Another roadside pot-testing tool gets nod

Courts have yet to weigh in on devices

OTTAWA • The federal government has approved a second device for police to test the saliva of drivers for recent cannabis use. The devices are a crucial — and controversial — tool in the government’s strategy to prevent drug-impaired driving.

Justice Minister David Lametti signed an order dated June 20, 2019, to approve the Abbott SoToxa for use in Canada. Notice of the order was posted Friday in the Canada Gazette. It comes nearly a year after approval of the first device, the Drager DrugTest 5000.

The saliva-testing devices do not claim to measure the impairment of a driver. Instead, they’re roadside screening devices that indicate whether someone has recently used cannabis. If the test shows recent use, the driver can be taken in for further testing that would form the basis for criminal charges.

“An oral fluid sample that tests positive would presumptively confirm the presence of the drug and, combined with other observations made by the police officer, may provide grounds for the investigation to proceed further, either by making a demand for a drug recognition evaluation or for a blood sample,” the government’s notice says.

Although the legislation allows for saliva-testing devices to also test for cocaine and methamphetamine, the SoToxa is only approved to test for THC, the psychoactive ingredient in cannabis.

Canadian courts have not yet issued rulings on the use of the devices. Lawyers specializing in impaired driving law have repeatedly warned they will challenge the reliability of the devices, arguing they don’t work well in cold weather and issue too many false positives. Lawyers argue the saliva tests often take longer than roadside breath tests, meaning drivers are detained without arrest for longer — a potential basis for a Charter challenge. Abbott says its SoToxa device takes less than five minutes to produce a test result.

Some police forces have also expressed skepticism, and have held off on making large orders until they get a sense of how well the devices work in practice. But many police forces across the country have now ordered at least a few of the Drager devices to try out at checkstops and in regular traffic patrols, and it likely won’t be long until the courts have weighed in.

For a device to be approved for use by Canadian police, it has to first meet standards developed by a committee of the Canadian Society of Forensic Science. It then goes through a period of public consultation. Citing commercial sensitivities, neither the justice department nor the CSFS will comment on how many devices are being tested, or why it has taken so long for devices to be approved for use.

The SoToxa device received four submissions during its public consultation, according to the justice department’s summary.

“One respondent raised questions about the scientific evidence related to cannabis use and impairment and asked how approved drug screening equipment tests for recency of use,” the summary said. Another respondent “expressed concern that the proposed drug screening equipment does not measure an exact level of drug impairment and encouraged the Department of Justice not to support the approval of this technology.”