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Government inaction on saliva test data risks wrongful convictions | Kyla Lee

Friday, July 19, 2019 @ 11:33 AM | By Kyla Lee


Kyla Lee %>
Kyla Lee
There’s something inherently insulting in the fact that as Canadian citizens we are not permitted to have access to the data, research and information about saliva testers that has been collected by the government. After the approval of the Abbot SoToxa device, a saliva testing device designed to measure tetrahydrocannabinol (THC) concentrations in the blood, earlier this month, one would expect that government would release the basis of its approval.

But they have not.

Now, I suppose I can understand the decision not to release this generally. Most people probably do not care to read scientific studies performed by the RCMP forensic laboratory. But what about releasing this information at least to defence lawyers?

What’s more insulting is that the government has apparently contracted with the manufacturer to prohibit the sale of the Abbot SoToxa to any private entities in Canada.

Trust me, I tried. I tried to obtain a SoToxa device using various corporate entities. I tried to obtain it on other continents and in other countries. I had people who could not publicly be traced back to me make enquiries. No dice. They will only sell to law enforcement agencies in Canada. But why prevent a group of well-meaning defence lawyers from obtaining the equipment?

It’s as though the federal government and the manufacturer have some perception of defence lawyers, skewed and ill-informed. But how can that be? David Lametti, our current Justice minister, is a lawyer and former law professor.

Presumably, he knows that defence lawyers play an important role in the justice system. They guard against wrongful convictions. Without defence lawyers, the cases of Ivan Henry, Thomas Sophonow and even the Martensville sex scandal would have ended up entirely differently.

Does the federal government really believe that defence lawyers would spend their time figuring out ways to “beat” a saliva tester? The reality is that it’s just not likely.

Or is the reason for the refusal to provide the device to anyone outside law enforcement more nefarious than mere distrust of defence counsel?

Take the government’s own pilot project looking at the devices that were subsequently approved. In the final report on a pilot project aimed at saliva testing for THC, the government found serious problems with the Alere DDS2.

For example, two of the Alere DDS2 used in the project gave exclusively false positive readings after a period of time.

This was discovered only after the tests were administered to two police officers. In another instance, high rates of false positives were detected in low temperatures, with no apparent warning that this was occurring.

Clearly, those are problems that can lead to serious consequences. In Nova Scotia, a woman tested positive for THC on the Drager DrugTest 5000 device. She was suspended from driving, had her vehicle towed and had a black mark put on her driving record, despite the fact that later testing determined that she was in no way impaired by cannabis.

She is now suing the federal government and challenging the constitutionality of the legislation.

Perhaps what the federal government does not want people to know is just how unreliable saliva testing devices are.

After all, the Alere DDS2 was renamed after the pilot project, and is now marketed as none other than the Abbot SoToxa.

Recent studies conducted in conjunction with our office on the Drager DrugTest 5000 showed false positive readings for CBD oil containing less than one per cent THC, and for coca leaf tea.

The federal government was coy in response to the concerns, while the manufacturer claimed that the unit used for testing was not a law enforcement unit, although failed to indicate that a law enforcement unit would not produce falsely positive readings.

Forgive me if I’m cynical, but to me only allowing forensic testing of a device by people who are permitted to do it by the manufacturer raises serious concerns about the impartiality of those studies. And refusal to provide the device to groups who are skeptical about its reliability suggests the manufacturer and the government have something to hide.

Maybe they can hide it in a rebranding. Or maybe they can prevent lawyers from obtaining and testing the equipment.

Either way, what they are guaranteeing is not that road users will be safe from cannabis-impaired drivers, but instead that drivers will be at risk of wrongful conviction. And that, to me, is not a cost that is justified in protecting a product’s reputation.

Kyla Lee is a criminal lawyer and partner at Acumen Law Corporation in Vancouver. Her practice focuses on impaired driving. She is the host of a podcast, Driving Law, and a weekly video series Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t! She is called to the bar in Yukon and British Columbia.

Interested in writing for us? To learn more about how you can add your voice to The Lawyer's Daily, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.