The Canadian Government announced this week that it has finally chosen the roadside saliva tester for drugs to be used after marijuana legalization this October. The chosen device is the Draeger DrugTest 5000.
This device is subject to numerous flaws. In an earlier blog post, I discussed some of the pitfalls generally with saliva testing, and none of those pitfalls are cured by this device. Now that we know what device is coming, we can identify which specific pitfalls apply to this device and in what way they apply.
There are major concerns with an individual’s Charter rights at the roadside when using a roadside saliva tester. The Draeger DrugTest 5000 is much different than a roadside breathalyser, and that is one of the reasons why constitutional rights are very much on the line here.
The Supreme Court of Canada has confirmed that roadside drug and alcohol testing is already a violation of the Charter right to counsel and right to be secure against unreasonable search and seizure. However, the violation is justified on the basis of the fact that the tests are predicated on a reasonable suspicion, and conducted forthwith. This means immediately.
However, the roadside saliva testing chosen by the government will not be done immediately. The device requires that a swab be rubbed in the mouth for two to three minutes, between the gum and the cheek, in order to capture enough saliva for a suitable sample. After that, the analysis process also takes time. Although the government claims it is only a few minutes, the Draeger DrugTest 5000 literature explains that this can be five to ten minutes in total.
So a person could be detained, and subject to this search, for close to fifteen minutes. All the while, there is no right to call a lawyer.
Worse still, the search is far more invasive than a breath test. Your body naturally expels air, and the courts have considered that since breathing is natural and the breathalyzer is just capturing that breath, the privacy concerns are mitigated.
But a few minutes’ worth of saliva buildup in the recesses of your mouth is a whole other story. We’re talking about a bodily fluid that can reveal a great deal about a person and something that is not normally expelled. In fact, it’s an offence to otherwise expel it in public.
And then there are the concerns about functionality. Not only does it require a minimum volume of saliva, which some people may not be able to produce, but it also requires it to be collected and analyzed in a certain temperature range: five to forty degrees Celsius. Most places in Canada, for a significant portion of the year, are outside this temperature range. Heck, even in the past few weeks we’ve seen temperatures in excess of that in the Okanagan and parts of Ontario.
If Canadians cannot get reliable results most of the year, then the device should not be used. It's useless for the stated goal of public safety, and it's useless for protecting Charter rights.
The Draeger DrugTest 5000 poses significant operational concerns for police. If police allow the subject to hold the swab themselves and collect the saliva themselves, there are concerns about letting an untrained person do it and not collecting a suitable sample. Alternatively, if the police do it, they compromise their safety. The officer will have to be in close physical proximity with the driver for several minutes, with one hand occupied.
While most people will probably be cooperative, this will pose a safety risk for officers who are unable to defend themselves. After all, they are testing people whom the police suspect are under the influence of drugs. If that person turns violent, it could pose serious physical risk to police officers.
And then there’s the issue of the operation of the device itself, and how the officers are going to be recording the steps they took in collecting the sample, giving instructions, and operating the device. It’s hard enough, in my experience, for the police to articulate how they operated a breathalyser and that device only has two buttons. The steps to do this in both a safe and sanitary way, while following the manufacturer’s direction are going to be stumbling blocks for police in court.
What concerns me most is that the major pilot project undertaken by the Federal government for the testing of these devices did not even look at the ultimate device chosen. The Draeger DrugTest 5000 was not thoroughly studied across Canada. This fits with what is becoming a disturbing trend about Bill C-46 and its implementation: regulate first, and worry about the science later.
There are very real concerns that this saliva testing device is going to violate Canadians’ constitutional rights, risk putting police in danger, and be operated in circumstances that can contribute to unreliable results. More was needed before it was approved.
Unfortunately now, it will be in the hands of police and the mouths of Canadians come October.
Vancouver Criminal Lawyer with a focus on impaired driving, marijuana legalization and related issues, and immediate roadside prohibition defence.