Pubdate: Fri, 24 Feb 2017
Source: Globe and Mail (Canada)
Copyright: 2017 The Globe and Mail Company
Author: Mike Hager
Page: S1


The Supreme Court has ruled that specifically trained officers can be
experts in drugged-driving trials

Police officers trained to recognize if drivers are high can be
treated as experts in drugged driving trials without a preliminary
examination of the evidence, the Supreme Court has ruled in a decision
that could help expedite such prosecutions once marijuana is
eventually legalized.

The 5-2 decision in the case of an Ottawa motorist comes as the
federal Liberal government prepares to bring in a law legalizing the
recreational use of pot this spring, with a rise in cannabis-impaired
driving singled out as a key risk to public safety.

"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."

In 2008, Ottawa introduced a 12-part evaluation for drug impairment,
established through regulations, to be administered by police officers
who receive special training and certification - so-called
"drug-recognition experts."

There are 500 active Mounties who have undergone such training, which
represents about a third of all police officers trained as experts
across the country, an RCMP spokesperson confirmed.

Thursday's ruling centres on the May, 2009 case of Carson Bingley, who
cut off a driver, drove across the centre line and into the opposite
lane, nearly striking oncoming traffic before bumping into a car in a
nearby parking lot. After the crash, he failed sobriety tests
administered by a drug-recognition expert and admitted to smoking marijuana.

Mr. Bingley was acquitted of driving while drug impaired despite the
expert's evidence, which the judge at the time found could be admitted
without voir dire, or preliminary examination of the evidence.

An appeal led to a second trial, where a judge found that the evidence
must be vetted in voir dire. The subsequent preliminary examination
led the judge to rule the expert evidence inadmissible, resulting in a
second acquittal. The Crown successfully appealed and a third trial
was ordered; Thursday's Supreme Court ruling means that trial will go

The Criminal Code allows police to compel a person to submit to a
drug-recognition evaluation when there are reasonable grounds to
believe the individual has been driving while impaired by drugs. The
12-step procedure includes eye evaluations, attention tests and
measurements of blood pressure, temperature, pulse and muscle tone. If
the evaluation leads the officer to further believe the person is
impaired by a drug, the officer can then take tests of saliva, urine
or blood to determine whether the driver has drugs in their system.

The Supreme Court ruled that a drug-recognition expert has expertise
beyond the knowledge and experience of a trial judge under the system
set out in law. Ms. McLachlin said that holding a trial within a trial
to evaluate each officer's admissibility as an expert would be "a
waste of judicial resources."

Still, under the current system of enforcement, it can be difficult
for police to get cannabis impaired driving charges to stick because
there are no reliable roadside tests. Several are still in their pilot
stages, and researchers are still trying to determine how, and at what
level, marijuana affects drivers.

A Saskatchewan Provincial Court ruling in August, 2012, decided that
police at a roadside check could not prove a woman was impaired from a
joint she admitted to smoking 21⁄2 hours earlier. That was
despite her failing several field sobriety tests - such as walking in
a straight line and touching her nose - and being given a blood test
at the police station that was positive for THC. The judge stated that
there was no doubt the accused had used the drug before getting in her
car, but there was no proof that it negatively affected her
performance behind the wheel.
- ---
MAP posted-by: Matt