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.
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.”
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.”
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.