2. 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 BARAKAT
Policy & Advocacy,
Ontario Good Roads Association
3. 24 / OGRA MILESTONES SPRING / SUMMER 2016
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
5. 26 / OGRA MILESTONES SPRING / SUMMER 2016
feature
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.”
6. OGRA MILESTONES SPRING / SUMMER 2016 / 27
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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