Law and Government Division
Revised 10 November 1999
BACKGROUND AND ANALYSIS
A. The American Influence
B. The Canadian Context
The Current Situation
Canadian Charter of Rights and Freedoms
(i) Section 7 of the Charter
Section 8 of the Charter
(iii) Section 15 of
Section 1 of the Charter
The Canadian Human Rights Act
c. Employment Standards
d. Procedural Safeguards
DRUG TESTING: LEGAL
The debate over compulsory employee drug testing is increasing
in this country as more and more consideration is being given to using
this practice as a means of ensuring a drug- and alcohol-free workplace.
Those in favour of mandatory drug testing in the workplace generally rely
heavily on safety, security and productivity arguments. It is asserted,
for example, that persons who test positively for drugs and alcohol in
the workplace demonstrate greater absenteeism and decreased ability to
perform their job and pose the greatest threat to workplace, and sometimes
even public, safety. On the other hand, those who oppose drug testing
firmly believe that, by using such methods, the goal of a healthy, safe
and productive working environment, while laudable, is achieved at too
great a social cost. Particular emphasis is placed on the fact that drug
testing constitutes the most intrusive infringement of the sanctity of
the human body and thus the right to privacy. The question then arises
as to whether a balance can be found between the concern for safety and
the concern for individual privacy. This question, however, presupposes
that it has been determined that a significant work-related drug and alcohol
problem exists in this country and that drug testing is the only method
of combatting it.
The purpose of this paper is to highlight some of the
more contentious issues related to mandatory drug testing in the workplace
and to examine the legality of this practice, particularly with regard
to employees rights to privacy under the Canadian Charter of
Rights and Freedoms, the Canadian Human Rights Act, the Privacy
Act and federal employment standards legislation (the Canada Labour
BACKGROUND AND ANALYSIS
A. The American
In the mid 1980s, the United States began extending compulsory
drug testing programs in the workplace to all public and private bodies,
domestic and foreign. It was estimated that eventually between one-third
and one-half of all American federal employees would have to undergo some
kind of drug testing. Many giant corporations, such as IBM, Ford, DuPont,
Exxon and the New York Times Corporation, started testing job applicants
and employees suspected of using drugs. Approximately 25% of the 500 largest
American corporations planned to discharge employees on the basis of positive
The imposition of drug testing programs in the United
States was largely a product of the Reagan and Bush administrations
declaration of war on drugs. It stemmed principally from the March 1986
report of the Commission on Organized Crime which recommended that the
President direct the heads of all federal agencies to formulate policy
statements and implement guidelines and suitable drug testing programs
to show the "utter unacceptability of drug abuse by federal employees."
This recommendation led to President Reagans Executive Order 12564
of September 1986, which made drug testing a government-wide policy.
Following the governments lead, drug testing programs
in the private sector escalated rapidly in the late 1980s and early 1990s.
According to the American Management Associations annual surveys
of American firms that conduct drug testing, such testing increased 250%
between 1987 and 1992. There have been some recent turnarounds, however.
Studies by the United States government have found that about 30% of the
companies that were testing for drugs in 1988 had stopped doing so by
1990. Reasons given were: employers realized that a positive drug test
was not necessarily relevant to an employees job performance; inaccurate
test results exposed employers to potential legal liability; and testing
programs, especially random testing, were not at all cost-effective. As
well, there has been a general decline in positive test results in those
workplaces that are still drug testing. While proponents of drug testing
point to this decline as evidence that testing works, others argue that
there are fewer positive test results because the drugs most abused today
(alcohol and prescription drugs) are not those being tested for (marijuana,
cocaine and heroin). Drug testing is still being heavily promoted by the
federal government. In October 1998, Congress appropriated $10 million
for the Drug-Free Workplace Act of 1998 to encourage small
companies to establish testing programs. Even so, it seems
the final chapter on drug testing programs in the American workplace has
yet to be written.
Urinalysis is the current technology used for drug testing,
with the most frequently used test in the United States being the enzyme
multiplied immunoassay technique (EMIT). This test costs between $4.50
to $25 US per person tested, while the necessary equipment costs approximately
$5,000 US. It is the cheapest existing test, no specialized personnel
are needed to perform it, and results are available within minutes. Gas
chromatography/mass spectrometry (GC/MS) has been described as "the
most reliable, most definitive, forensic quality procedure" but,
with costs from $100 to $200 US per person tested, it is also the most
The accuracy of the EMIT is often questioned in the United
States. Studies show that the EMIT test used alone may show a 25% inaccuracy
rate. Inaccurate results ("false positives") may be produced
from the urine of an employee who has consumed either poppy seeds or common
cold medications, such as Sudafed or Sucrets, or even herbal tea. A recent
concern was that the birth control pill could cause false positive results
for athletes. On the other hand, "false negatives" can be obtained
by the introduction of certain substances, such as salt, vinegar, Visine
or bleach into the urine samples. In order to eliminate such tampering,
American agencies have adopted stringent regulations which force subjects
to strip and submit to a search, and to give their samples in bare rooms
in the presence of an observer.
Some U.S. courts have even decided not to allow EMIT
test results to be introduced as evidence unless they are confirmed by
a positive result from an alternative method of analysis. The GC/MS is
now generally used as an independent confirmation of positive EMIT results.
Another concern raised in the United States is the collection
of the highly personal information that can be obtained from these tests.
A urine specimen can be analyzed to reveal whether an employee is pregnant,
is using licit medications, or is being treated for a heart condition,
manic-depression, epilepsy, diabetes or schizophrenia. It has been suggested
that employers could potentially use these tests for genetic screening
of employees in order to exclude an individual with any condition that
might be considered as diminishing work performance.
Finally, perhaps the greatest drawback to the use of
urinalysis as a means of drug testing is its inability to confirm whether
or not an employee is actually impaired. Urinalysis can indicate only
that a person has consumed a drug within the recent past (in the case
of marijuana, for example, trace amounts can be detected in urine up to
four weeks after use). It cannot show present drug use or present or past
impairment. Nor can the test determine the quantity consumed of any drug
that it detects.
Hair testing is the latest drug-testing technique being
promoted in the United States. The contention is that hair testing is
less intrusive and more reliable than urinalysis. Apparently, as human
hair grows, it traps whatever is in the blood, so that traces of any drugs
used by a person can be found in the hair months or even years later,
depending on the length of the hair sample. While this technology is growing
in popularity in the American private sector (including private schools),
it has yet to gain acceptance within major public sector institutions.
There also appears to be little support for such testing in Canada, despite
the lobbying efforts of drug-testing companies. This lack of support is
partly because, like urinalysis, hair testing does not always give reliable
results. At best, hair testing can detect only that a given substance
has been in someones hair follicles and therefore in his or her
system. There is no indication of whether that person was actually impaired
on the job or not. Moreover, hair testing results can be skewed when hair
has been bleached or dyed.
