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Criminal

More evidence needed to use roadside saliva testing for marijuana

The assertions that marijuana consumption and driving under the influence will increase if it’s legalized need to be challenged to arrive at a reasonable public policy, Toronto criminal lawyer Ryan Handlarski writes in The Lawyer’s Daily.

“As a result of these two premises, the Liberal government appears to have proposed to amend the Criminal Code to allow police to take ‘oral fluid samples’ if the police have reasonable grounds to suspect that the driver is impaired by marijuana,” he writes. 

Handlarski, principal of RH Criminal Defence, says there needs to be evidence that there will actually be a “significant" increase in impaired driving following legalization before legislators consider giving police the authority to take saliva samples at the roadside based on “mere” suspicion.

“Whether or not the substance is legal has very little, if anything, to do with whether or not a person decides to consume it,” he says. 

“‘Reasonable grounds to suspect' is considered a very low legal threshold. Do we really want, as a society, the police to be able to take roadside saliva samples from a driver because of a mere suspicion that marijuana was consumed and has caused some impairment?”

Handlarski says he assumes legalization of marijuana for personal use will be accompanied by regulation and education. 

And that, he says, “has the potential to be far more effective than criminalization and bring the rates of impaired driving by marijuana down. 

“There is no reason to accept the assertion that we can expect impaired driving to go up significantly as a result of legalization,” he says. “It would therefore be a mistake to allow an amendment to the Criminal Code to allow a police officer to compel a driver to provide an ‘oral fluid sample’ because of the smell, for example, of burnt marijuana in a car and a suspicion of impairment.”

Handlarski says without evidence establishing that impaired driving by marijuana will increase significantly, “we have nothing to fear except giving the police the power to take roadside saliva samples.”

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