Historically, it has been difficult for the crown to prove that a person’s ability to operate a motor vehicle was impaired by a drug under section 253(1)(a) of the Criminal Code. However, the enactment of Bill C-2 on July 2, 2008, was partly designed to crack down on impaired driving when a person’s ability to operate a motor vehicle is impaired by a drug. As a result of Bill C-2, the police are charging drivers with driving while they are impaired by a drug much more often than they did previously. It is expected that this trend will continue as the police and parliament continue to crack down on this type of activity.

Among the changes brought about by Bill C-2 were provisions for mandatory physical tests and drug evaluation officers and evaluation tests. New section 254.1 of the Criminal Code provides for regulations prescribing the qualifications and training of drug evaluation officers, the physical coordination tests, and the drug evaluation tests which are to be implemented.

Section 245(3.1) authorizes a peace officer in certain situations to demand that a person submit to an evaluation by an evaluating officer to determine whether the person’s ability to operate a motor vehicle is impaired by a drug or a combination of alcohol and a drug. Police forces across Ontario are currently training more of their officers to be drug evaluation officers and it is expected this will continue to result in more impaired driving by drug charges in the future.

The Regulations under these sections have been declared and they set out the qualifications required for an evaluating officer and the physical coordination tests (horizontal gaze nystagmus tests, walk and turn test and the one-leg stand test) which are to be applied under section 254(2)(a).

Canada’s Parliament will likely have more legislative changes in the works relating to the complex drug-impaired driving laws including the possibility of a saliva test for drivers who are suspected of driving while being impaired by drugs. The legalization of marijuana is very concerning to the police and many members of the public. There exists the possibility of an explosion in the number of drug-related driving charges given the legalization of marijuana in Canada and the ongoing efforts by the police to deter impaired driving by a drug.

Michael Kruse is a leading Ontario DUI lawyer with over 29 years of trial experience practicing in the areas of impaired driving and criminal law.

There are also evaluation tests and procedures under section 254(3.1) including a preliminary examination (measuring pulse and pupil eye tracking), eye examination (horizontal and vertical gaze nystagmus test, lack of convergence test), various divided attention tests (Romberg balance test, walk and turn test, one-leg stand test, and finger to nose test), an examination (blood pressure, temperature, and pulse), examination of pupil sizes, an examination (checking muscle tone and pulse), and a visual exam (arms, neck, and legs for evidence of injection.)

It is stating the obvious to say that these tests are open to subjective interpretation and inherent bias. The complexity of the law is mind-boggling to criminal lawyers who do not regularly study this area of the law and handle a volume of impaired driving by drug cases. It remains to be seen how the new Bill C2 crackdown on drivers who are impaired by drugs will play out in court. court. In Kruse Law Firm’s experience, many of these types of drug-related driving cases are winnable due to the subjective nature of the drug testing evaluations. However, there is no doubt that these DWI, DUI, and OVI charges and the drug evaluation laws will be vigorously challenged in court by Kruse Law Firm. We will continue to be leaders in challenging and cross-examining the facts of every individual case in court to attempt to create reasonable doubt and win the case.

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