Road Safety in the Era of Legal Cannabis

22 / OGRA MILESTONES SPRING / SUMMER 2016

OGRA MILESTONES SPRING / SUMMER 2016 / 23

Gone is the era of Reefer Madness. The majority of Canadians now support the legalization of recreational cannabis use so it is no surprise that a federal government that campaigned on this was recently elected. As only a few jurisdictions in the world have gone down this route, all levels of government in Canada are taking a cautious approach – as they should. Many public policy files in areas ranging from zoning to taxation to public safety must be modified in order to responsibly bring a formerly illegal street drug into the legal realm.

One area of particular importance is road safety as it affects all citizens, not just cannabis users. Will Ontario roads become more dangerous once the recreational use of cannabis is legalized? Perhaps, but it ultimately depends how the government approaches it. The lack of data available on the topic renders it particularly difficult to predict. The two North American jurisdictions who were first to legalize the recreational use of cannabis, Colorado and Washington, have only two years’ worth of

Road Safety in the Era of Legal CannabisBY THOMAS BARAKATPolicy & Advocacy,Ontario Good Roads Association


data – and it is somewhat conflicting. Conversely, it is certainly clear that monitoring for marijuana impaired drivers is more complicated than doing so for alcohol. A system which effectively deters individuals from driving under the influence of marijuana must be established prior to the full legalization of recreational cannabis.

MADD (Mothers Against Drunk Drivers) Canada argues that there is already a problem in the country with individuals driving while impaired by drugs. According to Andrew Murie, Chief Executive Officer of MADD Canada, drugs are present 25% more often than alcohol in traffic fatalities involving impaired drivers. The most common drug found in these instances is marijuana. In Ontario, there were twice as many traffic fatalities involving individuals under the influence of drugs than there were those involving alcohol.1 The leading drug in these cases was once again marijuana. If marijuana is already a leading cause in traffic fatalities involving impaired drivers, a reasonable argument could be made that increased access to the drug upon legalization would also increase the number of traffic fatalities. Looking at jurisdictions that have already legalized recreational cannabis can help determine

whether such an argument holds water when applied practically.

In 2012, the majority of citizens in both Colorado and Washington voted to legalize recreational cannabis use. In Colorado the sale of marijuana began in January 2014 while in Washington it began in July 2014. Thus, there are only about two years’ worth of datasets available. The Colorado Department of Transportation actually posts raw data regarding highway fatalities from 2002 onwards on its website.2 From 2013 to 2014, the year-over-year increase in the number of highway fatalities was negligible (+7). However, from 2014 to 2015, the data is a little more concerning as the year-over-year increase is much larger (+58). Conversely, the average number of total fatalities per year on Colorado highways in the eleven year period preceding the legalization of recreational cannabis use is 551, while in the two years following legalization the average is 517. Even after the +58 increase in highway fatalities, 2015 had a total of 546 which was still below the average number of deaths preceding legalization. Unlike its Colorado counterpart, the Washington State

Department of Transportation does not post highway fatality data on its website thus making it difficult to make a direct comparison. However, the American Automobile Association (AAA) Foundation for Traffic Safety was able to obtain data regarding the percentage of drivers involved in fatal crashes who had recently used marijuana. According to the data obtained by AAA, the percentage of drivers involved in fatal crashes who recently used marijuana more than doubled from 8 to 17 percent between 2013 and 2014. They also found that one in six drivers involved in fatal crashes in 2014 had recently used marijuana (2014 is the most recent data available according to AAA). At face value these statistics appear to suggest that marijuana is directly correlated to fatal crashes. However, with the

absence of hard data on the total number of fatal crashes in Washington it is premature to jump to such a conclusion.

One can reasonably assume that as a result of the legalization of recreational marijuana in the state, a higher number of individuals will have access to marijuana and thus an increased number of individuals will also have it in their system. Since

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tetrahydrocannabinol (THC), the principal psychoactive constituent of cannabis, can remain in one’s system for days and even weeks after consumption, it does not necessarily mean that the driver was impaired. Unless there is both a rise in the total number of fatal crashes as well as the percentage of drivers who tested positive for marijuana use, one cannot deduce that legalized recreational marijuana has caused an increase fatal crashes. Based on the data available from Colorado and Washington, all that can be concluded about legalized recreational cannabis is that there hasn’t been a significant increase in highway fatalities and that more individuals have marijuana in their system. When more data becomes available this could change.Dr. Anindya Sen, Professor of Economics and Director of the Master of Public Service program at the University of Waterloo, recently published a paper in association with the C.D. Howe Institute entitled Joint Venture: A Blueprint for Federal and Provincial Marijuana Policy. “The most difficult part of developing any sort of policy on legal marijuana is the lack of reliable data” argued Dr. Sen. He added, “As cannabis is illegal in Canada and has only been legal in a few jurisdictions in the U.S. for a very short period, the nebulous of available data is unreliable, insufficient, and incomplete.”