There have also been suggestions that hair testing
may be unfairly biased against persons with coarse black hair (such as
members of visible minorities) which contains high melanin levels. Drugs
bind with melanin in the hair; thus, even if members of visible minorities
have ingested the same amount of drugs as a person with lighter hair,
their test results will suggest a higher concentration of drugs. Finally,
cost may be a barrier to the acceptance of this drug-testing technique,
since hair testing can cost as much as three times more than a urine test.
In March 1995, an American company launched a
home drug testing kit called "Drug Alert." The kit contains
a piece of pre-moistened cloth that can be wiped across doorknobs, desk-tops
and clothing to pick up traces of illicit drugs. The cloth is then placed
in a sealed envelope and sent for analysis. The company has promised that
it can detect up to 30 kinds of illegal drugs. While principally intended
for worried parents who fear that their children may be using drugs, the
kit is also being promoted to employers; this method of testing can be
carried out more surreptitiously than urinalysis, which obviously requires
the knowledge and consent of the employee. According to the 1994-1995
Annual Report of the federal Privacy Commissioner, this new drug
testing method is currently available in Canada. The chief concern of
the Commissioner is that there is at present no federal law preventing
such surveillance, although several provinces do have statutory privacy
torts and the Quebec Civil Code and Charter of Human Rights
and Freedoms do protect citizens against being spied upon.
In spite of the many concerns raised by scientists, unions
and legal experts, the U.S. Supreme Court has shown itself to be quite
supportive of drug testing programs. For example, in the case of National
Treasury Employees Union v. Von Raab, 109 S. Ct. 1384 (1989),
the Commissioner of the U.S. Customs Service had made drug testing a condition
of promotion to three kinds of positions: positions involving the carrying
of a firearm; positions involving the handling of classified material;
and positions subject to a drug interdiction. Employees who qualified
for such positions would be advised by a letter that their final selection
would be contingent upon their successfully passing the EMIT drug test.
An applicant who tested positive would have to pass the GC/MS test. Any
employee who tested positive on both tests would be subject to dismissal
unless he or she was able to provide a satisfactory explanation.
A majority of the U.S. Supreme Court upheld the constitutionality
of the drug testing program, except for the testing of employees applying
for positions that involve the handling of classified material. They noted
that in an administrative context the requirement of "probable cause"
(i.e., circumstances suggesting that the person to be searched has violated
the law) might be unhelpful and that, given the governments compelling
need to deter drug use in the Customs Service, the requirement of "individual
suspicion" could also be dispensed with. As a result, the employees
right to privacy might be reduced in the context of the workplace, particularly
in the case of front-line enforcement government employees. The Court
dismissed the argument that there was no need for such a program because
only 5 of the 3,600 test results analyzed so far had been positive. The
majority of the Court held that, even so, the need to prevent future occurrences
of drug abuse by Customs employees was ample justification for the testing
In Veronia School District v. Acton 515
U.S. 646 (1995), the Supreme Court upheld the reasonableness and the constitutionality
of random urinalysis drug testing of high school athletes. In reaching
its decision, the Court considered the decreased expectation of privacy
among student athletes, the relative unobtrusiveness of the search at
issue, and the severity of the drug problem in the school district. The
Court reiterated its view that children at school, and thus in the temporary
custody of the State, enjoy a lesser expectation of privacy than members
of the general public. Student athletes have even less expectation of
privacy because they voluntarily subject themselves to a higher degree
of regulation than other students by choosing to sign up for a team. As
well, physical examinations and an element of communal undress are inherent
parts of athletic participation. The Court went on to find that any privacy
interests compromised by the process of obtaining urine samples were in
this case negligible, principally because the conditions of collection
were nearly identical to usual conditions in public washrooms.
Finally, the Court took note of the national importance
of deterring drug use by school children. It found that a school district
drug problem, largely fuelled by the "role model" effect of
athletes drug use and particularly dangerous to athletes themselves,
can be reasonably dealt with by a policy directed to ensuring that athletes
do not use drugs. Despite arguments to the contrary, the Court was not
prepared to accept that less intrusive methods of searching for drug use
by student athletes would have solved the problem at issue, or that such
methods were warranted under the Constitution.
These decisions have had a dramatic impact on subsequent
court rulings in the U.S. Lower courts have upheld random testing of office
workers, lawyers involved in drug prosecutions, virtually anyone carrying
a gun and people driving any type of vehicle. It will be interesting to
see what impact, if any, these cases will have when Canadian courts review
the constitutionality of mandatory drug testing programs in the workplace.
The Canadian Context
The Current Situation
Though at present there is no Canadian legislation providing
for mandatory drug testing of employees, companies doing business in the
U.S. may be obliged to respect U.S. legislation and perform drug tests
on their employees. Currently, U.S. federal motor carrier safety regulations
have been extended to Canadian trucking companies that send drivers into
the United States. As of 1 July 1996, any Canadian trucking company with
50 or more drivers assigned to operate commercial motor vehicles in North
America must have in place a workplace drug and alcohol policy and program
that includes, among other things, pre-employment drug testing as well
as random drug and alcohol testing at a minimum annual rate of 25% of
the driver pool for alcohol and 50% for drugs. By 1 July 1997, all carrier
companies with drivers assigned to operate commercial motor vehicles in
North America must comply with the U.S. regulations. These regulations
have applied to American trucking companies since 1990; however, an exemption
was provided for foreign carriers and drivers since it was anticipated
that Canadian law would provide for the prevention of substance use in
the transportation industry along much the same lines as its U.S. counterpart.
When the Government of Canada announced in December 1994 that it would
not be proceeding with such legislation (see Parliamentary Action section
of this paper), the foreign carrier exemption was lifted from the U.S.
The requirements under the U.S. regulations are extensive.
For instance, drivers are prohibited from using alcohol for four hours
prior to duty and from having a blood alcohol level of 0.02 or greater
while on duty. Employers are required: to provide education for supervisors
and access to assistance for employees; on hiring any driver, to obtain
from previous employers, with the drivers consent, the drug testing
history for the past two years; to remove from duty any driver who has
violated the rules; and to prepare and maintain specified records. Employers
or drivers who violate the requirements may be subject to enforcement
actions including being declared out-of-service and being fined up to
$10,000 per violation. Enforcement is carried out by means of random company
Obviously, Canadian trucking companies who wish to do
business in the United States will have to develop drug and alcohol testing
policies that comply with the U.S. regulations. These policies will, however,
also have to abide by Canadian human rights laws. Meeting both of these
requirements may not be easy. The Canadian Human Rights Commission has
received complaints against the mandatory drug testing policies of trucking
companies. The Commissions position is, however, that testing
programs, to the extent that they are instituted to comply with American
requirements, will remain permissible until Canadian law on testing becomes
clearer. The Commission points out, however, that this partial exemption
does not remove the duty on the employer to accommodate employees who
test positive (see B.2.b of this paper), nor will it apply to company
drivers who operate only in Canada.
