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Roadside drug-screening devices raise many questions

A pilot project to test roadside drug-screening devices highlights questions around the invasiveness and constitutionality of the test, and the circumstances under which police can make a demand for a sample, Toronto criminal lawyer Jordana Goldlist tells The Lawyers Daily.

“As opposed to asking someone to blow into a mouthpiece, providing a sample of their breath, now we have officers at the roadside actually extracting a sample of saliva from their mouth — it’s a far more invasive test,” she says.

Goldlist, principal of JHG Criminal Law, says obtaining a saliva sample amounts to a higher violation of one’s privacy than blowing into a device for a roadside alcohol test. She wonders whether such drug-screening devices, if approved for widespread use, would stand up to Charter scrutiny. 

“I would expect that the challenges to this will be great from a constitutional perspective,” she says. 

The pilot project was conducted by Public Safety Canada and the RCMP in collaboration with the Canadian Council of Motor Transport Administrators from December 2016 to March 2017, ahead of the legalization of marijuana expected next year, says the article. 

Police in Vancouver, Halifax, Gatineau, Que., North Battleford, Sask., Yellowknife, N.W.T., Toronto and across Ontario tested two devices, the Securetec DrugRead and the Alere DDS-2, it says. 

“Of the samples taken in the pilot project, approximately 15 per cent registered a positive drug reading, and 43 of the 53 officers involved in the pilot project collected at least one drug-positive sample for any drug,” says the pilot project report.

Goldlist says the devices raise questions about the circumstances under which an officer can demand that a driver take the oral fluid test.

“What grounds will they be asking [for a sample]? Is red eyes enough? Is it going to be the smell of marijuana in a car?” she says. 

And without a determination on the point a person is too impaired by marijuana to drive, Goldlist questions the efficacy of such devices and the right of police to make an arrest based on their results.

She notes there is a set legal limit for alcohol — it’s 80 milligrams of alcohol for 100 millilitres of blood, and that is the foundation of Canada's impaired driving law. 

“Well, what is the limit when it comes to drugs? How much cannabis is too much cannabis to be driving? We don’t know. And it can’t be zero, especially in the dawning of legalization,” she says.

“At what point are the police entitled to arrest someone for driving with cannabis in their body?”

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