Legalization of marijuana could shift power to Big Insurance

With the finalization of Canadian cannabis legislation this month, much focus has been placed on the changes to the criminal aspect of the law.

On the bright side, relatively innocuous crimes, such as possessing a small amount of marijuana for personal use, will no longer bog down an already overcrowded court system.

Since 2006, police have reported more than 405,000 marijuana-related offenses. Often, marijuana has been the focus of half of drug crimes that police have fought against. These crimes have also been argued to disproportionately affect certain members of society based on their socioeconomic status.

But, as a lawyer who practices in the area of personal injury and insurance law, I see a new issue on the horizon, one that has failed to gain mainstream traction.

The legalization, and possible prevalence, of marijuana, could cause a seismic shift in power to Canada's auto insurers. Insurance companies' profits depend on the ability to deny the compensation my clients need and deserve. And an unwarranted impaired charge could be just the ticket they need.

Earlier this month, Premier Doug Ford wrote a diplomatically worded letter to the Prime Minister citing pitfalls in the current technology, namely The Drager DrugTest 500 Machine.

Its very size makes it difficult to be placed in police cars. But more importantly there are glaring issues with the readings it provides in colder months, notable given we are approaching sub-zero temperatures. Even scientists admit we're ill prepared all around.

A paper published in the journal "Trends in Molecular Medicine" references the fact that THC has simply not been studied enough. It states that certain individuals "can be extremely impaired at 1 nanogram per millilitre [ng/mL], but other people may not have much impairment at all at 5 ng/mL,"

Research has also shown that the body's ability to remove THC can range greatly between individuals. Some chronic users can still show evidence of the drug a month after they consumed it.

This presents immense issues when it comes to interactions between individuals and law enforcement on the roadside.

Officers are being trained on standard field sobriety tests but this puts a lot of onus on the individual officer, as well as fails to address what sort of drug someone may have in their system. Unlike alcohol, we simply haven't arrived at a sound way to determine the legal limit on marijuana in someone's blood.

In addition to the long-lasting nature of THC nature noted above, it can also be very short acting in other users. That also presents the harsh reality that marijuana users may be able to evade a positive test that is administered hours after they are pulled over.

Researchers from the National Institute on Drug Abuse and the University of Iowa have noted "Blood THC concentrations measured in forensic cases [after a car crash] may be lower" than common levels allowed by law, "despite greatly exceeding [these levels] during driving,"

In my line of work, a false impaired charge could have devastating effects for all those involved in a motor vehicle accident.

With a false charge, the defendant could be denied access to crucial medical care through their own accident benefits plan.

The injured victim's tort claim will also be capped by the defendant's insurer resulting in the inability to obtain adequate compensation for loss of income, enjoyment of life and medical expenses.

Even if these charges are lifted and the defendant is vindicated, this could be long after my client has sustained unmanaged injuries. Insurers have shown in recent years a heavy-handed approach to auto injury case, namely, deny first and force the victim to hire a personal injury lawyer to fight for years through a slow and archaic legal system just to obtain the compensation for which they paid their premiums in the first place. I have little doubt that insurers will use marijuana allegations to deny even more claims, forcing an already overburdened civil court system to become even worse.

The federal government has assured us that they are well prepared for cannabis related DUIs in the face of scientific evidence that doubts the possibility.

I only hope my clients are no collateral damage while the kinks are worked out.

Darryl Singer practises personal injury law, insurance law, and civil litigation at Diamond & Diamond Lawyers LLP in Toronto.

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