Order Amending the Approved Drug Screening Equipment Order: SOR/2019-237

Canada Gazette, Part II, Volume 153, Number 14

Registration

SOR/2019-237 June 24, 2019

CRIMINAL CODE

The Attorney General of Canada, pursuant to paragraph 320.39(b) footnote a of the Criminal Code footnote b, makes the annexed Order Amending the Approved Drug Screening Equipment Order.

Ottawa, June 20, 2019

David Lametti
Attorney General of Canada

Order Amending the Approved Drug Screening Equipment Order

Amendment

1 Section 1 of the Approved Drug Screening Equipment Order footnote 1 is replaced by the following:

Approved equipment

1 For the purpose of the definition approved drug screening equipment in section 320.11 of the Criminal Code, the following equipment that is designed to ascertain the presence of a drug in a person’s body is approved:

Coming into Force

2 This Order comes into force on the day on which it is registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

The amendment to the Approved Drug Screening Equipment Order lists the equipment known as the SoToxa™, the Abbott SoToxa™ Test Cartridge and the Abbott SoToxa™ Oral Fluid Collection Device, when used together, (hereinafter referred to as the “SoToxa drug screener”) as “approved drug screening equipment” for the purposes of the Criminal Code. The Ministerial Order came into effect on the date that it was registered by the Privy Council Office.

Background

Before the police may use drug screening equipment, at the roadside, to analyze samples of oral fluid collected from drivers who are suspected of having drugs in their body, the Attorney General of Canada must approve the drug screening equipment. Approval of the SoToxa drug screener as “approved drug screening equipment,” permits their use by law enforcement. A positive result for tetrahydrocannabinol (THC) on the SoToxa drug screener would be a strong indication of recent use.

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, may provide grounds for the investigation to proceed further, either by making a demand for a drug recognition evaluation or for a blood sample.

Objective

Approval of the SoToxa drug screener provides law enforcement agencies with an additional tool that may be purchased and used in criminal drug-impaired driving investigations.

Description

The inclusion of the SoToxa drug screener in the Order permits this equipment to be used by police at the roadside in a drug-impaired driving investigation. The SoToxa drug screener tests for the presence of THC in oral fluid.

Regulatory development

Consultation

The SoToxa drug screener was evaluated by the Drugs and Driving Committee (DDC) of the Canadian Society of Forensic Science. In order to be approved for use in Canada, drug screening equipment must detect one or more of THC, cocaine and methamphetamine. The DDC recommended approval of this drug screener to the Attorney General of Canada for the detection of THC.

The DDC is an independent volunteer committee that provides scientific advice on drugs and driving to the Department of Justice. It is composed primarily of experienced forensic toxicologists and traffic safety experts.

A Notice was published on April 20, 2019, in Part I of the Canada Gazette of the Attorney General of Canada’s intention to add the SoToxa drug screener to the Approved Drug Screening Equipment Order as “approved drug screening equipment.” This was followed by a 30-day public comment period, which ended on May 20, 2019, for any interested parties to provide comments. Due to a technical issue with the email address that was used for the public comment period, a correction notice was published in Part I of the Canada Gazette on May 25, 2019, extending the comment period to June 4, 2019.

In response to the publication of both notices, the Department received submissions from four individuals which included questions about the proposed inclusion of the SoToxa drug screener as “approved drug screening equipment.”

One respondent raised questions about the scientific evidence related to cannabis use and impairment and asked how approved drug screening equipment tests for recency of use. This respondent also suggested that restitution be made to cannabis users who have been negatively impacted by the laws surrounding cannabis use. Another respondent raised questions about the DDC’s membership composition and its evaluation process, and also asked about the purpose of the Canada Gazette’s 30-day public comment period. A third respondent expressed concern that the proposed drug screening equipment does not measure an exact level of drug impairment and encouraged the Department of Justice not to support the approval of this technology. A fourth respondent submitted a number of questions about the cost, the size of the equipment, whether there are any temperature restrictions, the location of the manufacturer, and, whether the equipment has previously been used in pilot testing in Canadian jurisdictions.

Modern treaty obligations, and Indigenous engagement and consultation

This proposal has no impacts on modern treaty implications.

Instrument choice

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 law enforcement for the purposes of the Criminal Code.

Regulatory analysis

Costs and benefits

The addition of the SoToxa drug screener in the Approved Drug Screening Equipment Order would have cost implications for the federal and provincial law enforcement agencies that choose to purchase and train their officers on its use.

Small business lens

The small business lens does not apply to this proposal, as there are no costs to small business.

“One-for-One” Rule

The “One-for-One” Rule does not apply to this proposal, as there is no change in administrative costs to business.

Regulatory cooperation and alignment

The proposal is not related to a work plan or commitment under a formal regulatory cooperation forum.

Strategic environmental assessment

This proposal has no impacts on the environment.

Gender-based analysis plus (GBA+)

There is no data to suggest that police would deploy investigative measures differentially between men and women.

Rationale

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 law enforcement for the purposes of the Criminal Code.

Implementation, compliance and enforcement, and service standards

Implementation, enforcement and service standards

There are no compliance mechanisms required. Use of the approved drug screener by police agencies is voluntary.

Contact

Department of Justice
Criminal Law Policy Section
284 Wellington Street
Ottawa, Ontario
K1A 0H8
Email: drugscreener-depisteurdedrogues@justice.gc.ca