Drug-impairment testing still needs work

Nov 6, 2018

Cannabis has now been legal in Canada for nearly three weeks but that doesn’t mean that the efficacy of roadside impairment testing is where it needs to be. Chief. Supt Dennis Daley of the RCMP told The Fifth Estate that the testing that currently exists for impairment is “not there yet”.

“It’s important for Canadians to realize that we don’t have a tool right now, a similar on the alcohol side, a machine that will actually print out something that says ‘you are this, you are that.’ We do not have that,” says Daley.

Currently the tools that officers use to assess impairment are the standard field sobriety tests that include an eye test (pupil dilation assessment), a walk and turn test as well as the one leg stand test. Some police forces are also using the saliva test that was approved for roadside testing, but many did not order it as there were concerns with its efficacy, particularly in the cold. If an officer feels that there is impairment present in a driver then they are able to take that person to the station and have a Drug Recognition Expert (DRE) assess them using further, more detailed testing which could include a blood test. This more extensive, impairment testing done by the DRE includes twelve different details, including blood pressure, body temperature, muscle tone, and more measured assessment of the eye reactions. If someone is brought to the station to complete this testing, and refuses, it can result in criminal charges.

The Drug Recognition Expert (DRE) programme is run by the RCMP in Canada and to date they have trained 833 DREs across Canada. Police forces from across the country send their officers to the specialized training events, of which there are 25 more planned this year, and additional events planned for the upcoming year as well.

Unfortunately recent studies have shown that the DREs are not that precise in their ability to tell the impairment level that someone has. Although they have been shown to be fairly effective at determining the category of drug someone may be on, assessing impairment is subjective which allows for the possibility of error.

“I do not believe that any police officer starts off their shift by saying ‘I want to make somebody’s life difficult today.’ We are human beings, we are faced with a particular situation, we rely on our training and our experience in order to hopefully do the right thing.” said Daley.

However, though there may be some question as to the validity of the assessment it was decided by the Supreme Court that a DRE does have expertise beyond the knowledge and experience of a trial judge. In a decision by Supreme Court Chief Justice Beverly McLachlin in February of 2017 it was decided that a trial judge is not obliged to hold a voir dire to determine the admissibility of a DREs evidence, with McLachlin stating that doing otherwise would be “a waste of judicial resources.

“Driving while impaired by drugs is a dangerous and, sadly, common activity, prohibited by the Criminal Code,” Chief Justice Beverley McLachlin wrote in her reasons for the majority decision.

“Parliament long ago established a regime to enforce the law against alcohol-impaired driving, with breathalyzer testing and analyst certification at its centre. Enforcing the offence of drug-impaired driving was more elusive.”