The Vancouver personal injury lawyers at Bronson Jones & Company LLP have been carefully following changes to driving laws that accompanied the legalization of cannabis.
Impaired driving (which includes driving while impaired by alcohol or drugs—whether legal, illicit, prescription, or over-the-counter) has long been illegal in Canada and has always had the potential to impact personal injury claims in a number of ways. With the legalization of cannabis, new federal laws under the Criminal Code of Canada are now in place to address drug-impaired driving, and the BC government has enacted tough new sanctions for drug-impaired driving. This article will review the changes and discuss how the new laws may impact personal injury claims. Vancouver accident lawyers on changes to the Criminal Code The motor vehicle-related sections of the Criminal Code of Canada now include three new criminal offences that set the legal blood drug concentration limits for tetrahydrocannabinol (“THC” – the main psychoactive constituent of cannabis). It is now a criminal offence for a driver to have 2 nanograms (ng) or more of THC in their system while driving. The punishment increases the more THC the driver has in their system, and if the driver has also consumed alcohol. If a driver fails roadside testing, police can require the driver to undergo a blood test at the police station to confirm the amount of THC in the driver’s system. Personal injury lawyers in Vancouver discuss new BC laws In BC, amendments to the Motor Vehicle Act have given police more tools to deter and detect drug-impaired driving and have stiffened the penalties for driving while impaired by drugs, including sanctions such as an immediate roadside driving prohibition. In addition, the new Cannabis Control and Licensing Act makes it an offence in BC to consume marijuana while operating a vehicle or a boat (see section 65) and also makes it an offence to operate a motor vehicle in which cannabis is readily accessible (see section 81). Note that the latter law is broad as it uses the term “consume” as opposed to referencing impairment – in other words, consuming any amount of cannabis while driving is an offence under that statute. Detecting drug impairment and enforcing the new laws Our Vancouver personal injury lawyers have previously discussed the difficulties with determining whether a driver is impaired by cannabis. There is no reliable roadside screening device like a breathalyzer than can detect cannabis impairment. The Criminal Code gives police the ability to use saliva drug testing during roadside checks to determine if THC is present in a driver’s system. However, there are concerns about the accuracy of the handheld device that tests for the presence of THC in saliva. If a driver is suspected of drug-affected driving, police can use standard field sobriety tests (e.g., eye exam, physical coordination tests). Upon failing roadside screening tests, the driver can be taken to a police station where tests for drug impairment are administered by police officers called drug recognition experts (“DRE”), who receive special training and certification. If the evaluation administered by a DRE provides reasonable grounds to believe that the person is impaired by a drug, the police are then allowed to take tests of oral fluid, urine or blood, to determine whether the driver in fact has drugs in his or her body. As can be seen, there are difficulties with proving cannabis impairment and there are elements of police discretion and subjectivity in the process which can be challenged by those accused of drug-impaired driving. How does cannabis use factor into a personal injury claim? So far, this article has discussed criminal aspects of drug-impaired driving. The enforcement of drug-impaired driving offences has proven elusive because testing for drug-impairment is not an exact science. For the same reason, problems of proof will also arise in personal injury claims. In a personal injury claim arising from a motor vehicle accident, the accident victim has to prove that the accident and resulting injuries were caused by someone else’s negligence. When it comes to drugged driving, the injured person has to prove that the driver who caused the accident used cannabis and that that driver’s use of cannabis caused or contributed to the accident. It may be necessary to have an expert opinion on the driver’s level of impairment given the amount of THC in their blood at the time of the accident or expert evidence to establish the effects of marijuana impairment on reaction time or perception. A recent decision of the Supreme Court of Canada held that expert testimony from a DRE can be admitted in drugged-driving criminal trials without a preliminary examination of the evidence (see R. v. Bingley at para. 8). It remains to be seen whether testimony from a DRE will be accepted in personal injury trials, or what other types of evidence will be needed to establish that a driver’s ability to operate a motor vehicle was impaired by cannabis. The Vancouver personal injury lawyers at Bronson Jones & Company LLP are closely watching for court decisions on these issues of proof. Another consequence for personal injury claims Just as drunk driving may violate the terms of an insurance policy, so too can drugged driving. If a person insured by ICBC drives while impaired by cannabis and negligently causes injury to another, ICBC may find the driver to be breach of their insurance and refuse to provide insurance coverage. Once settlement or judgment is obtained in the personal injury action, ICBC will go after the at-fault driver for repayment. It is expected that with the new laws – which allow for new types of testing to establish drug impairment and put a limit on the legal amount of THC in a driver’s system – will give ICBC more ammunition to deny coverage to drug-impaired drivers. Legal Guidance & More: From Injury to Recovery Driving while impaired by drugs is a dangerous and, sadly, common activity. Bronson Jones & Company’s lawyers have extensive trial experience and extensive experience in negotiating fair settlements for clients injured in accidents caused by impaired drivers. We have also developed an extensive network of medical and occupational specialists, therapists, rehabilitation specialists, and others to help you recover and deal with the impact of your injury on your physical health, family life, finances and future. Reports from these experts may be essential in the development of your case. If you or a loved one has been injured by a drug-impaired driver accident, call any of the 13 Bronson Jones locations in the Lower Mainland for our expertise and advice. All of our cases are handled on a contingency (percentage) basis and you don’t pay until we collect.