While regulations in other portions of the transportation
sector prohibit the use of drugs and alcohol in the workplace, they do
not provide for mandatory drug testing. The Aeronautics Act, the
Canada Shipping Act, the Pilotage Act and the Railway
Safety Act all prohibit the use of intoxicants by employees on duty
but they do not have substance testing provisions. Amending legislation
would have to be introduced to extend the scope of these statutes to authorize
mandatory drug testing. Such a recommendation was made by the Special
Senate Committee on Transportation and Security in its January 1999 Interim
Report. The Committee, which was appointed on 18 June 1998 to examine
and report upon the state of transportation safety and security in Canada,
recommended that the federal government permit the transportation industry
to apply mandatory random drug and alcohol testing similar to that in
the United States. The Committee is currently mandated to complete a comparative
review of technical issues and legal and regulatory structures with a
view to ensuring that Canadian transportation safety and security are
of a high enough quality to meet the needs of Canadians in the twenty-first
The American "war on drugs" influence has also
been felt in cases where American firms have Canadian subsidiaries. In
November 1991, the Canadian Civil Liberties Association filed a complaint
with the Ontario Human Rights Commission on behalf of four employees of
Imperial Oil Limited. The basis of the complaint was that Imperial Oils
drug testing program, which commenced 1 January 1992, discriminates
on the basis of "handicap" under the Ontario Human Rights
Code. Imperial Oil was the first private company in Canada to institute
a comprehensive drug testing policy that included random drug testing.
Apparently, the development of this policy was a result of advice from
Imperial Oils major share-holder, Exxon Corporation, an American
According to Imperial Oils Alcohol and Drug Policy,
all job applicants are subject to a urinalysis test for drugs as a condition
of employment. Employees wishing to work in safety-sensitive positions
will be required to undergo drug testing in order to be certified for
such work. Once on the job, these employees, like certain designated executives
who make important financial decisions, will be subject to random drug
and alcohol testing for which a zero blood-alcohol count is mandatory.
A blood-alcohol concentration of more than 0.04% is prohibited for all
other employees. In addition to being tested, prospective and current
employees in safety-sensitive positions must disclose to management whether
they have, or have ever had, a substance abuse problem or have received
treatment or counselling for such a problem. Violation of any provision
of the Policy may result in progressive disciplinary measures. For example,
a positive drug test result, a failure to take the test or a refusal to
take the test will be grounds for disciplinary action, including termination.
It is the position of the Canadian Civil Liberties Association that such
disciplinary action would subject employees to adverse treatment on the
basis of their presumed dependency on drugs, and would therefore be discriminatory.
On 23 June 1995, an Ontario human rights Board of Inquiry
rendered the first decision in that province in the area of substance
abuse testing. Not only did the Board find for the first time that alcoholism
constitutes a "handicap" under the Ontario Human Rights Code,
but, on 10 August 1995, it ordered Imperial Oil Ltd. to pay an unprecedented
$20,000 award for damages to an employee. The company had forced him to
reveal that he had once had an alcohol problem, demoted him and had taken
reprisals when he launched a human rights complaint.
In the case of Martin Entrop v. Imperial Oil
Limited (unreported), the Board held that this treatment constituted
discrimination on the basis of perceived handicap under the Human Rights
Code. The companys defence was that its policy was a bona
fide occupational requirement; however, the Board found that, while
Imperial Oils aim to keep drinkers out of safety-sensitive jobs
was valid, it went too far in Mr. Entrops case. The company had
not proven, on the balance of probabilities, that the risk associated
with Mr. Entrops past alcohol problem objectively justified differential
treatment of him as an employee. Without having to do so, the Board further
found that even if it had ruled that the treatment of Mr. Entrop was objectively
justified, the company did not meet the burden of accommodation required
under the Ontario human rights legislation. It could have employed other
and less drastic measures than mandatory self-disclosure in its effort
to detect alcohol impairment on the job.
In a further interim decision, released 12 September
1996, the Board went on to consider the Policy of Imperial Oil as it pertains
to all employees. While it found that freedom from impairment by drugs
and alcohol is a bona fide occupational requirement (see B.2. of
this paper), Imperial Oils Policy overreaches this legitimate goal
in certain respects and is under-inclusive in others, in that it fails
to uncover other categories of employees who may be equally impaired.
For example, the Board found those provisions unlawful
that require employees in safety-sensitive positions to disclose to management
any substance abuse problems whether current or past, on the grounds that
the definition of "substance abuse problem" is too broad and
unlimited in duration. The pre-employment and random drug testing provisions
were also found unlawful because it has not been proved that a positive
test is correlated with impairment; and the random alcohol testing provisions
were found unlawful because it has not been proved that such screening
is reasonably necessary to deter alcohol impairment on the job. Imperial
Oil appealed the Boards decision to the Ontario Divisional Court,
where it was dismissed. The case is now on appeal before the Ontario
Court of Appeal.
In a related case (Imperial Oil Ltd. v. Communications,
Energy and Paperworkers Union of Canada, Local 614,  B.C.L.R.B.D.
No. 257), the British Columbia Labour Relations Board recently rendered
a decision pertaining to Imperial Oils Alcohol and Drug Policy as
it applied to a refinery in Port Moody, British Columbia. The union had
filed a grievance challenging the implementation of the Policy at this
refinery. An arbitration board had found that, though some elements of
the Policy (e.g., testing for cause and post-accident) were acceptable,
random compulsory testing of employees in safety-sensitive positions was
not. The arbitration board upheld the employers right to require
drug and alcohol testing during an employees rehabilitation program,
but reduced the period of rehabilitation testing from seven to two years.
In response to an application for review by the employer, the Labour Relations
Board upheld the decision of the arbitration board. The refinery at issue
in this case has since been shut down, however, and the union has agreed
to accept the implementation of the Alcohol and Drug Policy, including
the random testing portions, at the remaining Imperial Oil site.
The Toronto-Dominion Bank is believed to be the only
company in the federal sector outside the transportation industry to administer
drug tests to all new employees and to employees returning after an absence
of three months or more. Its program began on 1 October 1990 in Toronto.
The Canadian Civil Liberties Association challenged the Banks drug
testing program by filing a complaint with the Canadian Human Rights Commission
in December 1990. The Association alleged that the program is discriminatory
on the basis of disability (see Part B.2 of this paper). According to
the Bank, the policy is necessary to safeguard bank, customer and employee
funds and information, as well as to protect the Banks reputation.
In a decision rendered on 16 August 1994, the Canadian
Human Rights Tribunal found that the drug testing policy of the Toronto
Dominion Bank did not discriminate against drug dependent persons pursuant
to the Canadian Human Rights Act (see Canadian Civil Liberties
Association v. Toronto Dominion Bank (1994), 22 C.H.R.R. D/301).
