Evidence of meeting #77 for Justice and Human Rights in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was dre.
A recording is available from Parliament.
Cpl Evan Graham
Not to date. We have had some with methamphetamine, but for the most part we're still looking at what would be termed as the softer drugs.
Bloc
Réal Ménard Bloc Hochelaga, QC
Thank you.
As I see it, the reason we have asked you to come back is that we have heard contradictory testimony on the operational nature of existing technologies and on the ability to detect drugs in the body at the time the individual is supposed to be impaired by those drugs. We're told that there are residues that make it possible to detect the presence of certain drugs in the body 12 and even 15 days after they are taken. It's obviously more difficult to establish a conclusive correlation between the time when the drugs were taken and the impairment at the time the driver is at the wheel.
I don't know whether documents were tabled yesterday, since I was in the House for Bill C-59, but I would like you to explain to us in detail both how the tests work and in what they consist. For example, as regards the drug recognition experts, I would like it to be explained to us where they will be, how they will be trained and what budgets will be available for that purpose. Let's start with a fairly accurate description of the standardized sobriety test. Your colleague gave us a little information yesterday about alcohol. Then let's continue with the 12 steps for the drug recognition experts so that it's clear. I would like that information to be submitted to committee members so that it's educationally conclusive for us when we do the clause-by-clause consideration of the bill.
Co-Chair, Drugs and Driving Committee, Canadian Society of Forensic Science
All right, Mr. Ménard.
I think that, for the first step, which is screening for the presence of a drug or a combination of alcohol and drugs that could impair faculties, under proposed paragraph 253.1(2)(a), Corporal Graham will give you the details since he teaches that part of the standardized sobriety tests. Our scientific staff supports that instruction, but it really depends on coordination.
With regard to the first step, I'll hand over to Corporal Graham.
Cpl Evan Graham
Initially we have to have some reason to stop a vehicle, whether it's through a road check or driving evidence. If there is any evidence that the person may be impaired, we can, with this legislation, make a demand for the person to participate in the standardized field sobriety tests. The sobriety tests are used simply to enhance suspicion and elevate it to reasonable and probable grounds that the person is impaired by a substance.
If there is sufficient issue to warrant a breath demand, the breath demand will be made. But if the person claims they haven't had anything to drink, there is no odour of liquor on the person's breath—
Bloc
Réal Ménard Bloc Hochelaga, QC
That's not the legal sequence. I know the legal sequence and the process. What does the standardized sobriety test consist of for drugs? What is checked? How is it administered?
Cpl Evan Graham
Well, the sobriety tests are done the same, whether it's for alcohol, drugs, a medical problem, or fatigue. The tests were evaluated in the United States to a blood alcohol concentration of 80 milligrams percent, or 0.08, but the effects of the impairment are the same, depending on what drug it is, because drugs affect people differently.
For example, the depressant category, which alcohol falls under, you'd find the indicia being virtually the same as for somebody who'd had too much to drink. Cannabis, on the other hand, is more mentally impairing than physically impairing, so each category has different things that we're looking for. Although we look at the totality of the evaluation, if the person has problems with the validated clues, then that raises our suspicion that the person is impaired.
Bloc
Réal Ménard Bloc Hochelaga, QC
Once again, that's not my question. Let's suppose you arrest me on the road because you have reason to believe that I have taken drugs, regardless of which drug, but let's make it as simple as possible: let's say it's cannabis. What are you going to check? Is it my teetering, the coordination of my movements, the way I touch my nose? Are you going to ask me to walk a straight line? I want to understand how the tests are conducted, because everything starts with that, in a way. What do you do? Take me as a guinea pig. I'm arrested and I've smoked cannabis. What are you going to check with the standardized sobriety tests? What are those tests? And then, what are the 12 steps? That's what I want to understand.
Cpl Evan Graham
Well, the sobriety tests themselves are divided attention tests. They don't mimic what you do driving, but they divide your attention between what your mental process is and the physical tests that are being done. As with driving, you're multi-tasking. These tests are simply to have you multi-task. If you can't multi-task, then you probably shouldn't be driving.
The indicators that we look for are different from test to test. We can't categorize drugs based on the sobriety test. All we can do is say the person is either impaired or not impaired, or believed to be impaired. In order to say whether it's drugs, alcohol, fatigue, a medical issue, we have to go through the entire evaluation. There are four drug categories that affect the eyes in one way, three that don't—how people react to light, their pulse rate is different for different categories, their blood pressure is different, body temperature, and the person's muscle tone.
