Accounting for Law

Decision key in drug-impairment cases

A court decision that noted it’s not necessary to deem police as experts in order for them to give their opinion in drug-impaired driving cases provides some clarity to the concerns around the science underpinning the tests they conduct, Toronto criminal lawyer Joseph Neuberger tells Law Times.

“A lot of it is not very strong science and a lot of the tests are subjective,” he tells the legal news publication. “Their evidence cannot be dispositive of whether an individual has a drug in their system.

Neuberger, partner at Neuberger & Partners LLP, notes in the article there’s a difference between the expertise of someone such as a toxicologist and a drug evaluation officer.

He made the comments in connection to R. v. Cripps.

In that matter, Justice Brent Knazan of the Ontario Court of Justice, after analyzing the regulation passed under s. 254.1 of the Criminal Code, ruled against the Crown’s bid to deem drug evaluation officers as experts and to weigh their evidence as such, says Law Times.

Police stopped Emily Cripps in November 2011 after she turned left at an intersection despite a sign prohibiting turns after 4 p.m., says the decision. An officer approached her car and saw what she thought were burnt marijuana cigarettes and a strong smell of marijuana.  Cripps was pale, her pupils were dilated, she slurred her words a little bit and said, “I’m sorry, I’m sorry," says the decision.

Based on the improper turn, her manner of stopping the vehicle, her observation of the marijuana cigarettes and the driver's pupils and speech, the officer arrested Cripps for operating a motor vehicle while her ability to do so was impaired by drugs. The officer then called a more experienced officer to conduct physical tests to determine under s.254 (2)(a) of the Criminal Code whether there were grounds to make a demand under s.254(3.1). That officer determined there were and he demanded a urine sample after conducting an initial assessment. The woman complied with the demand. 

The circumstances left Knazan with deciding what weight to give the drug evaluation officer’s finding that he had reasonable grounds to believe Cripps’ ability to drive was impaired by a drug, says Law Times.

In my opinion the legislation, despite its use of the word 'expert' in the regulation stating the qualifications of an evaluating officer does not address the issue of expert evidence at all,” wrote Knazan in his ruling.

It's the latest court case that looks at whether drug-evaluation officers must be deemed experts when providing evidence in court.

In the Law Times article, Neuberger compares the issue to sobriety testing and notes the court doesn’t deem the roadside officer observing someone’s driving and behaviour to be an expert. What’s key to establishing the person's guilt, or not, is the intoxilyzer evidence that comes afterwards along with the officer’s observations, says the publication. With drug-impaired cases, the blood and urinary tests come into play along with the findings of the roadside and drug evaluation officers, as well as any experts called in, says the article.

“We overdo this expertise stuff. Anybody can be an expert,” Neuberger tells the publication. “It gives credibility where credibility should not be given.”

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