A number of tough new cannabis impaired driving laws kicked into effect only a few months ago, and already, some Canadians are feeling the burn.
Nova Scotia motorist Michelle Gray has been making headlines over the last week thanks to her debacle at the roadside, which occurred after she identified herself as a medical cannabis patient during a routine road check.
In January, Gray was stopped by police and questioned about alcohol consumption while on her way home from downtown Halifax. After passing the roadsidebreathalyzer test, police told her that they could smell cannabis in her vehicle. In response, Gray admitted to using medical cannabis to treat MS. This caused her to be subjected to a second roadside test to test for the presence of drugs.
Gray failed the test. The results came up positive for THC, the psychoactive ingredient found in cannabis. This caused her to be arrested for impaired driving and transported to the police station, where she was forced to undergo a series of tedious and protruding tests performed by a Drug Recognition Expert.
Although Gray knew that she was not impaired by cannabis, she later told the press that she was worried about failing the tests and being arrested due to her medical condition. After all, MS impacts her balance and can cause problems for her short-term memory – both of which were being evaluated by the Expert.
Aside from the inherently invasive and terrifying process of being arrested and evaluated in the course of an impaired driving investigation, Gray was issued with a driving prohibition and a vehicle impoundment…all on the basis of her failed roadside drug test.
Yes, you read that right.
A medical cannabis user who was not impaired at the time of driving – according to a police expert – was essentially penalized by police for being impaired at the time of driving.
The penalties doled out to Gray were on the basis of her failed drug test alone. The fact that she was ultimately vindicated by police and proven not to be impaired did not save her from the costs associated with being issued a driving suspension and vehicle impoundment.
If you think this is unfair, you aren’t alone.
Issuing penalties on the basis of roadside screening devices is fundamentally problematic.
After all, these devices are not developed or created for punitive purposes. As their name indicates, they were created to screen. They are a preliminary tool to determine whether or not legal grounds exist to arrest a person and subject them further, more accurate testing.
The problem with handing out formidable punishments such as driving prohibitions, monetary fines and vehicle impoundments on the basis of the results generated by a roadside screening device is that innocent drivers – like Gray – will suffer.
Here in British Columbia, we have seen the controversial effects of regimes like this.
The Immediate Roadside Prohibition scheme, for example, which was introduced nearly a decade ago, has been hotly contested in the courts ever since. This has come at great expense to the tax payer, not to mention motorists who have been deprived of their driving privileges and their vehicles as a result of inaccurate breath tests results or improper investigatory procedures at the roadside.
When investigatory processes are truncated, basic Charter rights risk falling to the wayside.
The only approved screening device to test for the presence of drugs in Canada is the Draeger DrugTest 5000.
When this device was introduced, police detachments across the country had little to no experience with its operation. What’s more, the device can produce faulty results in temperatures higher than 40 degrees Celsius and lower than four, which poses a major problem for the vast majority of Canadians, most of the year. A tilt of more than ten degrees when the device is being operated can cause similarly inaccurate results.
And that’s not all. There are no shortage of potential issues and flaws with this device that could affect drivers’ liberties.
But perhaps the most troubling aspect of the roadside drug testing device is that it only detects the presence of drugs in the oral fluid. It does not – and cannot – detect impairment.
This means that Michelle Gray’s experience is just one of the first in what is likely to be a long list of innocent drivers who are arrested and investigated on the basis of roadside drug test results.
And like Michelle Gray, medical cannabis users may be most at risk moving forward.
Gray plans on launching a constitutional challenge to the legislation that allowed her situation to transpire, but getting a result will take time, which is cold comfort for those who could be at risk today.