The Tribunal, however, made some strong statements on the invasive nature
of drug testing and the general lack of support for its use in the banking
industry. The Tribunal noted that, as a blanket policy, mandatory urinalysis
represents a major invasion of privacy in the employment field. Such a
method could be considered reasonably necessary only in the face of substantial
evidence of a serious threat to other employees, bank customers and the
public in general. The Tribunal failed to find any such evidence in support
of the policy of the Toronto Dominion Bank. In fact, it noted that in
support of drug testing, the Bank relied on its own impressions and on
evidence from such other sources as the United States, which the Tribunal
considered of little relevance here. The Tribunal even wondered if the
method of observation used by the Bank with respect to its working employees
would not suffice for monitoring new and returning employees.
On appeal by the Bank, the Federal Court of Appeal on
23 July 1998 held that the Banks drug testing policy constitutes
employment discrimination against drug-dependent persons. Although differing
on the method for assessing whether the policy could still be justified
on the basis of sound business reasons (the difficulties encountered by
the Court in determining whether the drug testing policy amounts to direct
or indirect discrimination have since been rectified by amendments to
the Canadian Human Rights Act see section B.2. of this paper),
the majority of the Court found no justifiable connection between the
drug testing policy and job performance by Bank employees. The Bank
chose not to appeal this decision and it has suspended its drug testing
Any Canadian legislation on mandatory drug testing exists
principally in the criminal law field. Under the Criminal Code,
someone can be tested to establish whether he or she is impaired by alcohol
or drugs while operating a motor vehicle, railway equipment, a vessel
or an aircraft (section 253). Police powers for obtaining evidence
of drug-related driving offences are quite limited, however, and, as a
result of studies indicating the contributory role of drugs in fatal motor
vehicle accidents, the House of Commons Standing Committee on Justice
and Human Rights recommended in May 1999 that the Minister of Justice
consult with the provinces and territories to develop legislative proposals
for obtaining better evidence against drivers suspected of being drug-impaired.
In response, the Minister of Justice has asked her officials to ask interested
provinces and territories to participate in a working group to consider
better ways of obtaining evidence in drug-involved driving cases.
In response to the decisions in the Dion and Jackson
cases (discussed under B.1.a. of this paper), the Corrections and Conditional
Release Act was proclaimed into force on 1 November 1992. This
Act permits drug and alcohol urinalysis testing by Correctional Services
Canada in certain prescribed instances. For example, section 54 of the
Act provides that an inmate may be tested within an institution where
a staff member believes on reasonable grounds that the inmate has committed
a disciplinary offence for which a urine sample is necessary to provide
evidence. Such testing is permitted, however, only where prior authorization
has been obtained from the institutions head. Section 55, permits
urinalysis testing where the National Parole Board has made abstention
from drugs or alcohol a condition of a temporary absence, work release,
parole or other such statutory release. In all cases, the inmate or offender
must be informed of the basis of the demand and the consequences of non-compliance.
Moreover, he or she must be given a reasonable opportunity to make representations
to the relevant official before submitting to the test.
A Charter challenge to the random drug testing provision
of the Corrections and Conditional Release Act was dismissed
by the British Columbia Supreme Court on 27 July 1994 in the case of Fieldhouse
v. Canada (unreported). A number of inmates at Kent Institution
in British Columbia claimed that section 54 of the Act, which permits
the use of a prescribed non-individualized random selection urinalysis
program, was contrary to sections 7 and 8 of the Canadian Charter of
Rights and Freedoms. Kent Institution was one of three prisons chosen
as pilot projects for random urinalysis programs under the Act. Each month,
10 to 15 members of the prisons 240 to 280 population were randomly
selected by computer in Ottawa to undergo drug testing. An inmate had
to comply with a urinalysis demand within two hours; his refusal, or a
positive test result, could have serious implications for his future transfer
prospects, conditional release and participation in community programs.
The Court found that the connection between drugs and
violence at Kent Institution was compelling. There is a serious problem
of drug use in the institution and little in the way of alternative means
to combat it effectively. Thus, as random urine testing is a deterrent
to both prison drug use and associated violence, the Court held that it
constitutes neither an unreasonable limit on inmate liberty nor an unreasonable
invasion of privacy or integrity of the person under sections 7 and 8
of the Charter. An appeal of this decision was filed with the British
Columbia Court of Appeal on 12 August 1994; however, the appeal was dismissed
on 21 March 1995.
It would appear that the Solicitor General of Canada
is currently conducting an internal review of drug and alcohol programs
in the federal prison system as a result of in-house studies that showed
extensive drug abuse by inmates. Apparently, urinalysis programs will
be reassessed pursuant to this review, in order to evaluate their effectiveness.
Pursuant to the National Defence Drug Testing Policy
announced in 1990, regulations respecting the Canadian Forces Drug Control
Program were approved on 21 May 1992 by the Governor in Council as
Chapter 20 of the Queens Regulations and Orders for the Canadian
Forces. Under this program, mandatory drug testing with random elements
would be introduced, primarily for all military personnel in safety-sensitive
positions. The program would apply only to uniformed personnel and not
to the civilian staff of the Department of National Defence; however,
given that all uniformed positions are considered to be safety-sensitive,
the military drug-testing policy is considered to be fairly inclusive.
The Department of National Defence is authorized to conduct 50,000 tests
Most military drug testing would be done through the
random selection of units comprising five to 500 individuals. Testing
would also take place for cause, for those who are undergoing rehabilitation
for drug use, for post-accident investigations and for certain "super-sensitive"
positions that are not covered by the random testing of military units.
All testing would be conducted by means of urinalysis and any positive
drug screen will be subject to a confirmatory analysis. Failure to comply
with a request to submit to a drug test may result in disciplinary action.
According to the 1994-1995 Annual Report of the
federal Privacy Commissioner, it would appear that the Department of National
Defence has temporarily suspended the random portion of its drug testing
policy. In February 1995, the then Chief of the Defence Staff, General
de Chastelain, informed the Privacy Commissioner in writing that he had
indefinitely suspended this component of the Forces Program; however,
he still reserved the right to reopen the issue in the future should circumstances
dictate its necessity. This letter was in response to the Commissioners
1994 opposition to the widespread use of random testing of Forces members
for the presence of illegal drugs, even though the Department of National
Defences own statistics had revealed that its members rarely used
such substances. Indeed, the Departments own survey had revealed
that the drug most widely used by its employees was alcohol, a drug not
covered by the Forces Policy.
The use of urinalysis to test whether an employee has
consumed drugs or alcohol is thus becoming an important issue in the context
of employment in Canada. The legality of this practice has yet to be determined.
Certainly, decisions based on the Charter in matters of breathalyser use
and urinalysis in penitentiaries will be reviewed in challenges to the
constitutionality of drug testing in the workplace.
Canadian Charter of Rights and Freedoms
Challenges to government mandatory drug testing programs
would likely be based on sections 7 and 8 of the Charter. Section 7 sets
out the right to security of the person, and the right not to be deprived
thereof, except in accordance with the principles of fundamental justice.
Security of the person includes liberty from physical constraint, privacy,
and freedom from state intrusion into personal matters. Section 8 contains
guarantees of the right to be secure against unreasonable search and seizure.
