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The RCMP’s new tool for testing whether you have been consuming marijuana doesn’t come without controversy.
Since its approval by the federal justice minister on Aug. 29, the Nova Scotia RCMP have received three new Dragar DrugTest 5000s.
Within a 24-hour period last weekend, they demanded blood samples from a 42-year-old Pomquet man and a 31-year-old West River Station man, based upon roadside tests using the Dragar DrugTest 5000.
But already lawyers are lining up to challenge the new tool in court.
“It will go to the Supreme Court guaranteed,” said Paul Doroshenko, a partner at Acumen Law in Vancouver.
“And when (this piece of equipment) is challenged in the Supreme Court, everything else in the country will be suspended. The reality is that they have no way to detect whether somebody is impaired by cannabis.”
Breathalyzer already borderline
Doroshenko boasts he has the largest collection of breathalyzers in the country — about 20 between him and his partner that span the technology’s evolution.
He also has a Dragar DrugTest 5000 — which cost him about $8,000.
And he’s been hoping for a case to come across his Vancouver desk.
“But the Vancouver police only bought one. Most of the police forces in the cities in B.C. didn’t buy them because of their intrusiveness and that the test is based upon a defective opinion.”
The Dragar DrugTest 5000 requires that the person being tested hold part of the device in their mouth for between one and four minutes as it collects a saliva sample.
That saliva sample is then placed in the unit, which looks sort of like a Keurig coffee maker.
After about 10 minutes it gives a reading as to whether THC is detected or not — but doesn’t give a quantity as a breathalyzer does for alcohol.
Based on the results of this test, the RCMP can demand you go to a hospital with them to provide a blood sample — which is what happened in Antigonish and Pictou counties last weekend.
“We’ve had a few of them so far,” said Cpl. Jennifer Clarke of the Nova Scotia RCMP.
Police agencies only started receiving the Dragar DrugTest 5000 after recreational pot became legal on Oct. 17. As of yet, it hasn’t been challenged in court.
Over its decades of use, the various incarnations of the breathalyzer have been challenged extensively.
“The breathalyzer has been found by the courts to violate (The Charter of Rights and Freedoms) but the courts have ruled it to be a reasonable violation because drunk driving is such a menace to society,” said David Dalrymple, a Dartmouth-based attorney with Atherton Nicholson who has handled many impaired-driving cases.
The issue, he explained, is Section 8 of the Charter that protects Canadians against unreasonable search and seizure.
“The courts have said with the breathalyzer, because it’s a minimal detention and it's minimally intrusive, they’ll make an exception for it,” said Doroshenko.
“But for this thing, it takes 10 minutes to set up, then you’ve got to roll this thing around in your mouth for one to four minutes and then it takes 10 minutes to give you a result. By the time you’re done, we’re talking 35 minutes.”
Then there’s the issue of accuracy.
Results of real-world testing using the Drager DrugTest 5000 by the Norwegian Mobile Police Service were published in May. The study compared the results of tests taken using the instrument with the results of blood and urine samples taken from the same people. Out of a total study of 301 cases, it gave false positives for cannabis 14.7 per cent of the time and false negatives 13.4 per cent of the time.
In Canada, the Drager is only used to tell police about the presence of cannabis in the system so that they can demand a blood or urine sample — a more accurate measurement.
If those samples show you have 2.5 nanograms or more in a 100 ml sample of your blood, than you can be charged.
No one has challenged the charge yet.
But both Doroshenko and Dalrymple expect it to happen.
Meanwhile, the RCMP will wait for the results of the blood tests taken from the two men last week before deciding whether or not to lay charges.