Walk the Line: Testing options go beyond oral fluids

MP Bill Blair and MP Arif Virani talk cannabis at a Toronto Town Hall on the topic.

TORONTO, Ont. — Canada’s Senate has passed the bills needed to legalize cannabis and enforce related rules, but with four dozen proposed amendments it will be weeks or months before roadside enforcement teams know exactly what kinds of devices they can use for roadside tests.

The only certainty is that the focus will be on testing oral fluids, says Bill Blair, the government’s point person on all things cannabis, and parliamentary secretary to the minister of justice, attorney general of Canada, and minister of health.

But as accurate as related devices can be, there’s a gap between what they can measure and the lower limits the federal government proposes to determine a driver is impaired. Provinces have the ultimate jurisdiction in setting different levels, too.

The DrugSwipe S, distributed by Alcohol Countermeasure Systems (ACS) of Toronto, is one of three types of oral fluid tests being considered by the RCMP, says ACS marketing manager Tony Power. It can register a positive result when detecting more than 50 ng of a substance per milliliter, and is said to have a 97% accuracy rate for drugs consumed within one to three hours prior to taking the test.

The federal government, however, is looking to set impairment limits at half that level, leaving a gap between what the tests can see and what drivers could be allowed to record. And the amount of cannabis that would generate such readings is also different for every person, depending on factors like height and weight.

That leaves officers to use other means of probable cause to request a blood test.

Staff Sgt. Carolle Dionne of the Ontario Provincial Police (OPP) says training programs are in the works for officers who will use tools such as the Standardized Field Sobriety Test (SFST), and become experts in recognizing different drugs. All the officers are expected to be trained in administering field sobriety tests, and there are hopes to have 74 additional drug recognition experts added in each of the next five years.

Blair says those officers will be trained to look for erratic driving patterns, red or glassy eyes, or an inability to focus on conversations or complete roadside tests. Those indicators are as much probable cause as the saliva tests to impound vehicles and order further exams.

And that’s all a roadside oral fluid test is – probable cause.

Blair says the test will likely not be considered evidence of impairment for court purposes. Instead, the test is designed to get drivers off the road immediately if impairment is suspected, as well as giving officers a legal reason to request a blood test.

“Ontario has built into the legislation that, if it’s detectable, at whatever amount in the blood, you can suspend right away for commercial and graduated licenses,” he said.

Groups like the Canadian Trucking Alliance want laws to include zero tolerance for truck drivers and others in safety sensitive-positions. Although Blair says he agrees with the idea, and wants to see sober drivers on the road, such a limit is unlikely to make its way into the federal regulations right away.

While the Senate committee handling the bill urged the provinces to help adopt workplace policies surrounding the issue, nothing was put into the regulations.

Ontario, meanwhile, has already adjusted its Highway Traffic Act to reflect a zero-tolerance policy on both drugs and alcohol for commercial drivers. Provincial penalties include mandatory licence suspensions for anywhere from 24 hours to 90 days, mandatory education programs, mandatory interlock systems, and fines, but there’s a grey area with an absence of Criminal Code charges for commercial vehicle drivers who have two nanograms of THC or less in their system.

“I want everybody on the road to be completely sober and safe,” Blair said. “The message is not that there’s a safe level of cannabis to use to drive. The message is if you’re using cannabis, don’t drive.”

Existing restrictions on drivers may not be enough to prevent them from pushing the boundaries of the law, and police forces are bracing for the need for increased inspections through programs like RIDE and at other contact points.

“We know, based on other jurisdictions’ experiences, that drug-impaired driving will likely increase once recreational cannabis is legal,” said Dionne.

Ontario Ministry of Transportation (MTO) officials expressed concerns about drug use by commercial drivers, given the extent of damage that can be caused when trucks are involved in a collision. While its roadside inspectors aren’t in a position to test or arrest anyone for impairment, they are trained to look for the signs of a driver who is under the influence of drugs or alcohol.

Spokesman Chris Davies says it’s rare, but weigh stations have seen drivers come into the facility who were intoxicated.

In those cases drivers are put into an office while the truck is being inspected, and the police force with jurisdiction is called. By the time the check is complete, an officer is on scene and can administer the test. Because they aren’t responsible for the testing, MTO officers won’t be getting the extra training scheduled for police forces.

The costs of implementing training programs for officers, purchasing equipment, and conducting tests can’t be finalized until federal legislation passes and the province’s attorney general issues a definitive ruling on what tests can be used. However, Blair said police forces across Canada have estimated it may cost up to $1.6 billion to make sure they’re prepared.

The funds are to come from federal and provincial taxes applied to retail cannabis sales.

Blair stresses the regulations won’t be finished when they pass through the House of Commons.

There’s a clause in the regulations to review the law at the five-year mark, and the ability to add amendments as concerns arise, so adding stricter oversight for commercial drivers is still a possibility. For now, the legislation is being handled one step at a time.

“This is a process not an event,” Blair said. “We’ll do this right.”

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