A new testing device is likely to be approved in the next few days but critics are wary. (Peninsula News Review File)

New roadside testing device can’t identify drug impairment says Vancouver lawyer

Lawyer says similar devices vulnerable to court challenge, testing for drugs different to alcohol

The federal government looks set to approve a roadside saliva testing device that critics say can detect drugs but not drug impairment, leading to implications for Canadians’ charter rights.

On April 20, 2019, the federal government announced its intention to approve a second roadside saliva testing device called the Abbott SoToxa. It can detect THC, the psychoactive ingredient in marijuana, and other drugs, in drivers’ saliva. There is a desire for a second testing device as the current Drager unit is larger and bulkier.

ALSO READ: Cannabis medication provides relief for some pain and epilepsy sufferers

The decision to approve the SoToxa was subject to a 30-day consultation period, which expired earlier this week.

If, as expected, the device is now green lit, critics warn its use might be vulnerable to court challenges.

Vancouver criminal defence lawyer Sarah Leamon explains, “All it does is simply measure for the presence of drugs in the saliva of a subject, it actually cannot determine whether or not that subject is impaired or affected by the drugs.”

She adds, “The reading that is generated really has no bearing on the level of impairment the subject is experiencing.”

ALSO READ: Cannabis companies want to bring a new mood to the workplace

Leamon says roadside tests are vulnerable to challenges in court as there has to be a “need for reasonable search,” because tests take a relatively long time, are seen by some as invasive and are conducted without a warrant. It is therefore up to the authorities to demonstrate there was a good reason to conduct the stop and test, right from the start.

“The state is going to have to prove a number of things, but I think the biggest hurdle for them is going to be showing that this is a test that achieves what we’re looking for it to achieve. So is it rationally connected to the purpose of the legislation? Which is to keep our roads safe and to detect and remove impaired drivers. If the device can’t test for impairment, I think it will be very difficult for Crown lawyers to satisfy that particular element.”

ALSO READ: Drug-driver vehicle hit and run in Brentwood Bay

Critics say both the Drager and SoToxa have other flaws, particularly the cold, as both become unreliable when temperatures plummet. Consistency is a key issue too, as critics say the devices can be tuned to target certain drugs and levels within saliva, which could lead to inconsistent policing across forces and provinces, if there is no wider general agreement.

Abbott point out that the SoToxa delivers what is sets out to achieve, giving reliable results within minutes and is “lightweight, compact, and easy to use.”

Each unit can hold 10,000 results and offers system analysis printouts on location. The company claim this means subjectivity and misinterpretation of test results are eliminated, leading to greater reliability.



nick.murray@peninsulanewsreview.com

Like us on Facebook and follow us on Twitter

Drugs

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Pandemic reunites 2000s era Victoria rock band The Origin

Saanich musicians recording for first time since 2008

Local authors nominated for Victoria Book Prize awards

Finalists for 2020 announced in two categories

Patrick brothers who shaped modern hockey also tried, but failed, to remove violence

New history thesis shows efforts to sell a “clean game” in Oak Bay

Central Saanich to formally inform Agricultural Land Commission about soccer pitch proposal

Move is meant for information only with no application having come forward yet

B.C. or Ontario? Residential school survivors fight move of court battle

It’s now up to Ontario’s Court of Appeal to sort out the venue question

POLL: Do you plan on allowing your children to go trick or treating this year?

This popular annual social time will look quite different this year due to COVID-19

B.C. transportation minister will not seek re-election

Claire Trevena has held the position since 2017

Body discovered floating in water near Lasqueti Island

JRCC reports personnel aboard fishing vessel made the find

Young B.C. cancer survivor rides 105-km with Terry Fox’s brother

Jacob Bredenhof and Darrell Fox’s cycling trek raises almost $90,000 for cancer research

Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

B.C. migrant, undocumented workers rally for permanent residency program

Rally is part of the Amnesty for Undocumented Workers Campaign led by the Migrant Workers Centre

Preparations underway for pandemic election in Saskatchewan and maybe B.C.

Administrators in B.C. and around the country are also looking to expand voting by mail during the pandemic

Nearly 20 per cent of COVID-19 infections among health-care workers by late July

WHO acknowledged the possibility that COVID-19 might be spread in the air under certain conditions

Most Read