Five years after the federal government amended the Criminal Code to give police new tools to go after drug-impaired drivers, the RCMP has acknowledged in an internal report that support from Crown prosecutors “varies across Canada” and getting charges to stick has been a challenge.
One problem is a lack of expert witnesses who can be called upon to validate the methods used by police to detect and evaluate suspected drug-impaired drivers, says the report, which was obtained under access-to-information laws. There’s also limited data collection and monitoring of cases nationally to see what works and what doesn’t work.
The advocacy group, Mothers Against Drunk Driving Canada (MADD), has said the so-called Drug Recognition Expert program should be abandoned and replaced with a program of random roadside drug screenings, similar to those used in Australia and some parts of Europe.
But in an email, RCMP spokesman Sgt. Greg Cox said the current program has shown it can make a difference and there are no plans to discontinue it.
“The applicable legislation is still relatively new, and while there is much education to do, the DRE program is building strong case-law to support the judicial process,” Cox said.
Under the 2008 Criminal Code amendments, an officer who suspects a driver may be impaired by drugs can demand that the driver take part in a physical co-ordination test, known as a Standardized Field Sobriety Test.
If the driver fails that test, the officer can compel the driver to go to the police station for a lengthier evaluation by a certified drug-recognition expert.
If, at the end of that evaluation, the expert believes the driver is impaired by a particular drug, the expert can order the driver to submit a blood, urine or saliva sample to confirm the presence of that drug.
But a major challenge police and prosecutors have run up against is convincing judges that the presence of a drug in a person’s system actually impaired that person’s ability to operate a vehicle at the time they were driving.
“Despite the published studies evidencing the accuracy of the DRE program, prosecuting drug-impaired driving in Canada has proven to be challenging for a number of reasons,” said the RCMP report.
“In particular, prosecutions have been hindered by insufficient numbers of forensic toxicologists and other expert witnesses who can provide validation testimony to the court. This has contributed to an overall lack of judicial awareness about DRE.
“In addition, the lack of data collection and a central repository which is vital in supporting the judicial process has been very limited.”
There have been some wins.
Cox cited a case from last month in which a Quebec man was convicted of impaired driving causing death because he combined medication with alcohol before striking an elderly couple with his car.
It is believed to be the first time in Canada that someone was convicted of impaired driving causing death in a trial based, in part, on evidence provided by a drug-recognition expert, the Montreal Gazette reported.
Cox said the force has enlisted forensic labs to train more toxicologists in the area of drug recognition evaluations and “build their subject matter expertise to assist with court testimony.”
Further, workshops are being provided to Crown prosecutors to familiarize them with the DRE process and the effects of prescription and non-prescription drugs on drivers, he said.
“There are several Canadian Crowns who are very committed to DRE,” the RCMP internal report said. “By capitalizing on their expertise, we can increase the number of Crowns capable of prosecuting DRE investigations.”
However, critics point out that there is still a dearth of frontline officers in the country trained to detect and evaluate suspected drug-impaired drivers.
While 1,300 officers across the country have received drug-recognition expert training, only 503 had active certifications as of January.
The RCMP, which until now has coordinated and funded all the training across the country, is in the process of passing on much of the responsibility — it costs about $140,000 to train a class of 24 — to provincial and municipal police agencies.
It remains to be seen how much buy-in there is from municipal and provincial police forces.
“All the jurisdictions and municipal agencies are aware of the gradual transition and in the process of taking ownership of the training and re-certification process,” Cox said.
But the advocacy group MADD thinks it has a better solution.
In a report released last year, the group called the current system for evaluating suspected drug-impaired drivers to be “cumbersome, time-consuming, expensive” and vulnerable to court challenges.
It also said the law remains “grossly under-enforced,” citing 2010 statistics that showed 915 people were charged with drug-impaired driving nationwide, representing 1.4 per cent of the total number of impaired-driving charges laid.
MADD said lawmakers should adopt drug-intake limits for common illicit drugs, such as marijuana, similar to the 0.08 blood alcohol concentration limit. It also suggested a more effective way to nab drug-impaired drivers would be to adopt random roadside saliva tests to screen drivers for the presence of illicit drugs.
The report’s authors acknowledge that such random tests would likely result in Charter challenges. There are also differing opinions about how much of a certain drug needs to be consumed before a person becomes impaired.