Toronto Criminal Lawyers Blog

Under Canadian law it is illegal to drive when impaired. Usually when we hear about impaired driving in the media, the focus is on drinking and driving. However, it is also illegal to drive while under the influence of drugs. This law applies both to illegal drugs and to prescription drugs which affect the user’s ability to drive.

The focus is not on the legal status of the drug, but on its effects. Drugs that impair depth perception, attention span, concentration, decision-making, and reaction time are all considered to be “impairing”. This would include street drugs such as cocaine and marijuana and also a wide variety of prescription drugs such as morphine, oxycodone, valium and other painkillers. Obviously, drugs that cause hallucinations, distort the user’s perception of time and distance, cause confusion or make it hard to distinguish between fantasy and reality are extremely impairing. This would include a variety of hallucinogenic street drugs such as magic mushrooms, LSD, acid, and also amphetamines such as ecstasy, crystal meth, methylenedioxymethamphetamine (MDMA), dexamphetamine.

If a driver is stopped by a roadside spot check (such as Toronto’s RIDE program) or spotted driving erratically by the police, and the police suspect that he or she is currently impaired by drugs, they will investigate. The police have many resources available to them to test whether an individual is driving under the influence of drugs.

If the police officer has a reasonable suspicion that a suspect is impaired by drugs, he or she may administer a Standardized Field Sobriety Test (SFST). This SFST consists of a series of three tests. The first test is known as the “horizontal gaze nystagmus test”. “Horizontal gaze mystagmus” is the technical terms for the natural involuntary jerking of the eyeball that occurs as the eyes gaze to the side. When an individual is impaired, this jerking becomes exaggerated and occurs earlier. The officer will likely ask the suspect to watch his hand as he moves it from side to side to see if your eyes react abnormally. Moreover, individuals impaired by drugs have difficulty concentrating on a moving object, and so this is also a factor the officer will look for when applying the first test.

The second and third tests in the SFST are known as “divided attention tests”. These test require that the suspect listen and follow instructions while performing simple physical movements. The first is the walk and turn test. The suspect will be instructed to walk nine steps, heel to toe, along a straight line, and then turn on one leg and walk back. The second test is the one leg stand where the suspect is asked to stand on one leg with the other foot about six feet off the ground and count by thousands (“one thousand, two thousand, etc.). Though these tasks would be extremely easy for a sober person to perform, an impaired individual will often have trouble performing these tasks. Impaired individuals often have trouble performing tasks that require them to pay attention to instruction, perform simple mental actions (such as counting in thousands) or performing simple physical acts (such as balancing on one foot). During the “walk and turn test” the officer will watch for seven factors: if the suspect has trouble balancing while listening to the instructions, begins before the instructions are finished, stops while walking to regain his or her balance, does not touch heel-to-toe, uses his or her arms to balance, loses his or her balance while turning, or takes an incorrect number of steps, these will be considered signs of impairment. During the “one leg stand”, the officer will watch to see if the individual has trouble balancing on one foot. If the suspect sways, uses his or her arms for balance, hops on one foot to maintain his or her balance, or looses his or her balance, the officer will view that as a sign of impairment.

The SFSTs are entirely voluntary in every Canadian province except Quebec. In Toronto and the rest of Ontario you are not legally obliged to comply with the SFSTs. There are a variety of reasons why you should not comply with these tests. Though the tests have been studied and shown to be 60-80% accurate when performed properly in ideal conditions, criminal defence lawyers know from experience that, in practice, these test are almost always performed incorrectly in conditions that skew the results. For example, if a suspect is asked to perform these tests on an incline or if the ground is wet, this may interfere with the quality of the results. Moreover, police officers often give poor instructions, causing suspects to misunderstand and subsequently fail the test. Moreover, these skewed results can be used to detain the suspect and transport him or her to the police station for further testing.

If the suspect is detained and taken to the police station, he or she will be evaluated by a Drug Recognition Expert (DRE). If the drug recognition expert is able to evaluate the individual and determine that a specific family of drugs caused the suspect to be impaired, the suspect will be forced to submit to a saliva, urine or blood test. This will be tested for drugs to determine whether or not the individual is impaired.

The new testing regime described above, most notably the mandatory fluid samples, is a relatively new process in Ontario law. It was introduced in July 2008 under Bill C-2: the Tackling Violent Crime Act. There are many reasons why criminal defence lawyers feel that this new legislation is unlikely to be effective. First, unlike alcohol impairment, which is quite obvious, individuals under the influence of marijuana and other similar drugs display few obvious signs of impairment. Though individuals on amphetamines and opiates may display more symptoms of impairment there is very little evidence that these drugs are actually linked to car accidents in any significant way. It seems that most people voluntarily refrain from driving while under the influence of these drugs. Thus, it will be hard to officers to identify correctly suspects to undergo this new process. Second, there is very little evidence that saliva or urine tests provide any accurate information about levels of drugs in the body. The technology for saliva testing of THC (the active drug in marijuana) levels is rudimentary at best. Moreover, urine testing only tells us if the suspect has consumed drugs in the recent past (30 days for marijuana); however, it cannot conclusively link the ingestion of the drug with the time of driving. Only a blood plasma test has the ability to show current levels of drugs in the body. However, since up until now Canadian law has espoused a zero tolerance policy with respect to drugs, there is very little research indicating what levels of each drug in the blood actually leads to “impairment”. Since impairment is a necessary component of the offence of “driving while impaired”, this is an important deficiency in the law. Finally, since a blood test is an invasive procedure and because our law recognizes that individual’s have the right to protect their bodily integrity and make important decisions about their body, mandatory testing – which is unlikely to show conclusive results – it is almost certainly unconstitutional. If you are charged under the new regime, your criminal defence lawyer will certainly challenge the constitutionality of the test. Thus, it is very unlikely that the new process will lead to an increase in convictions of individuals driving while under the influence of drugs.