The lack of data and empirical evidence leaves policymakers with weaker tools to develop sound policy. Consequently, jurisdictions with legalized recreational cannabis are designing drug impaired driving laws similar to those already in place for alcohol – “per se laws”. In this context, a per se law makes it an offence to operate a vehicle with a concentration of alcohol or drugs in the body in excess of a specified threshold value.3 To understand why per se laws are effective, one must look no further than the Criminal Code of Canada.

Section 253 (1) (a) of the Criminal Code renders it an offense to operate a vehicle while impaired by alcohol or drug.4 However, as a defence one could argue that even though there was alcohol in their system they were not in fact too

impaired to drive. This would create a series of enforcement problems for the Crown. Section 253 (1) (b), the per se law, eliminates the Crown’s requirement to prove the driver was too impaired to drive as it essentially states that anyone with a blood alcohol concentration (BAC) over 0.08 is automatically considered too impaired to drive. This significantly facilitates the enforcement of the alcohol impaired driving law. Various studies demonstrate that alcohol per se laws are associated with an 8 to 15 percent reduction in alcohol-related fatal crashes.5

One would assume that per se laws for drugs would have similar effects, but there is no empirical evidence to support such a hypothesis at this point. Yet, jurisdictions with legal


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recreational cannabis must be able to enforce the marijuana impaired driving laws that they have developed in order to maintain road safety. Colorado and Washington have set a 5 ng/mL blood limit for cannabis (THC). This is not a perfect approach as the level of THC in one’s body is not as accurate an indicator of impairment as BAC is with alcohol impairment. THC can also remain in one’s system for days and even weeks after consumption. Furthermore, the rate at which the body metabolizes THC varies significantly between individuals and is based on a variety of factors. Meanwhile, alcohol is metabolized by the majority of people regardless of age, size, or race at about the same pace: .015 of blood alcohol concentration per hour. Although imperfect, the Canadian Centre on Substance Abuse recommends the Government of Canada establish a per se blood THC limit in the range of 3-5 ng/mL.6 Ontario Minister of Transportation Steven Del Duca stated that Ontario will crack down on drug impaired driving as it does with alcohol.

“The Ontario Government takes road safety very seriously, and believes that any driver who drives impaired should face stiff penalties. This fall, drug-impaired drivers will face the same sanctions alcohol-impaired drivers face at the road side, including roadside licence suspensions for up to 90 days and up to a seven-day vehicle impoundment. These changes are thanks to the Making Ontario’s Roads Safer Act, 2015 which was passed unanimously by all parties in the legislature.”

Complicating matters is how to measure active THC levels within an individual’s system. Unlike alcohol and the breathalyzer, there is no universally accepted roadside test for marijuana impairment. The current practice in Colorado and Washington is that officers who suspect marijuana impairment can make an arrest and either ask the driver to submit to a voluntary blood test or petition a judge to order one.7 A blood test is the best way to determine THC concentrations as it reflects the amount of active THC

circulating in the body. However, blood tests can only be administered by a qualified medical practitioner under the supervision of a licensed physician. The time required to transport the suspect to a medical facility, wait for a physician to approve the test, and have a healthcare professional actually collect the blood sample takes a substantial amount of time. During this delay the concentration of THC could fall below a government established legal limit.

The technology to measure THC levels in an individual’s system must be improved in order to close the gap between law and enforcement. As the marijuana legalization continues to gain traction in Canada and the United States it is only a matter of time before private sector innovation bridges this gap as the market for manufacturers of such a product could be massive. In fact, researchers at the University of British Columbia claim to have developed a "pot breathalyzer" in the form of a handheld device similar to those used to detect alcohol. The engineering professor behind this technology, Mina Hoorfar, claims that it can be manufactured for only $15. This type of technology, if proven to be accurate, could be a boon for enforcing legal limit laws.

