physical roadside test much more than saliva testing and will often make arrests without testing.

“If you come across someone that's clearly impaired, you're not going to conduct any prescreening tests, you're going to go straight arrest,” Fontaine says.

“I find the best technique is to use the field sobriety test because again, that brings out or shows the impairment, that's truly the concern here. Although we've had these oral fluid testing devices, we haven't really had to rely on them too much.”

Pairing an oral fluid screening device with the physical skills test can help police form the necessary grounds for arrest on the roadside. If the results of either indicate someone may be drug-impaired, they allow the officer to further investigate the possible offence.

Adding potential health conditions into the mix makes situations “more tricky,” says Robert Martin, co-chair of the Traffic Safety Committee for the Canadian Association of Chiefs of Police. However, he says police do receive some training to distinguish impairment from a medical condition.

Edmonton’s Gavin says the ideal situation involves police conducting tests using both an oral fluid screening device and the roadside behaviour test. The saliva device, which detects THC in the body, can indicate that an individual has consumed cannabis recently, police in Edmonton and Winnipeg say.

“They’re testing two different things,” Gavin says. “Just because somebody passed the SFST and there was a positive hit for cannabis, those aren’t mutually exclusive. It is very possible that they do have THC in their body and they are not impaired in their ability to drive.”

According to police we interviewed, however, it appears conducting both a saliva test and a behaviour test on the roadside is not common procedure. Instead, officers often do one or the other, or simply use a breathalyzer to rule out alcohol and their general observation to form grounds to arrest someone for drug-impaired driving.

Driving high: How do officers know?

Police list a number of signs, called indicia, that can indicate to officers a driver might be impaired by a drug.

“The driving behaviour is often what attracts an officer’s attention,” Fontaine says.

A vehicle running a red light or stop sign, speeding or travelling too slow, making improper turns or other driving violations are what police say typically draw them to pull over a vehicle. After the initial stop, a driver may admit that they’ve consumed a drug or alcohol, or an officer may notice physical signs like bloodshot eyes.

Traffic safety chair Martin, who is also chief of the West Gray, Ont. police service, says officers are rigorously trained through the International Association of Chiefs of Police to check for blood pressure, body temperature, pulse rates, body and eyelid tremors, paranoia and difficulty judging time and distance.

Cpl. Mark Skinner with the Nova Scotia RCMP notes the inability to focus on and complete two tasks can also be a sign of impairment.

“There’s all kinds of possible signs and symptoms that we look out for,” Fontaine agrees.

“There’s a kind of scale where they could be anywhere from minor to grossly impaired.”

Fontaine and Skinner acknowledge these traits do not necessarily mean an individual is impaired by cannabis.

“When you're on the roadside, it's more of an educated observation that you're making,” Skinner says. “The officer takes the totality of the situation they’re seeing in front of them.”

Police say the smell of cannabis is the most obvious cannabis-specific indicia.

“It’s a very distinct smell,” Fontaine says. “It’s difficult to hide. That’s typically a good indicator to start asking questions.”

The odour of cannabis, however, is no longer as useful for helping police establish grounds for an impaired driving investigation as it once was, as having cannabis or having smoked cannabis is not an offence itself and does not mean someone is driving impaired. For this reason, New York and other American states have recently created legislation that prevents police from using the odour of cannabis alone to provide reasonable grounds for further investigation or arrest.

The right to not be arbitrarily detained

Defense attorneys agree that the moment police indicate to a driver they should pull over, the driver can consider themselves detained.

“A detention starts at any moment where the accused or the driver isn't free to simply get up and walk away,” says Michael Dyck, a Winnipeg lawyer who specializes in impaired driving. “The reality is every traffic stop is a detention.”

Section 9 of the Canadian Charter of Rights and Freedoms gives Canadians the right to not be arbitrarily detained or imprisoned.

Generally, police have the authority in Canada to stop any moving vehicle without a reason. Sgt. Fontaine says roadside detentions usually have a purpose, however, including checking to see if a driver has a valid license and making sure a vehicle is properly licensed, insured and in driving condition.

“The fourth big point here is that we can check for sobriety. The Highway Traffic Act clearly authorizes us to do all those things,” Fontaine says. “We have the authority to pull a vehicle over for all kinds of different reasons. Impairment doesn't have to be in any of those reasons.”