It is also possible that a challenge could be made under section 15 of
the Charter, which guarantees the right to equality.
The application of these constitutional rights
is limited by section 1 of the Charter, which permits reasonable restrictions
as long as they are prescribed by law and can be shown to be demonstrably
justified in a free and democratic society. In other words, even if a
mandatory drug testing program were to infringe the right to equality
or security of the person, it might still be possible to justify the program
under the "reasonableness" test of section 1.
Another important consideration in relation to the Charter
is its applicability. Section 32 of the Charter states that it applies
to the Parliament and government of Canada and to the legislature and
government of each province. This means that the Charter applies only
to government actions and legislation. If a mandatory drug testing program
is established by legislation, any employee would have the right to challenge
the law under the Charter. If, however, a federally regulated corporation
implemented such a program as its own policy, an employee would have a
recourse only under human rights legislation (discussed in Part B of this
(i) Section 7 of the Charter
The constitutionality of mandatory drug and/or alcohol
testing has been considered in a number of court decisions which held
that the non-consensual taking of an individuals bodily fluids infringes
the security of the person (see for example R. v. Chatham
(1987), 23 C.R.R. 344; R. v. Racette (1988), 48 D.L.R.
(4th) 412; R. v. Dion, unreported C.A.Q., rendered 31 May
1990; and Jackson v. Joyceville Penitentiary  3 F.C.
55 (T.D.)). However, these cases involved drug testing regulations in
penitentiaries and in provincial impaired driving legislation, not in
an employment context. In Dion and Jackson, both the Federal
Court of Canada and the Quebec Court of Appeal struck down section 41.1
of the Penitentiary Service Regulations as violating section 7
of the Charter. The Courts found that the requirement for inmates to provide
a urine sample demanded on the basis only of the subjective determination
of a Correctional Service employee, failed to meet the standard of "fundamental
justice" required by section 7 of the Charter when there is an intrusion
into the privacy of an individual. In Jackson, the Federal Court,
Trial Division, pointed to the lack of any standards or criteria limiting
the authority to test inmates, and for essentially the same reasons, the
Court went on to find that section 41.1 contravened section 8 of the Charter
by providing for an unreasonable search.
It would therefore appear that drug testing of employees
would be permitted only where there were reasonable and probable grounds
to believe that an individual was or had been impaired while on the job.
In other words, the courts will likely require an "objective element"
in a mandatory drug testing program. The objective element might take
the form of prior authorization or the presence of reasonable grounds.
It is interesting to note that the Quebec Court in Dion
held that the word "liberty" in section 7 encompasses the right
of the individual to consume, on occasion, certain intoxicants without
being subjected to an obligation to provide a urine sample to detect their
presence in his or her body. The Court in Jackson, on the other
hand, considered the question of "liberty" from the perspective
of prisoner incarceration. It remains to be seen how section 7 of the
Charter will ultimately be interpreted with respect to mandatory drug
testing in the employment context.
Also worthy of note are recent cases involving the seizure
of bodily substances for DNA analysis. While these cases arise in the
criminal law context, their relevance to mandatory drug and/or alcohol
testing may be significant. In R. v. Stillman, 
1 S.C.R. 607, police took hair samples and teeth impressions from an accused
under threat of force, despite the fact his lawyer had advised the police
that no consent was being given to the provision of any bodily samples.
As well, a tissue used by the accused to blow his nose was seized by an
officer for DNA testing. The Supreme Court of Canada, in considering the
admission of the DNA test results, made it clear that the taking of bodily
substances is a violation of ones right to liberty and security
of the person under section 7 of the Charter. When this is done without
authority or consent, an accused is forced to give self-incriminating
evidence whose admission would bring the administration of justice into
disrepute. Interestingly, the Court went on to find that, while the taking
of the mucous sample from the tissue used by the accused violated his
Charter rights, the seizure did not interfere with his bodily integrity
or cause him any loss of dignity. This particular piece of evidence was
therefore held to be admissible.
(ii) Section 8 of the Charter
The Supreme Court of Canada has held that section 8 of
the Charter (guarantee against unreasonable search and seizure) is there
for the protection of personal privacy (see Hunter v. Southam
Inc. (1984), 2 S.C.R. 145). The taking of bodily substances has
been held to constitute a seizure within the meaning of that section (see
R. v. Dyment (1988), 2 S.C.R. 417). In terms of the reasonableness
of the seizure, the Supreme Court in R. v. Collins (1987),
33 C.C.C. (3d) 1, which dealt with breathalyser testing in relation to
section 8, provides a useful framework within which to analyze drug testing.
The first requirement for reasonableness is some form of legal authorization.
It would then be necessary to consider whether the drug testing measure
itself was reasonable. The Court in Dyment seems to suggest that
the "reasonableness" test in section 8 would require an objective
precondition to mandatory drug testing, such as reasonable and probable
grounds to suspect an employee of breaching a proscription against the
use of alcohol or drugs, for example, while in charge of public transport.
Persuasive evidence on the nature of the problem to be addressed through
drug testing might have to be presented to the courts in order to determine
the reasonableness of the program. Lastly, the manner in which the mandatory
drug testing was carried out would have to be considered reasonable. This
would ensure that the drug testing program was performed in a scientific
and accurate manner, always bearing in mind the privacy concerns of the
The courts in this country have, however, indicated a
willingness to drop the stringent standard of reasonableness requirement
under section 8 when they are dealing with an administrative or regulatory
context, as opposed to an area of the criminal law. In the former cases,
it has been held that a less strenuous and more flexible standard of reasonableness
may be appropriate. For instance, in the case of R. v. McKinlay
Transport (1990), 68 D.L.R. (4th) 568, the Supreme Court of Canada
held that random monitoring may be the only way to maintain the integrity
of the tax system. Thus, the degree of privacy that an individual can
reasonably expect may vary depending on the nature of the activity involved.
The level of one's privacy protection may also be
dependent upon the context within which the right to privacy is challenged.
For example, the Supreme Court of Canada in R. v. M. (M.R.),
 3 S.C.R. 393 held that a reasonable expectation of privacy is lower
for students attending school than for others, because students know that
teachers and school authorities are responsible for maintaining order
and discipline and thereby ensuring a safe school environment. The Court
concluded that this reduced expectation of privacy, coupled with the need
to protect students and provide a positive atmosphere for learning, clearly
suggest that there should be a more lenient and flexible approach to searches
conducted by teachers and principals than to searches conducted by the
(iii) Section 15 of the Charter
Section 15 provides that every individual is equal before
and under the law and has the right to the equal protection and equal
benefit of the law without discrimination on the basis of such grounds
as race, national or ethnic origin, colour, religion, sex, age or mental
or physical disability. The Supreme Court of Canada in the case of Andrews
v. Law Society of British Columbia (1989), 56 D.L.R. (4th) 1 made
it clear that in order to avail oneself of the equality guarantees in
section 15, it must be demonstrated that a law imposes a burden, obligation
or disadvantage on the individual on the basis of one of the grounds expressly
listed in that section or on one that is analogous. In other words, not
every distinction, classification or unfairness can be subjected to a
successful section 15 challenge.
