After a period of public comment, Jody Wilson-Raybould, the Minister of Justice and Attorney General of Canada, approved the country’s first oral fluid drug screening equipment on Tuesday, August 27.
The Dräger DrugTest 5000 tests for seven different substances, including THC.
The device’s approval comes after the Liberal government passed amendments to the Criminal Code for the Impaired Driving Act (C-46).
C-46 raises constitutional concerns, particularly when it comes to testing drivers for cannabis impairment.
Despite Wilson-Raybould’s approval “based on a scientific recommendation,” the drug screener presents a host of issues that should have drivers concerned.
Today, based on a scientific recommendation, I approved drug screening equipment for use by law enforcement. This is another step to ensure we can detect and deter impaired driving to keep Canadians roads safe. https://t.co/Pwzz4Akbgm
— Min. Wilson-Raybould (@MinJusticeEn) August 27, 2018
It doesn’t measure impairment
Alcohol has a consistent blood-alcohol concentration limit of .08% when determining impairment, but cannabis does not.
“With alcohol, we can say a person is impaired when they reach a certain level,” criminal defence lawyer Sarah Leamon previously told Daily Hive. “A person doesn’t have to be displaying that they’re impaired; if they have that amount of alcohol in their bloodstream then they are.”
Dr. Tony George, a researcher at CAMH and professor at the University of Toronto, previously told Daily Hive that roadside testing for cannabis is unreliable because cannabis is fat soluble and can stay in your system for days, and even weeks after consumption.
A 2016 study published in the Canadian Society of Forensic Science Journal examined oral fluid drug screening devices and found that they “could prove to be a valuable tool in the detection of driver drug use,” but also noted that Drug Evaluation and Classification Program (DECP) would still be necessary to evaluate impairment.
It might not be accurate in the cold
In 2017, Public Safety Canda, in collaboration with the RCMP and Canadian Council of Motor Transport Administrators, published a report on an oral fluid drug screening device pilot project.
The Dräger DrugTest 5000 was not included in this round of testing, but researchers found that “proportionally, tests conducted outside of suggested operating temperatures were more likely to produce drug-positive results,” and recommended “further research on the reliability of devices used outside of standard operating temperatures.”
It takes a long time to use
According to the manufacturer’s instructions, saliva samples should not be taken within 10 minutes of eating, drinking, or smoking. This would require officers to observe drivers prior to testing.
It can take between five to ten minutes to collect a sample, meaning drivers can be detained for up to 20 minutes during the drug screening.
C-46 outlines the limits for measuring cannabis impairment, which are tied to severe penalties.
Drivers caught with a THC level between 2 and 5 ng can be fined up to $1000.
A second offence over 5 ng can land drivers in jail for 30 days, and up to 120 days for a third offence.
“I don’t understand how this framework is [quantifying] impairment when I’m saying clinically if we can’t detect cannabis in someone’s urine at levels at less than 20, we call that abstinence,” said Dr. George.
Even if THC is detected in your bloodstream, it does not indicate impairment or imply that you recently consumed cannabis.
This is particularly concerning for medical and frequent consumers, who not only build up a tolerance to THC, but will have elevated levels of THC in their blood even if they have not consumed before driving.
Use of this drug screener will be at the discretion of law enforcement. They must also have probable cause to request a saliva sample.
The Liberal government has pledged $161 million over the next five years to fund police training, drug-testing equipment, and public awareness campaign on impaired driving.