It is also not uncommon for a routine traffic stop to evolve into a potential impaired driving investigation, the officer says.

“A typical impaired driving investigation tends to evolve step-by-step as the officer investigates further,” Fontaine says.

While Fontaine says it is “safe to say there’s usually a reason” for someone to be pulled over, some defense attorneys say police in Canada do pull people over arbitrarily, beyond the average seasonal check stop.

Toronto cannabis lawyer Jack Lloyd says cannabis laws have created “unfettered discretion wielded by police” in alleging potential impairment by cannabis.

Dyck says a breach of the Charter would occur if an officer lacked the necessary grounds to make an arrest and made the arrest anyway. However, the law currently gives police the necessary grounds to make an arrest in an impaired driving investigation based on failure of an oral fluid screening test, like the Drager DrugTest 5000, or of an SFST.

“As of right now, the law is set up in a way that that's not a Charter violation because the officers are doing what they're supposed to be doing,” says Dyck.

The question is whether these things – a physical test that poses difficulty for sober drivers and an oral fluid device that does not determine impairment – should give police those grounds.

“If we make a determination that the field sobriety test actually doesn't decide if a person's ability to operate a vehicle is impaired or not … we're looking at officers arresting people when they actually don't have the grounds to do so potentially,” says Dyck.

Another concern is the length of the stop some individuals are experiencing. Gray lost four to five hours during her stop, which ended without charges. Canadian defense attorneys we spoke with have reported similar situations where clients spent multiple hours waiting to be released due to a cannabis impaired driving investigation.

Gavin estimates about 90 minutes to two hours passes before a driver who has been arrested and cleared of impaired driving is released, which is too long.

Fontaine admits police paperwork and other investigative duties can delay the process up to several hours or longer.

“In the best-case scenario, you want to do your tests as soon after the person has stopped driving,” he says. “But, you know, life always comes in the way of things and things may get delayed. And then, just the process of processing the paperwork, the person through the system, it takes time.”

Positive results on pre-screening tests, too, can result in an extended detention of “quite a long time,” in the words of Fontaine.

Martin disagrees.

“That would be something as a chief and also as an evaluating officer, I would be very concerned about something that lasts five to seven hours,” he says.

“After the standard field sobriety testing, an officer that’s proficient can probably have the person on their way within probably 10 minutes … If they’re placed under arrest, taken back for an evaluation by a DRE (drug recognition expert), those evaluations usually take 30 to 40 minutes (more).

The problem with roadside behaviour tests

Martin says officers in his experience tend to rely on the standardized field sobriety test along with a breathalyzer to rule out alcohol.

“I truly believe that the Drager is very well tested, I truly believe that the Drager is correct. But I also believe that, if they pass the (field sobriety test), I feel confident that their ability to operate a motor vehicle isn't necessarily impaired,” says Gavin.

“They’re very robust tests and they show very clear impairments for both alcohol and drugs,” Martin says.

But many say the standardized field sobriety test has its own problems.

The test was created, for example, to determine whether someone was under the influence of alcohol, not drugs. Further, many have raised concerns that the test can be hard to complete for sober drivers, let alone those under the influence or medical users with physical limitations.

Michelle Gray, who uses cannabis to treat her multiple sclerosis symptoms, says she struggled to complete testing that required her to walk a straight line with her arms down by her sides due to balance issues.

“Sometimes if I'm really stressed out my brain's inflamed, that's when my nerves don't transmit the information and my balance gets bad, says Gray, who called the testing a “pretty high stress situation.”

“The reality is some people stone cold sober from either cannabis or alcohol might have difficulties completing the standardized field sobriety test, probably because it involves balance,” says Dyck.

Dyck says uneven surfaces, the absence of a physical line to walk along, and inclement conditions like snow on the ground can make an SFST test difficult for anyone to pass, let alone having to complete it with a disability or while impaired.

“That field sobriety test is designed to be something quick at the roadside, so we can kind of really try to screen people … But part of the problem too, is having the proper environment to be able to do the field sobriety test.”

Gray was eventually found to be not impaired after a four-hour detainment by Nova Scotia RCMP.

