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

Just Posted

Island man to plead guilty to animal cruelty charge

Kevin Timothy expected to appear at the Duncan courthouse in June

Home-schooling about to become the rule, not the exception, on Vancouver Island

Experienced home school parent offers advice as kids prep for classes, but not classrooms

Full-time campers face various struggles amidst COVID-19

One camper advises others to find a way to work together

EDITORIAL: If you feel creative, be creative, if you want chill, chill

Do what you need to get yourself through this period of social distancing

Vancouver Island sisters surprised to find themselves reunited at seniors care home after years apart

Eden Gardens Nanaimo staff member noticed new care home resident’s resemblance to another resident

Canada expands 75% wage subsidy to COVID-19 affected businesses of all sizes: Trudeau

Program will provide up to $847 per week for each worker

IN DEPTH: How B.C. emptied its hospitals to prepare for COVID-19

Thousands of beds have been freed up, but patients and seniors have had to sacrifice

Crucial details of Ottawa’s proposed wage subsidy program expected today

The government has rolled out a bailout package totalling more than $200 billion

‘Nothing concrete’: Tenants, landlords lack details after B.C. unveils COVID-19 rental aid

Single mom in Golden says she’s already going to the food bank after being laid off

B.C. is seeing the highest rate of COVID-19 recovery in Canada, and there’s a few reasons why

British Columbia was one of the first to see rise in COVID-19 cases, and has also switched up testing

Firefighters put out structure fire on Dockside Way in Nanaimo

Incident happened just after 5 p.m. in detached building close to house

World COVID-19 morning update: Olympics delayed one year; 12,000 health care workers infected

Comprehensive world news update: Lockdown in UK showing signs of hope

Speed, alcohol not ruled out as factors in crash that left one person dead

Police watchdog, Campbell River Major Crimes Unit are investigating

Most Read