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Canada's mixed message on drug testing
Politics Watch News Services
October 24 2007, updated 4:50 p.m.
http://www.politicswatch.com/drugs-october24-2007.htm

Transport Minister Lawrence Cannon.

OTTAWA  (PoliticsWatch.com) —  Calls from the president of B.C. Ferries is putting pressure on the federal government to clarify its position on the complex issue of  mandatory drug testing.  
  

David Hahn, president and CEO of B.C. Ferries, has been publicly calling for the federal government introduce legislation to allow for the mandatory drug testing of his employees. Hahn began his campaign after a Transportation Safety Board investigation into the sinking of a B.C. ferry discovered regular marijuana use by crew members. 

Hahn has also complained about the RCMP's refusal to conduct intoxication tests on the crew after the incident. 

Transport Minister Lawrence Cannon told the media on the weekend that companies such as B.C. Ferries already have the power to test their employees. 

What the government is not making clear, however, is whether companies can take disciplinary action against its employees who fail drug tests without facing some form of legal challenge. 
 
Karen Izzard, a senior policy advisor to the Canadian Human Rights Commission (CHRC) told PoliticsWatch that employers are allowed to institute drug testing of their employees. 

"However, those employees if they test positive and are disciplined or fired because of it could potentially file a human rights complaint," Izzard noted. 

"Under the Canadian Human Rights Act, the definition of disability includes previous or current dependence on alcohol and drugs, so a person whose an alcoholic or drug dependent is considered disabled and protected from discriminatory actions because of that."

The situation puts the current Conservative government in an awkward position just weeks after it introduced a $64 million comprehensive anti-drug strategy aimed at the general public. 

The government's anti-drug strategy includes an awareness campaign designed to educate Canadian youth and parents about the dangers and illegality of drugs.  

While the government plans to introduce legislation in this session of Parliament to get tough with drug dealers, Cannon has ruled out introducing legislation to help companies like B.C. Ferries better deal with drug users who work in safety-sensitive positions that could put the public in danger. 

After Wednesday's Conservative caucus meeting, PoliticsWatch asked Cannon if he saw a problem with companies facing the threat of a human rights complaint if they disciplined employees in safety sensitive positions for failing drug tests. 

"There's jurisprudence there," Cannon said. "There's precedence. That's why that has to be done that way."

The Prime Minister's Office did not respond to an email asking if it supported the mandatory drug testing of employees in safety-sensitive positions. Transport Canada referred the same question to the Treasury Board

"The responsibility for drug testing is the prerogative of corporate Canada, according to this Canadian Human Rights policy," a Transport Canada official told PoliticsWatch. "While thousands of companies in Canada have policies in place they are subject to challenges under the Human Rights Act."

Earlier this year, Treasury Board told PoliticsWatch that the federal government does not test its employees in the core public service because case law and the Canadian Human Rights Act views drug and alcohol testing policies as generally discriminatory. 

The CHRC's interpretation of drug dependence being a disability is supported by the office of Prime Minister Stephen Harper. 

"We respect the laws of the land and the decisions of the tribunals," Sandra Buckler, Harper's director of communications, told PoliticsWatch in an email earlier this year. 

The CHRC told PoliticsWatch that they encourage employers contemplating drug and alcohol testing to seek legal advice beforehand because of the human rights implications of what happens after a test result. 

"The important point from our perspective is if somebody tests positive they be accommodated, and by that I mean that they're assessed to determine whether they are in fact drug and alcohol dependent and they get treatment for their disease," Izzard said. 

"While discipline may be appropriate in certain circumstances, still the employer needs to bear in mind they do have a duty to accommodate those individuals who are drug and alcohol dependent."

While people who have drug and alcohol dependency problems are protected under human rights legislation, Izzard said the protection of "casual or recreational" users is not clear and is still before the courts. 

"This is really a grey area at this time," she said. 

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