“It's effectively a form of discrimination,” says Gray’s lawyer, Kyla Lee. “We're discriminating against people who have medical conditions by assuming that they are on drugs. And when you go through all of those physical tests that the police make you do, you're not going to perform the physical tests well, because you have a medical condition.”

Weighing the evidence

There is also discrepancy between police forces about how much consideration should be given to different aspects of the roadside tests and with what the tests actually determine. Gavin says the Drager will only show recent THC in the body, while Fontaine says only THC consumed between the past four to six hours will register on the device.

Toronto cannabis lawyer Jack Lloyd says the Drager threshold is not this sensitive.

“(The Drager) doesn’t detect recent use, (it) detects negligible levels of THC,” Lloyd says.

And because cannabis affects every person differently, an individual who has consumed cannabis within the past four to six hours could be entirely unimpaired and able to drive, although this is the time period Mothers Against Drunk Driving Canada recommends before getting behind the wheel after consuming cannabis.

Martin and Fontaine both say approved saliva devices aren’t overly used by police because of concerns over correlation between the presence of THC and impairment. Instead, these devices can be useful for enforcing administrative licensing laws. An example is “young drivers or commercial motor vehicles that are prohibited from having cannabis in their system at all,” Martin says.

Manitoba, like several other provinces, has a graduated licensing program that imposes zero tolerance on new drivers for both drugs and alcohol.

While the substances are treated the same, however, they interact very differently with the human body. A newly licensed who consumes alcohol can drive by next day, as alcohol leaves the body within about 24 hours. THC, on the other hand, can remain in the human body for up to a month, depending on potency and frequency of use. This means a driver new to the road who is not impaired could still face consequences on the roadside.

Fontaine says this situation would not happen “in real life” using a saliva testing device like the Drager.

“THC specifically doesn't really diffuse too well through the blood to then appear in oral fluid,” he says. “That's why we can safely say that, when we detect THC within oral fluid, it's suggestive of recent consumption.”

Lloyd, however, says saliva testing devices are not as sensitive as police suggest.

“It’s a really serious problem and we’ve been worried about it for some time,” he says.

Dyck says fluid samples are still better than roadside behaviour testing, but neither tells the whole story. The opportunity to draw blood as part of drug-impaired driving investigations is something Martin would like to see, due to its higher accuracy of determining impairment.

“We know if it's in your blood, it's affecting your brain at the time,” says Martin, who calls blood the “gold standard” for determining cannabis impairment.

“If we do blood draws, that's a pretty solid way of seeing exactly the levels of THC in people's system … but the problem is police officers don't have that training to draw someone's blood,” Dyck says.

To take a blood sample, Dyck says the individual would need to be taken to hospital and have a healthcare professional draw their blood – a timely and invasive process under Canadian criminal law.

“It’s a much more invasive type of testing, unfortunately. The most accurate, but the most invasive,” he says.

“A Charter-free zone”

Under the Highway Traffic Act and through court precedent, being detained during an initial roadside detention allows for a periodic and justified suspension of an individual’s Charter rights. This means that police do not need to allow someone suspected of impaired driving to call their lawyer as soon as they would need to do in any other situation where a person was detained.

“The right to counsel is suspended during that phase of the investigation. The purpose behind that is (police) are trying to do this stuff quickly and giving you a chance to (call) a lawyer in private would delay things,” says Dyck. “The whole idea is we're trying to do these tests quickly so that if you pass, you can go on your way.”

Lloyd says legislation has made roadside detentions a “Charter-free zone.”

Winnipeg defense attorney Shimon Segal would like to see people given the ability to speak to counsel sooner on the roadside.

Most cops would probably be more likely to let me call my lawyer if I'm getting a speeding ticket than they would if I'm in the midst of what might become an impaired investigation,” Segal says.

“The police are playing the game, and instead, there should be legislation mandating access to counsel because what would be the harm?” he says. “Are you saying that the police, because they allowed my client to speak with proper legal counsel for a total of what, two, three, four minutes, that somehow this is going to damage their ability to detect things? This is going to compromise their ability to police? I don't think so.”

Lloyd agrees, and says it is absolutely a concern that people stopped on the roadside are not being put on the phone with a lawyer.

“It’s ridiculous,” says Lloyd. “Not advising them of the rights of counsel … in my view, is a serious Charter issue.”