A drug testing program would likely impose a burden or
disadvantage in the form of disciplinary action (such as being fired)
resulting from a refusal to submit to a drug test or from a positive test
result. The basis for an allegation of discriminatory treatment would
likely be "mental or physical disability." In determining whether
drug addiction or dependency falls within the ambit of section 15 "disability,"
the courts would likely look to the fact that the Canadian Human Rights
Act specifically defines "disability" to include any previous
or existing drug- or alcohol-dependency. The recent Ontario Board of Inquiry
decision in the Entrop case (see Part A of this section of the
paper), which found that "handicap" under the Ontario Human
Rights Code includes alcoholism and drug abuse, might also be taken
(iv) Section 1 of the Charter
Section 1 provides that constitutional rights are subject
to reasonable limits prescribed by law, if these limits can be shown to
be justified in a free and democratic society. The law whereby the Charter
rights were said to be infringed would have to be analyzed to determine
whether the limitations it imposed on the rights met the reasonableness
test established by the Supreme Court of Canada in R. v. Oakes
((1986), 1 S.C.R. 103). The government would have to demonstrate that
the objectives of the drug testing program related to an important, pressing
and substantial concern and that the means chosen were proportional or
appropriate to the ends. In other words, the drug testing would have to
be be rationally connected to the objective, and impair constitutional
rights as little as possible, while the importance of the objective would
have to outweigh the infringement of these rights. Accordingly, a drug
testing program may need to be premised on solid evidence of a serious
problem of drug usage in a particular sector that could not be dealt with
by less intrusive means. (For a more complete analysis of the Charter
issue related to privacy rights in general, please refer to the Current
Issue Reviews, No. 91-6E, Life, Liberty and Security of the Person
under the Charter and No. 91-7E Search, Seizure, Arrest and
Detention under the Charter.)
b. The Canadian Human
As the Charter applies only to government actions and
legislation, a non-legislated drug testing program in a private sector
company under federal jurisdiction would have to be challenged under the
Canadian Human Rights Act. The Act applies to all federal government
departments, agencies, Crown corporations, and to business and industry
under federal jurisdiction, such as banks, airlines and railway companies.
In 1988, the Canadian Human Rights Commission issued
a policy statement on drug testing in which it suggested that using positive
results from drug tests might be considered a discriminatory practice
on the ground of disability. The Act, which contains several provisions
forbidding discrimination in relation to employment, defines "disability"
as including any previous or existing dependence on alcohol or a drug.
It is submitted that on the basis of sections 7, 8 and
10 of the Canadian Human Rights Act, which prohibit discriminatory
employment practices, a federal employee disciplined for testing positive
in a drug test might be able to file a complaint with the Commission alleging
discrimination on the basis of disability. The case could be fairly easy
to make since the Commission takes the position that the individual need
not be required to prove drug dependency but rather "merely show
that differential treatment resulted from the employers presumption
of drug dependency."
The Act also provides defences that a federal employer
may plead against a charge of discriminatory practice. The bona fide
occupational requirement (b.f.o.r.) is the most common defence raised
in cases of employment discrimination. Amendments made in 1998 to the
Canadian Human Rights Act (Bill S-5) incorporated into the b.f.o.r
defence the duty of the employer to accommodate up to the point of undue
hardship. Consequently, an employer that is the subject of a complaint
of discrimination cannot avail itself of the b.f.o.r. defence unless it
can demonstrate that it could not accommodate the needs of the complainant
without suffering undue hardship. The duty to accommodate applies regardless
of whether the discriminatory practice at issue is classified as direct
or indirect. Previous to these amendments, the standard of judicial scrutiny
and the type of remedial relief available often turned on how a particular
discriminatory practice was classified (see for example the decision of
the Federal Court of Appeal in Toronto-Dominion Bank v. Canadian
Human Rights Commission which is discussed above).
Thus, the Canadian Human Rights Act may
be used to challenge the use of drug testing in the workplace. If it could
be established that such testing is discriminatory, the onus would be
on an employer to justify the testing.
c. Employment Standards
The federal government has enacted legislation concerning
employment standards, such as the Canada Labour Code. These standards
mandate certain elements of the employment relationship between employers
and employees subject to federal jurisdiction. It has been suggested that
if the federal government should decide to regulate drug testing, this
legislation would be the most appropriate place to do so. The Codes
grievance procedure may provide a good avenue for challenging a drug testing
program and protect employees against possible abuse.
While some arbitral decisions have indicated that employers
have only a limited right to insist on medical examinations and are not
permitted to discipline employees for off-duty conduct, recent awards
at arbitration have revealed that arbitrators are recognizing at least
two possible roles for drug testing in the workplace. First, there is
some acceptance that an employer can have a valid reason for asking an
employee, following a particular incident, to submit to a drug test. This
should happen, however, only where impairment is suspected. One arbitrator
has stated that "it is not within the legitimate business purposes
of an employer, including a railroad, to encroach on the privacy and dignity
of its employees by subjecting them to random and speculative drug testing"
(Re Canadian Pacific Ltd. and United Transportation Union (1987),
31 L.A.C. (3d) 179). Consideration has also been made of the significance
of an employees refusal to undergo a valid request for a drug test.
It has been accepted, in at least two cases, that an employees refusal
allows the employer to draw a negative inference and thereby discipline
or discharge the employee, bearing in mind the other circumstances of
the case. As well, dismissal has been seen as justified where there are
reasonable grounds for performing drug testing and an employee who has
had a number of positive test results has refused to participate in available
A second emerging trend is the use of drug testing as
a condition of reinstatement of an employee. In cases involving the reinstatement
of an employee who has been terminated for poor attendance and/or other
behavioural problems in the workplace, certain conditions have generally
been set by arbitrators, all of which must be met by the employee for
a period of 18 to 24 months following reinstatement. The most common conditions
include not reporting to work under the influence of alcohol or non-prescription
drugs, participation in various types of rehabilitation programs and maintaining
a level of attendance no worse than the average in the plant or department.
Recently, some conditional reinstatements have provided the employer with
the right to require urine and/or blood samples in the future as proof
that the employee remains free from alcohol or drugs. While it is accepted
that random testing of the employee will not ensure that he or she remains
drug free, the practice is viewed as a very strong inducement.
