Nova Scotia woman to challenge roadside cannabis testing laws

Aug 20, 2019

Michelle Gray, Halifax resident and medical cannabis user, had her license suspended after her saliva tested positive for cannabis in January. Her lawyer, Jack Lloyd, has confirmed that his law firm plans to initiate a constitutional challenge of Canada’s new impaired driving laws based on this case.

According to Gray, she was stopped at a roadside check while driving from downtown Halifax to her house in Middle Sackville. The police officer she interacted with said he could detect the smell of cannabis coming from her car, and Gray explained to him that she used medical cannabis to treat her MS. 

She passed the roadside alcohol test, but the drug test revealed trace amounts of tetrahydrocannabinol (THC), the main active ingredient found in cannabis, in her saliva. Gray was then arrested and taken to police headquarters, where she was required to undergo a Drug Recognition Expert Evaluation, including memory and balance tests.

Although Gray had passed the tests administered at the police station, the positive test results from the initial saliva roadside test resulted in getting her license suspended for a week. Moreover, her car was impounded, incurring a $400 bill for Gray, who also missed four days of work as a result.  

Nova Scotia’s Motor Vehicle Act allows the police to issue suspensions for drivers who fail a roadside test. However, the RCMP had admitted to making an error, stating that Gray’s license should have been suspended for only 24 hours instead of one week.

Gray is now collaborating with lawyers at Acumen Law to challenge both the legality of the Drager DrugTest 5000 roadside test as well as Nova Scotia’s roadside suspension provision. “The argument is that you’re going to be having people lose their liberty—Michelle was arrested and her personal liberty was taken away from her—and it turned out that she was not guilty of anything,” her lawyer, Jack Lloyd said in an interview.

“It’s a weird provision that they’ve had in there for a number of years involving alcohol and now they’ve changed it recently to include testing for marijuana as well, even though the roadside test for marijuana cannot make any determinations to whether somebody is impaired or not.”

Nova Scotia lawyer, Tom Singleton, told CBC news,

THC is stored in the body’s fat cells and can be detectable in a person’s body up to a month after use, according to the results of some scientific studies. Moreover, the accuracy and reliability of the new roadside drug test, Drager DrugTest 5000, has been a subject of concern. One study examining the use of the device in Norway reported a significant number of false positive and false negative results. In addition, several Canadian cities, including Ottawa, have decided not to use the device due to the concerns related to its performance in cold weather.

Another emerging criticism of the Drager DrugTest 5000 is that although the machines do test for the presence of THC, they do not measure the actual impairment. In her interview with Global News, Cpl. Lisa Croteau of the RCMP in Nova Scotia, said, “There is no correlation between the level that you’re at, the active THC in your body, and impairment.”