The biggest hint to date about what British Columbia’s drug-impaired driving scheme is going to look like is finally here. Solicitor General Mike Farnworth was quoted in The Province today as saying that a legislative scheme not unlike the Immediate Roadside Prohibition scheme might soon become a reality.
It’s nice to know he’s creating a new prohibition scheme when the one that he criticized while in opposition remains unrepaired.
But what the article in The Province hints at is that roadside testing will be done by way of saliva testing. And this is inherently problematic.
Saliva testing falls into the same trap as does the Federal Government’s proposed 2.5 ng limit of THC in the body for a conviction for a drug-impaired driving offence. It is simply not a reliable way of measuring impairment. And no saliva testing device can say whether a person is impaired.
This law is doomed to fail. One of the reasons that the Supreme Court of Canada upheld the constitutionality of the Immediate Roadside Prohibition scheme was due to the fact that the law was predicated on devices that were shown to be reliable for what they did, assuming they were operated and maintained correctly. But saliva testing is uncharted territory.
The Canadian Society of Forensic Sciences did a study to test the reliability of saliva testing equipment. The most troubling aspect of the study from a legal perspective is that although devices can produce a status message when they are due for service, that message can be easily overridden and a test conducted.
In a pilot project run by the Federal Government to test saliva testing devices. The federal study found that the malfunction rate was around 13%, with the majority being issues with printing the results. Their suggestion that results can just be printed at the detachment neglects the fact that drivers then are not given a copy of their results.
Procedural fairness much?
The federal study proceeded on the basis of ruling out anyone who showed symptoms of impairment, the very thing the government was cautioned against doing by the Canadian Society of Forensic Sciences. So I guess even when we have scientists saying the correct method for scientific testing, that’s not really going to be followed by Government.
The federal study also identified a more substantial concern for police: officer safety. Police were uncomfortable with the fact that they were required to be in close physical proximity to drivers for about ten minutes while the testing was taking place.
In reality, this will likely result in police locking people in the back of police vehicles, where they have no access to counsel and are effectively detained. This will raise significant problems under the Charter, as individuals who are detained are entitled to contact counsel, and roadside detention for taking samples is supposed to be minimal.
This is a huge Section 9 violation. If police can’t deploy this technology quickly and effectively, then it shouldn’t be available for them to use.
But hey – this is British Columbia, where the status quo has now become to pass bad laws first and refuse to fix them ever.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.