New N.B. impaired driving legislation doesn't target people driving high

Legislation brought in earlier this month to target impaired drivers would only apply to drunk driving and not cannabis impairment, the New Brunswick government says.

"This bill is specific only to impairment by alcohol," Jess Hearn, a spokesperson for the Department of Public Safety, wrote in an email.

"Impairment from cannabis or drugs is prohibited already, with the same penalties as for impairment by alcohol."

Currently, law enforcement can only charge drivers with impaired driving and issue a three-month suspension, which doesn't go into effect until the driver appears in court and is charged.

Under the new administrative penalty, known as immediate roadside suspension, drivers would not be criminally charged. Instead, they would receive a 15-month driving suspension, a 30-day vehicle impoundment and mandatory participation in an approved education program for impaired drivers.

Gary Forward, president the New Brunswick Association of Chiefs of Police, said in an email that he has become aware that the new legislation doesn't target drug impairment.

"This is something more we need to discuss with the Chiefs and get back to government as to what suggestions we may have in this regard," Forward said, adding that the topic would come up at the association's meeting later this month.

Police have experts to determine drug impairment

Since the new legislation doesn't target cannabis impairment, how are police targeting that threat now?

Forward said the criteria police use to stop a vehicle is similar for both alcohol and drug impairment: a vehicle could be observed moving erratically, too fast, too slow or blowing through stop signs.

Police can use a breathalyzer to prove alcohol impairment as well as observing a smell of liquor from the driver, slurred speech, fumbling with documents, or bloodshot eyes, he said.

However, for drug impairment, Forward said, there needs to be a specially trained officer present, known as a drug recognition expert. 

"These officers have received training that allows them to conduct a series of tests designed to conclude whether or not a client is impaired by drug," Forward said.

CBC News asked the New Brunswick RCMP for recent statistics comparing arrests for alcohol impaired driving vs. cannabis impaired driving.

Spokesperson Hans Ouellette said in an email that the RCMP does not differentiate between the two in their numbers.

The latest statistics are from 2022, showing New Brunswick RCMP had 1,664 impaired driving arrests that year.

Both Fredericton and Saint John police say officers can use a standard field-sobriety test and observation of signs of impairment to tell if someone if impaired by drugs. But once an officer has reason to believe a driver is impaired, they say a drug recognition expert is called in to collect a fluid sample for testing. 

Ouellette said the RCMP uses the same tactics to detect drug impairment in drivers.

Fredericton police say they have conducted 10 of these tests with drug recognition experts so far in 2024, but similar statistics were unavailable from Saint John police.

Technology to detect drug-use improving

Mothers Against Drunk Driving Canada CEO Steve Sullivan was in New Brunswick for the announcement of the new law.

He hasn't reviewed the legislation closely, he said, but "I would have thought some of the provisions would have addressed drugs … that will be something we look at when we look at the legislation more closely."

Sullivan said that on average, drunk driving is more of a danger than drug-impaired driving, they're both a threat.

While police are getting better at fighting drug impairment with new tools, including a saliva swab that can detect recent cannabis or cocaine use, the technology is still relatively new compared to breathalyzers.

"The science is much easier with alcohol," Sullivan said. "The tools, the breathalyzer, we've had them for decades.

"So the technology isn't there yet with drugs but certainly police capacity to detect drug-impaired drivers is better."

Lawyer sees few weed-impairment cases

David Lutz, a criminal defence lawyer with Lutz Parish Gerrish in Hampton, said he thinks the new legislation will help decrease impaired driving.

"I'm in court every, virtually every day, provincial court particularly, and there is a plethora of drunk driving offences virtually every day," Lutz said in an interview with Information Morning Saint John. 

But while alcohol cases are common, Lutz said, cannabis impairment cases are few and far between.

"I must tell you, over 47 years of practising criminal law, I have had one case in which the police determined that the person was impaired by marijuana, and in that case they eventually dropped it," Lutz said.

"I know people are driving around under the influence of alcohol, but as I say, my experience is the police are not arresting many people for marijuana."