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Articles and Publications

January 2017

Legalizing Marijuana: Drugged driving and how insurers can manage risk

Michael Blinick
Michael Blinick,
Partner

Aryeh Samuel
Aryeh Samuel,
Associate Lawyer

By Michael Blinick and Aryeh Samuel

With the release of the Marijuana Task Force Report that made recommendations associated with the potential framework for the Legalization and Regulation of Cannabis, the legalization of marijuana seems imminent. While the report made many recommendations, it left unanswered questions relating to how the justice system ought to deal with drivers impaired by marijuana ("drugged driving").

Recent studies estimate 9% of licensed drivers aged 18 to 29 in Ontario report having driven within an hour of using cannabis.While 10.2% of randomly screened drivers in Ontario tested positive for at least one drug other than alcohol, 43.6% tested positive for cannabis.1 Attitudes towards driving while under the influence of drugs are even more troubling. A recent survey revealed 32% of teens didn't consider driving high to be as bad as driving drunk, and about 25% of parents agreed.2 Given these trends, it is no wonder that nearly 20% of those killed in car accidents in Canada tested positive for cannabis.3

Given marijuana's widespread use, and its affects on one's basic skills used when driving (i.e. tracking, motor skills, visual function and attention), it is easy to envision an increase in the number of charges and convictions associated with drugged driving. With the anticipated increase in criminal charges over the coming months and years, insurers ought to follow these developments closely as a finding of guilt in a criminal proceeding could significantly impact the outcome of a subsequent tort lawsuit arising out of the same incident.

Current Legal Framework for Drugged Driving

Under the current legal regime, marijuana remains illegal and deemed a Schedule II drug under the Controlled Drugs and Substances Act. Under the current system, a driver suspected of drug use can be ordered to participate in a Standardized Field Sobriety Test and, depending on the results of that test, can be subject to a more extensive Drug Recognition Evaluation (DRE) at a police station.4 This methodology creates much uncertainty and has resulted in the police not laying nearly as many charges for drugged driving as against drunk drivers, notwithstanding the rising rates of drugged driving.5 The methodology was also recently scrutinized on an appeal in front of the Supreme Court of Canada where the court has been asked to address whether a Drug Recognition Evaluator's evidence should be admitted as expert evidence or not. This decision is expected over the next few months.

It has also been noted that the training for Canadian law enforcement to become experts in DRE is expensive, time-consuming, requires travel to the United States and is currently only available in English. As a result, not enough officers have been trained in order to deal with the current rates of drug-impaired driving. The current procedure will likely be unable to respond to the expected rising rate of drugged driving after legalization goes into effect.

Most experts agree that setting a "per se" limit for THC in a driver's blood would be a useful tool...

Most experts agree that setting a "per se" limit for THC (the principal psychoactive component in cannabis) in a driver's blood would be a useful tool to deter cannabis-impaired driving. Although this would simplify enforcement and adjudication by eliminating the need to prove drug impairment on a case by case basis, there is no agreement among experts on what the per se limit should be set at. In this regard, several problems were highlighted with creating a bright line test to deal with impaired driving by drugs. The Task Force Report noted that "some heavy, regular users of cannabis, including those who use cannabis for medical purposes, may not show any obvious signs of impairment even with significant THC concentrations in their blood. Conversely, infrequent users with the same or lower THC concentrations may demonstrate more significant impairment".

Furthermore, there is little consensus as to the devices that are most accurate and efficient in testing drivers for THC levels. Although a blood test is acknowledged to be the most accurate test, it is also the most impractical in the context of a driver suspected of being impaired by drugs. Research has shown that oral fluid testing technology is fairly effective at determining someone's level of impairment. The federal government, the RCMP and a number of police departments across the country (including Toronto and Vancouver) have begun conducting an experiment on how well certain roadside testing devices work to detect drugs.

Impact of Prior Criminal Convictions in Tort Proceedings

If a driver were to cause an accident and be charged with drugged driving, the outcome of that driver's criminal proceedings may have a direct impact on the determination of liability at a subsequent civil trial. While the Evidence Act is silent as to the weight a conviction should carry in a subsequent civil proceeding, in some instances, a prior criminal conviction will be admissible as prima facie evidence of the wrongdoing at issue.6 However, in some circumstances, prior criminal convictions are not only admissible in subsequent civil actions, but rather the material facts upon which the conviction was based are not subject to a rebuttal. In order for a party to establish that a criminal conviction is determinative of the issue, he or she must prove that it would be an 'abuse of process' to challenge that conviction.

Suggestions for Insurers

The question at the trial was whether the marijuana the accused himself had admitted to consuming impaired his ability to operate a motor vehicle.

A recent trial decision out of Manitoba is illustrative of how unreliable and uncertain the determination of drug impairment can be and the importance of being able to mount a strong defence against such a charge. In R v. Manaigre,7 the accused was charged with impaired driving by drugs. The question at the trial was whether the marijuana the accused himself had admitted to consuming impaired his ability to operate a motor vehicle. The accused had been pulled over for driving under the speed limit, although it was noted that he had used the proper signaling when turning and that he was not weaving in the lane and not crossing the centre line. The police officer who pulled him over happened to be a certified Drug Recognition Expert and Drug Evaluating Officer. He assessed that the accused had indicia of impairment and conducted further field sobriety tests. The evaluating officer testified that the accused did not perform well on the evaluation tests and was of the opinion that the accused was operating a vehicle while impaired by drugs. In coming to its determination, the court found that the indicia of impairment by drugs are not well known and not well accepted in the case law. Ultimately, the court concluded that although the accused had consumed marijuana, it was not satisfied beyond a reasonable doubt that his ability to drive was impaired. This illustrates the importance of mounting a strong and well-argued defence.

Given the uncertain terrain associated with laying a charge of drugged driving, the various unknowns related to what constitutes being impaired by drugs and the significance of the findings at the criminal proceeding on the subsequent tort action, insurers would be wise to monitor any criminal proceedings dealing with drugged driving arising from an accident where a tort action is anticipated. Insurers should even consider retaining criminal counsel on behalf of the insured and/or funding the defence costs, to ensure that the most rigorous defence is mounted in the circumstances to protect the defendant and insurer's interests down the road at a civil trial when issues of liability are being determined. Having the tort defence counsel brought on board at an earlier stage than is currently the industry practice is also advisable so that the tort defence counsel can assist the criminal counsel in ensuring that issues surrounding liability are adequately addressed at the criminal proceeding.


See all articles in this theme of Legalizing Marijuana:


1 Cannabis Policy Framework, Centre for Addiction and Mental Health, (October 2014), at page 3.
2
Drug Free Kids Canada - Drugs & Driving
3 Charles Gillis, “Is Canada ready to deal with stoned drivers?Maclean's (October 5, 2016)

4 Peter McKnight, “Drugged driving: Shaky science and uncertain laws” The Globe and Mail, (October 24, 2016):
5
Charles Gillis, “Is Canada ready to deal with stoned drivers?Maclean's (October 5, 2016)
6 Re Del Core and Ontario College of Pharmacists, (1985), 51 O.R. (2d) 1 (C.A.).

7 R v. Manaigre 2015 MBPC 56 [Manaigre].


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