Federal government set to approve first device for testing drivers' saliva for cannabis

Roadside saliva-testing devices were authorized by Bill C-46, a massive overhaul of Canada's impaired driving laws that passed in June

Nationalpost.com
July 30, 2018

The federal government’s crackdown on drug-impaired driving has taken a big step forward, as the Justice Department is set to give its blessing to Canada’s first roadside saliva test.

Once in use, police officers will be able to swab a driver’s mouth to test for the presence of THC, the main psychoactive ingredient in cannabis.

Roadside saliva-testing devices were authorized by Bill C-46, a massive overhaul of Canada’s impaired driving laws that passed in June.

But before police could order any devices, a model had to be approved by Attorney General Jody Wilson-Raybould--and she has been waiting for the advice of an independent committee made up of toxicologists and traffic safety experts.

That advice has finally come, and Wilson-Raybould has now given 30-day notice of a ministerial order to approve the Draeger DrugTest 5000, produced by a company based in Germany. The device is already approved in other countries, including the United Kingdom and Germany, though a Justice Department spokesperson noted it may be configured differently to meet Canadian standards.

The notice to approve the Draeger device means it was tested in a National Research Council laboratory and passed an evaluation by the Canadian Society of Forensic Science. It’s possible more devices will be approved for use later on.

In addition, Public Safety Canada and the RCMP ran a pilot project last year on oral fluid screening devices and concluded they were “a useful additional tool for Canadian law enforcement.” The Draeger device was not one of the two used in the pilot project.

Currently, police check for drug-impaired driving at the roadside by using a standardized field sobriety test, which can involve tests such as standing on one foot or walking in a straight line.

The saliva-testing device, which is also approved to test for cocaine, provides police with a powerful new tool to detect recent drug use (within approximately the last six hours). A failed test gives police reasonable grounds to bring a driver in for further testing, including a blood test or an examination by a drug recognition expert.

The science around detecting drug-impaired driving is much less established than it is for detecting alcohol-impaired driving, and the reliability of the devices is likely to be challenged in court by defence lawyers.

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One particular concern is how well the devices will operate in the harsh Canadian winters. The pilot project included using the devices in the dead of winter in Saskatchewan and the Northwest Territories. It concluded they were largely effective, though “there were some temperature-related issues that arose when the devices were used in extreme cold temperatures.”

Officials have suggested police may be able to conduct the tests inside their warm cars when temperatures drop far below freezing.

It took longer than expected for a device to be recommended for use. Testifying at a Senate committee last February, government officials estimated the testing would be finished by March; they later acknowledged that had proven optimistic.

With the legalization date pushed back to Oct. 17, there is now a better chance police will be equipped with them in time. But the ministerial order still needs to wait for a 30-day notice period, and then the devices need to be ordered and frontline officers need to be trained on their use.

A Public Safety spokesperson said the federal government is making $81 million available over five years for provinces and territories to buy screening devices and train more officers to recognize drug impairment. The federal government also plans to have a standardized price and procurement process for the devices that provinces and territories can opt into.

Once the ministerial order is signed, “law enforcement across Canada will be able to order the drug screener immediately,” the statement said. “Each province and territory will determine the number of drug screening devices required to meet their own needs.”

The roadside screening devices are only one part of the government’s strategy to prevent drug-impaired driving. It has also budgeted $62.5 million over five years on a public education strategy, including advertising campaigns.

It also brought in “per se” limits for drug blood levels, a legal shortcut that means police can lay criminal charges based solely on a driver’s level of THC in the blood, without having to further prove impairment.

When it comes to alcohol, C-46 controversially gave police the ability to demand a roadside breath sample without needing suspicion the driver has been drinking--a measure critics have blasted as unconstitutional. However, police will still need grounds to suspect a driver has consumed drugs before demanding a roadside saliva test.