Therefore, while there exists labour opposition to drug
testing in the workplace, it would appear that it has gained a foothold,
at least as a restrained and purposive approach to dealing with individual
d. Procedural Safeguards
In a working paper on investigative tests, the Law Reform
Commission of Canada looked at existing legislation in other jurisdictions
and discussed the procedural safeguards which may be required to ensure
that a drug test is performed in a fair and reliable manner (Working Paper
34, Investigative Tests, 1984). In October 1987, the House of Commons
Standing Committee on National Health and Welfare tabled its report on
drug abuse in Canada. The report, entitled Booze, Pills and Dope: Reducing
Substance Abuse in Canada, recommended that if testing must be used,
it should only be done when grounds exist for suspecting the possible
use of drugs or alcohol (i.e., where an employee has shown evidence of
impairment or of performance difficulties). Drug screening should assist
the employee in seeking appropriate treatment; it should not be used as
evidence in criminal proceedings. The report also recommended that all
positive test results should be confirmed by another test; that all results
should be conveyed to a licensed medical practitioner acceptable to both
the employee and the employer; and that no action be taken on the basis
of positive results before the employee is given the opportunity to meet
with the medical practitioner or to present contrary evidence.
The Privacy Commissioner undertook to study federal government
drug testing policies and practices. On 1 June 1990, the Commissioner
released a report containing recommendations on drug testing based on
the requirements of the Privacy Act, which pertains to the collection
of personal information by government institutions and sets out principles
of fair information practices. Among other obligations, it requires government
institutions to collect only the personal information needed to operate
their programs; to collect the information from the individual concerned,
whenever possible; to inform the individual how the information will be
used; to keep the information long enough to ensure individual access;
and to take all reasonable steps to ensure the informations accuracy
and completeness. The Act does not apply to the private sector.
The thrust of the Privacy Commissioners report
was strongly opposed to drug testing. It did, however, recommend that
any government institution seek parliamentary authority before collecting
personal information through mandatory drug testing. It also recommended
that drug testing be used only in exceptional cases where drug use or
impairment poses a substantial threat to public or co-worker safety, where
there are reasonable grounds to believe that drug testing can significantly
reduce this threat, and where there is no other practical and less intrusive
means of lessening the risk to safety. The report even went so far as
to recommend procedures for the collection, handling, retention and disposal
of testing samples in order to facilitate compliance with the requirements
of the Privacy Act.
In September 1992, the Ontario Law Reform Commission
released its Report on Drug and Alcohol Testing in the Workplace. After
extensively studying the various aspects of this issue, the Commission
found that the current legal framework does not deal adequately with the
complex problems posed by such testing. Therefore, the Commission recommended
that the Government of Ontario introduce legislation that would ban employers
from the drug and alcohol testing of bodily samples taken from all current
and prospective employees in the province. The Commission proposed that
this legislation should apply to all private and public sector workers,
to unionized and non-unionized employees and to job applicants. Such specific
legislation would have the effect of substantially reducing the current
uncertainty in the province with respect to the appropriateness of employee
The Commission based its recommendation on the fact that
drug and alcohol testing constitutes a significant invasion of the privacy
interests of employees. Moreover, the techniques currently used to analyze
bodily fluids are incapable of detecting impairment and there is no empirical
evidence to support the proposition that drug abuse has become a significant
problem in Ontario. Instead, the Commission felt that employers could
use alternative measures that do not involve the complex legal and ethical
dilemmas posed by drug and alcohol testing. The Commission endorsed performance
testing as the least intrusive and most effective method of measuring
impairment and it recommended that such testing would be justified in
cases where impairment on the job poses a risk of physical injury or death
to the employee, co-workers or members of the general public. Thus, even
in the case of safety-sensitive positions, the Commission is of the opinion
that the taking of bodily samples is not justified.
It is obvious that a number of issues remain to be addressed
with respect to the legality of drug testing in Canada. Principal among
them is whether there is indeed a drug problem in the Canadian workplace
that can only be remedied through the use of individual drug testing.
Will the use of mandatory testing reduce the consumption of substances
that threaten workplace health and safety, or could it lead to a shift
to the consumption of drugs that cannot be detected either by the type
of testing method being used or by current testing technology? Are there
other workplace hazards, such as fatigue, stress, and illness, that are
more prevalent than alcohol or drug use? What should be considered a proscribed
drug (i.e., illicit drugs, licit drugs or both)? How effective are testing
procedures in yielding relevant information about job performance? What
happens in the case of positive results from trace amounts of drugs that
could not affect an employees ability to perform his or her work?
Might someone test positive who had not actually consumed drugs but had
absorbed traces from a secondary source (e.g., marijuana smoked by someone
else in the same room)? What protection should be incorporated into the
drug testing process to safeguard the rights of the employee? How can
an employer be prevented from using or sharing (e.g., with insurers) personal
information about employees obtained from or in relation to a drug test?
What recourse would be open to employees who wanted to challenge a drug
testing program? What remedies would be available to these employees?
Because there is virtually no legislation and little
case law in this area, it is hard to know how these questions will ultimately
be determined, and whether the determination will fall to the courts or
to the federal or provincial legislatures. In any case, it must be recognized
that drug testing can pose a serious threat to the individuals right
to be protected against physical intrusion and surveillance and to control
personal information. As the U.S. Supreme Court once stated:
Experience should teach us to be on our guard to
protect liberty when ... purposes are beneficent. Men born to freedom
are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment
by men of zeal, well-meaning but without understanding. (Mr. Justice
Brandeis, Olmstead v. United States, (1928) 48 S. Ct.
No legislation or legislative proposals have yet been
tabled. Several House of Commons Committees, however, have addressed the
issue of drug testing.
In November 1987, the Standing Committee on National
Health and Welfare, in its report on drug abuse, opposed mass or random
testing in Canada and said that drug testing should be used only when
cause or grounds for suspected use exist.
After its review of the Railway Safety Act, in
April 1988, the Transport Committee recommended that the government legislate
a drug testing program which would provide for the testing of transportation
employees after an accident and for reasonable cause. On 16 March 1990,
the Transport Minister released a strategy paper outlining proposals to
establish a comprehensive series of measures to prevent the use of alcohol
and drugs in the federal transportation sector. The strategy would deal
with workplace-related use of alcohol or drugs by employees in safety-sensitive
positions considered to have a direct impact on the health, safety or
security of the public or of co-workers. The paper was referred to the
House of Commons Standing Committee on Transport for review, consultations
On 28 March 1990, the Minister of National Defence
also issued a strategy paper on the control of alcohol and drug use by
departmental employees (see The Canadian Context/The Current Situation
section of this paper).
On 12 June 1990, the Standing Committee on Transport
tabled its report on the governments strategy paper on substance
use in the transportation industry. The report concluded that Canadian
studies on substance use in safety-sensitive positions in the industry
demonstrate there is no serious threat to safety from this cause. "We
have not been able to identify any significant major drug or alcohol related
safety risk in the Canadian transportation system. Therefore, we are not
persuaded that at the present time, a substance use problem exists"
The Transport Committee assessed the various types of
drug testing proposed in the strategy, and recommended post-accident testing,
periodic testing (e.g., at the time of regular medical examinations),
pre-employment testing, and "for cause" testing. The Committee
felt "for cause" testing to be necessary to protect the travelling
public and co-workers, but recognized that such testing requires strict
regulations or guidelines because of the risk that it could be used to
harass and discriminate against employees. Therefore, the Committee recommended
that the "for cause" guidelines include a "reasonable and
probable grounds" element. The Committee did not recommend mandatory
random testing be introduced in legislation affecting the transportation
On 7 November 1990, Transport Minister Doug Lewis
tabled the governments response to the report of the Standing Committee
on Transport. Essentially, the government accepted all the Committees
recommendations. In particular, it decided to withdraw the random testing
element from its transportation substance use policy. A proposed bill,
entitled An Act for the prevention of substance use in a safe transportation
system, was drafted early in 1993 and regulations to accompany the bill
were also drafted and distributed to the major stakeholders for their
comments. The bill was not tabled before Parliament was dissolved for
the October election, however.
