Approved Drug Screening Equipment Order: SOR/2018-179
Canada Gazette, Part II, Volume 152, Number 18
August 27, 2018
Ottawa, August 22, 2018
Attorney General of Canada
Approved Drug Screening Equipment Order
Drug Screening Equipment
1 A Dräger DrugTest® 5000 and a Dräger DrugTest® 5000 STK-CA, when used together, are approved for the purposes of section 254 of the Criminal Code as equipment that is designed to ascertain the presence of a drug in a person’s body.
Coming into Force
2 This Order comes into force on the day on which it is made.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Order.)
An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts (the Act) authorizes peace officers to use “approved drug screening equipment” when they suspect a driver has drugs in their body. The Act authorizes the Attorney General of Canada to approve this equipment by ministerial order. The inclusion of approved drug screening equipment in the Approved Drug Screening Equipment Order (the Order) is necessary so that peace officers may use approved drug screening equipment at the roadside to test drivers for the presence of one or more drugs.
The Attorney General of Canada has approved the drug screening equipment known as the Dräger DrugTest® 5000 STK-CA and the Dräger DrugTest® 5000, when used together, as “approved drug screening equipment” for the purposes of the Criminal Code. The Dräger DrugTest® 5000 STK-CA is the oral fluid collection system, and the Dräger DrugTest® 5000 is the reader. This drug screening equipment has been uniquely configured to Canadian evaluation standards.
The Act creates three new criminal offences for driving with a blood drug concentration (BDC) that is equal to or higher than the prohibited concentration set by the Blood Drug Concentration Regulations. Inclusion of the Dräger DrugTest® 5000 STK-CA and the Dräger DrugTest® 5000 as “approved drug screening equipment” permits their use by law enforcement, at the roadside, to analyze samples of oral fluid collected from drivers who are suspected of having drugs in their body. A positive result would be a strong indication of recent use.
The proposed drug screening equipment will test for the presence of tetrahydrocannabinol (THC) and cocaine in oral fluid. An oral fluid sample that tests positive would presumptively confirm the presence of the drug and, combined with other observations made by the police officer, would likely provide grounds for the investigation to proceed further, either by making a demand for a drug recognition evaluation or for a blood sample.
The inclusion of the Dräger DrugTest® 5000 STK-CA and the Dräger DrugTest® 5000 as “approved drug screening equipment” in the Approved Drug Screening Equipment Order would facilitate the investigation of BDC driving offences.
The Order lists the Dräger DrugTest® 5000 STK-CA and the Dräger DrugTest® 5000 as “approved drug screening equipment” for the purposes of the Criminal Code. The Order came into effect on the date that it was made by the Attorney General of Canada.
The “One-for-One” Rule does not apply to this proposal, as there is no change in administrative costs to businesses.
Small business lens
The small business lens does not apply to this proposal, as there are no costs for small businesses.
The Dräger DrugTest® 5000 STK-CA and the Dräger DrugTest® 5000 were examined by the Drugs and Driving Committee (DDC) of the Canadian Society of Forensic Science (CSFS). Following its evaluation, the drug screener was recommended for approval to the Attorney General of Canada for the detection of THC and cocaine.
The DDC of the CSFS is a volunteer committee which is independent of the Government and is the scientific adviser on drugs and driving for the Department of Justice. It currently comprises experienced forensic toxicologists and an expert in traffic safety.
The DDC has advised the Department that approved drug screening equipment could be a valuable tool in the detection of driver drug use in Canada. The approach for approving drug screening equipment for criminal impaired driving investigations requires manufacturers to submit their drug screening equipment to the DDC for testing and evaluation. Drug screening equipment that passes the DDC’s evaluation standards may then be recommended by the DDC for approval by the Attorney General of Canada. In order to be approved for use in Canada, the drug screening equipment must detect one or more of THC, cocaine and methamphetamine.
A notice published in the Canada Gazette, Part I, of the Attorney General of Canada’s intention to approve and list by ministerial order the Dräger DrugTest® 5000 STK-CA and the Dräger DrugTest® 5000 as “approved drug screening equipment,” stipulated a 30-day comment period for any interested parties, which ended on August 18, 2018. In response to the publication of that notice, the Department received five comments, along with questions received from a further four respondents on the proposed inclusion of the Dräger DrugTest® 5000 STK-CA to be used with the Dräger DrugTest® 5000 as “approved drug screening equipment.” One respondent noted that the proposed drug screening equipment will test only for specific drugs and that it will not detect drug impairment. Another respondent expressed its support for the inclusion in the ministerial Order of the proposed drug screening equipment.
An insurance organization expressed support for the Government’s proposal to approve drug screening equipment to further protect public safety. They suggested that the federal government work with the provinces and municipalities to ensure frontline law enforcement is sufficiently trained to identify drug-impaired drivers. They also suggested the Government implement public safety and awareness frameworks that would emphasize the risks associated with drug-impaired driving.
A law enforcement organization expressed general support for the proposal but raised operational concerns with respect to the size of the equipment, with the fact that the equipment must remain level to function properly, and that the equipment must be used within a certain temperature range to avoid compromising its performance. They also expressed concerns about the amount of time the oral swab must remain in a person’s mouth along with the total time required to conduct a test. They expressed concern that this could result in a significant amount of litigation, including Charter challenges. They suggested that the Government should approve more drug screening equipment including to test for other drugs in addition to THC and cocaine.
One respondent expressed concern about the accuracy rate of drug screening equipment, specifically the Draeger [sic] Drug Test 5000, that is being used in both Australia and Ireland. The respondent also expressed concern over the length of time required to use drug screening equipment on a suspected drug impaired driver. This respondent also shared concerns that were unrelated to the proposal to list the Dräger DrugTest® 5000 STK-CA and the Dräger DrugTest® 5000.
Questions raised in response to the Canada Gazette, Part I, publication were related to the timing, legislative process and costs to purchase the drug screening equipment. All questions were directed to the Department’s Communications Enquiries Unit to coordinate an appropriate response.
Drug screening equipment must be approved by order of the Attorney General of Canada under the authority of the Criminal Code before it can be used by peace officers for the purposes of the Criminal Code. The use of approved drug screening equipment would facilitate the investigation of drug-impaired driving, including the new prohibited BDC offences created by the Act.
The inclusion of approved drug screening equipment in the Approved Drug Screening Equipment Order would have cost implications for the federal and provincial law enforcement agencies that choose to purchase drug screening equipment and train their officers on its use.
Implementation, enforcement and service standards
There are no compliance mechanisms required. Use of approved drug screening equipment by law enforcement agencies is voluntary.
Criminal Law Policy Section