Co-Chair, Drugs and Driving Committee, Canadian Society of Forensic Science
If I may intervene, if I'm not mistaken, I think there may be a translation issue here. I think Monsieur Ménard wants to know at the various roadsides exactly what standard field sobriety tests will be administered. What you're describing is back at the DRE stage.
I'm sorry, I simply wanted everybody to be clear.
Cpl Evan Graham
My apologies.
There are three tests. The first is horizontal gaze nystagmus. Horizontal gaze nystagmus is the involuntary jerking of the eyes. Everyone has it, but some drugs enhance it to the point at which it's readily visible.
The second test is a walk and turn test. That's walking a line heel to toe, nine steps up the line, nine steps back down the line, making a turn in a prescribed fashion while watching your feet, counting out loud and not stopping until the test is completed.
The third test is a one-leg stand, where the person stands on one leg with the other one raised, with the foot elevated approximately six inches off the ground, the toe pointed. The subject looks at their foot and counts out loud, “One-thousand-one, one-thousand-two, one-thousand-three”, until 30 seconds has elapsed.
Bloc
Réal Ménard Bloc Hochelaga, QC
I don't want to impose on the committee's time, but I wonder whether we should vote for a bill that will make it possible to charge people for driving with faculties impaired by drugs, when there are significant weaknesses in the detection technologies. You understand that we have a responsibility as parliamentarians. Now I have a better understanding of the standardized sobriety tests. What are the 12 steps for recognizing drugs?
Cpl Evan Graham
The steps for drug recognition evaluation are as follows.
First, we take a breath sample to rule out alcohol as the primary cause of impairment. We then speak to the arresting officer to find out what the arresting officer saw at the scene.
Generally speaking, we're looking at half an hour to an hour before we get the subject before us, and the indicia may have changed. We then do a preliminary examination, where we take a pulse, estimate the size of the pupils, and see if the pupils track together to rule out a medical problem.
The fourth step is checking for horizontal gaze nystagmus again.
Now we're in a controlled environment where there are not going to be any distractions from traffic or persons. We go through the divided attention test again, that being the walk and turn, and standing on one leg.
We also add a test that's called a modified Romberg balance test, where you put your feet together, close your eyes, tilt your head back, and estimate the passage of 30 seconds.
The last is a finger-nose test, where the subject touches the tip of their finger to the tip of their nose, using instructions from the evaluator.
The sixth step is checking for clinical indicators, that is pulse again, blood pressure, and body temperature. We then move to a room that is capable of being darkened, so we can check the pupil size in room light, near total darkness, and then in direct light, by shining a penlight right in the pupil to see how it reacts and what size it constricts to. During that test, we check the oral cavity to see if there are any signs of ingestion, and also the nose. At the conclusion of that, we check for muscle tone, basically from the shoulder to the wrist, to see if the person is an injection drug user. During that, we'll take a third pulse.
At the conclusion of this, we can put the person into one or more of seven drug categories, or rule out drug impairment as the cause. If we believe the person is impaired by drugs, we will then interview the subject, pointing out what we've seen. In 99% of the cases, they admit to what we've called.
We then render an opinion and obtain the toxicology sample for forwarding to the lab for confirmation of the evaluation.
Joe Comartin NDP Windsor—Tecumseh, ON
Thank you, Mr. Chair.
Thank you, witnesses, for being here.
Corporal Graham, I have a quick point so that we're clear. In terms of stage one, the roadside analysis, under the existing provisions of the code, you can do that without permission. Basically, under the impairment section of the code, you are entitled to make those types of assessments of an individual.
Cpl Evan Graham
We can, as long as they're voluntary. The person can refuse to do them, and we have no recourse.
There is a Supreme Court of Canada ruling that we can ask the person to do them, not tell them that they're voluntary, obtain the results, and then use them for elevation of suspicion to reasonable and probable grounds.
If we're trying to tie it into impairment, then the person has to be given their right to counsel beforehand.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
But it's clear that at stages two and three—the DRE stage and then the toxicology assessment stage, or taking the sample—you can't do that under the existing law.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
If it's voluntary, okay.
If your initial suspicion is unclear as to whether it's alcohol or drugs, would the sobriety test that you apply at the side of the road be the same?
Cpl Evan Graham
The sobriety tests are the same, regardless of what substance or condition is causing the perceived impairment.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Again, under existing law, if it is alcohol, the person still has the right to refuse to do the test.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
The difference is that if you suspect alcohol, you can demand the breath sample.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
With regard to the court cases you mentioned, which were asked about earlier, were any of the cases that actually went to trial reported?
