Drug-Impaired Driving

• Author: Karen Jokinen/Peter Keen
• Pages: 363-391

363

Drug-

Impaired

Driving

19

I. Introduction ............................................. 364

II. The Scope of the Problem .................................. 364

III. The Charge .............................................. 365

IV. Methods of Investigation and Proof .......................... 365

A. Standardized Field Sobriety Tests: Section 320.27(1) ....... 366

B. Drug Recognition Experts: Evaluating Ocers ............ 368

C. Arrest for Impaired Driving, Drug Evaluation Demand, and

Evaluation ......................................... 373

V. Admissibility of DRE Evidence ............................... 379

VI. Evaluating Ocer’s Opinion and Bodily Fluids Demand .......... 382

VII. DRE Opinion Presumption ................................. 383

VIII. Mens Rea ............................................... 385

IX. Disclosure Issues ......................................... 388

A. Rolling Logs ........................................ 389

X. Conclusion .............................................. 391

© 2023 Emond Montgomery Publications. All Rights Reserved.

364 Impaired Driving and Other Criminal Code Driving Oences

I. Introduction

In 1925, Parliament criminalized driving while intoxicated by a narcotic, and the law

has been revised several times since.1 Between 1925 and 2008, the police had limited

tools beyond their eyes and ears to combat drug-impaired driving. Evidence gather-

ing was based primarily on ocers’ observations of gross drug intoxication. Typi-

cally, police would detect drug-impaired driving only when individuals were obviously

severely impaired by a drug.

This changed on July 2, 2008, when several Criminal Code2 provisions came into

force giving the police new investigative tools to detect, investigate, and charge drug-

impaired drivers. Those tools included the use of standardized field sobriety tests

(SFSTs), the statutory recognition of drug recognition experts (DREs), and drug

evaluations. The result was a significant increase in drug-impaired driving prosecu-

tions and associated litigation.

The 2017 Supreme Court of Canada decision in R v Bingley3 established how DRE

evidence was to be considered by the courts. The new Criminal Code regime passed

via Bill C-464 is Parliament’s response to Bingley and the decade of cases decided

since 2008. The new legislation preserves the existing system, allows DRE evidence

to be admitted without an expert-evidence voir dire and provides a presumption that

is helpful to the Crown.

The discussion in Chapter 4, Impaired Ability to Operate, applies equally to drug-

impaired operation. The current chapter sets out the additional law in relation to the

statutory drug-impaired operation regime.

II. The Scope of the Problem

As with drinking and driving, driving while under the influence of a drug is, sadly,

a common activity. In the United States, a national roadside survey was conducted

between 2013 and 2014. Drivers were randomly selected and asked to provide samples

of breath, oral fluid, and blood. Of these, 7,881 drivers provided an oral fluid sample

and 4,686 provided a blood sample. Oral fluid samples revealed that 19.8 percent

of randomly selected night-time drivers tested positive for psychoactive drugs and

22.5 percent of night-time drivers tested positive for drugs in both oral fluid and/or

blood.5

1 Joseph F Kenkel, Impaired Driving in Canada, 2009 ed (Toronto: LexisNexis Canada, 2008)

ch 1; Curr v The Queen, [1972] SCR 889, 1972 CanLII 15; see also Chapter 1, Legislative

Changes and Sequence of a Drinking and Driving Case, of this book.

2 RSC 1985, c C-46.

3 R v Bingley, 2017 SCC 12.

4 An Act to amend the Criminal Code(oences relating to conveyances)and to make consequential

amendments to other Acts, 1st Sess, 42nd Parl, 2018 (assented to 21 June 2018), SC 2018, c 21.

5 Amy Peaire et al, Report on Drug Per Se Limits (Ottawa: Canadian Society of Forensic Sci-

ences Drugs and Driving Committee, 2017) at 8-12, online (pdf ): <https://www.csfs.ca/wp-

content/uploads/2017/09/Report-on-Drug-Per-Se-Limit.pdf>.

© 2023 Emond Montgomery Publications. All Rights Reserved.