It appears that the Government of Ontario is heading in a different direction. Minister Del Duca has stated that MTO is exploring roadside oral fluid screening for drugs.

“To keep Ontario’s roads amongst the safest in North America, MTO has partnered with the Canadian Society of Forensic Science and the RCMP to test roadside oral fluid drug screening devices. Standards for these devices are under development and we expect to see a piloting of these devices by police in the very near future.”

This is in line with what is happening in Colorado. Under a pilot program, officers with the Colorado State Patrol have

“The Ontario Government takes road safety very seriously, and believes that any driver who drives impaired should face stiff penalties. This fall, drug-impaired drivers will face the same sanctions alcohol-impaired drivers face at the road side, including roadside licence suspensions for up to 90 days and up to a seven-day vehicle impoundment. These changes are thanks to the Making Ontario’s Roads Safer Act, 2015 which was passed unanimously by all parties in the legislature.”

“To keep Ontario’s roads amongst the safest in North America, MTO has partnered with the Canadian Society of Forensic Science and the RCMP to test roadside oral fluid drug screening devices. Standards for these devices are under development and we expect to see a piloting of these devices by police in the very near future.”


been equipped with oral fluid testers that can test a driver's saliva for the presence of marijuana.8 Officers can still make arrests based on their judgement no matter what the level of active THC is in an individual’s system. However, these devices have not been officially approved and the pilot program is still two years away from completion.

Before this type of device could be deployed in Ontario legislative changes would need to be made at the federal level. In Canada, the Criminal Code currently only allows oral fluid screening in the last stage of the Drug Recognition Evaluation (DRE) protocol used by officers during roadside checks.9 After 11 stages, an oral fluid test is still only initiated if the officer has reasonable grounds to believe that an individual’s ability to drive was impaired by a drug. Furthermore, the oral fluid test can only be used to confirm the presence of the drug in the suspect’s body. MADD Canada has expressed support for oral fluid testing, but argue that legislative changes must be made to authorize officers to conduct such tests from any driver believed to be impaired by drugs – not as a last resort.

Although the majority of Canadians currently support the legalization of recreational cannabis use the success or failure of this policy will ultimately hinge on public safety. If Ontario’s roads become more dangerous, that support will likely dissipate. However, based on the experiences of Colorado and Washington it is unlikely that there will be a massive increase in traffic fatalities as a direct result of access to legal marijuana. Effectively deterring individuals from driving under the influence of marijuana must be the top public safety concern for policymakers. Although the era of Reefer Madness has given way to that of legal recreational cannabis, this new era must not be defined by unsafe public roads.

1 http://www.saultstar.com/2016/04/28/worries-surface-about-road-safety-when-pot-legalized

2 https://www.codot.gov/library/traffic/traffic-manuals-guidelines/safety-crash-data/fatal-crash-data-city-county

3 http://www.ccsa.ca/Resource%20Library/CCSA-Drug-per-Se-Laws-Policy-Brief-2016-en.pdf 4 http://laws-lois.justice.gc.ca/eng/acts/C-46/FullText.html

5 Mann, R.E., Macdonald, S., Stoduto, L.G., Bondy, S., Jonah, B., & Shaikh, A. (2001). The effects of introducing or lowering legal per se blood alcohol limits for driving: An international review. Accident Analysis and Prevention, 33(5), 569–583. Tippetts, A.S., Voas, R.B., Fell, J.C., & Nichols, J.L. (2005). A meta-analysis of .08 laws in 19 jurisdictions in the United States. Accident Analysis and Prevention, 37, 149–161. Villaveces, A., Cummings, P., Koepsell, T.D., Rivara. F.P., Lumley, T., & Moffat, J. (2003). Association of alcohol-related laws with deaths due to motor vehicle and motorcycle crashes in the United States, 1980–1997. American Journal of Epidemiology, 157, 131–140.

6 http://www.ccsa.ca/Resource%20Library/CCSA-Drug-per-Se-Laws-Policy-Brief-2016-en.pdf

7 http://www.cbc.ca/news/canada/british-columbia/impaired-driving-marijuana-challenges-1.3431129

8 http://www.cbc.ca/news/canada/edmonton/how-will-canada-crack-down-on-marijuana-impaired-drivers-1.3551658

9 http://madd.ca/media/docs/feasibility-roadside-oral-fluid-drug-testing.pdf

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Road Safety in the Era of Legal Cannabis

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