(File photo)

Kootnekoff: Drug Impaired Driving in Canada: Who ‘Ya Gonna Call?

— By: Susan Kootnekoff

Our federal government is amending the Criminal Code to better address impaired driving.

These provisions apply to all motor vehicles, including cars, snowmobiles, all terrain vehicles, boats, aircraft and trains.

The bulk of the drug impaired provisions are already in force.

If a police officer has reasonable grounds to suspect that a person has a drug in his or her body the officer may, under section 254(2), demand that the person (a) perform certain physical coordination tests, and (b) provide a sample of a bodily substance to enable a proper analysis by approved drug screening equipment.

The physical coordination tests are an eye test, the walk and turn test, and the one leg stand test.

The only drug screening equipment currently approved is the Dräger DrugTest® 5000. This device can test saliva for THC, the main psychoactive ingredient in cannabis, and certain other drugs such as cocaine.

Under section 254(3.1), if the officer has reasonable grounds to believe that a person is committing the offence of operating a motor vehicle while impaired by a drug, or alcohol and a drug, the officer may require the person to (a) submit to an “evaluation”, or (b) provide a blood sample, in certain circumstances.

The evaluation is conducted by a “drug recognition expert“ (DRE), a police officer who is trained and certified as a DRE.

It will include eye examinations, and a series of “divided attention tests.”

These include tilting one’s head back, closing the eyes, and putting a finger to the nose, as well as the walk and turn and the one leg stand.

Blood pressure, temperature and pulse will be examined to rule out medical factors.

The nose, mouth and pupils will be examined.

Certain areas of the body will be examined for evidence of injection sites.

Muscle tone will be examined, since some drugs may cause muscles to become limp or rigid.

Police officers may make video recordings of physical coordination tests and evaluations.

The DRE’s involvement in the process is critical.

Under section 254(3.4), on completion of the DRE’s evaluation, the DRE may demand a urine sample or, in certain circumstances, blood samples.

A presumption of impairment in certain circumstances has been added.

Penalties under these provisions depend on a number of factors, and can range from a $1000 fine to life imprisonment.

Failing to comply with an officer’s demands, without reasonable excuse, is an offence.

Let’s hope there will be adequate staffing of DREs and that testing equipment, facilities and laboratories will be sufficiently available.

Some have expressed concern with the Dräger device, including (1) its recommended temperature range, (2) the invasiveness of saliva testing, (3) potential false positive results, and (4) the time required to test.

Let’s look at each one briefly.

Temperature: The concern is that the device’s recommended temperature range is inconsistent with our cold Canadian winters.

If the device is used within heated police vehicles, will that be sufficient? We will have to wait and see.

Invasiveness: The concern is that saliva testing is invasive because saliva includes DNA.

Will the samples be retained and used for other purposes? If so, will this result in acquittals?

False Positives: Remember, this is a screening device. If it reveals an issue, additional testing will be required. Any charges would be based on the evaluation and the additional testing.

Testing Time: Obtaining results from urine or blood tests will take some time. This could certainly cause inconvenience to the driver. Will inordinate delays arise, and lead to acquittals?

Different areas within Canada have announced that they will, or will not, use the Drager device. Still others have not yet decided.

These provisions are likely to be challenged under the Canadian Charter of Rights and Freedoms.

Will the Supreme Court of Canada hold that these provisions are reasonably justified in our society to prevail over the rights and liberties of individual drivers?

Will we find ourselves in a situation in which private worksites with rigorous testing programs are, in some ways, safer than the public roadways that we travel on each day?

This much is clear: if you’ve partaken, beware of taking the wheel. At best, your case may be caught in the courts for years. At worst, the charges may stick.

We will have to wait, perhaps for several years, to see what our top court says.

In the meantime, if you suspect a driver may be under the influence of drugs or alcohol, pull over and call 911.

The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Specialist advice from a qualified legal professional should be sought about your specific circumstances. If you would like to reach us, we may be reached at 250-764-7710 or info@inspirelaw.ca. Check out our website at https://inspirelaw.ca/.

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