After lengthy delay, government prepares to approve second device for testing drivers’ saliva for cannabis

OTTAWA — The federal government has taken the first step toward approving a new device for testing drivers’ saliva for cannabis use, potentially giving police a long-awaited second option.

Over the weekend, the government posted a notice that it intends to approve the Abbott SoToxa for police forces to use. The device must now go through a 30-day public consultation period before it can receive final approval.

Abbott is an Illinois-based health-care company that acquired Alere — a Massachusetts company that has long manufactured saliva-testing drug devices — in a US$5.3-billion transaction in 2017. It advertises the SoToxa as a hand-held device that provides test results in less than five minutes.

The approval process for the controversial devices, which allow police to swab saliva at the roadside to check for the presence of THC (the psychoactive ingredient in cannabis), has taken much longer than the government anticipated. The testing is overseen by a specialized committee of the Canadian Society of Forensic Science, which then makes a recommendation to the attorney general when it determines a device meets the government’s established standards.

Government officials testified at a parliamentary committee last year that they have no control over how quickly that testing happens, and had initially hoped it would be done by March 2018.

Only one device has made it all the way through the process: the Draeger DrugTest 5000, which received its formal approval last August.

Police forces were initially hesitant to order the Draeger, with some — such as the Ottawa Police Service — expressing skepticism over the device’s reliability, particularly in cold weather.

Since then, however, many police forces across the country have ordered at least a few to try out, and the devices have started to see regular use on Canadian roads. Yet police forces have said they’re still being cautious about placing orders partly because of cost (about $6,000 each), partly because they want to see more devices approved as options, and partly to wait and see whether problems arise as the devices enter use.

The devices are also certain to be hotly contested in the courts as lawyers specializing in impaired driving law have declared their intention to file legal challenges at the first opportunity.

The saliva-testing devices do not measure the level of impairment in a driver, and the results cannot be the basis of criminal charges. Instead, they are meant to screen at the roadside for whether cannabis was recently consumed, and the results can form the grounds for police to arrest drivers and take them in for further testing to check for impairment.

“A positive result (on the Abbott device) would be a strong indication of recent use,” says the government’s notice to approve the device. “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, would likely provide grounds for the investigation to proceed further, either by making a demand for a drug recognition evaluation or for a blood sample.”

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However, there are provincial rules that immediately kick in upon a positive result of the saliva-testing devices, such as driver’s licence suspensions. A Nova Scotia woman who recently failed the roadside saliva test and yet passed the subsequent testing for impairment has said she plans to file a constitutional challenge against the provincial penalties, which she said saw her licence suspended and her car impounded. Her lawyer did not immediately respond to an email asking whether the challenge has been filed.

Police can still arrest drivers for suspected drug-impaired driving without the saliva test. They can use a standardized field sobriety test, which involves basic tests such as walking in a straight line or tracking an object with your eye.

Before police can demand either a field sobriety test or a saliva test, they must have reasonable suspicion the driver has consumed drugs, such as bloodshot eyes or the smell of cannabis. That differs from the requirement for a breath test for alcohol; last year, the federal government changed the laws to allow police to demand a breath test from any driver, without needing any suspicion the driver has been drinking.

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