Defence lawyer raises concerns about new impaired driving test for cannabis

Police are touting their use of a new device to catch drivers they suspect of being impaired by cannabis.

But a Saskatoon-based defence lawyer said he has some concerns about the SoToxa device, which was recently used by the Regina Police Service to catch two impaired drivers. 

"One of the big concerns that we've got as defence council is we're left with trusting some of the government testing that's done on this device without having the ability to test the device ourselves," Brian Pfefferle told CBC Radio. 

He said the SoToxa device is only being sold to law enforcement agencies and the only way defence lawyers can test the SoToxa device is through public forums such as conferences. 

Pfefferle said so far defence lawyers have not had a chance to test it on their own. 

In contrast, he said, defence lawyers used to have access to many different kinds of roadside testing devices for alcohol impairment.

"There certainly is a feeling among the defence bar, that if these devices are sound devices, they're essentially infallible.… If that's the case, give us wide-range access to the devices so we can test them ourselves, do our own independent investigations," Pfefferle said. 

Addressing cold concerns 

The Regina Police Service, speaking with media about the device last week, admitted there are problems with its accuracy in the cold. 

To combat those problems the service said the device is kept inside a running police car or indoors when it is not being used. 

Pfefferle said keeping a SoToxa device in a police vehicle creates another set of problems. 

"What should be a very brief detention of a motorist roadside could drag out to being several minutes longer than the approved screening device for alcohol," Pfefferle said. 

"It could be quite an onerous situation roadside. I mean, this isn't in a laboratory setting. These are on Saskatchewan highways."

He said motorists who wish to contact a lawyer before providing a sample to police could face charges related to refusing an impairment test.  

Impairment level still unsettled

Pfefferle said he gets about 10 to 12 calls a week related to impaired driving and said he hasn't seen an increase in drug-related impaired driving calls since cannabis was legalized.

He noted the device was officially recognized as an acceptable method to detect cannabis-impaired drivers in the summer of 2019 and police seem to be rolling out their use of it now.

Pfefferle said he doesn't expect to see it used heavily.

He said he feels that police will likely stick to older methods of detecting impaired drivers — such as looking for slurred speech, red eyes or challenges operating a vehicle — rather than relying on the SoToxa device all the time.

Another concern is what constitutes impairment through cannabis, he said.

Pfefferley said the SoToxa device doesn't determine exactly how much THC is in someone's body or if someone is actually impaired by the cannabis in their system.

It simply gives a pass or fail result if someone has more than 25 nanograms of THC in their system — a point the Regina Police Service emphasized when they demonstrated the device last week. 

He said the .08 per cent blood alcohol limit for alcohol has been determined through law, where it hasn't been decided yet with cannabis.

There is a zero-tolerance policy for people driving with THC in their system in Saskatchewan, however what constitues as impairment is still up for discussion. 

"There is no 'everybody's impaired' THC level,"  Pfefferle said. 

"We've picked a number, and some would argue it's an arbitrary number, in fact some toxicologists would say in fact it's completely arbitrary, but it catches most people but there are going to be some people who are not impaired at the level."