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Little case law when it comes to impaired driving on drugs

Toronto criminal lawyer Tushar Pain writes in Lawyers Weekly that he hopes a definitive decision from a higher court will come soon on recent changes to the Criminal Code.

"The litigation of this issue is still at an early stage of development with decisions coming down on both sides," writes Pain. Until a decision is made, "this is a significant issue that has a bearing on the ultimate outcome of an impaired driving by drug case and must be effectively argued no matter which side of the argument you are on."

Pain writes that 2008 amendments to the Tackling Violent Crimes Act gave police enhanced investigative techniques to help aid in the investigation and prosecution of impaired driving by drugs.

"Where a police officer has a reasonable suspicion that an individual is driving impaired by a drug, she can now require the driver to perform physical co-ordination tests that are prescribed by regulation under s. 254(2)," writes Pain. "Following the roadside physical co-ordination testing, if the officer has reasonable grounds to believe that the driver’s ability to operate a motor vehicle is impaired by a drug, she can then demand that the driver go the police station and submit to an 'evaluation' by an 'evaluation officer' under s. 254(3.1)."

An evaluating officer is one who is qualified as a “drug recognition expert” (DRE), writes Pain, "accredited by the International Association of Chiefs of Police. The tests that an evaluation officer (always a police officer) may perform are also prescribed by regulation and consist of a number of physical tests and examinations."

After conducting the evaluation, if the officer has formed a reasonable belief that the driver has been driving impaired under the influence of drugs, she can make a demand under s.254(3.4) for oral fluid, urine, or a blood sample, which is then tested for the presence of drugs.

Though these relatively recent provisions have to date produced little case law, Pain writes, "they remain a hotbed for numerous potential litigable issues. One such issue that has received at least some attention by the courts is the evidentiary use to be made of the evaluation conducted by the evaluation officer."

In several cases, Pain writes, the Crown has argued that, "the evaluation officer should be allowed to testify as an expert witness as to whether the accused’s ability to drive was impaired by a drug in relation to the conducted evaluation ... and that the evaluation officer need not be qualified as an expert by virtue of her status as an evaluation officer under the Criminal Code."

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