The current government does not intend to proceed with
legislation preventing the use of alcohol and drugs in the transportation
sector. Instead, the Department of Transport is working primarily with
the motor carrier industry to develop a self-directed program to deal
with U.S. drug testing requirements. In its January 1999 Interim Report,
the Special Senate Committee on Transportation Safety and Security recommended
that Transport Canada reconsider its position on drug and alcohol testing
in the transportation sector and permit mandatory random testing similar
to such testing in the United States.
March 1986 - U.S. Commission on Organized Crime tabled
its report recommending that federal employees be subject to compulsory
September 1986 - U.S. President issued Executive Order
12564 imposing mandatory drug testing as a government-wide policy.
25 May 1987 - The federal government announced the National
Drug Strategy to fight drug abuse in Canada.
2 November 1987 - The Standing Committee on National
Health and Welfare tabled its substance abuse report in the House of Commons.
January 1988 - The Canadian Human Rights Commission issued
a policy paper stating that the use of positive test results after a drug
test might be considered a discriminatory practice.
21 April 1988 - The Standing Committee on Transport recommended
that the government introduce legislation to implement drug testing programs.
December 1989 - The U.S. Supreme Court rendered two decisions
upholding mandatory drug testing programs in the workplace and stating
that these did not infringe on privacy rights protected by the Fourth
16 March 1990 - The Minister of Transport released a
strategy paper on the control of drug and alcohol use by employees in
the federal transportation sector. The strategy proposed the enactment
of legislation to provide for mandatory drug testing.
28 March 1990 - The Minister of National Defence announced
a strategy on alcohol and drug use control in the Canadian Forces. The
strategy could include mandatory drug testing with random elements.
12 June 1990 - The Standing Committee on Transport tabled
its report on the strategy paper on substance use in the transportation
1 October 1990 - TD Bank instituted a drug-testing program
for all new employees and employees returning after an absence of three
months or more. The validity of the program was upheld by the Canadian
Human Rights Tribunal on 16 August 1994. On appeal to the Federal Court
of Canada, the matter has been sent back to the Tribunal.
7 November 1990 - The government tabled its response
to the Standing Committee on Transport report.
1 January 1992 - Imperial Oil Limited commenced a comprehensive
drug-testing program that included random testing component.
21 May 1992 - The Governor in Council approved regulations
respecting the Canadian Forces Drug Control Program, pursuant to section
12(1) of the National Defence Act.
1 November 1992 - The Corrections and Conditional
Release Act was proclaimed into force. The constitutionality of section
54 of the Act, which provides for random urinalysis testing of inmates,
has been upheld by the courts.
December 1992 - The Department of Transport released
for comment the draft regulations proposed for use with a planned federal
transportation sector bill entitled An Act for the prevention of substance
use in a safe transportation system.
November 1994 - The Minister of Transport announced that
his Department would not be pursuing legislation concerning the use of
alcohol and drugs in the federal transportation sector.
June 1995 - An Ontario human rights Board of Inquiry
held that Imperial Oils program as it pertained to one employee
was discriminatory. Imperial Oil is appealing this decision.
June 1995 - The United States Supreme Court upheld the
constitutionality of random urinalysis drug-testing of high school athletes
in Veronia School District v. Acton 515 U.S. 646 (1995).
July 1996 - U.S. federal motor carrier safety regulations
were extended to Canadian trucking companies that send drivers across
the border. The regulations include requirements for drug and alcohol
January 1999 - The Special Senate Committee on Transportation
Safety and Security recommended that the government permit mandatory random
drug and alcohol testing in the transportation industry similar to the
testing required under United States legislation.
May 1999 - The House of Commons Standing Committee on
Justice and Human Rights proposed specific amendments to the Criminal
Code and recommended that the Minister of Justice consult with the
provinces and territories to develop legislative proposals for obtaining
better evidence against drivers suspected of being drug-impaired.
June 1999 - It was revealed that the Solicitor General
of Canada was conducting an internal review of its drug and alcohol programs
in the federal prison system following internal studies that indicated
extensive drug abuse by inmates.
Benyekhlef, Karim. "Réflexions sur la légalité des
tests de dépistage de drogues dans lemploi." Revue du Barreau,
48-2, 1988, 315-363.
Bota, Anthony A. Employment-Related Drug Testing:
The Legal Implications for Employers. Industrial Relations Centre,
Queens University at Kingston, 1989.
Canadian Human Rights Commission. "Drug Testing."
Policy 88-1, January 1988, p. 11.
Coombs, Robert and Louis Jolyon West, eds. Drug Testing
Issues and Options. Oxford University Press, New York, 1991.
Health and Welfare Canada, Interdepartmental Secretariat
on Drug Abuse. "Action on Drug Abuse." May 1987.
Henriksson, Lennart E. "The Unconvincing Case for
Drug Testing." Canadian Public Policy, Vol. XVII, No.
2, June 1991.
House of Commons Standing Committee on Justice and Human
Rights. Toward Eliminating Impaired Driving. Queens Printer
for Canada, May 1999.
House of Commons Standing Committee on National Health
and Welfare. Booze, Pills and Dope: Reducing Substance Abuse
in Canada. Queens Printer for Canada, Ottawa, 1987.
House of Commons Standing Committee on Transportation.
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Positions in the Canadian Transportation Industry. Queens Printer
for Canada, Ottawa, 1990.
Law Reform Commission of Canada. "Investigative
Tests." Working Paper 34, 1984, 186.
Normand, Jacques et al. Under the Influence?
Drugs and the American Work Force. National Academy of Sciences, 1994.
Privacy Commissioner. Drug Testing and Privacy.
Ministry of Supply and Services, Ottawa, 1990.
Shain, Martin, et al. Canadian Labour Law Journal,
Vol. 2, No. 3, Spring 1994.
Special Senate Committee on Transportation Safety and
Security. Interim Report. Ottawa, January 1999.
Stencel, Sandra ed. "Drug Testing." The
CQ Researcher, Vol. 8, No. 43, 20 November 1998.
Transport Canada. Substance Use in Safety-Sensitive
Positions in Canadian Transportation: Government Response to the Third
Report of the Standing Committee on Transport. Ottawa, 7 November
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and Alternatives. Clark Boardman, New York, 1988 (updated).
* The original version of this Current Issue
Review was published in April 1990; the paper has been regularly updated
since that time.