In a critique of the impaired driving Bill C-46 in 2017, the Canadian Bar Association noted “set limits for blood drug levels may not actually identify impaired drivers and may penalize non-impaired ones,” and recommended the government base measurement of blood drug concentration on “proven scientific evidence that links the concentration to impairment.”

The bar association also recommended that “parliament ensure that any approved devices are scientifically valid and involve minimal intrusion, given the low threshold for a roadside demand and absence of right to counsel.”

Lloyd, however, says neither of these was done.

In roadside stops, particularly with respect to impaired driving, Winnipeg defense lawyer Mat Schwartz says invasion of privacy and unlawful search and seizure are additional concerns.

“We want to start with minimal invasion of privacy,” says Schwartz. “We have to ramp that up if there’s the possibility of a criminal offense happening, if we need more measurements, more time in order to find out if that’s the case or not. But when those instruments and tests are not close to foolproof … it starts to become very concerning.”

Fontaine sees the laws as a bit more black-and-white when it comes to impaired driving.

“The consumption of cannabis impairs a person's ability to operate a motor vehicle safely, and when someone chooses to drive after consuming cannabis, they are driving impaired, and that's a concern to everyone within society,” Fontaine says.

Refusing to complete testing when detained by police on the roadside can be just as problematic for drivers.

“In the impaired driving context, before they have grounds to arrest you, you're compelled under a threat of criminal prosecution to provide a sample of your breath that then can give the police grounds to charge you,” Spratt says. “That is also something that is unconstitutional. But … the Supreme Court says is justified in the circumstances.”

“If you don't ultimately provide potentially evidence that can incriminate you, if you don't agree to provide that, I'm going to charge you with refusal … It supports how important impaired driving enforcement is and how society deems it as very concerning,” Fontaine echoes.

But Schwartz says care needs to be given to the rights afforded to people by the Charter.

“If you’re opening the door to further invasion of privacy, by poor means or by unlawful means, you’re doing away with the minimal invasion … it’s not a balance whatsoever.

They need to be accurate,” says Schwartz.

“It doesn’t just apply to drive impaired (cases) it applies to everyone.”

The cost of enforcement

Despite a delay in cannabis legalization from July 1 to Oct. 17, 2018, not all police services across Canada were properly equipped with oral drug fluid screening devices in time for legalization. Martin says law enforcement across Canada were not properly prepared in terms of resources and training made available at the time. Many police services today have very few Drager devices, leaving officers to rely on only physical tests to determine cannabis impairment on the roadside.

Spratt calls attention to the billions of dollars being spent to train and outfit police with testing devices many call questionable. He suggests money would be better spent on addictions counselling, public transit, or affordable housing and health care – issues that better target the root causes of crime.

“Instead, we're loosening procedural protections, we're creating a situation where there could be rights violations, we're giving police more power and more money at a time when we really should be thinking about doing the opposite,” Spratt says.

Lloyd notes, too, that many of the costly saliva screening devices like the Drager go unused by police because of the substantial cost per use.

“You’re far more likely to see people being ticketed for cannabis (stored) in a container that’s accessible while driving,” Lloyd says.

Martin also says improperly stored cannabis is a trend police have been seeing – an offence that does not require any testing.

“It’s not supposed to be in the front seat, it’s not supposed to be in the cupholder between your receipts. We’re seeing those trends where it is now becoming much more readily available in the car.”

Police attitudes

Kelly Gorkoff, head of the Criminal Justice department at the University of Winnipeg, believes policing itself bears at least some responsibility for the problems with the enforcement of cannabis laws.

“I think it's how it’s interpreted by the police,” says Gorkoff, “because I think the policy allows people to consume cannabis in particular ways, but they're not allowed to necessarily drive when they're impaired in some way … I think that there's such a diversity of users.”

Anecdotal evidence suggests some police officers may give individuals a difficult time for using cannabis.

“There are many anecdotal things you're going to hear from many people about what happened while they were with police,” says Schwartz. “The truth of it is that no one will ever know.

“Do I think that the police are waiting on every street corner to bust someone for walking by with a roach in their pocket? No. … At the same time, it was still open for any officer to exercise their discretion. If they don't like marijuana personally, if they don't like the smell of it, if they think that someone should get a criminal record or should be arrested for it, they were always able to act upon that.”

