Proof of Impairment by Drugs (Prior to December 13, 2018)
The standard to proving impairment by drugs is the same as impairment by alcohol. The main difference involves the manner of detecting the presence of drugs and presenting evidence that there is impairment.
The investigation of an impaired by drugs case commences with the initial investigation wherein an officer forms a reasonable suspicion of impairment by drugs.
- Authority to Make Demand for Test
Under s. 254(3.1), the officer may demand that the driver submit to screening test to determine if there is reasonable grounds to believe that the driver is committing an offence under s. 253 regarding drugs:
The investigating officer will generally have a Drug Recognition Expert (or Drug Recognition Evaluator) attend the scene of the investigation to perform a Standardized Field Sobriety Test (SFST) to determine if the driver may be impaired by drugs.
If the driver presents sufficient indicia of impairment then they will be given a demand to attend the police station to undergo the full 12 step assessment as set out in the Regulations.
- "evaluating officer"
The term evaluating officer is found in s. 254(3.1), (3.3), and (3.4). It is defined in s. 254(1):
Form of Demand
The officer must issue a demand such as the following:
Standardized Field Sobriety Test
The Standardized Field Sobriety Test will frequently take place at the roadside, when it is safe to do so and where the officer has not already formed the requisite grounds to believe that an offence under s. 253 has been committed.
The SFST will involve the examination of the driver's eyes for signs of Horizontal Gaze Nystagmus, a heel-to-toe walk, and a one-legged standing test.
The Drug Recognition Expert follows a 12 step assessment process that is generally uniform across all of North America.
- Breath Alcohol Test
- Interview of the Arresting Officer
- Preliminary Examination and First Pulse
- Eye Examination
- Divided Attention Psychophysical Tests
- Vital Signs and Second Pulse
- Dark Room Examinations
- Examination for Muscle Tone
- Check for Injection Sites and Third Pulse
- Subject’s Statements and Other Observations
- Analysis and Opinions of the Evaluator
- Toxicological Examination
|CNS Dep.||Inhalants||PCP||Cannabis||CNS Stim.||Halluc.||Narc./Analg.|
HGN = horizontal gaze nystagmus
Opinion of Impairment by Drug
There is no need for a "Mohan" qualification, including notice under s. 657.3 of the Code, before a certified drug expert can give opinion evidence.
Blood or Urine Sample
Either a blood or urine sample will be taken after the Drug Assessment. The purpose of the sample is largely confirmatory of the independent conclusion of the DRE on whether there is impairment.
Section 254(3.4) of the Code authorizes the taking of a blood sample:
The common law rules for qualification of an expert apply to anyone seeking to qualify a DRE expert.
There previously was a division of opinion of whether an evaluating officer (DRE) requires that the officer be qualified as an expert entitled to give opinion evidence.