Recently, in the case of R. v. B., although the Drug Recognition Expert concluded that B was impaired by drug (most likely marijuana), a urine sample taken by the police definitely showed that there was no active drug in B’s bloodstream.

In the controversy surrounding Tiger Wood’s recent driving accident, it has been rumored that Mr. Wood’s blood tests from the hospital revealed that he had consumed alcohol, prescription drugs and sleeping pills before his now-infamous car crash. However, because the police did not request a breathalyzer at the scene of the accident, the media speculates that the blood samples taken from Tiger at the hospital will not be admissible against him in a court of law, should he be charged with an offence arising out of the accident.

If the same thing were to happen in Toronto, would the blood samples be admissible against Tiger Woods assuming he was charged with impaired driving? According to Canadian law, the blood samples obtained from Tiger at the hospital would be admissible in a Canadian court if and only if certain preconditions are met.

Section 8 of the Canadian Charter of Rights and Freedoms guarantees that every individual has the right to be free from unreasonable search and seizure. The testing of an individual’s breath, urine, or blood constitutes “search or seizure” under the law. In order for the police to obtain the sample without violating section 8 of the Charter, they must establish that the search/seizure is reasonable under the law and obtain a search warrant.

The police would have to obtain a search warrant in order to lawfully obtain the samples. A search warrant must be obtained from a judge. A judge will grant a search warrant if he or she finds that, based on the information contained in an application known as a “sworn information”, the officer has reasonable grounds to believe that the individual was impaired at the time of the accident. Thus, one of officers investigating the Woods collision would have to file a “sworn information” stating that he or she had reasonable grounds to believe that Tiger Woods was impaired at the time of the accident. The officer would also have to include a description of the evidence on which he or she formed that belief. The information cannot be based on the results of the blood, urine or breath test. It would be unfair if the police could use the results of the test in order to obtain permission to obtain those results. Thus, the officer must provide independent grounds on which he or she suspects that alcohol or a drug was involved in the collision. For example, if the officer or any witness smelled alcohol on Mr. Wood’s breath, if the hospital or ambulance staff reported smelling alcohol on Mr. Woods, if empty alcohol containers were found in Mr. Wood’s car, if witnesses described Mr. Wood’s behaviour as indicative of intoxication, etc., these factors would provide evidence to support a search warrant request. The judge would then determine whether the sworn information contained sufficient reliable evidence to issue a warrant.

Even if the officer obtains a warrant, the bodily samples taken from the accused will be inadmissible under s. 8 of the Charter if the defence can prove that they were taken without the accused’s consent, prior to the issuing of the warrant, for no purpose other than evidence collecting. If the samples were taken for legitimate health reasons, the police can obtain them after-the-fact pursuant to a warrant without breaching the Charter. However, the police cannot ask the doctor to take the samples and then go get a warrant. This would constitute a breach of the accused’s Charter rights. In the recent case of R. v. Grant the Supreme Court of Canada explicitly stated that “forcible taking of blood samples” will almost always breach the Charter. If the police were to have a nurse or doctor take the samples from the accused for police purposes, this would likely constitute a forcible taking (as the accused is tricked into giving the sample) and the sample would not be admissible at trial. However, if the samples are taken for legitimate health reasons, there is no reason that they would not be admissible after the fact, so long as the officer can persuade a judge that there are reasonable grounds to believe that the accused was impaired, and obtain a search warrant.

Once the Crown has established that the taking of the samples did not breach section 8 of the Charter, the Crown must prove that the samples are a true representation of Tiger’s Blood Alcohol Concentration (BAC) at the time of the accident. To do this, they must establish timing and continuity of the samples.

Under normal circumstances, the Crown benefits from a presumption that the BAC measured in the samples corresponds to the accused individual’s BAC at the time of the offence. In order to benefit from this presumption, the Crown must prove a number of things. For example, two samples must be taken, they must be taken within two hours of the offence, they must be taken “as soon as practicable”, there must not be any unreasonable time delay between the samples, the samples must have been taken by a qualified medical practitioner or qualified technician under the supervision of a doctor, and the samples must be placed directly in approved containers. A number of these conditions may have been lacking in the Woods case. For example, there may have been unreasonable delay between the accident and the taking of the samples, they may not have been taken within the two-hour window, and they may not have been secured directly into an approved container. For this reason, it is unlikely that the Crown will benefit from the presumption. Therefore, the Crown will have to prove that Mr. Wood’s BAC at the time the samples were taken was the same as Mr. Wood’s BAC at the time of the offence. For example, Tiger Wood’s defence lawyer could argue that Mr. Woods consumed the impairing substances right before driving, and that there was not enough time between consumption and driving for the effects of the substances to set in. The Crown will have the burden of disproving this argument.

