Criminal Law

Woman detained for pot use 'was literally taking her medicine'

Canadian PressTHE CANADIAN PRESS

HALIFAX — A lawyer for a Nova Scotia motorist whose licence was suspended after her saliva tested positive for cannabis says he's planning to launch a constitutional challenge.

Jack Lloyd says the woman's case shows the law dealing with impaired driving is too broad and too vague.

The woman, who uses medical cannabis to treat symptoms of multiple sclerosis, says she shouldn't have been penalized because other police tests confirmed she was not impaired.

In an interview with AdvocateDaily.com, Toronto criminal lawyer Ryan Handlarski says the fact that the woman is a medical cannabis user demonstrates how intrusive the saliva test is.

"She may not have been arrested, but the police detained her and gave her sobriety tests partly because she was literally taking her medicine. It demonstrates how the stigma of consumption of cannabis has remained and what has occurred is not legalization at all," says Handlarski, principal of RH Criminal Defence.

The woman says she told police conducting a roadside check in January she had one alcoholic drink over a two-hour period before she got into her car to drive home from downtown Halifax.

The officer then said he could detect the smell of cannabis coming from her car.

Though she passed a roadside alcohol test, a saliva test showed trace amounts of THC, the active ingredient in cannabis.

She was arrested and taken to police headquarters, where she was subjected to a comprehensive sobriety evaluation, which includes balance and memory tests.

Though she passed the tests, which proved she was not impaired, her licence was suspended for a week and her car was impounded — leaving her with a $400 bill.

"The entire basis of using a cannabis screening device is based on the false premise that consumption of marijuana, and therefore driving while impaired by marijuana, will increase following the possibility of legalized use. It is my view that this premise is wrong. Cigarette use, for example, is legal and its use has been going down for many years because regulation was imposed to make its use unfashionable and education about its negative health effects improved," Handlarski tells AdvocateDaily.com.

"Introducing intrusive, unconstitutional legislation to address an anticipated problem that has not arisen and where other less intrusive steps have not been taken, is the worst possible approach to the issue," he says.

Lloyd, a Toronto-based lawyer, says he plans to file a legal challenge under the Charter.

He says lawyers across the country are contemplating similar cases, based on the argument that roadside cannabis tests have no rational connection to actual impairment.

Handlarski says the criminal bar will be watching the this case closely.

"I have not spoken to a single criminal defence lawyer that thinks the new laws are constitutional," he says. "It is my view that what occurred in this case is an example of how unreasonable it is for a police officer to smell marijuana, find trace amounts of THC on a cannabis screening device, and then take the person back to a police station for balance and memory testing."

— with files from AdvocateDaily.com

© 2019 The Canadian Press

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