Law Times

LAW TIMES COVERING ONTARIO'S LEGAL SCENE | MARCH 18, 2019 9 www.lawtimesnews.com BY DALE SMITH For Law Times C riminal defence and em- ployment lawyers say that with new provisions in the Criminal Code around testing for cannabis usage, the reliabil- ity of oral f luid testing remains controversial. In particular, lawyers say that oral f luid testing is based on un- settled science. Clients who were not im- paired at the time of testing but who yielded a positive result of a certain concentration of nano- grams of THC, the active in- gredient in cannabis, could face impairment charges because of that scientific uncertainty, law- yers say. Annamaria Enenajor, a crim- inal defence lawyer and part- ner with Ruby Shiller Enenajor DiGiuseppe Barristers in Toron- to, says the oral f luid testing can provide reasonable grounds for law enforcement officials to be- lieve that a person has commit- ted an offence of driving while impaired by cannabis. "The reliability of the tests isn't a foregone conclusion in terms of what the test actually shows," says Enenajor. "Unlike breathalyzer tests for alcohol, there isn't a consensus in the scientific community about the ability of an oral f luid test to de- termine present impairment." Enenajor says there is a con- sensus that a breathalyzer read- ing of 0.08 per cent blood alco- hol content is indicative of im- pairment. However, when it comes to cannabis, the federal govern- ment assumes that a positive oral f luid testing result means that a person has probably consumed cannabis in the recent past but is not necessarily impaired at the time the test is conducted. "The risk that arises from that [positive result] is that a person can be held liable for driving impaired where they are actually not impaired — essen- tially a false positive can lead to a false conviction," says Enenajor. "There is no actus rea for the li- ability." Enenajor says the lack of sci- entific certainty creates a situ- ation where an unreliable oral f luid test creates the reasonable probable grounds for police to proceed with a blood draw test, which she says is also an unreli- able test. For blood draw tests, guilt is established at a level of five nano- grams per millilitre of blood. "It's layers of problematic as- sumptions made about the reli- ability of evidence," says Enenajor. Tamara Ticoll, counsel with Stikeman Elliott LLP in Toron- to, who practises employment law, says that, for employers, oral f luid testing is considered less invasive than other testing methods. "There's less of an infringe- ment on employee privacy rights," says Ticoll. "It would be seen as a better practice in the jurisprudence." Ticoll says the cheek swab of the oral f luid testing is seen as preferable to urine analysis or especially blood testing in a workplace, which is much more invasive and infrequently used. "Even with those [who test] positive, employers still need to be mindful of the fact that the technology isn't showing present impairment," says Ticoll. "Even if an oral f luid test may be viewed as more precise, it can have limited value in that it doesn't show present impair- ment or an ability to pinpoint when the drug was used." Ticoll says that because it re- mains unclear if the drug use caused impairment or impacted fitness for work, it could be chal- lenged. Ticoll says she tells employers that while the oral f luid testing is a helpful tool, it should be used as part of a policy that couples the oral f luid testing along with testing where an employer also has reasonable grounds to believe that there may have been impair- ment and where there are signs that are indicative of impairment. "You have two fronts to es- tablishing that the person is impaired," says Ticoll. "I would consider that as a best practice versus using just the oral f luid testing on its own." Ticoll says that even though the two-part test could still be challenged, the limitations of the technology will mean that this is a rapidly evolving area that em- ployers will need to stay alert to. Anne-Marie McElroy of McElroy Law in Ottawa says the whole impaired driving re- gime is premised on a balance of Charter rights and public safety and that roadside tests are al- lowed without the right to coun- sel because there is an assump- tion that the tests are accurate. "That allows the police the grounds in order to detain a per- son, often for hours at a time, in order to have them subjected to further tests," says McElroy. "To know that these instruments can have false positives or may not be accurate undermines the whole scheme that has been carefully crafted in order to balance these competing interests." McElroy adds that the other difficulty from a defence lawyer perspective is a lack of access to the machines that were used for testing or their maintenance re- cords, which makes it difficult to determine their reliability. "It's hard to prove that they're not accurate if we don't have any way of knowing if they're accu- rate or not," says McElroy. LT Annamaria Enenajor says that, when it comes to oral fluid testing for cannabis, 'reliability of the tests isn't a foregone conclusion in terms of what the test actu- ally shows.' FOCUS Applications beyond criminal law Oral fluid testing presents problems TF: 1.888.223.0448 T: 416.868.3100 www.thomsonrogers.com TRUST WELL PLACED L. CRAIG BROWN ALEKS MLADENOVIC RICHARD C. HALPERN KATE CAHILL SLOAN H. MANDEL DEANNA S. GILBERT Since 1936, Thomson Rogers has built a strong and trusting relationship with lawyers across Ontario. We welcome the opportunity to speak or meet with you about potential referrals. For more information about our Lawyer Referral Program, visit: www.thomsonrogers.com/referrals MEDICAL MALPRACTICE LAWYERS Untitled-3 1 2019-03-12 1:48 PM

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