Proving continuity means proving that the particular bodily samples being entered into evidence did, in fact, come from Mr. Wood’s body and that they have not been tampered with. Under usual circumstances, continuity is presumed because the samples are taken in the police station and immediately sealed and taken to the Center for Forensic Science where they are tested. However, since hospital samples may not have been officially sealed, continuity will be more difficult to prove. The Crown will have to call every individual who handled the samples prior to their collection by the police, as witnesses. In R. v. Katsigiorgis, the court ruled that it is not a violation of s. 8 for the police to seal the samples prior to obtaining a search warrant, in order to preserve continuity. However, there is no evidence that the police did this in the Tiger Wood’s case.

If the Tiger Woods incident occurred in Toronto and the police were able to prove reasonable grounds, obtain a search warrant, establish that the samples were taken for legitimate medical reasons, and establish timing and continuity, the samples would be admissible in a court of law. As the case played out in Florida, the Florida police released a statement saying that they did not suspect any foul play before the rumors about Tiger’s blood samples began to circulate. Assuming the exact same facts occurred in Toronto, this press release would make it extremely unlikely that the Toronto police could obtain a search warrant and seize the samples. This is because, by admitting that they did not suspect foul play, the police admitted that they did not suspect that Tiger was impaired. In other words, they admitted that they did not have reasonable and probable grounds to obtain a search warrant. Thus, if Tiger was indeed impaired at the time of the accident, the evidence of impairment would not be admissible at trial, whether that trial occurred in Florida or Toronto.

The Ontario government has recently made some important changes to the laws governing impaired driving. At Kostman & Pyzer, we are often approached by individuals who have been charged with an drinking and driving- related offence such as “impaired driving” or “over 80”. These individuals face criminal charges which can result in driving suspensions, fines, and jail time. If you are facing one of these charges and you contact our office, we will fight for your rights and make full answer and defence to these charges.

However, the new laws regarding drinking and driving are not aimed at traditionally criminal behaviour and operate differently than the criminal charges usually faced by our clients. The new rules do not target drivers who are found to have a Blood Alcohol Concentration (“BAC”) over the legal limit (0.08). Rather, they target individuals who are found to have a BAC between 0.05 and 0.08. This is traditionally referred to as the “warn range”. Before May 1st, 2009, drivers found operating motor vehicles with a BAC in the warn range were given a warning and received an automatic 12-hour driver’s license suspension. This course of action was taken no matter how many times an individual was found with a BAC in the warn range.

As of May 1, 2009, the procedure for dealing with individuals found driving with alcohol levels within the warn range has changed significantly. Individuals now face increasingly stringent consequences each time they are caught within the warn range.

First Infraction

• 3 day license suspension
• $150 fine.

Second Infraction (within 5 years)

• 7 day license suspension
• Mandatory alcohol education program
• $150 fine.

Third Infraction (within 5 years)

• 30 day license suspension
• Mandatory alcohol education program
• 6 month ignition interlock condition placed on driver’s license for six months. (This condition means that the individual cannot drive any car that does not have an ignition interlock system installed for sixth months from the infraction).
• $150 fine.

Subsequent Infractions (within 5 years)

• 30 day license suspension
• Mandatory alcohol education program
• Mandatory medical evaluation
• 6 month ignition interlock condition placed on driver’s license for six months. (This condition means that the individual cannot drive any car that does not have an ignition interlock system installed for sixth months from the infraction).
• $150 fine.

The new penalties are imposed automatically based on the results of a roadside breath test. If that test registers a BAC in the warn range, your license can be immediately suspended by the police. The officer on the scene will confiscate your license and send it to the Ministry of Transportation. You will not be able to drive home. If there is a sober, licensed alternative driver in the vehicle, that individual can drive you home. If not, you will have to leave the car on the side of the road. If you are pulled over in an unsafe location, the police will have the vehicle towed at your expense. When the suspension period ends, you will receive a reinstatement notice in the mail which will usually include a Temporary Driver’s License (unless there are other outstanding issues with your license). You may then go to a Driver and Vehicle License Issuing Office to pay the $150 fine, after which a new license will be issued to you through the mail.

Unlike the traditional drinking and driving charges mentioned above (“impaired driving” or “over 80”), individuals found driving with a BAC in the warn range do not have a right to a trial. There is no mechanism available to appeal this type of roadside license suspension. These suspensions will appear on your driving record. They will be considered for up to five years in determining penalties for subsequent infractions. These infractions may also carry insurance consequences. However, it is important to note that these infractions are driving infractions and not criminal convictions and as such they will not appear on your criminal record.

Contact the law office of Kostman & Pyzer, Barristers, to protect your rights