Justice minister defends approval of roadside pot test as some police wary

“It is not the only tool that law enforcement officers have. It’s an additional tool,” she said. “There is a potential that in the future I will certify additional devices.” (Photo: Jody Wilson-Raybould/Facebook)

Some Canadian police forces are hesitant to use a federally approved roadside marijuana test, raising questions about the Liberal government’s decision to give the devices the green light.

Vancouver’s police department is among those that won’t use the Drager DrugTest 5000 when pot is legalized next month because it says the device doesn’t work in sub-zero temperatures, is bulky and takes too long to produce a sample.

“We’re just not comfortable moving forward with this machine and we’re looking at other options,” said Sgt. Jason Robillard.

Police in Delta, B.C., say their officers won’t use the device this year but the department hasn’t made a decision about 2019, while Edmonton police and B.C.’s provincial RCMP say no decisions have been made yet.

National RCMP spokeswoman Sgt. Marie Damian said the force will have a strategic, limited rollout of the device in consultation with provincial and municipal partners.

Standardized field sobriety tests and drug recognition experts will continue to be the primary enforcement tools, she said.

The RCMP has taken the lead on training Canadian police officers on the devices and has ordered 20 units for that purpose. The training will be available “on or prior to” Oct. 17, when marijuana will be legal, she said.

Justice Minister Jody Wilson-Raybould defended the approval of the device in the Senate on Tuesday. The Canadian Society of Forensic Science examined the machine and the public had an opportunity to give feedback, she said.

“It is not the only tool that law enforcement officers have. It’s an additional tool,” she said. “There is a potential that in the future I will certify additional devices.”

Sen. Claude Carignan said police forces are being left with a false sense of security from the federal government when they are not actually equipped enough for cannabis legalization.

“She’s disconnected with the reality of what the police forces have in their toolbox,” he said, referring to the justice minister.

For its part, Halifax police said the department is not panicking about needing to use the screening device, noting the availability of other existing policing tools.

There are expected to be more instruments approved in the future, added Const. John MacLeod.

“Rather than jumping at the first instrument, we are collecting all the information that we can to determine what would be the best tool to use,” he said.

Ottawa police are also holding off on using the Drager test.

“It is not no forever, it is just no for now,” said Const. Amy Gagnon. “The one big concern is we have such a fluctuation in weather and the instrument specifications for temperature would be … an issue for us.”

Rob Clark, managing director of Drager Canada, disputed criticisms of the device.

It operates best between temperatures of 4 C and 40 C. But the main part of the machine — which does the analysis — remains in the police vehicle where it’s protected from the cold, he said.

It’s only the oral swab that collects the saliva sample that is exposed to extreme temperatures. But Clark said the sample can be heated up when plugged into the machine in the car.

He said it typically takes about 30 seconds to a minute to collect a saliva sample and 4 1/2 minutes to get the test result.

Clark stressed the devices are merely a screening tool, like a breathalyzer for alcohol, and the result does not provide the evidence to convict a driver. A blood test would be relied on in court, he said.

Kyla Lee, a criminal defence lawyer in Vancouver, said she intends to file a constitutional challenge of the devices as soon as police use one on a driver who wants to challenge it.

She said she bought a Drager DrugTest 5000 and tried it on herself. It took 2 1/2 minutes to collect a saliva sample and eight to 10 minutes to get a result, she said.

Canadians have a legal right to a lawyer immediately upon arrest or detention. But during roadside testing that right is suspended as long as the testing is done immediately, she said.

“There have been tons of cases at all levels of court that have found delays of even five minutes in doing roadside sobriety testing to be offensive to charter standards,” she said.

Einat Velichover, business development manager for Drager Canada, said it’s not possible for Lee to have the Canadian version of the test because only 20 of the devices have been produced for the RCMP.

She said a different version of the test takes longer to produce results because it tests for more drugs at lower volumes.

Lee said her device has police settings and is not set to zero tolerance. The device produces “very high” rates of false positives, she asserted.

A study published this year in the Journal of Analytical Toxicology examining the use of the device in Norway said it produced “fairly large proportions of false-positive or false-negative results compared to drug concentrations in blood.”

The study found the proportion of false positives was 14.5 per cent for cannabis.

However, the authors noted the Norwegian police say the test is still a “valuable tool” and has more than doubled the number of arrests.

Clark, with Drager Canada, said the study did not prove the test produces the number of false positives claimed by the authors.

He said Norwegian police allowed up to four hours before a blood test was taken. The drivers were likely no longer intoxicated by that time, he said.

The Canadian Society of Forensic Science ran over 200 tests and found the device was 98.7 per cent accurate for THC, the psychoactive ingredient in cannabis, he said.

The society referred a request for comment to the Justice Department, which did not immediately respond.