Drug screening tools still in legal limbo
No deadline for roadside devices to be ready
• Despite the legalization of marijuana looming this summer, officials with the justice and public safety departments say it’s still unknown when roadside screening devices to test for drug impairment will be approved for use.
Speaking at the Senate legal affairs committee, the officials said they couldn’t even confirm if the testing of devices has started, as it’s being conducted independently by the National Research Council and then evaluated by an expert committee of the Canadian Society of Forensic Science.
The same officials had told senators in February that testing should be done by the end of March. In their update on Thursday, they acknowledged that estimate had proven wrong.
“Officials here, in the departments, don’t have any control over the testing of the devices,” said Trevor Bhupsingh, Public Safety Canada’s director general of law enforcement and border strategies.
“I’m not privy to that testing, I’m not privy to the approval of those devices … I guess what I would say is that it’s hard for me to predict to the senator exactly the time frames that a device will become available.”
There is also the matter of procurement. Bhupsingh said police forces can’t start ordering approved devices until the Attorney General signs a ministerial order, which requires both the legislation to pass and then a 30-day public consultation period. Public Safety also needs time to prepare a training curriculum for frontline officers on approved devices.
Senators on the committee noted with alarm that it could easily be late fall, if not longer, before police forces can order the devices.
The officials emphasized that police officers are already able to arrest drivers for drug impairment, and can test them through the use of field sobriety tests, examinations by drug recognition experts, and ultimately a blood test. If the devices aren’t ready, police will continue to rely on those “levers,” as Bhupsingh called them, to stop drug-impaired driving.
But Bill C-46 has long been treated by the government as crucial companion legislation to Bill C-45, which legalizes the recreational use of marijuana.
The bill substantially overhauls and toughens impaired driving laws. It allows for the use of roadside screening devices that test saliva for THC (the main psychoactive ingredient in marijuana), and creates “per se” THC blood level limits in the Criminal Code that enable automatic impaired driving charges without having to further prove impairment.
Senators are wrapping up their study of the legislation and will now start considering amendments. They have expressed strong concerns that police need more time to prepare for the new laws, and some have argued the bill’s measures on THC blood limits and mandatory breathalyzer testing for alcohol are unconstitutional.
Bill Blair, the Liberal MP charged with stickhandling the cannabis file, acknowledged to the National Post this week that C-46 may not pass alongside C-45 before Parliament’s summer break.
“My desire was to see C-46 pass six months ago,” he said. “But I don’t see a delay in C-46 being an impediment to the passage and Royal assent of C-45.”
In the meantime, Bhupsingh said his department is doing everything possible to be ready for when screening devices are approved for use, including meeting with provincial counterparts to prepare for possible bulk orders.
In April, the department issued a request for information from manufacturers that included an estimate of how quickly they could produce thousands of devices.
“Everything, I assure you, that we can possibly do to expedite and create efficiencies in the process, legally, we are trying to do and have done,” he said.
Carole Morency, a senior justice department official, said they are also examining options to speed up public consultation and procurement, depending on treasury board policies and agreements with provincial governments.
During Thursday’s question period, Conservative MPs demanded to know why the Liberals weren’t delaying marijuana legalization until the impaired driving bill is passed.
“The problem with drugimpaired driving exists today, it’s not a problem that will spring to life next week or next month or next year,” Public Safety Minister Ralph Goodale responded, and then alluded to Conservative MPs and senators being among the harshest critics of the bill.
“I’m glad to hear the official opposition is now fully in support of Bill C-46, and I hope they will join us in encouraging the Senate to deal with it expeditiously.”