Canadian Underwriter

Will roadside marijuana tests be upheld in court?

May 7, 2019   by Jason Contant

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The ability to properly test marijuana impairment with roadside devices remains front and centre seven months after legalization, with at least one possible legal fight brewing.

“I think our big issue in Canada, whether it’s a roadside test or from an employment perspective, is we don’t have the tools to test properly,” said Heather Matthews, senior vice president of Crawford & Company (Canada)’s National Claims Management Centre. “I think we are going to find there will be tests done, but I think we will find ourselves in court for some time.”

Matthews suggests the situation will be no different than when the breathalyzer came in as a testing device. “People challenged it and got off on technicalities.” She suspects the issue will even make its way up to the Supreme Court of Canada.

Some police officers have expressed concerns over using the one approved roadside testing device – the Drager DrugTest 5000 – and how its results might hold up in court. The Canadian Press reported late last month that another device, called SoToxa, could become approved drug screening equipment under Canadian law.

Roadside-testing technology is already facing a possible legal fight in Nova Scotia. Michelle Gray, a medical marijuana user, had her licence suspended after a positive saliva test for cannabis, even though she passed a police-administered sobriety test the same night, the Canadian Press reported. Gray and her lawyer have publicly said they plan to launch a constitutional challenge.

The issue of recreational marijuana in Canada and the United States was discussed by Matthews and Dr. Marcos Iglesias, chief medical officer at Broadspire, at the RIMS US conference, held in Boston from Apr. 28-May 1. Broadspire, a Crawford company, provides personalized claims solutions in workers compensation, accident and health and third-party administration, among other areas. The two presented at a session called Managing the Use of Marijuana in the Workplace: A North American Perspective.

Dr. Iglesias said it’s unfortunate that even risk management and insurance professionals are generally uneducated about the topic of recreational marijuana. “What they get is what they are getting from the public media both in terms of what’s legal and what’s not legal, and employment issues,” he said. “The whole idea of testing, there’s a lot of misconceptions out there. There’s a lot of misconceptions about its medical use and its efficacy. I’m not surprised even in a group like the group that came to hear us that there’s jut a lot of myths and misconceptions out there.”

Bill C-45, the Cannabis Act, went into effect Oct. 17, 2018. Canadians can legally possess up to 30 grams of legal cannabis, dried or equivalent in non-dried form, in public.

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3 Comments » for Will roadside marijuana tests be upheld in court?
  1. Medical Cannabis users can run at blood levels of 10 to 50 ng/ml of THC and even higher in some cases.

    Assumption of impairment also ignores levels of CBD which have a major mitigating factor in the psychoactive effects of THC.

    Many aspects of the new Canadian Cannabis impairment laws will be unconstitutional and will be challenged in court due to the vast range of human tolerance to THC and the inconsistency of it’s impact on various individual human physiology

    In the vast majority of medicinal applications, the daily use of Cannabis medicine results in a complete tolerance to the psychoactive effects of Delta 9 THC due to the receding of CB1 receptors in the central nervous system, specifically the brain resulting in no impairment in the ability to operate a motor vehicle while using Cannabis medicine properly.

    • Nightflght says:

      Down regulation cannot be a factor when assessing impairment in a legal context. Lowest common denominator will ng/ml based on average consumer to become impaired.

      If you were to factor in down regulation, then alcoholics can drive fine while drinking and effectively be sober. But when they blow over, they blow over – end of argument.

      I’ve used THC recreationally on and off for 30+ years, and personally I still don’t really buy into legitimate medicinal use. IMHO ‘medicinal use’ is mostly abused as an excuse for chronic recreation.

      Its an awful drug anyhow. There are any number of other tryptamines that perform more cleanly.

  2. Greg says:

    can you please just answer what we all want to know?
    is it admissible in court?

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