A Nova Scotia woman is planning to launch a constitutional challenge after her driving license was suspended because she consumed cannabis – an incident shining a light on the evolving system of roadside cannabis testing.
Michelle Gray, who lives in Middle Sackville, N.S., uses medicinal cannabis to treat symptoms of multiple sclerosis.
She was stopped on January 4 at a routine RCMP checkpoint. Her son was in the car.
She passed a breathalyzer test after having one alcoholic drink over two hours earlier, but a saliva test resulted in a positive result for THC, even though Gray said it had been nearly seven hours since she had smoked a joint, according to the CBC.
The officer said he could smell cannabis in her car.
Gray was subsequently arrested and taken to Halifax Regional Police headquarters, where she did an expanded sobriety test, a 12-step process which includes balance and memory tests.
Gray told CTV that she was nervous her MS symptoms would “flare-up” during the test.
“If I would have had a flare-up where my speech was impaired, like it has been during flare-ups in the past, I would have instantly failed,” she said. “[The arrest] was a traumatic event for me.”
She passed the test and was released without charge for impaired driving, however, because she failed the roadside test due to her positive THC result, her license was suspended for seven days and her car was impounded.
This resulted in Gray losing four days of work and having to pay a hefty charge to get her car back.
According to the Nova Scotia RCMP, a positive roadside test may result in a “maximum” 24-hour license suspension, and Gray was “incorrectly issued a seven-day suspension,” the CBC reported. The RCMP have since contacted Gray to acknowledge the error.
Gray’s lawyer, Jack Lloyd, says her case shows that the law dealing with impaired driving is too broad and vague.
Lloyd, a Toronto-based lawyer with expertise in cannabis, is planning to file a legal challenge under the Charter of Rights and Freedoms.
Gray says that she shouldn’t have been penalized because she passed the police test confirming she was not impaired.
Even though roadside drug impairment machines test for THC but not impairment, Nova Scotia’s Motor Vehicle Act gives police the power to issue suspensions if a driver fails a roadside screening, regardless of whether they are impaired.
THC can remain detectable in someone’s system for as long as a month after use, according to the Mayo Clinic – far after the impaired effects are felt.
Questions have been raised about drug-impairment tests’ accuracy in the past, especially in cold weather, causing some Canadian cities, including Ottawa, to decide not to use them.