Gorkoff says an RCMP officer with a background in drug operations would often come speak to students in her classes.

“I remember specifically one of my students asking him in class what he thought of (legalization). And he said he thought it was a terrible idea … from the perspective of policing, because I think he had this kind of blue light syndrome that a lot of cops have. That it's just going to be out of control.”

Gorkoff says there is an overemphasis put on policing potential cannabis-impaired drivers.

“I'd say it's sort of a waste of policing resources,” she says. “That kind of enforcement practices written on the script of police that are highly militarized, highly focused on enforcement. I think it kind of circumvents the intention of decriminalizing marijuana at the level of impaired driving.”

Police and politicians, however, treat potential impaired driving as a serious crime.

“You have to remember that driving is a privilege in Canada,” says Fontaine.

“At the end of the day, you don't want people on the roads who are impaired, whether they're medicinal users or not, and, you know, I think the police … law enforcement, not always, but generally, they use their discretion, they use their judgment,” says former federal health minister Anne McLellan, who chaired the task force that laid the foundations for legalization.

Fontaine says the courts are the ultimate decider in how these issues should be handled. Martin notes, however, that Canada is still in its infancy with cannabis laws, and these cases are only beginning to come before the courts. Even as cases like Gray’s do begin to be tried, Spratt says it will unfortunately be some time before decisions are reached.

Defense lawyers across Canada say very few of these cases are coming before the courts, period, largely because of the hassle and cost to pursue legal action. Gorkoff says the cases concerning police handling of cannabis-impaired driving are there, but they’re quiet.

“There is always incentive for folks to deal with these things before they make their way to court,” says Schwartz. “Some people will just take the hit and move on saying, is it really worth it to me to pay thousands of dollars in legal fees to go hire a lawyer who is going to charge me an arm and a leg to deal with it? Do I want to just pay the fine and move on with my life?”

“Even alcohol impairment, people just pay their fine and go on because it really costs a lot of money to fight the system,” says Gorkoff.

Fontaine says he’s seen Crown attorneys using their discretion to stay charges related to cannabis driving cases, too.

On the other hand, Gorkoff says any change to policing practices on cannabis enforcement will be an uphill battle due to the cultural position of police.

“They are incredibly defensive about so many things,” she says. “That would really require some type of major change at the level of enforcement, which would be very difficult to do.”

A lasting fear

Poor indicia to justify roadside stops and testing; questionable oral fluid screening devices; standard field sobriety testing difficult for even the most sober drivers; problems with police discretion; and racial, class or age bias in who's being pulled over – these are just some of the key problems with cannabis laws that Michael Spratt, Jack Lloyd and other attorneys say they would classify as potential Charter violations.

Conversely, police in Canada largely see cannabis laws as a fair and positive step in impaired driving enforcement.

Gray says officers she interacted with the night she was stopped were compassionate, kind and listened to her. That doesn’t change the fear she now has of getting pulled over.

“I am absolutely terrified. Every time I drive, my stomach feels sick. When I drive past an officer, I'm like, great, if they get behind me, are they going to run my plate? What are they going to see when they run my plate?”

McLellan, who chaired the Task Force on Cannabis Legalization and Regulation says a period of growing pains should be expected when it comes to developing cannabis legislation.

“If you track how alcohol-impaired driving developed, (there were) lots of court challenges around the science, around the tools being used by the police, the records being kept by the police, rights arguments,” McLellan says.

“Some of that will happen with drug-impaired driving, but so far, I think, you know, by and large people use common sense and good judgment. And one hopes that there are fewer people on the road driving drug impaired, and you hope the police are using common sense in terms of who they charge and when they charge.”

But the worry that more people are being unfairly treated under cannabis enforcement leaves room for a shift in thinking, Schwartz says.

“I think the average person, if you talk to them, would come around on the idea of if we miss a couple (who are guilty) rather than (arresting) more that are innocent, that's a sensible thing for us to be doing. It's imperfect, but it's sensible.”

For Martin, who has spent most of his career policing impaired driving, it comes down to ensuring police are following the law and observing any new decisions made by the courts over time.

“The police are public servants and we have to follow the Charter,” Martin says. “We have to make sure that what we do as a law enforcement agency is in compliance with the Charter and make sure that we respect the rights of the citizens of this great country.”