ROADSIDE SALIVA TESTS BEING USED TO DETECT HIGH DRIVERS.
Nova Scotia, Winnipeg forces to test for drugs
• Two major reforms to Canada's impaired driving laws — mandatory breath screening and roadside saliva tests — will be put into practice later this month.
Mandatory breath screening, which allows police to demand a roadside breath test without needing suspicion the driver has been drinking, will officially take effect on Dec. 18, 180 days since Bill C-46 received royal assent.
Roadside saliva tests, which are used to detect THC and other drugs, have been legal since the summer, but have been delayed because many police forces are concerned about the reliability of the only device so far approved for use, the Drager DrugTest 5000.
As of this week, however, at least two large police forces — the Nova Scotia RCMP and the Winnipeg Police Service — have started administering roadside saliva tests on drivers. Both forces have now made an arrest using the device, and both have drawn a blood sample from the arrested driver to be analyzed for THC.
As all of these new measures take effect, they are all but certain to be challenged in court.
Defence lawyers are expected to argue that mandatory breath tests constitute an illegal search under the Canadian Charter of Rights and Freedoms. They will also be watching to see if the mandatory testing regime has a disproportionate effect on visible minorities.
Speaking in Ottawa Tuesday, Justice Minister Jody Wilson-Raybould said she is “100-per-cent confident” that mandatory breath tests are compliant with the Charter, noting police still need a valid reason to stop a driver in the first place.
She argued that too many drivers escape detection under the current system where police need suspicion (such as the smell of alcohol or slurred speech) to demand a breath sample.
When it comes to drugs, reasonable suspicion will still be needed before police can demand a roadside test. But lawyers will argue that the saliva-testing devices are unreliable, particularly in Canada's cold winters.
Lawyers will also go after the blood samples, arguing there's not enough science to establish a link between impairment and the presence of THC in the blood.
Police across Canada will be closely watching the experience of Winnipeg and the Nova Scotia RCMP as they begin using the saliva tests.
“There's no doubt we're at the forefront,” said Const. Stephane Fontaine, the impaired driving countermeasures co-ordinator for the Winnipeg police. He said they started training officers in their traffic division on Friday, and made an arrest over the weekend after a driver tested positive in a roadside saliva test.
“We have seven devices thus far, so we're going to put them to the test,” Fontaine said. “We're going to see how they work in an actual operational setting.”
Winnipeg's rollout of the devices is particularly important due to its frigid weather. Fontaine said he doesn't see it as a big issue, as the tests are done in the temperature-controlled environment of cruiser car or a checkstop mobile unit.
“We're not doing the tests outside,” he said. “The key is not so much that the temperature outside is cold, it's ensuring that the equipment that you're using is in the proper operating temperatures. So you're not going to find the device and the testing strips in the trunk of our cruiser car.”
Nova Scotia RCMP, who have three Drager devices, also began using them on Friday. A driver at a checkstop set up in the town of Kentville that night tested positive on a saliva test and was arrested, said RCMP Cst. Chad Morrison.
“We're happy to have (the devices), we're happy to be using them, we're getting people trained, and it's a great tool for us to have on the road,” Morrison said.
Bill C-46 also created new criminal charges called blood-drug concentration offences. If a driver's THC blood level is over a certain limit (2 nanograms per millilitre of blood for a summary offence, 5 ng/ml for a more serious hybrid offence), police can lay a charge without having to further prove impairment.
However, the blood must be taken within two hours of driving, posing a logistical challenge — particularly for rural police forces such as the Nova Scotia RCMP.
In Friday's arrest, Morrison said they took the driver to the Kentville hospital and had the blood drawn there. He said making blood sample demands will be done on a “case by case basis” for drivers, depending if there's a hospital nearby that has staff available to draw the blood.
The Winnipeg police, however, have an agreement with the city's fire paramedic service to have someone come to the police station to draw blood, an arrangement that was used for the first time on the driver arrested over the weekend.