By: David Bradley
The federal government has pledged to introduce legislation to legalize the recreational use of marijuana (its already available by permit for medical use) sometime in 2017. This is a much more complicated issue than meets the eye and perhaps more than the government bargained for.
So, it’s not surprising, I guess, that the cast of people in Ottawa looking into how to accomplish legalization of pot is growing. There are at least three ministers involved. Former Toronto Police Chief, Bill Blair, now parliamentary assistant to the Minister of Justice, has been appointed to be the government’s “point man” on the file. More recently, Anne McClellan, a former cabinet minister in the Chretien and Martin governments, was appointed to lead a nine-member task force to advise the federal government on the forthcoming legislation. (CTA appeared before the task force back in August).
I am not going to debate whether legalization is the right thing to do or not. That’s for society to decide and that horse as they say is out of the barn. However, CTA can and should comment on and seek answers to the implications legalization will have with respect to impaired drivers and the rights and obligations of employers of and employees in safety-sensitive occupations such as truck drivers, in order that these issues receive due attention during the development of the legislation.
If legalization proceeds as expected, the status of marijuana in our society will change. It will retain characteristics similar to prescription medication, used under a medical document, but will also achieve a status similar to alcohol. And, like alcohol, the consumption of marijuana has certain short-term effects which may decrease concentration and reaction times. In short, the use of marijuana, similar to the consumption of alcohol, is not conducive to the safe operation of a motor vehicle.
The problem with marijuana, compared to alcohol, is that the current state of the law would leave law enforcement agencies in the same position they were in with alcohol prior to the introduction of the breathalyzer in 1952 and the offence of “over .08” in 1969. Section 253 of the Criminal Code makes it an offence to operate a motor vehicle while ability is impaired by alcohol or a drug. So, law enforcement officers will be able to charge drivers for driving while impaired, even if the impairment is due to marijuana. Impairment will have to be proven in each individual case based on observation. But, in general, impairment from marijuana is less obvious and demonstrates less traditional or consistent symptoms than impairment from alcohol.
Employers attempting to address the problem of marijuana impairment in the workplace will be faced with the same problems as law enforcement. Trucking companies are faced with two dangers posed by the medical or legal use of marijuana: (1) How to continue to oppose operation of vehicles by their own drivers who are under the influence of marijuana; and, (2) Confronting the likelihood of increased danger on the road, through the presence of an increased number of drivers operating motor vehicles while impaired by marijuana.
The likelihood of increased prevalence of marijuana impairment should be addressed in a two-pronged approach: (1) A legislative amendment to the Criminal Code, to include a “marijuana impairment offence” similar to the “over .08” offence for alcohol; and (2) An enhanced effort to implement drug and alcohol testing in the workplace along with special considerations for safety-sensitive positions. Clear rules of engagement are required.
Regarding the legislative fix, it is imperative the federal government codify a roadside testing protocol and THC cut-off level with respect to impairment on the basis of marijuana consumption. This legislation must be brought forward at the same time as legislation to legalize marijuana. If marijuana assumes a similar status in society as alcohol, it should be subject to a similar testing regime and programs to encourage safety on the roads as exist for alcohol.
All Canadian trucking companies and truck drivers entering the United States are subject to US drug and alcohol testing – post-accident, pre-employment and random. No similar regulatory requirement exists in Canada. While over time, the human rights folks have come to tolerate drug and alcohol testing for companies and drivers who must comply with the US regulations, the cost to employers created by the lack of clear rules in Canada has been significant. It has also created a place (Canada-only operations) for those with a drug or alcohol problem to go that is not subject to the same screening as for transborder operations. Clear testing rules for safety-sensitive positions in Canada need to be developed and introduced.
Moreover, it has generally been accepted that while .08 BAC is the cut-off for the driving population, the cut-off for employees, particularly in safety-sensitive positions, is .04 BAC. It may well be that employers of safety-sensitive employees such as commercial drivers will want to establish a THC cut-off that is lower than the one established for the general population.
The federal government must work with industries that employ people in safety-sensitive positions to define what that cut-off should be.